U.S. Supreme Court Regents of Univ. of California v.
Bakke, 438
U.S. 265 (1978) Regents of the University of
California v. Bakke No. 7811 Argued October 12,
1977 Decided June 28, 1978 438
U.S. 265 CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA Syllabus The Medical School of the University of California at Davis
(hereinafter Davis) had two admissions programs for the entering
class of 100 students -- the regular admissions program and the
special admissions program. Under the regular procedure, candidates
whose overall undergraduate grade point averages fell below 2.5 on
a scale of 4.0 were summarily rejected. About one out of six
applicants was then given an interview, following which he was
rated on a scale of 1 to 100 by each of the committee members (five
in 1973 and six in 1974), his rating being based on the
interviewers' summaries, his overall grade point average, his
science courses grade point average, his Medical College Admissions
Test (MCAT) scores, letters of recommendation, extracurricular
activities, and other biographical data, all of which resulted in a
total "benchmark score." The full admissions committee then made
offers of admission on the basis of their review of the applicant's
file and his score, considering and acting upon applications as
they were received. The committee chairman was responsible for
placing names on the waiting list and had discretion to include
persons with "special skills." A separate committee, a majority of
whom were members of minority groups, operated the special
admissions program. The 1973 and 1974 application forms,
respectively, asked candidates whether they wished to be considered
as "economically and/or educationally disadvantaged" applicants and
members of a "minority group" (blacks, Chicanos, Asians, American
Indians). If an applicant of a minority group was found to be
"disadvantaged," he would be rated in a manner similar to the one
employed by the general admissions committee. Special candidates,
however, did not have to meet the 2.5 grade point cutoff and were
not ranked against candidates in the general admissions process.
About one-fifth of the special applicants were invited for
interviews in 1973 and 1974, following which they were given
benchmark scores, and the top choices were then given to the
general admissions committee, which could reject special candidates
for failure to meet course requirements or other specific
deficiencies. The special committee continued to recommend
candidates until 16 special admission selections had been made.
During a four-year period, 63 minority Page 438 U. S. 266 students were admitted to Davis under the special program and 44
under the general program. No disadvantaged whites were admitted
under the special program, though many applied. Respondent, a white
male, applied to Davis in 1973 and 1974, in both years being
considered only under the general admissions program. Though he had
a 468 out of 500 score in 1973, he was rejected, since no general
applicants with scores less than 470 were being accepted after
respondent's application, which was filed late in the year, had
been processed and completed. At that time, four special admission
slots were still unfilled. In 1974 respondent applied early, and
though he had a total score of 549 out of 600, he was again
rejected. In neither year was his name placed on the discretionary
waiting list. In both years, special applicants were admitted with
significantly lower scores than respondent's. After his second
rejection, respondent filed this action in state court for
mandatory, injunctive, and declaratory relief to compel his
admission to Davis, alleging that the special admissions program
operated to exclude him on the basis of his race in violation of
the Equal Protection Clause of the Fourteenth Amendment, a
provision of the California Constitution, and § 601 of Title VI of
the Civil Rights Act of 1964, which provides, inter alia, that no person shall on the ground of race or color be excluded
from participating in any program receiving federal financial
assistance. Petitioner cross-claimed for a declaration that its
special admissions program was lawful. The trial court found that
the special program operated as a racial quota, because minority
applicants in that program were rated only against one another, and
16 places in the class of 100 were reserved for them. Declaring
that petitioner could not take race into account in making
admissions decisions, the program was held to violate the Federal
and State Constitutions and Title VI. Respondent's admission was
not ordered, however, for lack of proof that he would have been
admitted but for the special program. The California Supreme Court,
applying a strict scrutiny standard, concluded that the special
admissions program was not the least intrusive means of achieving
the goals of the admittedly compelling state interests of
integrating the medical profession and increasing the number of
doctors willing to serve minority patients. Without passing on the
state constitutional or federal statutory grounds, the court held
that petitioner's special admissions program violated the Equal
Protection Clause. Since petitioner could not satisfy its burden of
demonstrating that respondent, absent the special program, would
not have been admitted, the court ordered his admission to
Davis. Held: The judgment below is affirmed insofar as it
orders respondent's admission to Davis and invalidates petitioner's
special admissions program, Page 438 U. S. 267 but is reversed insofar as it prohibits petitioner from taking
race into account as a factor in its future admissions
decisions. 18 Cal. 3d 34 ,
553 P.2d 1152, affirmed in part and reversed in part.

															MR. JUSTICE POWELL concluded:

															1. Title VI proscribes only those racial classifications that
would violate the Equal Protection Clause if employed by a State or
its agencies. Pp. 438 U. S.
281 -287.

															2. Racial and ethnic classifications of any sort are inherently
suspect and call for the most exacting judicial scrutiny. While the
goal of achieving a diverse student body is sufficiently compelling
to justify consideration of race in admissions decisions under some
circumstances, petitioner's special admissions program, which
forecloses consideration to persons like respondent, is unnecessary
to the achievement of this compelling goal, and therefore invalid
under the Equal Protection Clause. Pp. 438 U. S.
287 -320.

															3. Since petitioner could not satisfy its burden of proving that
respondent would not have been admitted even if there had been no
special admissions program, he must be admitted. P. 438 U. S.
320 .

															MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL,
and MR. JUSTICE BLACKMUN concluded:

															1. Title VI proscribes only those racial classifications that
would violate the Equal Protection Clause if employed by a State or
its agencies. Pp. 438 U. S.
328 -355.

															2. Racial classifications call for strict judicial scrutiny.
Nonetheless, the purpose of overcoming substantial, chronic
minority underrepresentation in the medical profession is
sufficiently important to justify petitioner's remedial use of
race. Thus, the judgment below must be reversed in that it
prohibits race from being used as a factor in university
admissions. Pp. 438 U. S.
355 -379.

															MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE REHNQUIST, being of the view that whether
race can ever be a factor in an admissions policy is not an issue
here; that Title VI applies; and that respondent was excluded from
Davis in violation of Title VI, concurs in the Court's judgment
insofar as it affirms the judgment of the court below ordering
respondent admitted to Davis. Pp. 438 U. S.
408 -421.

															POWELL, J., announced the Court's judgment and filed an opinion
expressing his views of the case, in Parts I, III-A, and V-C of
which WHITE, J., joined; and in Parts I and V-C of which BRENNAN,
MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, WHITE, MARSHALL, and
BLACKMUN, Page 438 U. S. 268 JJ., filed an opinion concurring in the judgment in part and
dissenting in part, post, p. 438 U. S. 324 .
WHITE, J., post, p. 438 U. S. 379 ,
MARSHALL, J., post, p. 438 U. S. 387 ,
and BLACKMUN, J., post, p. 438 U. S. 402 ,
filed separate opinions. STEVENS, J., filed an opinion concurring
in the judgment in part and dissenting in part, in which BURGER,
C.J., and STEWART and REHNQUIST, JJ., joined, post, p. 438 U. S.
408 . Page 438 U. S. 269 MR. JUSTICE POWELL announced the judgment of the Court.

															This case presents a challenge to the special admissions program
of the petitioner, the Medical School of the University of
California at Davis, which is designed to assure the admission Page 438 U. S. 270 of a specified number of students from certain minority groups.
The Superior Court of California sustained respondent's challenge,
holding that petitioner's program violated the California
Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. §
2000d et seq., and the Equal Protection Clause of the
Fourteenth Amendment. The court enjoined petitioner from
considering respondent's race or the race of any other applicant in
making admissions decisions. It refused, however, to order
respondent's admission to the Medical School, holding that he had
not carried his burden of proving that he would have been admitted
but for the constitutional and statutory violations. The Supreme
Court of California affirmed those portions of the trial court's
judgment declaring the special admissions program unlawful and
enjoining petitioner from considering the race of any applicant. * Page 438 U. S. 271 It modified that portion of the judgment denying respondent's
requested injunction and directed the trial court to order his
admission.

															For the reasons stated in the following opinion, I believe that
so much of the judgment of the California court as holds
petitioner's special admissions program unlawful and directs that
respondent be admitted to the Medical School must be affirmed. For
the reasons expressed in a separate opinion, my Brothers THE CHIEF
JUSTICE, MR. JUSTICE STEWART, MR. JUSTICE REHNQUIST, and MR.
JUSTICE STEVENS concur in this judgment. Page 438 U. S. 272 I also conclude, for the reasons stated in the following
opinion, that the portion of the court's judgment enjoining
petitioner from according any consideration to race in its
admissions process must be reversed. For reasons expressed in
separate opinions, my Brothers MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN concur in
this judgment. Affirmed in part and reversed in part. I **

															The Medical School of the University of California at Davis
opened in 1968 with an entering class of 50 students. In 1971, the
size of the entering class was increased to 100 students, a level
at which it remains. No admissions program for disadvantaged or
minority students existed when the school opened, and the first
class contained three Asians but no blacks, no Mexican-Americans,
and no American Indians. Over the next two years, the faculty
devised a special admissions program to increase the representation
of "disadvantaged" students in each Medical School class. [ Footnote 1 ] The special program
consisted of Page 438 U. S. 273 a separate admissions system operating in coordination with the
regular admissions process.

															Under the regular admissions procedure, a candidate could submit
his application to the Medical School beginning in July of the year
preceding the academic year for which admission was sought. Record
149. Because of the large number of applications, [ Footnote 2 ] the admissions committee screened
each one to select candidates for further consideration. Candidates
whose overall undergraduate grade point averages fell below 2.5 on
a scale of 4.0 were summarily rejected. Id. at 63.
About Page 438 U. S. 274 one out of six applicants was invited for a personal interview. Ibid. Following the interviews, each candidate was rated
on a scale of 1 to 100 by his interviewers and four other members
of the admissions committee. The rating embraced the interviewers'
summaries, the candidate's overall grade point average, grade point
average in science courses, scores on the Medical College
Admissions Test (MCAT), letters of recommendation, extracurricular
activities, and other biographical data. Id. at 62. The
ratings were added together to arrive at each candidate's
"benchmark" score. Since five committee members rated each
candidate in 1973, a perfect score was 500; in 1974, six members
rated each candidate, so that a perfect score was 600. The full
committee then reviewed the file and scores of each applicant and
made offers of admission on a "rolling" basis. [ Footnote 3 ] The chairman was responsible for
placing names on the waiting list. They were not placed in strict
numerical order; instead, the chairman had discretion to include
persons with "special skills." Id. at 63-64.

															The special admissions program operated with a separate
committee, a majority of whom were members of minority groups. Id. at 163. On the 1973 application form, candidates were
asked to indicate whether they wished to be considered as
"economically and/or educationally disadvantaged" applicants; on
the 1974 form the question was whether they wished to be considered
as members of a "minority group," which the Medical School
apparently viewed as "Blacks," "Chicanos," "Asians," and "American
Indians." Id. at 65-66, 146, 197, 203-205, 216-218. If
these questions were answered affirmatively, the application was
forwarded to the special admissions committee. No formal definition
of "disadvantaged" Page 438 U. S. 275 was ever produced, id. at 163-164, but the chairman of
the special committee screened each application to see whether it
reflected economic or educational deprivation. [ Footnote 4 ] Having passed this initial hurdle, the
applications then were rated by the special committee in a fashion
similar to that used by the general admissions committee, except
that special candidates did not have to meet the 2.5 grade point
average cutoff applied to regular applicants. About one-fifth of
the total number of special applicants were invited for interviews
in 1973 and 1974. [ Footnote 5 ]
Following each interview, the special committee assigned each
special applicant a benchmark score. The special committee then
presented its top choices to the general admissions committee. The
latter did not rate or compare the special candidates against the
general applicants, id. at 388, but could reject
recommended special candidates for failure to meet course
requirements or other specific deficiencies. Id. at
171-172. The special committee continued to recommend special
applicants until a number prescribed by faculty vote were admitted.
While the overall class size was still 50, the prescribed number
was 8; in 1973 and 1974, when the class size had doubled to 100,
the prescribed number of special admissions also doubled, to 16. Id. at 164, 166.

															From the year of the increase in class size -- 1971 -- through
1974, the special program resulted in the admission of 21 black
students, 30 Mexican-Americans, and 12 Asians, for a total of 63
minority students. Over the same period, the regular admissions
program produced 1 black, 6 Mexican-Americans, Page 438 U. S. 276 and 37 Asians, for a total of 44 minority students. [ Footnote 6 ] Although disadvantaged
whites applied to the special program in large numbers, see n 5, supra, none received an offer of admission through that
process. Indeed, in 1974, at least, the special committee
explicitly considered only "disadvantaged" special applicants who
were members of one of the designated minority groups. Record
171.

															Allan Bakke is a white male who applied to the Davis Medical
School in both 1973 and 1974. In both years, Bakke's application
was considered under the general admissions program, and he
received an interview. His 1973 interview was with Dr. Theodore C.
West, who considered Bakke "a very desirable applicant to [the]
medical school." Id. at 225. Despite a strong benchmark
score of 468 out of 500, Bakke was rejected. His application had
come late in the year, and no applicants in the general admissions
process with scores below 470 were accepted after Bakke's
application was completed. Id. at 69. There were four
special admissions slots unfilled at that time, however, for which
Bakke was not considered. Id. at 70. After his 1973
rejection, Bakke wrote to Dr. George H. Lowrey, Associate Dean and
Chairman of the Admissions Committee, protesting that the special
admissions program operated as a racial and ethnic quota. Id. at 259. Page 438 U. S. 277 Bakke's 1974 application was completed early in the year. Id. at 70. His student interviewer gave him an overall
rating of 94, finding him "friendly, well tempered, conscientious
and delightful to speak with." Id. at 229. His faculty
interviewer was, by coincidence, the same Dr. Lowrey to whom he had
written in protest of the special admissions program. Dr. Lowrey
found Bakke "rather limited in his approach" to the problems of the
medical profession, and found disturbing Bakke's "very definite
opinions which were based more on his personal viewpoints than upon
a study of the total problem." Id. at 226. Dr. Lowrey gave
Bakke the lowest of his six ratings, an 86; his total was 549 out
of 600. Id. at 230. Again, Bakke's application was
rejected. In neither year did the chairman of the admissions
committee, Dr. Lowrey, exercise his discretion to place Bakke on
the waiting list. Id. at 64. In both years, applicants
were admitted under the special program with grade point averages,
MCT scores, and benchmark scores significantly lower than Bakke's.
[ Footnote 7 ]

															After the second rejection, Bakke filed the instant suit in the
Superior Court of California. [ Footnote 8 ] He sought mandatory, injunctive, and
declaratory relief compelling his admission to the Medical School.
He alleged that the Medical School's special admissions program
operated to exclude him from the Page 438 U. S. 278 school on the basis of his race, in violation of his rights
under the Equal Protection Clause of the Fourteenth Amendment,
[ Footnote 9 ] Art. I, § 21, of
the California Constitution, [ Footnote 10 ] and § 601 of Title VI of the Civil Rights
Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d. [ Footnote 11 ] The University cross-complained for
a declaration that its special admissions program was lawful. The
trial Page 438 U. S. 279 court found that the special program operated as a racial quota
because minority applicants in the special program were rated only
against one another, Record 388, and 16 places in the class of 100
were reserved for them. Id. at 295-296. Declaring that the
University could not take race into account in making admissions
decisions, the trial court held the challenged program violative of
the Federal Constitution, the State Constitution, and Title VI. The
court refused to order Bakke's admission, however, holding that he
had failed to carry his burden of proving that he would have been
admitted but for the existence of the special program.

															Bakke appealed from the portion of the trial court judgment
denying him admission, and the University appealed from the
decision that its special admissions program was unlawful and the
order enjoining it from considering race in the processing of
applications. The Supreme Court of California transferred the case
directly from the trial court, "because of the importance of the
issues involved." 18 Cal. 3d 34 ,
39, 553 P.2d 1152, 1156 (1976). The California court accepted the
findings of the trial court with respect to the University's
program. [ Footnote 12 ]
Because the special admissions program involved a racial
classification, the Supreme Court held itself bound to apply strict
scrutiny. Id. at 49, 553 P.2d at 1162-1163. It then turned
to the goals of the University presented as justifying the special
program. Although the court agreed that the goals of integrating
the medical profession and increasing the number of physicians
willing to serve members of minority groups were compelling state
interests, id. at 53, 553 P.2d at 1165, it concluded that
the special admissions program was not the least intrusive means of
achieving those goals. Without passing on the state constitutional
or federal statutory grounds cited in the trial court's judgment,
the California court held Page 438 U. S. 280 that the Equal Protection Clause of the Fourteenth Amendment
required that

															"no applicant may be rejected because of his race, in favor of
another who is less qualified, as measured by standards applied
without regard to race." Id. at 55, 553 P.2d at 1166.

															Turning to Bakke's appeal, the court ruled that, since Bakke had
established that the University had discriminated against him on
the basis of his race, the burden of proof shifted to the
University to demonstrate that he would not have been admitted even
in the absence of the special admissions program. [ Footnote 13 ] Id. at 63-64, 553
P.2d at 1172. The court analogized Bakke's situation to that of a
plaintiff under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-17 (1970 ed., Supp. V), see, e.g., Franks v.
Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 772 (176). 18 Cal. 3d at 64, 553 P.2d at 1172. On this basis, the court
initially ordered a remand for the purpose of determining whether,
under the newly allocated burden of proof, Bakke would have been
admitted to either the 1973 or the 1974 entering class in the
absence of the special admissions program. App. A to Application
for Stay 4. In its petition for rehearing below, however, the
University conceded its inability to carry that burden. App. B to
Application for Stay A19-A20. [ Footnote 14 ] The Page 438 U. S. 281 California court thereupon amended its opinion to direct that
the trial court enter judgment ordering Bakke's admission to the
Medical School. 18 Cal. 3d at 64, 553. P.2d at 1172. That order was
stayed pending review in this Court. 429 U.S. 953 (1976). We
granted certiorari to consider the important constitutional issue.
429 U.S. 1090 (1977). II In this Court, the parties neither briefed nor argued the
applicability of Title VI of the Civil Rights Act of 1964. Rather,
as had the California court, they focused exclusively upon the
validity of the special admissions program under the Equal
Protection Clause. Because it was possible, however, that a
decision on Title VI might obviate resort to constitutional
interpretation, see Ashwander v. TVA, 297 U.
S. 288 , 297 U. S.
346 -348 (1936) (concurring opinion), we requested
supplementary briefing on the statutory issue. 434 U.S. 900
(1977). A At the outset, we face the question whether a right of action
for private parties exists under Title VI. Respondent argues that
there is a private right of action, invoking the test set forth in Cort v. Ash, 422 U. S. 66 , 422 U. S. 78 (1975). He contends Page 438 U. S. 282 that the statute creates a federal right in his favor, that
legislative history reveals an intent to permit private actions,
[ Footnote 15 ] that such
actions would further the remedial purposes of the statute, and
that enforcement of federal rights under the Civil Rights Act
generally is not relegated to the States. In addition, he cites
several lower court decisions which have recognized or assumed the
existence of a private right of action. [ Footnote 16 ] Petitioner denies the existence of a
private right of action, arguing that the sole function of § 601, see n 11, supra, was to establish a predicate for administrative
action under § 602, 78 Stat. 252, 42 U.S.C. § 2000d-1. [ Footnote 17 ] In its view,
administrative curtailment of federal funds under that section was
the only sanction to be imposed upon recipients that Page 438 U. S. 283 violated § 601. Petitioner also points out that Title VI
contains no explicit grant of a private right of action, in
contrast to Titles II, III, IV, and VII, of the same statute, 42
U.S.C. §§ 2000a-3(a), 2000b-2, 2000c-8, and 2000e-5 =(f) (1970 ed.
and Supp. V). [ Footnote
18 ]

															We find it unnecessary to resolve this question in the instant
case. The question of respondent's right to bring an action under
Title VI was neither argued nor decided in either of the courts
below, and this Court has been hesitant to review questions not
addressed below. McGoldrick v. Companie Generale
Transatlantique, 309 U. S. 430 , 309 U. S.
434 -435 (1940). See also Massachusetts v.
Westcott, 431 U. S. 322 (1977); Cardinale v. Louisiana, 394 U.
S. 437 , 394 U. S. 439 (1969). Cf. Singleton v. Wulff, 428 U.
S. 106 , 428 U. S. 121 (1976). We therefore do not address this difficult issue.
Similarly, we need not pass Page 438 U. S. 284 upon petitioner's claim that private plaintiffs under Title VI
must exhaust administrative remedies. We assume, only for the
purposes of this case, that respondent has a right of action under
Title VI. See Lau v. Nichols, 414 U.
S. 563 , 414 U. S. 571 n. 2 (1974) (STEWART, J., concurring in result). B The language of § 601, 78 Stat. 252, like that of the Equal
Protection Clause, is majestic in its sweep:

															"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance."

															The concept of "discrimination," like the phrase "equal
protection of the laws," is susceptible of varying interpretations,
for, as Mr. Justice Holmes declared,

															"[a] word is not a crystal, transparent and unchanged, it is the
skin of a living thought, and may vary greatly in color and content
according to the circumstances and the time in which it is
used." Towne v. Eisner, 245 U. S. 418 , 245 U. S. 425 (1918). We must, therefore, seek whatever aid is available in
determining the precise meaning of the statute before us. Train
v. Colorado Public Interest Research Group, 426 U. S.
1 , 426 U. S. 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534 , 310 U. S.
543 -544 (1940). Examination of the voluminous
legislative history of Title VI reveals a congressional intent to
halt federal funding of entities that violate a prohibition of
racial discrimination similar to that of the Constitution. Although
isolated statements of various legislators, taken out of context,
can be marshaled in support of the proposition that § 601 enacted a
purely color-blind scheme, [ Footnote 19 ] without regard to the reach of the Equal
Protection Page 438 U. S. 285 Clause, these comments must be read against the background of
both the problem that Congress was addressing and the broader view
of the statute that emerges from a full examination of the
legislative debates.

															The problem confronting Congress was discrimination against
Negro citizens at the hands of recipients of federal moneys.
Indeed, the color blindness pronouncements cited in the margin at n 19 generally occur in the
midst of extended remarks dealing with the evils of segregation in
federally funded programs. Over and over again, proponents of the
bill detailed the plight of Negroes seeking equal treatment in such
programs. [ Footnote 20 ]
There simply was no reason for Congress to consider the validity of
hypothetical preferences that might be accorded minority citizens;
the legislators were dealing with the real and pressing problem of
how to guarantee those citizens equal treatment.

															In addressing that problem, supporters of Title VI repeatedly
declared that the bill enacted constitutional principles. For
example, Representative Celler, the Chairman of the House Judiciary
Committee and floor manager of the legislation in the House,
emphasized this in introducing the bill:

															"The bill would offer assurance that hospitals financed by
Federal money would not deny adequate care to Negroes. It would
prevent abuse of food distribution programs whereby Negroes have
been known to be denied food Page 438 U. S. 286 surplus supplies when white persons were given such food. It
would assure Negroes the benefits now accorded only white students
in programs of high[er] education financed by Federal funds. It
would, in short, assure the existing right to equal
treatment in the enjoyment of Federal funds. It would not
destroy any rights of private property or freedom of
association."

															110 Cong.Rec. 1519 (1964) (emphasis added). Other sponsors
shared Representative Celler's view that Title VI embodied
constitutional principles. [ Footnote 21 ]

															In the Senate, Senator Humphrey declared that the purpose of
Title VI was "to insure that Federal funds are spent in accordance
with the Constitution and the moral sense of the Nation." Id. at 6544. Senator Ribicoff agreed that Title VI
embraced the constitutional standard:

															"Basically, there is a constitutional restriction against
discrimination in the use of federal funds; and title VI simply
spells out the procedure to be used in enforcing that
restriction." Id. at 13333. Other Senators expressed similar views.
[ Footnote 22 ]

															Further evidence of the incorporation of a constitutional
standard into Title VI appears in the repeated refusals of the
legislation's supporters precisely to define the term
"discrimination." Opponents sharply criticized this failure,
[ Footnote 23 ] but proponents
of the bill merely replied that the meaning of Page 438 U. S. 287 "discrimination" would be made clear by reference to the
Constitution or other existing law. For example, Senator Humphrey
noted the relevance of the Constitution:

															"As I have said, the bill has a simple purpose. That purpose is
to give fellow citizens -- Negroes -- the same rights and
opportunities that white people take for granted. This is no more
than what was preached by the prophets, and by Christ Himself. It
is no more than what our Constitution guarantees." Id. at 6553. [ Footnote 24 ]

															In view of the clear legislative intent, Title VI must be held
to proscribe only those racial classifications that would violate
the Equal Protection Clause or the Fifth Amendment. III A Petitioner does not deny that decisions based on race or ethnic
origin by faculties and administrations of state universities are
reviewable under the Fourteenth Amendment. See, e.g., Missouri
ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Board of Regents, 332 U.
S. 631 (1948); Sweatt v. Painter, 339 U.
S. 629 (1950); McLaurin v. Oklahoma State
Regents, 339 U. S. 637 (1950). For his part, respondent does not argue that all racial or
ethnic classifications are per se invalid. See, e.g.,
Hirabayashi v. United States, 320 U. S.
81 (1943); Korematsu v. United States, 323 U. S. 214 (1944); Lee v. Washington, 390 U.
S. 333 , 390 U. S. 334 (1968) (Black, Harlan, and STEWART, JJ., concurring); United
Jewish Organizations v. Carey, 430 U.
S. 144 (1977). The parties do disagree as to the level
of judicial scrutiny to be applied to the special admissions
program. Petitioner argues that the court below erred in applying
strict scrutiny, as this inexact term has been Page 438 U. S. 288 applied in our cases. That level of review, petitioner asserts,
should be reserved for classifications that disadvantage "discrete
and insular minorities." See United States v. Carolene Products
Co., 304 U. S. 144 , 304 U. S. 152 n. 4 (1938). Respondent, on the other hand, contends that the
California court correctly rejected the notion that the degree of
Judicial scrutiny accorded a particular racial or ethnic
classification hinges upon membership in a discrete and insular
minority and duly recognized that the "lights established [by the
Fourteenth Amendment] are personal rights." Shelley v.
Kraemer, 334 U. S. 1 , 334 U. S. 22 (1948).

															En route to this crucial battle over the scope of judicial
review, [ Footnote 25 ] the
parties fight a sharp preliminary action over the proper
characterization of the special admissions program. Petitioner
prefers to view it as establishing a "goal" of minority
representation in the Medical School. Respondent, echoing the
courts below, labels it a racial quota. [ Footnote 26 ] Page 438 U. S. 289 This semantic distinction is beside the point: the special
admissions program is undeniably a classification based on race and
ethnic background. To the extent that there existed a pool of at
least minimally qualified minority applicants to fill the 16
special admissions seats, white applicants could compete only for
84 seats in the entering class, rather than the 100 open to
minority applicants. Whether this limitation is described as a
quota or a goal, it is a line drawn on the basis of race and ethnic
status. [ Footnote 27 ]

															The guarantees of the Fourteenth Amendment extend to all
persons. Its language is explicit: "No State shall . . . deny to
any person within its jurisdiction the equal protection of the
laws." It is settled beyond question that the

															"rights created by the first section of the Fourteenth Amendment
are, by its terms, guaranteed to the individual. The rights
established are personal rights," Shelley v. Kraemer, supra at 334 U. S. 22 . Accord, Missouri ex rel. Gaines v. Canada, supra at 305 U. S. 351 ; McCabe v. Atchison, T. & S.F. R. Co., 235 U.
S. 151 , 235 U. S.
161 -162 (1914). The guarantee of equal protection cannot
mean one thing when applied to one individual and something else
when Page 438 U. S. 290 applied to a person of another color. If both are not accorded
the same protection, then it is not equal.

															Nevertheless, petitioner argues that the court below erred in
applying strict scrutiny to the special admissions program because
white males, such as respondent, are not a "discrete and insular
minority" requiring extraordinary protection from the majoritarian
political process. Carolene Products Co., supra at 304 U. S.
152 -153, n. 4. This rationale, however, has never been
invoked in our decisions as a prerequisite to subjecting racial or
ethnic distinctions to strict scrutiny. Nor has this Court held
that discreteness and insularity constitute necessary preconditions
to a holding that a particular classification is invidious.
[ Footnote 28 ] See, e.g.,
Skinner v. Oklahoma ex rel. Williamson, 316 U.
S. 535 , 316 U. S. 541 (1942); Carrington v. Rash, 380 U. S.
89 , 380 U. S. 96 -97
(1965). These characteristics may be relevant in deciding whether
or not to add new types of classifications to the list of "suspect"
categories or whether a particular classification survives close
examination. See, e.g., Massachusetts Board of Retirement v.
Murgia, 427 U. S. 307 , 427 U. S. 313 (1976) (age); San Antonio Independent School Dist. v.
Rodriguez, 411 U. S. 1 , 411 U. S. 28 (1973) (wealth); Graham v. Richardson, 403 U.
S. 365 , 403 U. S. 372 (1971) (aliens). Racial and ethnic classifications, however, are
subject to stringent examination without regard to these additional
characteristics. We declared as much in the first cases explicitly
to recognize racial distinctions as suspect:

															"Distinctions between citizens solely because of their ancestry
are, by their very nature, odious to a free people Page 438 U. S. 291 whose institutions are founded upon the doctrine of
equality." Hirabayashi, 320 U.S. at 320 U. S.
100 .

															"[A]ll legal restrictions which curtail the civil rights of a
single racial group are immediately suspect. That is not to say
that all such restrictions are unconstitutional. It is to say that
courts must subject them to the most rigid scrutiny." Korematsu, 323 U.S. at 323 U. S. 216 .
The Court has never questioned the validity of those
pronouncements. Racial and ethnic distinctions of any sort are
inherently suspect, and thus call for the most exacting judicial
examination. B This perception of racial and ethnic distinctions is rooted in
our Nation's constitutional and demographic history. The Court's
initial view of the Fourteenth Amendment was that its "one
pervading purpose" was

															"the freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newly-made
freeman and citizen from the oppressions of those who had formerly
exercised dominion over him." Slaughter-House
Cases , 16 Wall. 36, 83 U. S. 71 (1873). The Equal Protection Clause, however, was "[v]irtually
strangled in infancy by post-civil-war judicial reactionism."
[ Footnote 29 ] It was
relegated to decades of relative desuetude while the Due Process
Clause of the Fourteenth Amendment, after a short germinal period,
flourished as a cornerstone in the Court's defense of property and
liberty of contract. See, e.g., Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 661 (1887); Allgeyer v. Louisiana, 165 U.
S. 578 (1897); Lochner v. New York, 198 U. S. 45 (1905). In that cause, the Fourteenth Amendment's "one pervading
purpose" was displaced. See, e.g., Plessy v. Ferguson, 163 U. S. 537 (1896). It was only as the era of substantive due process came to a
close, see, e.g., 291 U. S. New Page 438 U. S. 292 York, 291 U. S. 502 (1934); West Coast Hotel Co. v. Parrish, 300 U.
S. 379 (1937), that the Equal Protection Clause began to
attain a genuine measure of vitality, see, e.g., United States
v. Carolene Products, 304 U. S. 144 (1938); Skinner v. Oklahoma ex rel. Williamson, supra. By that time ,it was no longer possible to peg the guarantees of
the Fourteenth Amendment to the struggle for equality of one racial
minority. During the dormancy of the Equal Protection Clause, the
United States had become a Nation of minorities. [ Footnote 30 ] Each had to struggle [ Footnote 31 ] -- and, to some extent,
struggles still [ Footnote
32 ] -- to overcome the prejudices not of a monolithic majority,
but of a "majority" composed of various minority groups of whom it
was said -- perhaps unfairly, in many cases -- that a shared
characteristic was a willingness to disadvantage other groups.
[ Footnote 33 ] As the Nation
filled with the stock of many lands, the reach of the Clause was
gradually extended to all ethnic groups seeking protection from
official discrimination. See Strauder v. West Virginia, 100 U. S. 303 , 100 U. S. 308 (1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (Chinese); Truax v. Raich, 239 U. S.
33 , 239 U. S. 41 (1915) (Austrian resident aliens); Korematsu, supra, (Japanese); Hernandez v. Texas, 347 U.
S. 475 (1954) (Mexican-Americans). The guarantees of
equal protection, said the Court in Page 438 U. S. 293 Yick Wo, "are universal in their application, to all persons within the
territorial jurisdiction, without regard to any differences of
race, of color, or of nationality; and the equal protection of the
laws is a pledge of the protection of equal laws."

															118 U.S. at 118 U. S.
369 .

															Although many of the Framers of the Fourteenth Amendment
conceived of its primary function as bridging the vast distance
between members of the Negro race and the white "majority," Slaughter-House Cases, supra, the Amendment itself was
framed in universal terms, without reference to color, ethnic
origin, or condition of prior servitude. As this Court recently
remarked in interpreting the 1866 Civil Rights Act to extend to
claims of racial discrimination against white persons,

															"the 39th Congress was intent upon establishing in the federal
law a broader principle than would have been necessary simply to
meet the particular and immediate plight of the newly freed Negro
slaves." McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 , 427 U. S. 296 (1976). And that legislation was specifically broadened in 1870 to
ensure that "all persons," not merely "citizens," would enjoy equal
rights under the law. See Runyon v. McCrary, 427 U.
S. 160 , 427 U. S.
192 -202 (1976) (WHITE, J., dissenting). Indeed, it is
not unlikely that, among the Framers, were many who would have
applauded a reading of the Equal Protection Clause that states a
principle of universal application and is responsive to the racial,
ethnic, and cultural diversity of the Nation. See, e.g., Cong.Globe, 39th Cong., 1st Sess., 1056 (1866) (remarks of Rep.
Niblack); id. at 2891-2892 (remarks of Sen. Conness); id. 40th Cong., 2d Sess., 883 (1868) (remarks of Sen.
Howe) (Fourteenth Amendment "protect[s] classes from class
legislation"). See also Bickel, The Original Understanding
and the Segregation Decision, 69 Harv.L.Rev. 1, 60-63 (1955).

															Over the past 30 years, this Court has embarked upon the crucial
mission of interpreting the Equal Protection Clause with the view
of assuring to all persons "the protection of Page 438 U. S. 294 equal laws," Yick Wo, supra at 118 U. S. 369 ,
in a Nation confronting a legacy of slavery and racial
discrimination. See, e.g., Shelley v. Kraemer, 334 U. S. 1 (1948); Brown v. Bard of Education, 347 U.
S. 483 (1954); Hills v. Gautreaux, 425 U.
S. 284 (1976). Because the landmark decisions in this
area arose in response to the continued exclusion of Negroes from
the mainstream of American society, they could be characterized as
involving discrimination by the "majority" white race against the
Negro minority. But they need not be read as depending upon that
characterization for their results. It suffices to say that,

															"[o]ver the years, this Court has consistently repudiated
'[d]istinctions between citizens solely because of their ancestry'
as being 'odious to a free people whose institutions are founded
upon the doctrine of equality.'" Loving v. Virginia, 388 U. S. 1 , 388 U. S. 11 (1967), quoting Hirabayashi, 320 U.S. at 320 U. S.
100 .

															Petitioner urges us to adopt for the first time a more
restrictive view of the Equal Protection Clause, and hold that
discrimination against members of the white "majority" cannot be
suspect if its purpose can be characterized as "benign." [ Footnote 34 ] Page 438 U. S. 295 The clock of our liberties, however, cannot be turned back to
1868. Brown v. Board of Education, supra at 347 U. S. 492 ; accord, Loving v. Virginia supra at 388 U. S. 9 . It is
far too late to argue that the guarantee of equal protection to all
persons permits the recognition of special wards entitled to a
degree of protection greater than that accorded others. [ Footnote 35 ]

															"The Fourteenth Amendment is not directed solely against
discrimination due to a 'two-class theory' -- that is, bad upon
differences between 'white' and Negro." Hernandez, 347 U.S. at 347 U. S.
478 .

															Once the artificial line of a "two-class theory" of the
Fourteenth Amendment is put aside, the difficulties entailed in
varying the level of judicial review according to a perceived
"preferred" status of a particular racial or ethnic minority are
intractable. The concepts of "majority" and "minority" necessarily
reflect temporary arrangements and political judgments. As observed
above, the white "majority" itself is composed of various minority
groups, most of which can lay claim to a history of prior
discrimination at the hands of the State and private individuals.
Not all of these groups can receive preferential treatment and
corresponding judicial tolerance Page 438 U. S. 296 of distinctions drawn in terms of race and nationality, for then
the only "majority" left would be a new minority of white
Anglo-Saxon Protestants. There is no principled basis for deciding
which groups would merit "heightened judicial solicitude" and which
would not. [ Footnote 36 ]
Courts would be asked to evaluate the extent of the prejudice and
consequent Page 438 U. S. 297 harm suffered by various minority groups. Those whose societal
injury is thought to exceed some arbitrary level of tolerability
then would be entitled to preferential classifications at the
expense of individuals belonging to other groups. Those
classifications would be free from exacting judicial scrutiny. As
these preferences began to have their desired effect, and the
consequences of past discrimination were undone, new judicial
rankings would be necessary. The kind of variable sociological and
political analysis necessary to produce such rankings simply does
not lie within the judicial competence -- even if they otherwise
were politically feasible and socially desirable. [ Footnote 37 ] Page 438 U. S. 298 Moreover, there are serious problems of justice connected with
the idea of preference itself. First, it may not always be clear
that a so-called preference is, in fact, benign. Courts may be
asked to validate burdens imposed upon individual members of a
particular group in order to advance the group's general interest. See United Jewish Organizations v. Carey, 430 U.S. at 430 U. S.
172 -173 (BRENNAN, J., concurring in part). Nothing in
the Constitution supports the notion that individuals may be asked
to suffer otherwise impermissible burdens in order to enhance the
societal standing of their ethnic groups. Second, preferential
programs may only reinforce common stereotypes holding that certain
groups are unable to achieve success without special protection
based on a factor having no relationship to individual worth. See DeFunis v. Odegaard, 416 U. S. 312 , 416 U. S. 343 (1974) (Douglas, J., dissenting). Third, there is a measure of
inequity in forcing innocent persons in respondent's position to
bear the burdens of redressing grievances not of their making.

															By hitching the meaning of the Equal Protection Clause to these
transitory considerations, we would be holding, as a constitutional
principle, that judicial scrutiny of classifications touching on
racial and ethnic background may vary with the ebb and flow of
political forces. Disparate constitutional tolerance of such
classifications well may serve to exacerbate Page 438 U. S. 299 racial and ethnic antagonisms, rather than alleviate them. United Jewish Organizations, supra at 430 U. S.
173 -174 (BRENNAN, J., concurring in part). Also, the
mutability of a constitutional principle, based upon shifting
political and social judgments, undermines the chances for
consistent application of the Constitution from one generation to
the next, a critical feature of its coherent interpretation. Pollock v. Farmers' Loan & Trust Co., 157 U.
S. 429 , 157 U. S.
650 -651 (1895) (White, J., dissenting). In expounding
the Constitution, the Court's role is to discern

															"principles sufficiently absolute to give them roots throughout
the community and continuity over significant periods of time, and
to lift them above the level of the pragmatic political judgments
of a particular time and place."

															A. Cox, The Role of the Supreme Court in American Government 114
(1976).

															If it is the individual who is entitled to judicial protection
against classifications based upon his racial or ethnic background
because such distinctions impinge upon personal rights, rather than
the individual only because of his membership in a particular
group, then constitutional standards may be applied consistently.
Political judgments regarding the necessity for the particular
classification may be weighed in the constitutional balance, Korematsu v. United States, 323 U.
S. 214 (1944), but the standard of justification will
remain constant. This is as it should be, since those political
judgments are the product of rough compromise struck by contending
groups within the democratic process. [ Footnote 38 ] When they 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. The
Constitution guarantees that right to every person regardless of
his background. Shelley v. Kraemer, 334 U.S. at 334 U. S. 22 ; Missouri ex rel. Gaines v. Canada, 305 U.S. at 305 U. S.
351 . Page 438 U. S. 300 C Petitioner contends that, on several occasions, this Court has
approved preferential classifications without applying the most
exacting scrutiny. Most of the cases upon which petitioner relies
are drawn from three areas: school desegregation, employment
discrimination, and sex discrimination. Each of the cases cited
presented a situation materially different from the facts of this
case.

															The school desegregation cases are inapposite. Each involved
remedies for clearly determined constitutional violations. E.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); Green v. County School Board, 391 U.
S. 430 (1968). Racial classifications thus were designed
as remedies for the vindication of constitutional entitlement.
[ Footnote 39 ] Moreover, the
scope of the remedies was not permitted to exceed the extent of
the Page 438 U. S. 301 violations. E.g., Dayton Board of Education v.
Brinkman, 433 U. S. 406 (1977); Milliken v. Bradley, 418 U.
S. 717 (1974); see Pasadena City Board of Education
v. Spangler, 427 U. S. 424 (1976). See also Austin Independent School Dist. v. United
States, 429 U.S. 990, 991-995 (1976) (POWELL, J., concurring).
Here, there was no judicial determination of constitutional
violation as a predicate for the formulation of a remedial
classification.

															The employment discrimination cases also do not advance
petitioner's cause. For example, in Franks v. Bowman
Transportation Co., 424 U. S. 747 (1976), we approved a retroactive award of seniority to a class of
Negro truckdrivers who had been the victims of discrimination --
not just by society at large, but by the respondent in that case.
While this relief imposed some burdens on other employees, it was
held necessary " to make [the victims] whole for injuries
suffered on account of unlawful employment discrimination.'" Id. at 424 U. S. 763 ,
quoting Albemarle Paper Co. v. Moody, 422 U.
S. 405 , 422 U. S. 418 (1975). The Courts of Appeals have fashioned various types of
racial preferences as remedies for constitutional or statutory
violations resulting in identified, race-based injuries to
individuals held entitled to the preference. E.g., Bridgeport
Guardians, Inc. v. Bridgeport Civil Service Commission, 482
F.2d 1333 (CA2 1973); Carter v. Gallagher, 452 F.2d 315
(CA8 1972), modified on rehearing en banc, id. at 327.
Such preferences also have been upheld where a legislative or
administrative body charged with the responsibility made
determinations of past discrimination by the industries affected,
and fashioned remedies deemed appropriate to rectify the
discrimination. E.g., Contractors Association of Eastern
Pennsylvania v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971); [ Footnote 40 ] Associated
General Page 438 U. S. 302 Contractors of Massachusetts, Inc. v. Altshuler, 490
F.2d 9 (CA1 1973), cert. denied, 416 U.S. 957 (1974); cf. Katzenbach v. Morgan, 384 U.
S. 641 (1966). But we have never approved preferential
classifications in the absence of proved constitutional or
statutory violations. [ Footnote
41 ]

															Nor is petitioner's view as to the applicable standard supported
by the fact that gender-based classifications are not subjected to
this level of scrutiny. E g., Califano v. Webster, 430 U. S. 313 , 430 U. S.
316 -317 (1977); Craig v. Boren, 429 U.
S. 190 , 429 U. S. 211 n. (1976) (POWELL, J., concurring). Gender-based distinctions are
less likely to create the analytical and practical Page 438 U. S. 303 problems present in preferential programs premised on racial or
ethnic criteria. With respect to gender, there are only two
possible classifications. The incidence of the burdens imposed by
preferential classifications is clear. There are no rival groups
which can claim that they, too, are entitled to preferential
treatment. Classwide questions as to the group suffering previous
injury and groups which fairly can be burdened are relatively
manageable for reviewing courts. See, e.g., Califano v.
Goldfarb, 430 U. S. 199 , 430 U. S.
212 -217 (1977); Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 645 (1975). The resolution of these same questions in the context of
racial and ethnic preferences presents far more complex and
intractable problems than gender-based classifications. More
importantly, the perception of racial classifications as inherently
odious stems from a lengthy and tragic history that gender-based
classifications do not share. In sum, the Court has never viewed
such classification as inherently suspect or as comparable to
racial or ethnic classifications for the purpose of equal
protection analysis.

															Petitioner also cites Lau v. Nichols, 414 U.
S. 563 (1974), in support of the proposition that
discrimination favoring racial or ethnic minorities has received
judicial approval without the exacting inquiry ordinarily accorded
"suspect" classifications. In Lau, we held that the
failure of the San Francisco school system to provide remedial
English instruction for some 1,800 students of oriental ancestry
who spoke no English amounted to a violation of Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the regulations
promulgated thereunder. Those regulations required remedial
instruction where inability to understand English excluded children
of foreign ancestry from participation in educational programs. 414
U.S. at 414 U. S. 568 .
Because we found that the students in Lau were denied "a
meaningful opportunity to participate in the educational program," ibid., we remanded for the fashioning of a remedial
order. Page 438 U. S. 304 Lau provides little support for petitioner's argument.
The decision rested solely on the statute, which had been construed
by the responsible administrative agency to each educational
practices "which have the effect of subjecting individuals to
discrimination," ibid. We stated:

															"Under these state-imposed standards, there is no equality of
treatment merely by providing students with the same facilities,
textbooks, teachers, and curriculum, for students who do not
understand English are effectively foreclosed from any meaningful
education." Id. at 414 U. S. 566 .
Moreover, the "preference" approved did not result in the denial of
the relevant benefit -- "meaningful opportunity to participate in
the educational program" -- to anyone else. No other student was
deprived by that preference of the ability to participate in San
Francisco's school system, and the applicable regulations required
similar assistance for all students who suffered similar linguistic
deficiencies. Id. at 414 U. S.
570 -571 (STEWART, J., concurring in result).

															In a similar vein, [ Footnote
42 ] petitioner contends that our recent decision in United
Jewish Organization v. Carey, 430 U.
S. 144 (1977), indicates a willingness to approve racial
classifications designed to benefit certain minorities, without
denominating the classifications as "suspect." The State of New
York had redrawn its reapportionment plan to meet objections of the
Department of Justice under § 5 of the Voting Rights Act of 1965,
42 U.S.C. § 1973c (1970 ed., Supp. V). Specifically, voting
districts were redrawn to enhance the electoral power Page 438 U. S. 305 of certain "nonwhite" voters found to have been the victims of
unlawful "dilution" under the original reapportionment plan. United Jewish Organizations, like Lau, properly
is viewed as a case in which the remedy for an administrative
finding of discrimination encompassed measures to improve the
previously disadvantaged group's ability to participate, without
excluding individuals belonging to any other group from enjoyment
of the relevant opportunity -- meaningful participation in the
electoral process.

															In this case, unlike Lau and United Jewish
Organizations, there has been no determination by the
legislature or a responsible administrative agency that the
University engaged in a discriminatory practice requiring remedial
efforts. Moreover, the operation of petitioner's special admissions
program is quite different from the remedial measures approved in
those cases. It prefers the designated minority groups at the
expense of other individuals who are totally foreclosed from
competition for the 16 special admissions seats in every Medical
School class. Because of that foreclosure, some individuals are
excluded from enjoyment of a state-provided benefit -- admission to
the Medical School -- they otherwise would receive. When a
classification denies an individual opportunities or benefits
enjoyed by others solely because of his race or ethnic background,
it must be regarded as suspect. E.g., McLaurin v. Oklahoma
State Regents, 339 U.S. at 339 U. S.
641 -642. IV We have held that, in

															"order to justify the use of a suspect classification, a State
must show that its purpose or interest is both constitutionally
permissible and substantial, and that its use of the classification
is 'necessary . . . to the accomplishment' of its purpose or the
safeguarding of its interest." In re Griffiths, 413 U. S. 717 , 413 U. S.
721 -722 (1973) (footnotes omitted); Loving v.
Virginia, 388 U.S. at 388 U. S. 11 ; McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 196 (1964). The special admissions Page 438 U. S. 306 program purports to serve the purposes of: (i) "reducing the
historic deficit of traditionally disfavored minorities in medical
schools and in the medical profession," Brief for Petitioner 32;
(ii) countering the effects of societal discrimination; [ Footnote 43 ] (iii) increasing the
number of physicians who will practice in communities currently
underserved; and (iv) obtaining the educational benefits that flow
from an ethnically diverse student body. It is necessary to decide
which, if any, of these purposes is substantial enough to support
the use of a suspect classification. Page 438 U. S. 307 A If petitioner's purpose is to assure within its student body
some specified percentage of a particular group merely because of
its race or ethnic origin, such a preferential purpose must be
rejected not as insubstantial, but as facially invalid. Preferring
members of any one group for no reason other than race or ethnic
origin is discrimination for its own sake. This the Constitution
forbids. E.g., Loving v. Virginia, supra at 388 U. S. 11 ; McLaughlin v. Florida, supra at 379 U. S. 198 ; Brown v. Board of Education, 347 U.
S. 483 (1954). B The State certainly has a legitimate and substantial interest in
ameliorating, or eliminating where feasible, the disabling effects
of identified discrimination. The line of school desegregation
cases, commencing with Brown, attests to the importance of
this state goal and the commitment of the judiciary to affirm all
lawful means toward its attainment. In the school cases, the States
were required by court order to redress the wrongs worked by
specific instances of racial discrimination. That goal was far more
focused than the remedying of the effects of "societal
discrimination," an amorphous concept of injury that may be ageless
in its reach into the past.

															We have never approved a classification that aids persons
perceived as members of relatively victimized groups at the expense
of other innocent individuals in the absence of judicial,
legislative, or administrative findings of constitutional or
statutory violations. See, e.g., Teamsters v. United
States, 431 U. S. 324 , 431 U. S.
367 -376 (1977); United Jewish Organizations, 430 U.S. at 430 U. S.
155 -156; South Carolina v. Katzenbach, 383 U. S. 301 , 383 U. S. 308 (1966). After such findings have been made, the governmental
interest in preferring members of the injured groups at the expense
of others is substantial, since the legal rights of the victims
must be vindicated. In such a case, the Page 438 U. S. 308 extent of the injury and the consequent remedy will have been
judicially, legislatively, or administratively defined. Also, the
remedial action usually remains subject to continuing oversight to
assure that it will work the least harm possible to other innocent
persons competing for the benefit. Without such findings of
constitutional or statutory violations, [ Footnote 44 ] it cannot be Page 438 U. S. 309 said that the government has any greater interest in helping one
individual than in refraining from harming another. Thus, the
government has no compelling justification for inflicting such
harm.

															Petitioner does not purport to have made, and is in no position
to make, such findings. Its broad mission is education, not the
formulation of any legislative policy or the adjudication of
particular claims of illegality. For reasons similar to those
stated in 438 U. S. isolated segments of our vast governmental structures are not
competent to make those decisions, at least in the absence of
legislative mandates and legislatively determined criteria.
[ Footnote 45 ] Cf.
Hampton v. Mow Sun Wong, 426 U. S. 88 (1976); n. 41, supra. Before relying upon these sorts of
findings in establishing a racial classification, a governmental
body must have the authority and capability to establish, in the
record, that the classification is responsive to identified
discrimination. See, e.g., Califano v. Webster, 430 U.S.
at 430 U. S.
316 -321; Califano Page 438 U. S. 310 v. Goldfarb, 430 U.S. at 430 U. S.
212 -217. Lacking this capability, petitioner has not
carried its burden of justification on this issue.

															Hence, the purpose of helping certain groups whom the faculty of
the Davis Medical School perceived as victims of "societal
discrimination" does not justify a classification that imposes
disadvantages upon persons like respondent, who bear no
responsibility for whatever harm the beneficiaries of the special
admissions program are thought to have suffered. To hold otherwise
would be to convert a remedy heretofore reserved for violations of
legal rights into a privilege that all institutions throughout the
Nation could grant at their pleasure to whatever groups are
perceived as victims of societal discrimination. That is a step we
have never approved. Cf. Pasadena Cty Board of Education v.
Spangler, 427 U. S. 424 (1976). C Petitioner identifies, as another purpose of its program,
improving the delivery of health care services to communities
currently underserved. It may be assumed that, in some situations,
a State's interest in facilitating the health care of its citizens
is sufficiently compelling to support the use of a suspect
classification. But there is virtually no evidence in the record
indicating that petitioner's special admissions program is either
needed or geared to promote that goal. [ Footnote 46 ] The court below addressed this failure of
proof:

															"The University concedes it cannot assure that minority doctors
who entered under the program, all of whom expressed an 'interest'
in practicing in a disadvantaged community, will actually do so. It
may be correct to assume that some of them will carry out this
intention, and that it is more likely they will practice in
minority Page 438 U. S. 311 communities than the average white doctor. ( See Sandalow, Racial Preferences in Higher Education: Political
Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev. 653,
688.) Nevertheless, there are more precise and reliable ways to
identify applicants who are genuinely interested in the medical
problems of minorities than by race. An applicant of whatever race
who has demonstrated his concern for disadvantaged minorities in
the past and who declares that practice in such a community is his
primary professional goal would be more likely to contribute to
alleviation of the medical shortage than one who is chosen entirely
on the basis of race and disadvantage. In short, there is no
empirical data to demonstrate that any one race is more selflessly
socially oriented or by contrast that another is more selfishly
acquisitive."

															18 Cal. 3d at 56, 553 P.2d at 1167.

															Petitioner simply has not carried its burden of demonstrating
that it must prefer members of particular ethnic groups over all
other individuals in order to promote better health care delivery
to deprived citizens. Indeed, petitioner has not shown that its
preferential classification is likely to have any significant
effect on the problem. [ Footnote
47 ] D The fourth goal asserted by petitioner is the attainment of a
diverse student body. This clearly is a constitutionally
permissible Page 438 U. S. 312 goal for an institution of higher education. Academic freedom,
though not a specifically enumerated constitutional right, long has
been viewed as a special concern of the First Amendment. The
freedom of a university to make its own judgments as to education
includes the selection of its student body. Mr. Justice Frankfurter
summarized the "four essential freedoms" that constitute academic
freedom:

															"'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.'" Sweezy v. New Hampshire, 354 U.
S. 234 , 354 U. S. 263 (1957) (concurring in result).

															Our national commitment to the safeguarding of these freedoms
within university communities was emphasized in Keyishian v.
Board of Regents, 385 U. S. 589 , 385 U. S. 603 (1967):

															"Our Nation is deeply committed to safeguarding academic
freedom, which is of transcendent value to all of us, and not
merely to the teachers concerned. That freedom is therefore a
special concern of the First Amendment. . . . The Nation's future
depends upon leaders trained through wide exposure to that robust
exchange of ideas which discovers truth 'out of a multitude of
tongues, [rather] than through any kind of authoritative
selection.' United States v. Associated
Press, 52 F. Supp.
362 , 372."

															The atmosphere of "speculation, experiment and creation" -- so
essential to the quality of higher education -- is widely believed
to be promoted by a diverse student body. [ Footnote 48 ] As the Court Page 438 U. S. 313 noted in Keyishian, it is not too much to say that 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.

															Thus, in arguing that its universities must be accorded the
right to select those students who will contribute the most to the
"robust exchange of ideas," petitioner invokes a countervailing
constitutional interest, that of the First Amendment. In this
light, petitioner must be viewed as seeking to achieve a goal that
is of paramount importance in the fulfillment of its mission.

															It may be argued that there is greater force to these views at
the undergraduate level than in a medical school, where the
training is centered primarily on professional competency. But even
at the graduate level, our tradition and experience lend support to
the view that the contribution of diversity is substantial. In Sweatt v. Painter, 339 U.S. at 339 U. S. 634 ,
the Page 438 U. S. 314 Court made a similar point with specific reference to legal
education:

															"The law school, the proving ground for legal learning and
practice, cannot be effective in isolation from the individuals and
institutions with which the law interacts. Few students, and no one
who has practiced law, would choose to study in an academic vacuum,
removed from the interplay of ideas and the exchange of views with
which the law is concerned."

															Physicians serve a heterogeneous population. An otherwise
qualified medical student with a particular background -- whether
it be ethnic, geographic, culturally advantaged or disadvantaged --
may bring to a professional school of medicine experiences,
outlooks, and ideas that enrich the training of its student body
and better equip its graduates to render with understanding their
vital service to humanity. [ Footnote 49 ]

															Ethnic diversity, however, is only one element in a range of
factors a university properly may consider in attaining the goal of
a heterogeneous student body. Although a university must have wide
discretion in making the sensitive judgments as to who should be
admitted, constitutional limitations protecting individual rights
may not be disregarded. Respondent urges -- and the courts below
have held -- that petitioner's dual admissions program is a racial
classification that impermissibly infringes his rights under the
Fourteenth Amendment. As the interest of diversity is compelling in
the context of a university's admissions program, the question
remains whether the Page 438 U. S. 315 program's racial classification is necessary to promote this
interest. In re Griffiths, 413 U.S. at 413 U. S.
721 -722. V A It may be assumed that the reservation of a specified number of
seats in each class for individuals from the preferred ethnic
groups would contribute to the attainment of considerable ethnic
diversity in the student body. But petitioner's argument that this
is the only effective means of serving the interest of diversity is
seriously flawed. In a most fundamental sense, the argument
misconceives the nature of the state interest that would justify
consideration of race or ethnic background. It 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, with the remaining percentage an undifferentiated
aggregation of students. The 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. Petitioner's special admissions
program, focused solely on ethnic diversity, would hinder, rather
than further, attainment of genuine diversity. [ Footnote 50 ]

															Nor would the state interest in genuine diversity be served by
expanding petitioner's two-track system into a multi-track program
with a prescribed number of seats set aside for each identifiable
category of applicants. Indeed, it is inconceivable that a
university would thus pursue the logic of petitioner's two-track
program to the illogical end of insulating each category of
applicants with certain desired qualifications from competition
with all other applicants. Page 438 U. S. 316 The experience of other university admissions programs, which
take race into account in achieving the educational diversity
valued by the First Amendment, demonstrates that the assignment of
a fixed number of places to a minority group is not a necessary
means toward that end. An illuminating example is found in the
Harvard College program:

															"In recent years, Harvard College has expanded the concept of
diversity to include students from disadvantaged economic, racial
and ethnic groups. Harvard College now recruits not only
Californians or Louisianans but also blacks and Chicanos and other
minority students. . . ."

															"In practice, this new definition of diversity has meant that
race has been a factor in some admission decisions. 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 just as geographic origin or a life spent on a farm
may tip the balance in other candidates' cases. A farm boy from
Idaho can bring something to Harvard College that a Bostonian
cannot offer. Similarly, a black student can usually bring
something that a white person cannot offer. . . . [ See 438
U.S. 265 app|>Appendix hereto.]"

															"In Harvard College admissions, the Committee has not set target
quotas for the number of blacks, or of musicians, football players,
physicists or Californians to be admitted in a given year. . . .
But that awareness [of the necessity of including more than a token
number of black students] does not mean that the Committee sets a
minimum number of blacks or of people from west of the Mississippi
who are to be admitted. It means only that, in choosing among
thousands of applicants who are not only 'admissible' academically
but have other strong qualities, the Committee, with a number of
criteria in mind, pays some attention to distribution among
many Page 438 U. S. 317 types and categories of students."

															App. to Brief for Columbia University, Harvard University,
Stanford University, and the University of Pennsylvania, as Amici Curiae 2-3.

															In such an admissions program, [ Footnote 51 ] race or ethnic background may be deemed a
"plus" in a particular applicant's file, yet it does not insulate
the individual from comparison with all other candidates for the
available seats. The file of a particular black applicant may be
examined for his potential contribution to diversity without the
factor of race being decisive when compared, for example, with that
of an applicant identified as an Italian-American if the latter is
thought to exhibit qualities more likely to promote beneficial
educational pluralism. Such qualities could include exceptional
personal talents, unique work or service experience, leadership
potential, maturity, demonstrated compassion, a history of
overcoming disadvantage, ability to communicate with the poor, or
other qualifications deemed important. In short, an admissions
program operated in this way 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. Indeed, the weight attributed to a Page 438 U. S. 318 particular quality may vary from year to year depending upon the
"mix" both of the student body and the applicants for the incoming
class.

															This kind of program treats each applicant as an individual in
the admissions process. The applicant who loses out on the last
available seat to another candidate receiving a "plus" on the basis
of ethnic background will not have been foreclosed from all
consideration for that seat simply because he was not the right
color or had the wrong surname. It would mean only that his
combined qualifications, which may have included similar
nonobjective factors, did not outweigh those of the other
applicant. His qualifications would have been weighed fairly and
competitively, and he would have no basis to complain of unequal
treatment under the Fourteenth Amendment. [ Footnote 52 ]

															It has been suggested that an admissions program which considers
race only as one factor is simply a subtle and more sophisticated
-- but no less effective -- means of according racial preference
than the Davis program. A facial intent to discriminate, however,
is evident in petitioner's preference program, and not denied in
this case. No such facial infirmity exists in an admissions program
where race or ethnic background is simply one element -- to be
weighed fairly against other elements -- in the selection process.
"A boundary line," as Mr. Justice Frankfurter remarked in another
connection, "is none the worse for being narrow." McLeod v.
Dilworth, 322 U. S. 327 , 322 U. S. 329 (1944). And a court would not assume that a university, professing
to employ a facially nondiscriminatory admissions policy, would
operate it as a cover for the functional equivalent of a quota
system. In short, good faith Page 438 U. S. 319 would be presumed in the absence of a showing to the contrary in
the manner permitted by our cases. See, e.g., Arlington Heights
v. Metropolitan Housing Dev. Corp., 429 U.
S. 252 (1977); Washington v. Davis, 426 U. S. 229 (1976); Swain v. Alabama, 380 U.
S. 202 (165). [ Footnote 53 ] B In summary, it is evident that the Davis special admissions
program involves the use of an explicit racial classification never
before countenanced by this Court. It tells applicants who are not
Negro, Asian, or Chicano that they are totally excluded from a
specific percentage of the seats in an entering class. No matter
how strong their qualifications, quantitative and extracurricular,
including their own potential for contribution to educational
diversity, they are never afforded the chance to compete with
applicants from the preferred groups for the special admissions
seats. At the same time, the preferred Page 438 U. S. 320 applicants have the opportunity to compete for every seat in the
class.

															The fatal flaw in petitioner's preferential program is its
disregard of individual rights as guaranteed by the Fourteenth
Amendment. Shelley v. Kraemer, 334 U.S. at 334 U. S. 22 .
Such rights are not absolute. But when a State's distribution of
benefits or imposition of burdens hinges on ancestry or the color
of a person's skin, that individual is entitled to a demonstration
that the challenged classification is necessary to promote a
substantial state interest. Petitioner has failed to carry this
burden. For this reason, that portion of the California court's
judgment holding petitioner's special admissions program invalid
under the Fourteenth Amendment must be affirmed. C In enjoining petitioner from ever considering the race of any
applicant, however, the courts below failed to recognize that the
State has a substantial interest that legitimately may be served by
a properly devised admissions program involving the competitive
consideration of race and ethnic origin. For this reason, so much
of the California court's judgment as enjoins petitioner from any
consideration of the race of any applicant must be reversed. VI With respect to respondent's entitlement to an injunction
directing his admission to the Medical School, petitioner has
conceded that it could not carry its burden of proving that, but
for the existence of its unlawful special admissions program,
respondent still would not have been admitted. Hence, respondent is
entitled to the injunction, and that portion of the judgment must
be affirmed. [ Footnote
54 ] Page 438 U. S. 321 | 438
U.S. 265 app| APPENDIX TO OPINION OF POWELL, J. Harvard College Admissions Program [ Footnote 55 ] For the past 30 years, Harvard College has received each year
applications for admission that greatly exceed the number of places
in the freshman class. The number of applicants who are deemed to
be not "qualified" is comparatively small. The vast majority of
applicants demonstrate through test scores, high school records and
teachers' recommendations that they have the academic ability to do
adequate work at Harvard, and perhaps to do it with distinction.
Faced with the dilemma of choosing among a large number of
"qualified" candidates, the Committee on Admissions could use the
single criterion of scholarly excellence and attempt to determine
who among the candidates were likely to perform best academically.
But for the past 30 years, the Committee on Admissions has never
adopted this approach. The belief has been that, if scholarly
excellence were the sole or even predominant criterion, Harvard
College would lose a great deal of its vitality and intellectual
excellence, and that the quality of the educational Page 438 U. S. 322 experience offered to all students would suffer. Final Report of
W. J. Bender, Chairman of the Admission and Scholarship Committee
and Dean of Admissions and Financial Aid, pp. 20 et seq. (Cambridge, 1960). Consequently, after selecting those students
whose intellectual potential will seem extraordinary to the faculty
-- perhaps 150 or so out of an entering class of over 1,100 -- the
Committee seeks --

															"variety in making its choices. This has seemed important . . .
in part because it adds a critical ingredient to the effectiveness
of the educational experience [in Harvard College]. . . . The
effectiveness of our students' educational experience has seemed to
the Committee to be affected as importantly by a wide variety of
interests, talents, backgrounds and career goals as it is by a fine
faculty and our libraries, laboratories and housing
arrangements. "

															Dean of Admissions Fred L. Glimp, Final Report to the Faculty of
Arts and Sciences, 65 Official Register of Harvard University No.
25, 93, 10105 (1968) (emphasis supplied).

															The belief that diversity adds an essential ingredient to the
educational process has long been a tenet of Harvard College
admissions. Fifteen or twenty years ago, however, diversity meant
students from California, New York, and Massachusetts; city
dwellers and farm boys; violinists, painters and football players;
biologists, historians and classicists; potential stockbrokers,
academics and politicians. The result was that very few ethnic or
racial minorities attended Harvard College. In recent years,
Harvard College has expanded the concept of diversity to include
students from disadvantaged economic, racial and ethnic groups.
Harvard College now recruits not only Californians or Louisianans,
but also blacks and Chicanos and other minority students.
Contemporary conditions in the United States mean that, if Harvard
College is to continue to offer a first-rate education to its
students, Page 438 U. S. 323 minority representation in the undergraduate body cannot be
ignored by the Committee on Admissions.

															In practice, this new definition of diversity has meant that
race has been a factor in some admission decisions. When the
Committee on Admissions 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 just as geographic origin or a life spent on a farm
may tip the balance in other candidates' cases. A farm boy from
Idaho can bring something to Harvard College that a Bostonian
cannot offer. Similarly, a black student can usually bring
something that a white person cannot offer. The quality of the
educational experience of all the students in Harvard College
depends in part on these differences in the background and outlook
that students bring with them.

															In Harvard College admissions, the Committee has not set target
quotas for the number of blacks, or of musicians, football players,
physicists or Californians to be admitted in a given year. At the
same time the Committee is aware that, if Harvard College is to
provide a truly heterogen[e]ous environment that reflects the rich
diversity of the United States, it cannot be provided without some
attention to numbers. It would not make sense, for example, to have
10 or 20 students out of 1, 100 whose homes are west of the
Mississippi. Comparably, 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. Their small numbers might also create a sense of isolation
among the black students themselves, and thus make it more
difficult for them to develop and achieve their potential.
Consequently, when making its decisions, the Committee on
Admissions is aware that there is 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. But Page 438 U. S. 324 that awareness does not mean that the Committee sets a minimum
number of blacks or of people from west of the Mississippi who are
to be admitted. It means only that, in choosing among thousands of
applicants who are not only "admissible" academically but have
other strong qualities, the Committee, with a number of criteria in
mind, pays some attention to distribution among many types and
categories of students.

															The further refinements sometimes required help to illustrate
the kind of significance attached to race. The Admissions
Committee, with only a few places left to fill, might find itself
forced to choose between A, the child of a successful black
physician in an academic community with promise of superior
academic performance, and B, a black who grew up in an inner-city
ghetto of semi-literate parents whose academic achievement was
lower, but who had demonstrated energy and leadership, as well as
an apparently abiding interest in black power. If a good number of
black students much like A, but few like B, had already been
admitted, the Committee might prefer B, and vice versa. If C, a
white student with extraordinary artistic talent, were also seeking
one of the remaining places, his unique quality might give him an
edge over both A and B. Thus, the critical criteria are often
individual qualities or experience not dependent upon race but
sometimes associated with it.

															* MR. JUSTICE STEVENS views the judgment of the California court
as limited to prohibiting the consideration of race only in passing
upon Bakke's application. Post at 438 U. S.
408 -411. It must be remembered, however, that petitioner
here cross-complained in the trial court for a declaratory judgment
that its special program was constitutional, and it lost. The trial
court's judgment that the special program was unlawful was affirmed
by the California Supreme Court in an opinion which left no doubt
that the reason for its holding was petitioner's use of race in
consideration of ay candidate's application. Moreover, in
explaining the scope of its holding, the court quite clearly stated
that petitioner was prohibited from taking race into account in any
way in making admissions decisions:

															"In addition, the University may properly as it in fact does,
consider other factors in evaluating an applicant, such as the
personal interview, recommendations, character, and matters
relating to the needs of the profession and society, such as an
applicant's professional goals. In short, the standards for
admission employed by the University are not constitutionally
infirm except to the extent that they are utilized in a racially
discriminatory manner. Disadvantaged applicants of all races must
be eligible for sympathetic consideration, and no applicant may be
rejected because of his race in favor of another who is less
qualified, as measured by standards applied without regard to race.
We reiterate, in view of the dissent's misinterpretation, that we
do not compel the University to utilize only 'the highest objective
academic credentials' as the criterion for admission." 18 Cal. 3d 34 ,
54-55, 553 P.2d 1152, 1166 (1976) (footnote omitted). This explicit
statement makes it unreasonable to assume that the reach of the
California court's judgment can be limited in the manner suggested
by MR. JUSTICE STEVENS.

															** MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL,
and MR. JUSTICE BLACKMUN join Parts I and V-C of this opinion. MR.
JUSTICE WHITE also joins Part III-A of this opinion.

															[ Footnote 1 ]

															Material distributed to applicants for the class entering in
1973 described the special admissions program as follows:

															"A special subcommittee of the Admissions Committee, made up of
faculty and medical students from minority groups, evaluates
applications from economically and/or educationally disadvantaged
backgrounds. The applicant may designate on the application form
that he or she requests such an evaluation. Ethnic minorities are
not categorically considered under the Task Force Program unless
they are from disadvantaged backgrounds. Our goals are: 1) A
short-range goal in the identification and recruitment of potential
candidates for admission to medical school in the near future, and
2) Our long-range goal is to stimulate career interest in health
professions among junior high and high school students."

															"After receiving all pertinent information selected applicants
will receive a letter inviting them to our School of Medicine in
Davis for an interview. The interviews are conducted by at least
one faculty member and one student member of the Task Force
Committee. Recommendations are then made to the Admissions
Committee of the medical school. Some of the Task Force Faculty are
also members of the Admissions Committee."

															"Long-range goals will be approached by meeting with counselors
and students of schools with large minority populations, as well as
with local youth and adult community groups."

															"Applications for financial aid are available only after the
applicant has been accepted, and can only be awarded after
registration. Financial aid is available to students in the form of
scholarships and loans. In addition to the Regents' Scholarships
and President's Scholarship programs, the medical school
participates in the Health Professions Scholarship Program, which
makes funds available to students who otherwise might not be able
to pursue a medical education. Other scholarships and awards are
available to students who meet special eligibility qualifications.
Medical students are also eligible to participate in the Federally
Insured Student Loan Program and the American Medical Association
Education and Research Foundation Loan Program."

															Applications for Admission are available from:

															Admissions Office

															School of Medicine

															University of California

															Davis, California 95616

															Record 195. The letter distributed the following year was
virtually identical, except that the third paragraph was
omitted.

															[ Footnote 2 ]

															For the 1973 entering class of 100 seats, the Davis Medical
School received 2,464 applications. Id. at 117. For the
1974 entering class, 3,737 applications were submitted. Id. at 289.

															[ Footnote 3 ]

															That is, applications were considered and acted upon as they
were received, so that the process of filling the class took place
over a period of months, with later applications being considered
against those still on file from earlier in the year. Id. at 64.

															[ Footnote 4 ]

															The chairman normally checked to see if, among other things, the
applicant had been granted a waiver of the school's application
fee, which required a means test; whether the applicant had worked
during college or interrupted his education to support himself or
his family; and whether the applicant was a member of a minority
group. Id. at 666.

															[ Footnote 5 ]

															For the class entering in 1973, the total number of special
applicants was 297, of whom 73 were white. In 1974, 628 persons
applied to the special committee, of whom 172 were white. Id. at 133-134.

															[ Footnote 6 ]

															The following table provides a year-by-year comparison of
minority admissions at the Davis Medical School:

															bwm:

															Special Admissions Program General Admissions Total

															---------------------------- ---------------------- -----

															Blacks Chicanos Asians Total Blacks Chicanos Asians Total

															1970. . . . 5 3 0 8 0 0 4 4 12

															1971. . . . 4 9 2 15 1 0 8 9 24

															1972. . . . 5 6 5 16 0 0 11 11 27

															1973. . . . 6 8 2 16 0 2 13 15 31

															1974. . . . 6 7 3 16 0 4 5 9 25

															ewm: Id. at 216-218. Sixteen persons were admitted under the
special program in 1974, ibid., but one Asian withdrew
before the start of classes, and the vacancy was filled by a
candidate from the general admissions waiting list. Brief for
Petitioner 4 n. 5.

															[ Footnote 7 ]

															The following table compares Bakke's science grade point
average, overall grade point average, and MCAT scores with the
average scores of regular admittees and of special admittees in
both 1973 and 1974. Record 210, 223, 231, 234:

															bwm:

															Class Entering in 1973

															MCAT (Percentiles)

															Quanti- Gen.

															SGPA OGPA Verbal tative Science Infor.

															Bakke . . . . . . . 3.44 3.46 96 94 97 72

															Average of regular

															admittees. . . . . 3.51 3.49 81 76 83 69

															Average of special

															admittees. . . . . 2.62 2.88 46 24 35 33

															Class Entering in 1974

															MCAT (Percentiles)

															Quanti- Gen.

															SGPA OGPA Verbal tative Science Infor.

															Bakke. . . . . . . . 3.44 3.46 96 94 97 72

															Average of regular

															admittees. . . . . 3.36 3.29 69 67 82 72

															Average of special

															admittees. . . . . 2.42 2.62 34 30 37 18

															ewm:

															Applicants admitted under the special program also had benchmark
scores significantly lower than many students, including Bakke,
rejected under the general admissions program, even though the
special rating system apparently gave credit for overcoming
"disadvantage." Id. at 181, 388.

															[ Footnote 8 ]

															Prior to the actual filing of the suit, Bakke discussed his
intentions with Peter C. Storandt, Assistant to the Dean of
Admissions at the Davis Medical School. Id. at 259-269.
Storandt expressed sympathy for Bakke's position and offered advice
on litigation strategy. Several amici imply that these
discussions render Bakke's suit "collusive." There is no
indication, however, that Storandt's views were those of the
Medical School, or that anyone else at the school even was aware of
Storandt's correspondence and conversations with Bakke. Storandt is
no longer with the University.

															[ Footnote 9 ]

															"[N]or shall any State . . . deny to any person within its
jurisdiction the equal protection of the laws."

															[ Footnote 10 ]

															"No special privileges or immunities shall ever be granted which
may not be altered, revoked, or repealed by the Legislature; nor
shall any citizen, or class of citizens, be granted privileges or
immunities which, upon the same terms, shall not be granted to all
citizens."

															This section was recently repealed, and its provisions added to
Art. I, § 7, of the State Constitution.

															[ Footnote 11 ]

															Section 601 of Title VI, 78 Stat. 252, provides as follows:

															"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance."

															[ Footnote 12 ]

															Indeed, the University did not challenge the finding that
applicants who were not members of a minority group were excluded
from consideration in the special admissions process. 18 Cal. 3d at
44, 553 P.2d at 1159.

															[ Footnote 13 ]

															Petitioner has not challenged this aspect of the decision. The
issue of the proper placement of the burden of proof, then, is not
before us.

															[ Footnote 14 ]

															Several amici suggest that Bakke lacks standing,
arguing that he never showed that his injury -- exclusion from the
Medical School -- will be redressed by a favorable decision, and
that the petitioner "fabricated" jurisdiction by conceding its
inability to meet its burden of proof. Petitioner does not object
to Bakke's standing, but inasmuch as this charge concerns our
jurisdiction under Art. III, it must be considered and rejected.
First, there appears to be no reason to question the petitioner's
concession. It was not an attempt to stipulate to a conclusion of
law or to disguise actual facts of record. Cf. Swift &
Co. v. Hocking Valley R. Co., 243 U. S. 281 (1917).

															Second, even if Bakke had been unable to prove that he would
have been admitted in the absence of the special program, it would
not follow that he lacked standing. The constitutional element of
standing is plaintiff's demonstration of any injury to himself that
is likely to be redressed by favorable decision of his claim. Warth v. Seldin, 422 U. S. 490 , 422 U. S. 498 (1975). The trial court found such an injury, apart from failure to
be admitted, in the University's decision not to permit Bakke to
compete for all 100 places in the class, simply because of his
race. Record 323. Hence, the constitutional requirements of Art.
III were met. The question of Bakke's admission vel non is
merely one of relief.

															Nor is it fatal to Bakke's standing that he was not a
"disadvantaged" applicant. Despite the program's purported emphasis
on disadvantage, it was a minority enrollment program with a
secondary disadvantage element. White disadvantaged students were
never considered under the special program, and the University
acknowledges that its goal in devising the program was to increase
minority enrollment.

															[ Footnote 15 ] See, e.g., 110 Cong.Rec. 5255 (1964) (remarks of Sen.
Case).

															[ Footnote 16 ] E.g., Bossier Parish School Board v. Lemon, 370 F.2d
847, 851-852 (CA5), cert. denied, 388 U.S. 911 (1967); Natonbah v. Board of Education, 355 F.
Supp. 716 , 724 (NM 1973); cf. Lloyd v. Regional
Transportation Authority, 548 F.2d 1277, 1284-1287 (CA7 1977)
(Title V of Rehabilitation Act of 1973, 29 U.S.C. § 790 et
seq. (1976 ed.)); Piascik v. Cleveland Museum of
Art, 426 F.
Supp. 779 , 780 n. 1 (ND Ohio 1976) (Title IX of Education
Amendments of 1972, 20 U.S.C. § 1681 et seq. (1976
ed.)).

															[ Footnote 17 ]

															Section 602, as set forth in 42 U.S.C. § 2000d-1, reads as
follows:

															"Each Federal department and agency which is empowered to extend
Federal financial assistance to any program or activity, by way of
grant, loan, or contract other than a contract of insurance or
guaranty, is authorized and directed to effectuate the provisions
of section 2000d of this title with respect to such program or
activity by issuing rules, regulations, or orders of general
applicability which shall be consistent with achievement of the
objectives of the statute authorizing the financial assistance in
connection with which the action is taken. No such rule,
regulation, or order shall become effective unless and until
approved by the President. Compliance with any requirement adopted
pursuant to this section may be effected (1) by the termination of
or refusal to grant or to continue assistance under such program or
activity to any recipient as to whom there has been an express
finding on the record, after opportunity for hearing, of a failure
to comply with such requirement, but such termination or refusal
shall be limited to the particular political entity, or part
thereof, or other recipient as to whom such a finding has been made
and, shall be �limited in its effect to the particular program, or
part thereof, in which such noncompliance has been so found, or(2)
by any other means authorized by law: Provided, however, That no
such action shall be taken until the department or agency concerned
has advised the appropriate person or persons of the failure to
comply with the requirement and has determined that compliance
cannot be secured by voluntary means. In the case of any action
terminating, or refusing to grant or continue, assistance because
of failure to comply with a requirement imposed pursuant to this
section, the head of the Federal department or agency shall file
with the committees of the House and Senate having legislative
jurisdiction over the program or activity involved a full written
report of the circumstances and the grounds for such action. No
such action shall become effective until thirty days have elapsed
after the filing of such report."

															[ Footnote 18 ]

															Several comments in the debates cast doubt on the existence of
any intent to create a private right of action. For example,
Representative Gill stated that no private right of action was
contemplated:

															"Nowhere in this section do you find a comparable right of legal
action for a person who feels he has been denied his rights to
participate in the benefits of Federal funds. Nowhere. Only those
who have been cut off can go to court and present their claim."

															110 Cong.Rec. 2467 (1964). Accord, id. at 7065 (remarks
of Sen. Keating); 6562 (remarks of Sen. Kuchel).

															[ Footnote 19 ]

															For example, Senator Humphrey stated as follows:

															"Racial discrimination or segregation in the administration of
disaster relief is particularly shocking; and offensive to our
sense of justice and fair play. Human suffering draws no color
lines, and the administration of help to the sufferers should
not." Id. at 6547. See also id. at 12675 (remarks of
Sen. Allott); 6561 (remarks of Sen. Kuchel); 2494, 6047 (remarks of
Sen. Pastore). But see id. at 15893 (remarks of Rep.
MacGregor); 13821 (remarks of Sen. Saltonstall); 10920 (remarks of
Sen. Javits); 5266, 5807 (remarks of Sen. Keating).

															[ Footnote 20 ] See, e.g., id. at 7064-7065 (remarks of Sen. Ribicoff);
7054-7055 (remarks of Sen. Pastore); 6543-6544 (remarks of Sen.
Humphrey); 2595 (remarks of Rep. Donohue); 2467-2468 (remarks of
Rep. Celler); 1643, 2481-2482 (remarks of Rep. Ryan); H.R.Rep. No.
914, 88th Cong., 1st Sess., pt. 2, pp. 24-25 (1963).

															[ Footnote 21 ] See, e.g., 110 Cong.Rec. 2467 (1964) (remarks of Rep.
Lindsay). See also id. at 2766 (remarks of Rep.
Matsunaga); 2731-2732 (remarks of Rep. Dawson); 2595 (remarks of
Rep. Donohue); 1527-1528 (remarks of Rep. Celler).

															[ Footnote 22 ] See, e.g., id. at 12675, 12677 (remarks of Sen.
Allott); 7064 (remarks of Sen. Pell); 7057, 7062-7064 (remarks of
Sen. Pastore); 5243 (remarks of Sen. Clark).

															[ Footnote 23 ] See, e.g., id. at 6052 (remarks of Sen. Johnston); 5863
(remarks of Sen. Eastland); 5612 (remarks of Sen. Ervin); 5251
(remarks of Sen. Talmadge); 1632 (remarks of Rep. Dowdy); 1619
(remarks of Rep. Abernethy).

															[ Footnote 24 ] See also id. at 7057, 13333 (remarks of Sen. Ribicoff);
7057 (remarks of Sen. Pastore); 5606-5607 (remarks of Sen. Javits);
5253, 5863-5864, 13442 (remarks of Sen. Humphrey).

															[ Footnote 25 ]

															That issue has generated a considerable amount of scholarly
controversy. See, e.g., Ely, The Constitutionality of
Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723 (1974);
Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law
School Admissions, 75 Colum.L.Rev. 559 (1975); Kaplan, Equal
Justice in an Unequal World: Equality for the Negro, 61 Nw.U.L.Rev.
363 (1966); Karst & Horowitz, Affirmative Action and Equal
Protection, 60 Va.L.Rev. 955 (1974); O'Neil, Racial Preference and
Higher Education: The Larger Context, 60 Va.L.Rev. 925 (1974);
Posner, The DeFunis Case and the Constitutionality of
Preferential Treatment of Racial Minorities, 1974 Sup.Ct.Rev. 1;
Redish, Preferential Law School Admissions and the Equal Protection
Clause: An Analysis of the Competing Arguments, 22 UCLA L.Rev. 343
(1974); Sandalow, Racial Preferences in Higher Education: Political
Responsibility and the Judicial Role, 42 U.Chi.L.Rev. 653 (1975);
Sedler, Racial Preference, Reality and the Constitution: Bakke
v. Regents of the University of California, 17 Santa Clara
L.Rev. 329 (1977); Seeburger, A Heuristic Argument Against
Preferential Admissions, 39 U.Pitt.L.Rev. 285 (1977).

															[ Footnote 26 ]

															Petitioner defines "quota" as a requirement which must be met,
but can never be exceeded, regardless of the quality of the
minority applicants. Petitioner declares that there is no "floor"
under the total number of minority students admitted; completely
unqualified students will not be admitted simply to meet a "quota."
Neither is there a "ceiling," since an unlimited number could be
admitted through the general admissions process. On this basis, the
special admissions program does not meet petitioner's definition of
a quota.

															The court below found -- and petitioner does not deny -- that
white applicants could not compete for the 16 places reserved
solely for the special admissions program. 18 Cal. 3d at 44, 553
P.2d at 1159. Both courts below characterized this as a "quota"
system.

															[ Footnote 27 ]

															Moreover, the University's special admissions program involves a
purposeful, acknowledged use of racial criteria. This is not a
situation in which the classification on its face is racially
neutral, but has a disproportionate racial impact. In that
situation, plaintiff must establish an intent to discriminate. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S.
264 -265 (1977); Washington v. Davis, 426 U. S. 229 , 426 U. S. 242 (1976); see Yick Wo v. Hopkins, 118 U.
S. 356 (1886).

															[ Footnote 28 ]

															After Carolene Products, the first specific reference
in our decisions to the elements of "discreteness and insularity"
appears in Minersville School District v. Gobitis, 310 U. S. 586 , 310 U. S. 606 (1940) (Stone, J., dissenting). The next does not appear until
1970. Oregon v. Mitchell, 400 U.
S. 112 , 400 U. S. 295 n. 14 (STEWART, J., concurring in part and dissenting in part).
These elements have been relied upon in recognizing a suspect class
in only one group of cases, those involving aliens. E.g.,
Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971).

															[ Footnote 29 ]

															Tussman & tenBroek, The Equal Protection of the Law, 37
Calif.L.Rev. 341, 381 (1949).

															[ Footnote 30 ]

															M. Jones, American Immigration 177-246 (1960).

															[ Footnote 31 ]

															J. Higham, Strangers in the Land (1955); G. Abbott, The
Immigrant and the Community (1917); P. Roberts, The New Immigration
66-73, 86-91, 248-261 (1912). See also E. Fenton,
Immigrants and Unions: A Case Study 561-562 (1975).

															[ Footnote 32 ]

															"Members of various religious and ethnic groups, primarily but
not exclusively of Eastern, Middle, and Southern European ancestry,
such as Jews, Catholics, Italians, Greeks, and Slavic groups,
continue to be excluded from executive, middle-management, and
other job levels because of discrimination based upon their
religion and/or national origin."

															41 CFR § 60-50.1(b) (1977).

															[ Footnote 33 ] E.g., P. Roberts, supra, n 31, at 75; G. Abbott, supra, n 31, at 270-271. See
generally n 31, supra. [ Footnote 34 ]

															In the view of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR.
JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, the pliable notion of
"stigma" is the crucial element in analyzing racial
classifications, see, e.g., post at 438 U. S. 361 , 438 U. S. 362 .
The Equal Protection Clause is not framed in terms of "stigma."
Certainly the word has no clearly defined constitutional meaning.
It reflects a subjective judgment that is standardless. All
state-imposed classifications that rearrange burdens and benefits
on the basis of race are likely to be viewed with deep resentment
by the individuals burdened. The denial to innocent persons of
equal rights and opportunities may outrage those so deprived, and
therefore may be perceived as invidious. These individuals are
likely to find little comfort in the notion that the deprivation
they are asked to endure is merely the price of membership in the
dominant majority, and that its imposition is inspired by the
supposedly benign purpose of aiding others. One should not lightly
dismiss the inherent unfairness of, and the perception of
mistreatment that accompanies, a system of allocating benefits and
privileges on the basis of skin color and ethnic origin. Moreover,
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and
MR. JUSTICE BLACKMUN offer no principle for deciding whether
preferential classifications reflect a benign remedial purpose or a
malevolent stigmatic classification, since they are willing in this
case to accept mere post hoc declarations by an isolated
state entity -- a medical school faculty -- unadorned by
particularized findings of past discrimination, to establish such a
remedial purpose.

															[ Footnote 35 ]

															Professor Bickel noted the self-contradiction of that view:

															"The lesson of the great decisions of the Supreme Court and the
lesson of contemporary history have been the same for at least a
generation -- discrimination on the basis of race is illegal,
immoral, unconstitutional, inherently wrong, and destructive of
democratic society. Now this is to be unlearned, and we are told
that this is not a matter of fundamental principle, but only a
matter of whose ox is gored. Those for whom racial equality was
demanded are to be more equal than others. Having found support in
the Constitution for equality, they now claim support for
inequality under the same Constitution."

															A. Bickel, The Morality of Consent 133 (1975).

															[ Footnote 36 ]

															As I am in agreement with the view that race may be taken into
account as a factor in an admissions program, I agree with my
Brothers BRENNAN, WHITE, MARSHALL, and BLACKMUN that the portion of
the judgment that would proscribe all consideration of race must be
reversed. See 438 U. S. infra. But I disagree with much that is said in their
opinion.

															They would require, as a justification for a program such as
petitioner's, only two findings: (i) that there has been some form
of discrimination against the preferred minority groups by "society
at large," post at 438 U. S. 369 (it being conceded that petitioner had no history of
discrimination), and (ii) that "there is reason to believe" that
the disparate impact sought to be rectified by the program is the
"product" of such discrimination:

															"If it was reasonable to conclude -- as we hold that it was --
that the failure of minorities to qualify for admission at Davis
under regular procedures was due principally to the effects of past
discrimination, then there is a reasonable likelihood that, but for
pervasive racial discrimination, respondent would have failed to
qualify for admission even in the absence of Davis' special
admissions program." Post at 438 U. S.
365 -366.

															The breadth of this hypothesis is unprecedented in our
constitutional system. The first step is easily taken. No one
denies the regrettable fact that there has been societal
discrimination in this country against various racial and ethnic
groups. The second step, however, involves a speculative leap: but
for this discrimination by society at large, Bakke "would have
failed to qualify for admission" because Negro applicants --
nothing is said about Asians, cf., e.g., post at 438 U. S. 374 n. 57 -- would have made better scores. Not one word in the record
supports this conclusion, and the authors of the opinion offer no
standard for courts to use in applying such a presumption of
causation to other racial or ethnic classifications. This failure
is a grave one, since, if it may be concluded on this record that
each of the minority groups preferred by the petitioner's special
program is entitled to the benefit of the presumption, it would
seem difficult to determine that any of the dozens of minority
groups that have suffered "societal discrimination" cannot also
claim it in any area of social intercourse. See 438 U. S. infra. [ Footnote 37 ]

															Mr. Justice Douglas has noted the problems associated with such
inquiries:

															"The reservation of a proportion of the law school class for
members of selected minority groups is fraught with . . . dangers,
for one must immediately determine which groups are to receive such
favored treatment and which are to be excluded, the proportions of
the class that are to be allocated to each, and even the criteria
by which to determine whether an individual is a member of a
favored group. [ Cf. Plessy v. Ferguson, 163 U. S.
537 , 163 U. S. 549 , 163 U. S.
552 (1896).] There is no assurance that a common
agreement can be reached, and first the schools, and then the
courts, will be buffeted with the competing claims. The University
of Washington included Filipinos, but excluded Chinese and
Japanese; another school may limit its program to blacks, or to
blacks and Chicanos. Once the Court sanctioned racial preferences
such as these, it could not then wash its hands of the matter,
leaving it entirely in the discretion of the school, for then we
would have effectively overruled Sweatt v. Painter, 339 U. S.
629 , and allowed imposition of a 'zero' allocation. But
what standard is the Court to apply when a rejected applicant of
Japanese ancestry brings suit to require the University of
Washington to extend the same privileges to his group? The
Committee might conclude that the population of Washington is now
2% Japanese, and that Japanese also constitute 2% of the Bar, but
that, had they not been handicapped by a history of discrimination,
Japanese would now constitute 5% of the Bar, or 20%. Or,
alternatively, the Court could attempt to assess how grievously
each group has suffered from discrimination, and allocate
proportions accordingly; if that were the standard, the current
University of Washington policy would almost surely fall, for there
is no Western State which can claim that it has always treated
Japanese and Chinese in a fair and evenhanded manner. See,
e.g., Yick Wo v. Hopkins, 118 U. S. 356 ; Terrace v.
Thompson, 263 U. S. 197 ; Oyama v.
California, 332 U. S. 633 . This Court has
not sustained a racial classification since the wartime cases of Korematsu v. United States, 323 U. S.
214 , and Hirabayashi v. United States, 320 U. S.
81 , involving curfews and relocations imposed upon
Japanese-Americans."

															"Nor, obviously, will the problem be solved if, next year, the
Law School included only Japanese and Chinese, for then Norwegians
and Swedes, Poles and Italians, Puerto Ricans and Hungarians, and
all other groups which form this diverse Nation would have just
complaints." DeFunis v. Odegaard, 416 U. S. 312 , 416 U. S.
337 -340 (1974) (dissenting opinion) (footnotes omitted)
.

															[ Footnote 38 ]

															R. Dahl, A Preface to Democratic Theory (1956); Posner, supra, n 25, at
27.

															[ Footnote 39 ]

															Petitioner cites three lower court decisions allegedly deviating
from this general rule in school desegregation cases: Offermann
v. Nitkowski, 378 F.2d 22 (CA2 1967); Wanner v. County
School Board, 357 F.2d 452 (CA4 1966); Springfield School
Committee v. Barksdale, 348 F.2d 261 (CA1 1965). Of these, Wanner involved a school system held to have been de
jure segregated and enjoined from maintaining segregation;
racial districting was deemed necessary. 357 F.2d at 454. Cf.
United Jewish Organizations v. Carey, 430 U.
S. 144 (1977). In Barksdale and Offermann, courts did approve voluntary districting
designed to eliminate discriminatory attendance patterns. In
neither, however, was there any showing that the school board
planned extensive pupil transportation that might threaten liberty
or privacy interests. See Keyes v. School District No. 1, 413 U. S. 189 , 413 U.S. 240 -250 (1973)
(POWELL, J., concurring in part and dissenting in part). Nor were
white students deprived of an equal opportunity for education.

															Respondent's position is wholly dissimilar to that of a pupil
bused from his neighborhood school to a comparable school in
another neighborhood in compliance with a desegregation decree.
Petitioner did not arrange for respondent to attend a different
medical school in order to desegregate Davis Medical School;
instead, it denied him admission, and may have deprived him
altogether of a medical education.

															[ Footnote 40 ]

															Every decision upholding the requirement of preferential hiring
under the authority of Exec.Order No. 11246, 3 CFR 339 (1964-1965
Comp.), has emphasized the existence of previous discrimination as
a predicate for the imposition of a preferential remedy. Contractors Association of Eastern Pennsylvania; Southern
Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972); Joyce v. McCrane, 320 F.
Supp. 1284 (NJ 1970); Weiner v. Cuyahoga Community College
District, 19 Ohio St.2d 35, 249 N.E.2d 907, cert.
denied, 396 U.S. 1004 (1970). See also Rosetti Contracting
Co. v. Brennan, 508 F.2d 1039, 1041 (CA7 1975); Associated
General Contractors of Massachusetts, Inc. v. Altshuler, 490
F.2d 9 (CA1 1973), cert. denied, 416 U.S. 957 (1974); Northeast Constr. Co. v. Romney, 157 U.S.App.D.C. 381,
383, 390, 485 F.2d 752, 754, 761 (1973).

															[ Footnote 41 ]

															This case does not call into question congressionally authorized
administrative actions, such as consent decrees under Title VII or
approval of reapportionment plans under § 5 of the Voting Rights
Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). In such cases,
there has been detailed legislative consideration of the various
indicia of previous constitutional or statutory violations, e.g., South Carolina v. Katzenbach, 383 U.
S. 301 , 383 U. S.
308 -310 (1966) (§ 5), and particular administrative
bodies have been charged with monitoring various activities in
order to detect such violations and formulate appropriate remedies. See Hampton v. Mow Sun Wong, 426 U. S.
88 , 426 U. S. 103 (1976).

															Furthermore, we are not here presented with an occasion to
review legislation by Congress pursuant to its powers under § 2 of
the Thirteenth Amendment and § 5 of the Fourteenth Amendment to
remedy the effects of prior discrimination. Katzenbach v.
Morgan, 384 U. S. 641 (1966); Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968). We have previously recognized the special
competence of Congress to make findings with respect to the effects
of identified past discrimination and its discretionary authority
to take appropriate remedial measures.

															[ Footnote 42 ]

															Petitioner also cites our decision in Morton v.
Mancari, 417 U. S. 535 (1974), for the proposition that the State may prefer members of
traditionally disadvantaged groups. In Mancari, we
approved a hiring preference for qualified Indians in the Bureau of
Indian Affairs of the Department of the Interior (BIA). We observed
in that case, however, that the legal status of the BIA is sui
generis. Id. at 417 U. S. 554 .
Indeed, we found that the preference was not racial at all, but

															"an employment criterion reasonably designed to further the
cause of Indian self-government and to make the BIA more responsive
to . . . groups . . . whose lives and activities are governed by
the BIA in a unique fashion." Ibid. [ Footnote 43 ]

															A number of distinct subgoals have been advanced as falling
under the rubric of "compensation for past discrimination." For
example, it is said t.hat preferences for Negro applicants may
compensate for harm done them personally, or serve to place them at
economic levels they might have attained but for discrimination
against their forebears. Greenawalt, supra, n 25, at 581-586. Another view of the
"compensation" goal is that it serves as a form of reparation by
the "majority" to a victimized group as a whole. B. Bittker, The
Case for Black Reparations (1973). That justification for racial or
ethnic preference has been subjected to much criticism. E.
Greenawalt, supra, n 25, at 581; Posner, supra, n 25, at 16-17, and n. 33. Finally, it has
been argued that ethnic preferences "compensate" the group by
providing examples of success whom other members of the group will
emulate, thereby advancing the group's interest and society's
interest in encouraging new generations to overcome the barriers
and frustrations of the past. Redish, supra, n 25, at 391. For purposes of
analysis these subgoals need not be considered separately.

															Racial classifications in admissions conceivably could serve a
fifth purpose, one which petitioner does not articulate: fair
appraisal of each individual's academic promise in the light of
some cultural bias in grading or testing procedures. To the extent
that race and ethnic background were considered only to the extent
of curing established inaccuracies in predicting academic
performance, it might be argued that there is no "preference" at
all. Nothing in this record, however, suggests either that any of
the quantitative factors considered by the Medical School were
culturally biased, or that petitioner's special admissions program
was formulated to correct for any such biases. Furthermore, if race
or ethnic background were used solely to arrive at an unbiased
prediction of academic success, the reservation of fixed numbers of
seats would be inexplicable.

															[ Footnote 44 ]

															MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL,
and MR. JUSTICE BLACKMUN misconceive the scope of this Court's
holdings under Title VII when they suggest that "disparate impact"
alone is sufficient to establish a violation of that statute and,
by analogy, other civil rights measures. See post at 438 U. S.
363 -366, and n. 42. That this was not the meaning of
Title VII was made quite clear in the seminal decision in this
area, Griggs v. Duke Power Co., 401 U.
S. 424 (1971):

															" Discriminatory preference for any group, minority or
majority, is precisely and only what Congress has proscribed. What
is required by Congress is the removal of artificial,
arbitrary, and unnecessary barriers to employment when the
barriers operate invidiously to discriminate on the basis of racial
or other impermissible classification." Id. at 401 U. S. 431 (emphasis added). Thus, disparate impact is a basis for relief
under Title VII only if the practice in question is not founded on
"business necessity," ibid., or lacks "a manifest
relationship to the employment in question," id. at 401 U. S. 432 . See also McDonnell Douglas Corp. v. Green, 411 U.
S. 792 , 411 U. S.
802 -803, 411 U. S.
805 -806 (1973). Nothing in this record -- as opposed to
some of the general literature cited by MR. JUSTICE BRENNAN, MR
JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN --
even remotely suggests that the disparate impact of the general
admissions program at Davis Medical School, resulting primarily
from the sort of disparate test scores and grades set forth in n 7, supra, is without
educational justification.

															Moreover, the presumption in Griggs -- that disparate
impact without any showing of business justification established
the existence of discrimination in violation of the statute -- was
based on legislative determinations, wholly absent here, that past
discrimination had handicapped various minority groups to such an
extent that disparate impact could be traced to identifiable
instances of past discrimination:

															"[Congress sought] to achieve equality of employment
opportunities and remove barriers that have operated in the past to
favor an identifiable group of white employees over other
employees. Under the Act, practices, procedures, or tests neutral
on their face, and even neutral in terms of intent, cannot be
maintained if they operate to 'freeze' the status quo of
prior discriminatory employment practices." Griggs, supra at 401 U. S.
429 -430. See, e.g., H.R.Rep. No. 914, 88th
Cong., 1st Sess., pt. 2, p. 26 (1963) ("Testimony supporting the
fact of discrimination in employment is overwhelming"). See
generally Vaas, Title VII: The Legislative History, 7 B. C.
Ind. & Com.L.Rev. 431 (1966). The Court emphasized that

															"the Act does not command that any person be hired simply
because he was formerly the subject of discrimination, or because
he is a member of a minority group."

															401 U.S. at 401 U. S.
430 -431. Indeed, § 703(j) of the Act makes it clear that
preferential treatment for an individual or minority group to
correct an existing "imbalance" may not be required under Title
VII. 42 U.S.C. § 2000e-2(j). Thus, Title VII principles support the
proposition that findings of identified discrimination must precede
the fashioning of remedial measures embodying racial
classifications.

															[ Footnote 45 ]

															For example, the University is unable to explain its selection
of only the four favored groups -- Negroes, Mexican-Americans,
American Indians, and Asians -- for preferential treatment. The
inclusion of the last group is especially curious in light of the
substantial numbers of Asians admitted through the regular
admissions process. See also n 37, supra. [ Footnote 46 ]

															The only evidence in the record with respect to such
underservice is a newspaper article. Record 473.

															[ Footnote 47 ]

															It is not clear that petitioner's two-track system, even if
adopted throughout the country, would substantially increase
representation of blacks in the medical profession. That is the
finding of a recent study by Sleeth & Mishell, Black
Under-Representation in United States Medical Schools, 297 New
England J. of Med. 1146 (1977). Those authors maintain that the
cause of black underrepresentation lies in the small size of the
national pool of qualified black applicants. In their view, this
problem is traceable to the poor premedical experiences of black
undergraduates, and can be remedied effectively only by developing
remedial programs for black students before they enter college.

															[ Footnote 48 ]

															The president of Princeton University has described some of the
benefits derived from a diverse student body:

															"[A] great deal of learning occurs informally. It occurs through
interactions among students of both sexes; of different races,
religions, and backgrounds; who come from cities and rural areas,
from various states and countries; who have a wide variety of
interests, talents, and perspectives; and who are able, directly or
indirectly, to learn from their differences and to stimulate one
another to reexamine even their most deeply held assumptions about
themselves and their world. As a wise graduate of ours observed in
commenting on this aspect of the educational process, 'People do
not learn very much when they are surrounded only by the likes of
themselves.'"

															" * * * *" "In the nature of things, it is hard to know how, and when, and
even if, this informal 'learning through diversity' actually
occurs. It does not occur for everyone. For many, however, the
unplanned, casual encounters with roommates, fellow sufferers in an
organic chemistry class, student workers in the library, teammates
on a basketball squad, or other participants in class affairs or
student government can be subtle and yet powerful sources of
improved understanding and personal growth."

															Bowen, Admissions and the Relevance of Race, Princeton Alumni
Weekly 7, 9 (Sept. 26, 1977).

															[ Footnote 49 ]

															Graduate admissions decisions, like those at the undergraduate
level, are concerned with

															"assessing the potential contributions to the society of each
individual candidate following his or her graduation --
contributions defined in the broadest way to include the doctor and
the poet, the most active participant in business or government
affairs and the keenest critic of all things organized, the
solitary scholar and the concerned parent." Id. at 10.

															[ Footnote 50 ] See Manning, The Pursuit of Fairness in Admissions to
Higher Education, in Carnegie Council on Policy Studies in Higher
Education, Selective Admission in Higher Education 19, 57-59
(1977).

															[ Footnote 51 ]

															The admissions program at Princeton has been described in
similar terms:

															"While race is not, in and of itself, a consideration in
determining basic qualifications, and while there are obviously
significant differences in background and experience among
applicants of every race, in some situations, race can be helpful
information in enabling the admission officer to understand more
fully what a particular candidate has accomplished -- and against
what odds. Similarly, such factors as family circumstances and
previous educational opportunities may be relevant, either in
conjunction with race or ethnic background (with which they may be
associated) or on their own."

															Bowen, supra, n 48, at 8-9.

															For an illuminating discussion of such flexible admissions
systems, see Manning, supra, n 50, at 57-59.

															[ Footnote 52 ]

															The denial to respondent of this right to individualized
consideration without regard to his race is the principal evil of
petitioner' special admissions program. Nowhere in the opinion of
MR. JUSTICE BRENNAN, MR JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR
JUSTICE BLACKMUN is this denial even addressed.

															[ Footnote 53 ]

															Universities, like the prosecutor in Swain, may make
individualized decisions, in which ethnic background plays a part,
under a presumption of legality and legitimate educational purpose.
So long as the university proceeds on an individualized,
case-by-case basis, there is no warrant for judicial interference
in the academic process. If an applicant can establish that the
institution does not adhere to a policy of individual comparisons,
or can show that a systematic exclusion of certain groups results,
the presumption of legality might be overcome, creating the
necessity of proving legitimate educational purpose.

															There also are strong policy reasons that correspond to the
constitutional distinction between petitioner's preference program
and one that assures a measure of competition among all applicants.
Petitioner's program will be viewed as inherently unfair by the
public generally, as well as by applicants for admission to state
universities. Fairness in individual competition for opportunities,
especially those provided by the State, is a widely cherished
American ethic. Indeed, in a broader sense, an underlying
assumption of the rule of law is the worthiness of a system of
justice based on fairness to the individual. As Mr. Justice
Frankfurter declared in another connection, "[j]ustice must satisfy
the appearance of justice." Offutt v. United States, 348 U. S. 11 , 348 U. S. 14 (1954).

															[ Footnote 54 ]

															There is no occasion for remanding the case to permit petitioner
to reconstruct what might have happened if it had been operating
the type of program described as legitimate in 438 U.
S. supra. Cf. Mt. Healthy City Board of Ed.
v. Doyle, 429 U. S. 274 , 429 U. S.
284 -287 (1977). In Mt. Healthy, there was
considerable doubt whether protected First Amendment activity had
been the "but for" cause of Doyle's protested discharge. Here, in
contrast, there is no question as to the sole reason for
respondent's rejection -- purposeful racial discrimination in the
form of the special admissions program. Having injured respondent
solely on the basis of an unlawful classification, petitioner
cannot now hypothesize that it might have employed lawful means of
achieving the same result. See Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.S. at 429 U. S.
265 -266. No one can say how -- or even if -- petitioner
would have operated its admissions process if it had known that
legitimate alternatives were available. Nor is there a record
revealing that legitimate alternative grounds for the decision
existed, as there was in Mt. Healthy. In sum, a remand
would result in fictitious recasting of past conduct.

															[ Footnote 55 ]

															This statement appears in the Appendix to the Brief for Columbia
University, Harvard University, Stanford University, and the
University of Pennsylvania, as Amici Curiae. Opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE
MARSHALL, and MR, JUSTICE BLACKMUN, concurring in the judgment in
part and dissenting in part.

															The Court today, in reversing in part the judgment of the
Supreme Court of California, affirms the constitutional power of
Federal and State Governments to act affirmatively to achieve equal
opportunity for all. The difficulty of the issue presented --
whether government may use race-conscious programs to redress the
continuing effects of past discrimination -- Page 438 U. S. 325 and the mature consideration which each of our Brethren has
brought to it have resulted in many opinions, no single one
speaking for the Court. But this should not and must not mask the
central meaning of today's opinions: Government may take race into
account when it acts not to demean or insult any racial group, but
to remedy disadvantages cast on minorities by past racial
prejudice, at least when appropriate findings have been made by
judicial, legislative, or administrative bodies with competence to
act in this area.

															THE CHIEF JUSTICE and our Brothers STEWART, REHNQUIST, and
STEVENS, have concluded that Title VI of the Civil Rights Act of
1964, 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq., prohibits programs such as that at the Davis Medical School. On
this statutory theory alone, they would hold that respondent Allan
Bakke's rights have been violated, and that he must, therefore, be
admitted to the Medical School. Our Brother POWELL, reaching the
Constitution, concludes that, although race may be taken into
account in university admissions, the particular special admissions
program used by petitioner, which resulted in the exclusion of
respondent Bakke, was not shown to be necessary to achieve
petitioner's stated goals. Accordingly, these Members of the Court
form a majority of five affirming the judgment of the Supreme Court
of California insofar as it holds that respondent Bakke "is
entitled to an order that he be admitted to the University." 18 Cal. 3d 34 ,
64, 553 P.2d 1152, 1172 (1976).

															We agree with MR. JUSTICE POWELL that, as applied to the case
before us, Title VI goes no further in prohibiting the use of race
than the Equal Protection Clause of the Fourteenth Amendment
itself. We also agree that the effect of the California Supreme
Court's affirmance of the judgment of the Superior Court of
California would be to prohibit the University from establishing in
the future affirmative action programs that take race into account. See ante at 438 U. S. 271 n. Since we conclude that the affirmative admissions program at the
Davis Page 438 U. S. 326 Medical School is constitutional, we would reverse the judgment
below in all respects. MR. JUSTICE POWELL agrees that some uses of
race in university admissions are permissible and, therefore, he
joins with us to make five votes reversing the judgment below
insofar as it prohibits the University from establishing
race-conscious programs in the future. [ Footnote 2/1 ] I Our Nation was founded on the principle that "all Men are
created equal." Yet candor requires acknowledgment that the Framers
of our Constitution, to forge the 13 Colonies into one Nation,
openly compromised this principle of equality with its antithesis:
slavery. The consequences of this compromise are well known, and
have aptly been called our "American Dilemma." Still, it is well to
recount how recent the time has ben, if it has yet come, when the
promise of our principles has flowered into the actuality of equal
opportunity for all regardless of race or color.

															The Fourteenth Amendment, the embodiment in the Constitution of
our abiding belief in human equality, has been the law of our land
for only slightly more than half its 200 years. And for half of
that half, the Equal Protection Clause of the Amendment was largely
moribund, so that, as late as 1927, Mr. Justice Holmes could sum up
the importance of that Clause by remarking that it was the "last
resort of constitutional arguments." Buck v. Bell, 274 U. S. 200 , 274 U. S. 208 (1927). Worse than desuetude, the Clause was early turned against
those whom it was intended to set free, condemning them to a
"separate but equal" [ Footnote 2/2 ]
status before the law, a status Page 438 U. S. 327 always separate but seldom equal. Not until 1954 -- only 24
years ago -- was this odious doctrine interred by our decision in Brown v. Board of Education, 347 U.
S. 483 ( Brown I ), and its progeny, [ Footnote 2/3 ] which proclaimed that
separate schools and public facilities of all sorts were inherently
unequal and forbidden under our Constitution. Even then, inequality
was not eliminated with "all deliberate speed." Brown v. Board
of Education, 349 U. S. 294 , 349 U. S. 301 (1955). In 1968 [ Footnote 2/4 ] and
again in 1971, [ Footnote 2/5 ] for
example, we were forced to remind school boards of their obligation
to eliminate racial discrimination root and branch. And a glance at
our docket [ Footnote 2/6 ] and at
dockets of lower courts will show that, even today, officially
sanctioned discrimination is not a thing of the past.

															Against this background, claims that law must be "colorblind" or
that the datum of race is no longer relevant to public policy must
be seen as aspiration, rather than as description of reality. This
is not to denigrate aspiration; for reality rebukes us that race
has too often been used by those who would stigmatize and oppress
minorities. Yet we cannot -- and, as we shall demonstrate, need not
under our Constitution or Title VI, which merely extends the
constraints of the Fourteenth Amendment to private parties who
receive federal funds -- let color blindness become myopia which
masks the reality that many "created equal" have been treated
within our lifetimes as inferior both by the law and by their
fellow citizens. Page 438 U. S. 328 II The threshold question we must decide is whether Title VI of the
Civil Rights Act of 1964 bars recipients of federal funds from
giving preferential consideration to disadvantaged members of
racial minorities as part of a program designed to enable such
individuals to surmount the obstacles imposed by racial
discrimination. [ Footnote 2/7 ] We
join Parts I and V-C of our Brother POWELL's opinion, and three of
us agree with his conclusion in Part II that this case does not
require us to resolve the question whether there is a private right
of action under Title VI. [ Footnote
2/8 ]

															In our view, Title VI prohibits only those uses of racial
criteria that would violate the Fourteenth Amendment if employed by
a State or its agencies; it does not bar the preferential treatment
of racial minorities as a means of remedying past societal
discrimination to the extent that such action is consistent with
the Fourteenth Amendment. The legislative history of Title VI,
administrative regulations interpreting the statute, subsequent
congressional and executive action, and the prior decisions of this
Court compel this conclusion. None of these sources lends support
to the proposition that Congress intended to bar all race-conscious
efforts to extend the benefits of federally financed programs to
minorities who have been historically excluded from the full
benefits of American life. A The history of Title VI -- from President Kennedy's request that
Congress grant executive departments and agencies authority Page 438 U. S. 329 to cut off federal funds to programs that discriminate against
Negroes through final enactment of legislation incorporating his
proposals -- reveals one fixed purpose: to give the Executive
Branch of Government clear authority to terminate federal funding
of private programs that use race as a means of disadvantaging
minorities in a manner that would be prohibited by the Constitution
if engaged in by government.

															This purpose was first expressed in President Kennedy's June 19,
1963, message to Congress proposing the legislation that
subsequently became the Civil Rights Act of 1964. [ Footnote 2/9 ] Page 438 U. S. 330 Representative Celler, the Chairman of the House Judiciary
Committee, and the floor manager of the legislation in the House,
introduced Title VI in words unequivocally expressing the intent to
provide the Federal Government with the means of assuring that its
funds were not used to subsidize racial discrimination inconsistent
with the standards imposed by the Fourteenth and Fifth Amendments
upon state and federal action.

															"The bill would offer assurance that hospitals financed by
Federal money would not deny adequate care to Negroes. It would
prevent abuse of food distribution programs whereby Negroes have
been known to be denied food surplus supplies when white persons
were given such food. It would assure Negroes the benefits now
accorded only white students in programs of high[er] education
financed by Federal funds. It would, in short, assure the existing
right to equal treatment in the enjoyment of Federal funds. It
would not destroy any rights of private property or freedom of
association."

															110 Cong.Rec. 1519 (1964). It was clear to Representative Celler
that Title VI, apart from the fact that it reached all federally
funded activities even in the absence of sufficient state or
federal control to invoke the Fourteenth or Fifth Amendments, was
not placing new substantive limitations upon the use of racial
criteria, but rather was designed to extend to such activities "the
existing right to equal treatment" enjoyed by Negroes under those
Amendments, and he later specifically defined the purpose of Title
VI in this way:

															"In general, it seems rather anomalous that the Federal
Government should aid and abet discrimination on the basis of race,
color, or national origin by granting money Page 438 U. S. 331 and other kinds of financial aid. It seems rather shocking,
moreover, that, while we have on the one hand the 14th Amendment,
which is supposed to do away with discrimination, since it provides
for equal protection of the laws, on the other hand, we have the
Federal Government aiding and abetting those who persist in
practicing racial discrimination."

															"It is for these reasons that we bring forth title VI. The
enactment of title VI will serve to override specific provisions of
law which contemplate Federal assistance to racially segregated
institutions." Id. at 2467. Representative Celler also filed a
memorandum setting forth the legal basis for the enactment of Title
VI which reiterated the theme of his oral remarks:

															"In exercising its authority to fix the terms on which Federal
funds will be disbursed . . . . Congress clearly has power to
legislate so as to insure that the Federal Government does not
become involved in a violation of the Constitution." Id. at 1528.

															Other sponsors of the legislation agreed with Representative
Celler that the function of Title VI was to end the Federal
Government's complicity in conduct, particularly the segregation or
exclusion of Negroes, inconsistent with the standards to be found
in the antidiscrimination provisions of the Constitution.
Representative Lindsay, also a member of the Judiciary Committee,
candidly acknowledged, in the course of explaining why Title VI was
necessary, that it did not create any new standard of equal
treatment beyond that contained in the Constitution:

															"Both the Federal Government and the States are under
constitutional mandates not to discriminate. Many have raised the
question as to whether legislation is required at all. Does not the
Executive already have the power in the distribution of Federal
funds to apply those conditions which will enable the Federal
Government itself to live up to the mandate of the Constitution and
to require Page 438 U. S. 332 States and local government entities to live up to the
Constitution, most especially the 5th and 14th amendments?" Id. at 2467. He then explained that legislation was
needed to authorize the termination of funding by the Executive
Branch because existing legislation seemed to contemplate the
expenditure of funds to support racially segregated institutions. Ibid. The views of Representatives Celler and Lindsay
concerning the purpose and function of Title VI were shared by
other sponsors and proponents of the legislation in the House.
[ Footnote 2/10 ] Nowhere is there
any suggestion that Title VI was intended to terminate federal
funding for any reason other than consideration of race or national
origin by the recipient institution in a manner inconsistent with
the standards incorporated in the Constitution.

															The Senate's consideration of Title VI reveals an identical
understanding concerning the purpose and scope of the legislation.
Senator Humphrey, the Senate floor manager, opened the Senate
debate with a section-by-section analysis of the Civil Rights Act
in which he succinctly stated the purpose of Title VI:

															"The purpose of title VI is to make sure that funds of the
United States are not used to support racial discrimination. In
many instances, the practices of segregation or discrimination,
which title VI seeks to end, are unconstitutional. This is clearly
so wherever Federal funds go to a State agency which engages in
racial discrimination. It may also be so where Federal funds go to
support private, segregated institutions, under the decision in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959
(C.A. 4, 1963), [ cert. denied, 376 U.S. 938 (1964)]. In
all cases, such discrimination is contrary to national policy, and
to the moral sense of the Nation. Thus, title VI is simply Page 438 U. S. 333 designed to insure that Federal funds are spent in accordance
with the Constitution and the moral sense of the Nation." Id. at 6544. Senator Humphrey, in words echoing
statements in the House, explained that legislation was needed to
accomplish this objective because it was necessary to eliminate
uncertainty concerning the power of federal agencies to terminate
financial assistance to programs engaging in racial discrimination
in the face of various federal statutes which appeared to authorize
grants to racially segregated institutions. Ibid. Although
Senator Humphrey realized that Title VI reached conduct which,
because of insufficient governmental action, might be beyond the
reach of the Constitution, it was clear to him that the substantive
standard imposed by the statute was that of the Fifth and
Fourteenth Amendments. Senate supporters of Title VI repeatedly
expressed agreement with Senator Humphrey's description of the
legislation as providing the explicit authority and obligation to
apply the standards of the Constitution to all recipients of
federal funds. Senator Ribicoff described the limited function of
Title VI:

															"Basically, there is a constitutional restriction against
discrimination in the use of Federal funds; and title VI simply
spells out the procedure to be used in enforcing that
restriction." Id. at 13333. Other strong proponents of the
legislation in the Senate repeatedly expressed their intent to
assure that federal funds would only be spent in accordance with
constitutional standards. See remarks of Senator Pastore, id. at 7057, 7062; Senator Clark, id. at 5243;
Senator Allott, id. at 12675, 12677. [ Footnote 2/11 ] Page 438 U. S. 334 Respondent's contention that Congress intended Title VI to bar
affirmative action programs designed to enable minorities
disadvantaged by the effects of discrimination to participate in
federally financed programs is also refuted by an examination of
the type of conduct which Congress thought it was prohibiting by
means of Title VI. The debates reveal that the legislation was
motivated primarily by a desire to eradicate a very specific evil:
federal financial support of programs which disadvantaged Negroes
by excluding them from participation or providing them with
separate facilities. Again and again supporters of Title VI
emphasized that the purpose of the statute was to end segregation
in federally funded activities and to end other discriminatory uses
of race disadvantaging Negroes. Senator Humphrey set the theme in
his speech presenting Title VI to the Senate:

															"Large sums of money are contributed by the United States each
year for the construction, operation, and maintenance of segregated
schools."

															" * * * *" "Similarly, under the Hill-Burton Act, Federal grants are made
to hospitals which admit whites only or Negroes only. . . ."

															"In higher education also, a substantial part of the Federal
grants to colleges, medical schools and so forth, in the South is
still going to segregated institutions. " Page 438 U. S. 335 "Nor is this all. In several States, agricultural extension
services, supported by Federal funds, maintain racially segregated
offices for Negroes and whites. . . ."

															". . . Vocational training courses, supported with Federal
funds, are given in segregated schools and institutions and often
limit Negroes to training in less skilled occupations. In
particular localities it is reported that Negroes have been cut off
from relief rolls, or denied surplus agricultural commodities, or
otherwise deprived of the benefit of federally assisted programs,
in retaliation for their participation in voter registration
drives, sit-in demonstrations and the like." Id. at 6543-6544. See also the remarks of
Senator Pastore ( id. at 7054-7055); Senator Ribicoff
( id. at 7064-7065); Senator Clark ( id. at 5243,
9086); Senator Javits ( id. at 6050, 7102). [ Footnote 2/12 ]

															The conclusion to be drawn from the foregoing is clear. Congress
recognized that Negroes, in some cases with congressional
acquiescence, were being discriminated against in the
administration of programs and denied the full benefits of
activities receiving federal financial support. It was aware that
there were many federally funded programs and institutions which
discriminated against minorities in a manner inconsistent with the
standards of the Fifth and Fourteenth Amendments, but whose
activities might not involve sufficient state or federal action so
as to be in violation of these Amendments. Moreover, Congress
believed that it was questionable whether the Executive Branch
possessed legal authority to terminate the funding of activities on
the ground that they discriminated racially against Negroes in a
manner violative of the standards contained in the Fourteenth and
Fifth Page 438 U. S. 336 Amendments. Congress' solution was to end the Government's
complicity in constitutionally forbidden racial discrimination by
providing the Executive Branch with the authority and the
obligation to terminate its financial support of any activity which
employed racial criteria in a manner condemned by the
Constitution.

															Of course, it might be argued that the Congress which enacted
Title VI understood the Constitution to require strict racial
neutrality or color blindness, and then enshrined that concept as a
rule of statutory law. Later interpretation and clarification of
the Constitution to permit remedial use of race would then not
dislodge Title VI's prohibition of race-conscious action. But there
are three compelling reasons to reject such a hypothesis.

															First, no decision of this Court has ever adopted the
proposition that the Constitution must be colorblind. See
infra at 438 U. S.
355 -356.

															Second, even if it could be argued in 1964 that the Constitution
might conceivably require color blindness, Congress surely would
not have chosen to codify such a view unless the Constitution
clearly required it. The legislative history of Title VI, as well
as the statute itself, reveals a desire to induce voluntary
compliance with the requirement of nondiscriminatory treatment.
[ Footnote 2/13 ] See §
602 of the Act, 42 U.S.C. § 2000d-1 (no funds shall be terminated
unless and until it has been "determined that compliance cannot be
secured by voluntary means"); H.R.Rep. No. 914, 88th Cong., 1st
Sess., pt. 1, p. 25 (1963); 110 Cong Rec. 13700 (1964) (Sen.
Pastore); id. at 6546 (Sen. Humphrey). It is inconceivable
that Congress intended to encourage voluntary efforts to eliminate
the evil of racial discrimination while at the same time forbidding
the voluntary use of race-conscious remedies to cure acknowledged
or obvious statutory violations. Yet a reading of Title VI as
prohibiting all action predicated upon race which adversely Page 438 U. S. 337 affects any individual would require recipients guilty of
discrimination to await the imposition of such remedies by the
Executive Branch. Indeed, such an interpretation of Title VI would
prevent recipients of federal funds from taking race into account
even when necessary to bring their programs into compliance with
federal constitutional requirements. This would be a remarkable
reading of a statute designed to eliminate constitutional
violations, especially in light of judicial decisions holding that,
under certain circumstances, the remedial use of racial criteria is
not only permissible, but is constitutionally required to eradicate
constitutional violations. For example, in Board of Education
v. Swann, 402 U. S. 43 (1971), the Court held that a statute forbidding the assignment of
students on the basis of race was unconstitutional because it would
hinder the implementation of remedies necessary to accomplish the
desegregation of a school system:

															"Just as the race of students must be considered in determining
whether a constitutional violation has occurred, so also must race
be considered in formulating a remedy." Id. at 402 U. S. 46 .
Surely Congress did not intend to prohibit the use of racial
criteria when constitutionally required or to terminate the funding
of any entity which implemented such a remedy. It clearly desired
to encourage all remedies, including the use of race, necessary to
eliminate racial discrimination in violation of the Constitution,
rather than requiring the recipient to await a judicial
adjudication of unconstitutionality and the judicial imposition of
a racially oriented remedy.

															Third, the legislative history shows that Congress specifically
eschewed any static definition of discrimination in favor of broad
language that could be shaped by experience, administrative
necessity, and evolving judicial doctrine. Although it is clear
from the debates that the supporters of Title VI intended to ban
uses of race prohibited by the Constitution and, more specifically,
the maintenance of segregated Page 438 U. S. 338 facilities, they never precisely defined the term
"discrimination," or what constituted an exclusion from
participation or a denial of benefits on the ground of race. This
failure was not lost upon its opponents. Senator Ervin
complained:

															"The word 'discrimination,' as used in this reference, has no
contextual explanation whatever, other than the provision that the
discrimination 'is to be against' individuals participating in or
benefiting from federally assisted programs and activities on the
ground specified. With this context, the discrimination condemned
by this reference occurs only when an individual is treated
unequally or unfairly because of his race, color, religion, or
national origin. What constitutes unequal or unfair treatment?
Section 601 and section 602 of title VI do not say. They leave the
determination of that question to the executive department or
agencies administering each program, without any guideline whatever
to point out what is the congressional intent."

															110 Cong.Rec. 5612 (1964). See also remarks of
Representative Abernethy ( id. at 1619); Representative
Dowdy ( id. at 1632); Senator Talmadge ( id. at
5251); Senator Sparkman ( id. at 6052). Despite these
criticisms, the legislation's supporters refused to include in the
statute or even provide in debate a more explicit definition of
what Title VI prohibited.

															The explanation for this failure is clear. Specific definitions
were undesirable, in the views of the legislation's principal
backers, because Title VI's standard was that of the Constitution,
and one that could and should be administratively and judicially
applied. See remarks of Senator Humphrey ( id. at
5253, 6553); Senator Ribicoff ( id. at 7057, 13333);
Senator Pastore ( id. at 7057); Senator Javits
( id. at 5606-5607, 6050). [ Footnote 2/14 ] Indeed, there was a strong emphasis
throughout Page 438 U. S. 339 Congress' consideration of Title VI on providing the Executive
Branch with considerable flexibility in interpreting and applying
the prohibition against racial discrimination. Attorney General
Robert Kennedy testified that regulations had not been written into
the legislation itself because the rules and regulations defining
discrimination might differ from one program to another, so that
the term would assume different meanings in different contexts.
[ Footnote 2/15 ] This
determination to preserve flexibility in the administration of
Title VI was shared by the legislation's supporters. When Senator
Johnston offered an amendment that would have expressly authorized
federal grantees to take race into account in placing children in
adoptive and foster homes, Senator Pastore opposed the amendment,
which was ultimately defeated by a 56-29 vote, on the ground that
federal administrators could be trusted to act reasonably, and that
there was no danger that they would prohibit the use of racial
criteria under such circumstances. Id. at 13695.

															Congress' resolve not to incorporate a static definition of
discrimination into Title VI is not surprising. In 1963 and 1964,
when Title VI was drafted and debated, the courts had only recently
applied the Equal Protection Clause to strike down public racial
discrimination in America, and the scope of that Clause's
nondiscrimination principle was in a state of flux and rapid
evolution. Many questions, such as whether the Fourteenth Amendment
barred only de jure discrimination or, in at least some
circumstances, reached de facto discrimination, had not
yet received an authoritative judicial resolution. The
congressional debate reflects an awareness of the evolutionary Page 438 U. S. 340 change that constitutional law in the area of racial
discrimination was undergoing in 1964. [ Footnote 2/16 ]

															In sum, Congress' equating of Title VI's prohibition with the
commands of the Fifth and Fourteenth Amendments, its refusal
precisely to define that racial discrimination which it intended to
prohibit, and its expectation that the statute would be
administered in a flexible manner, compel the conclusion that
Congress intended the meaning of the statute's prohibition to
evolve with the interpretation of the commands of the Constitution.
Thus, any claim that the use of racial criteria is barred by the
plain language of the statute must fail in light of the remedial
purpose of Title VI and its legislative history. The cryptic nature
of the language employed in Title VI merely reflects Congress'
concern with the then-prevalent use of racial standards as a means
of excluding or disadvantaging Negroes and its determination to
prohibit absolutely such discrimination. We have recently held
that,

															""[w]hen aid to construction of the meaning of words, as used in
the statute, is available, there certainly can be no rule of
law' which forbids its use, however clear the words may appear on
`superficial examination.'"" Train v. Colorado Public Interest Research Group, 426 U. S. 1 , 426 U. S. 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534 , 310 U. S.
544 -544 (1940). This is especially so when, as is the
case here, the literal application of what is believed to be the
plain language of the statute, assuming that it is so plain, would
lead to results in direct conflict with Congress' unequivocally
expressed legislative purpose. [ Footnote 2/17 ] Page 438 U. S. 341 B Section 602 of Title VI, 42 U.S.C. § 2000d-1, instructs federal
agencies to promulgate regulations interpreting Title Page 438 U. S. 342 VI. These regulations, which, under the terms of the statute,
require Presidential approval, are entitled to considerable
deference in construing Title VI. See, e.g., 414 U.
S. Nichols, Page 438 U. S. 343 414 U. S. 563 (1974); Mourning v. Family Publications Service, Inc., 411 U. S. 356 , 411 U. S. 369 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367 , 395 U. S. 381 (1969). Consequently, it is most significant that the Department of
Health, Education, and Welfare (HEW), which provides much of the
federal assistance to institutions of higher education, has adopted
regulations requiring affirmative measures designed to enable
racial minorities which have been previously discriminated against
by a federally funded institution or program to overcome the
effects of such actions and authorizing the voluntary undertaking
of affirmative action programs by federally funded institutions
that have not been guilty of prior discrimination in order to
overcome the effects of conditions which have adversely affected
the degree of participation by persons of a particular race.

															Title 45 FR § 80.3(b)(6)(i) (1977) provides:

															"In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race,
color, or national origin, the recipient must take affirmative
action to overcome the effects of prior discrimination."

															Title 45 CFR § 80.5(i) (1977) elaborates upon this
requirement:

															"In some situations, even though past discriminatory practices
attributable to a recipient or applicant have been abandoned, the
consequences of such practices continue to impede the full
availability of a benefit. If the efforts required of the applicant
or recipient under § 80.6(d), to provide information as to the
availability of the program or activity and the rights of
beneficiaries under this regulation, have failed to overcome these
consequences, it will become necessary under the requirement stated
in (i) of § 80.3(b)(6) for such applicant or recipient to take
additional steps to make the benefits Page 438 U. S. 344 fully available to racial and nationality groups previously
subject to discrimination. This action might take the form, for
example, of special arrangements for obtaining referrals or making
selections which will insure that groups previously subjected to
discrimination are adequately served."

															These regulations clearly establish that, where there is a need
to overcome the effects of past racially discriminatory or
exclusionary practices engaged in by a federally funded
institution, race-conscious action is not only permitted, but
required, to accomplish the remedial objectives of Title VI.
[ Footnote 2/18 ] Of course, there
is no evidence that the Medical School has been guilty of past
discrimination, and consequently these regulations would not compel
it to employ a program of preferential admissions in behalf of
racial minorities. It would be difficult to explain from the
language of Title I, however, much less from its legislative
history, why the statute compels race-conscious remedies
where a recipient institution has engaged in past discrimination,
but prohibits such remedial action where racial
minorities, as a result of the effects of past discrimination
imposed by entities other than the recipient, are excluded from the
benefits of federally funded programs. HEW was fully aware of the
incongruous nature of such an interpretation of Title VI.

															Title 45 CFR § 80.3(b)(6)(ii) (1977) provides:

															"Even in the absence of such prior discrimination, a recipient,
in administering a program, may take affirmative action to overcome
the effects of conditions which resulted Page 438 U. S. 345 in limiting participation by persons of a particular race,
color, or national origin."

															An explanatory regulation explicitly states that the affirmative
action which § 80.3(b)(6)(ii) contemplates includes the use of
racial preferences:

															"Even though an applicant or recipient has never used
discriminatory policies, the services and benefits of the program
or activity it administers may not, in fact, be equally available
to some racial or nationality groups. I n such circumstances, an
applicant or recipient may properly give special consideration to
race, color, or national origin to make the benefits of its program
more widely available to such groups, not then being adequately
served. For example, where a university is not adequately serving
members of a particular racial or nationality group, it may
establish special recruitment policies to make its program better
known and more readily available to such group, and take other
steps to provide that group with more adequate service."

															45 CFR § 80.5(j) (1977) This interpretation of Title VI is fully
consistent with the statute's emphasis upon voluntary remedial
action and reflects the views of an agency [ Footnote 2/19 ] responsible for achieving its
objectives. [ Footnote 2/20 ] Page 438 U. S. 346 The Court has recognized that the construction of a statute by
those charged with its execution is particularly deserving of
respect where Congress has directed its attention to the
administrative construction and left it unaltered. Cf. Red Lion
Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 381 ; Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12
(1965). Congress recently took just this kind of action when it
considered an amendment to the Departments of Labor and Health,
Education, and Welfare appropriation bill for 1978, which would
have restricted significantly the remedial use of race in programs
funded by the appropriation. The amendment, as originally submitted
by Representative Ashbrook, provided that

															"[n]one of the funds appropriated in this Act may be used to
initiate, carry out or enforce any program of affirmative action or
any other system of quotas or goals in regard to admission policies
or employment practices which encourage or require any
discrimination on the basis of race, creed, religion, sex or
age."

															123 Cong.Rec. Page 438 U. S. 347 19715 (1977). In support of the measure, Representative Ashbrook
argued that the 1964 Civil Rights Act never authorized the
imposition of affirmative action, and that this was a creation of
the bureaucracy. Id. at 19722. He explicitly stated,
however, that he favored permitting universities to adopt
affirmative action programs giving consideration to racial
identity, but opposed the imposition of such programs by the
Government. Id. at 19715. His amendment was itself amended
to reflect this position by only barring the imposition of
race-conscious remedies by HEW:

															"None of the funds appropriated in this Act may be obligated or
expended in connection with the issuance, implementation, or
enforcement of any rule, regulation, standard, guideline,
recommendation, or order issued by the Secretary of Health,
Education, and Welfare which for purposes of compliance with any
ratio, quota, or other numerical requirement related to race,
creed, color, national origin, or sex requires any individual or
entity to take any action with respect to (1) the hiring or
promotion policies or practices of such individual or entity, or
(2) the admissions policies or practices of such individual or
entity." Id. at 19722. This amendment was adopted by the House. Ibid. The Senate bill, however, contained no such
restriction upon HEW's authority to impose race-conscious remedies,
and the Conference Committee, upon the urging of the Secretary of
HEW, deleted the House provision from the bill. [ Footnote 2/21 ] More significant for present
purposes, however, is the fact that even the proponents of imposing
limitations upon HEW's implementation of Title VI did not challenge
the right of federally funded educational institutions voluntarily
to extend preferences to racial minorities. Page 438 U. S. 348 Finally, congressional action subsequent to the passage of Title
VI eliminates any possible doubt about Congress' views concerning
the permissibility of racial preferences for the purpose of
assisting disadvantaged racial minorities. It confirms that
Congress did not intend to prohibit, and does not now believe that
Title VI prohibits, the consideration of race as part of a remedy
for societal discrimination even where there is no showing that the
institution extending the preference has been guilty of past
discrimination nor any judicial finding that the particular
beneficiaries of the racial preference have been adversely affected
by societal discrimination.

															Just last year, Congress enacted legislation [ Footnote 2/22 ] explicitly requiring that no grants
shall be made

															"for any local public works project unless the applicant gives
satisfactory assurance to the Secretary [of Commerce] that at least
10 per centum of the amount of each grant shall be expended for
minority business enterprises."

															The statute defines the term "minority business enterprise"
as

															"a business, at least 50 per centum of which is owned by
minority group members or, in case of a publicly owned business, at
least 51 per centum of the stock of which is owned by minority
group members."

															The term "minority group members" is defined in explicitly
racial terms: "citizens of the United States who are Negroes,
Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."
Although the statute contains an exemption from this requirement
"to the extent that the Secretary determines otherwise," this
escape clause was provided only to deal with the possibility that
certain areas of the country might not contain sufficient qualified
"minority business enterprises" to permit compliance with the quota
provisions of the legislation. [ Footnote 2/23 ]

															The legislative history of this race-conscious legislation
reveals that it represents a deliberate attempt to deal with Page 438 U. S. 349 the excessive rate of unemployment among minority citizens and
to encourage the development of viable minority controlled
enterprises. [ Footnote 2/24 ] It
was believed that such a "set-aside" was required in order to
enable minorities, still "new on the scene" and "relatively small,"
to compete with larger and more established companies which would
always be successful in underbidding minority enterprises. 123
Cong.Rec. 5327 (1977) (Rep. Mitchell). What is most significant
about the congressional consideration of the measure is that,
although the use of a racial quota or "set-aside" by a recipient of
federal funds would constitute a direct violation of Title VI if
that statute were read to prohibit race-conscious action, no
mention was made during the debates in either the House or the
Senate of even the possibility that the quota provisions for
minority contractors might in any way conflict with or modify Title
VI. It is inconceivable that such a purported conflict would have
escaped congressional attention through an inadvertent failure to
recognize the relevance of Title VI. Indeed, the Act of which this
affirmative action provision is a part also contains a provision
barring discrimination on the basis of sex which states that this
prohibition

															"will be enforced through agency provisions and rules similar to
those already established, with respect to racial and other
discrimination under Title VI of the Civil Rights Act of 1964."

															42 U.S.C. § 6709 (1976 ed.). Thus Congress, was fully aware of
the applicability of Title VI to the funding of public works
projects. Under these circumstances, the enactment of the 10%
"set-aside" for minority enterprises reflects a congressional
judgment that the remedial use of race is permissible under Title
VI. We have repeatedly recognized that subsequent legislation
reflecting an interpretation of an earlier Act is entitled to great
weight in determining the meaning of the earlier statute. Red
Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S.
380 -381; Page 438 U. S. 350 Erlenbaugh v. United States, 409 U.
S. 239 , 409 U. S.
243 -244 (1972). See also United States v.
Stewart, 311 U. S. 60 , 311 U. S. 64 -65
(1940). [ Footnote 2/25 ] C Prior decisions of this Court also strongly suggest that Title
VI does not prohibit the remedial use of race where such action is
constitutionally permissible. In Lau v. Nichols, 414 U. S. 563 (1974), the Court held that the failure of the San Page 438 U. S. 351 Francisco school system to provide English language instruction
to students of Chinese ancestry who do not speak English, or to
provide them with instruction in Chinese, constituted a violation
of Title VI. The Court relied upon an HEW regulation which
stipulates that a recipient of federal funds "may not . . . utilize
criteria or methods of administration which have the effect of
subjecting individuals to discrimination" or have

															"the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect
individuals of a particular race, color, or national origin."

															45 CFR § 80.3(b)(2) (1977). It interpreted this regulation as
requiring San Francisco to extend the same educational benefits to
Chinese-speaking students as to English-speaking students, even
though there was no finding or allegation that the city's failure
to do so was a result of a purposeful design to discriminate on the
basis of race. Lau is significant in two related respects. First, it
indicates that, in at least some circumstances, agencies
responsible for the administration of Title VI may require
recipients who have not been guilty of any constitutional
violations to depart from a policy of color blindness and to be
cognizant of the impact of their actions upon racial minorities.
Secondly, Lau clearly requires that institutions receiving
federal funds be accorded considerable latitude in voluntarily
undertaking race-conscious action designed to remedy the exclusion
of significant numbers of Page 438 U. S. 352 minorities from the benefits of federally funded programs.
Although this Court has not yet considered the question,
presumably, by analogy to our decisions construing Title VII, a
medical school would not be in violation of Title VI under Lau because of the serious underrepresentation of racial
minorities in its student body as long as it could demonstrate that
its entrance requirements correlated sufficiently with the
performance of minority students in medical school and the medical
profession. [ Footnote 2/26 ] It
would be inconsistent with Lau and the emphasis of Title
VI and the HEW regulations on voluntary action, however, to require
that an institution wait to be adjudicated to be in violation of
the law before being permitted to voluntarily undertake corrective
action based upon a good faith and reasonable belief that the
failure of certain racial minorities to satisfy entrance
requirements is not a measure of their ultimate performance as
doctors, but a result of the lingering effects of past societal
discrimination.

															We recognize that Lau, especially when read in light of
our subsequent decision in Washington v. Davis, 46 U. S. 229 (1976), which rejected the general proposition that governmental
action is unconstitutional solely because it has a racially
disproportionate impact, may be read as being predicated upon the
view that, at least under some circumstances, Title VI proscribes
conduct which might not be prohibited by the Constitution. Since we
are now of the opinion, for the reasons set forth above, that Title
VI's standard, applicable alike to public and private recipients of
federal funds, is no broader than the Constitution's, we have
serious doubts concerning the correctness of what appears to be the
premise of that decision. However, even accepting Lau's implication that impact alone is, in some contexts, sufficient to
establish a prima facie violation of Title VI, contrary to
our view that Title VI's definition of racial discrimination is
absolutely coextensive with the Constitution's, this would not
assist the respondent Page 438 U. S. 353 in the least. First, for the reasons discussed supra at 438 U. S.
336 -350, regardless of whether Title VI's prohibitions
extend beyond the Constitution's, the evidence fails to establish,
and, indeed, compels the rejection of, the proposition that
Congress intended to prohibit recipients of federal funds from
voluntarily employing race-conscious measures to eliminate the
effects of past societal discrimination against racial minorities
such as Negroes. Secondly, Lau itself, for the reasons set
forth in the immediately preceding paragraph, strongly supports the
view that voluntary race-conscious remedial action is permissible
under Title VI. If discriminatory racial impact alone is enough to
demonstrate at least a prima facie Title VI violation, it
is difficult to believe that the Title would forbid the Medical
School from attempting to correct the racially exclusionary effects
of its initial admissions policy during the first two years of the
School's operation.

															The Court has also declined to adopt a "colorblind"
interpretation of other statutes containing nondiscrimination
provisions similar to that contained in Title VI. We have held
under Title VII that, where employment requirements have a
disproportionate impact upon racial minorities, they constitute a
statutory violation, even in the absence of discriminatory intent,
unless the employer is able to demonstrate that the requirements
are sufficiently related to the needs of the job. [ Footnote 2/27 ] More significantly, the Court has
required that preferences be given by employers to members of
racial minorities as a remedy for past violations of Title VII,
even where there has been no finding that the employer has acted
with a discriminatory intent. [ Footnote 2/28 ] Finally, we have construed the
Voting Page 438 U. S. 354 Rights Act.of 1965, 42 U.S.C. § 1973 et seq. (1970 ed.
and Supp. V), which contains a provision barring any voting
procedure or qualification that denies or abridges "the right
of Page 438 U. S. 355 any citizen of the United States to vote on account of race or
color," as permitting States to voluntarily take race into account
in a way that fairly represents the voting strengths of different
racial groups in order to comply with the commands of the statute,
even where the result is a gain for one racial group at the expense
of others. [ Footnote 2/29 ]

															These prior decisions are indicative of the Court's
unwillingness to construe remedial statutes designed to eliminate
discrimination against racial minorities in a manner which would
impede efforts to attain this objective. There is no justification
for departing from this course in the case of Title VI and
frustrating the clear judgment of Congress that race-conscious
remedial action is permissible.

															We turn, therefore, to our analysis of the Equal Protection
Clause of the Fourteenth Amendment. III A The assertion of human equality is closely associated with the
proposition that differences in color or creed, birth or status,
are neither significant nor relevant to the way in which persons
should be treated. Nonetheless, the position that such factors must
be "constitutionally an irrelevance," Edwards v.
California, 314 U. S. 160 , 314 U. S. 185 (1941) (Jackson, J., concurring), summed up by the shorthand phrase
" [o]ur Constitution is color-blind," Plessy v. Ferguson, 163 U. S. 537 , 163 U. S. 559 (1896) (Harlan, J., dissenting), has never been adopted by this
Court as the proper meaning of the Equal Protection Clause.
Indeed, Page 438 U. S. 356 we have expressly rejected this proposition on a number of
occasions.

															Our cases have always implied that an "overriding statutory
purpose," McLaughlin v. Florida, 379 U.
S. 184 , 379 U. S. 192 (1984), could be found that would justify racial classifications. See, e.g., ibid.; Loving v. Virginia, 388 U. S.
1 , 388 U. S. 11 (1967); Korematsu v. United States, 323 U.
S. 214 , 323 U. S. 216 (1944); Hirabayashi v. United States, 320 U. S.
81 , 320 U. S.
100 -101 (1943). More recently, in McDaniel v.
Barresi, 402 U. S. 39 (1971)
this Court unanimously reversed the Georgia Supreme Court which had
held that a desegregation plan voluntarily adopted by a local
school board, which assigned students on the basis of race, was per se invalid because it was not colorblind. And in North Carolina Board of Education v. Swann, we held, again
unanimously, that a statute mandating colorblind school assignment
plans could not stand "against the background of segregation,"
since such a limit on remedies would "render illusory the promise
of Brown [I]. " 402 U.S. at 402 U. S.
45 -46.

															We conclude, therefore, that racial classifications are not per se invalid under the Fourteenth Amendment.
Accordingly, we turn to the problem of articulating what our role
should be in reviewing state action that expressly classifies by
race. B Respondent argues that racial classifications are always
suspect, and, consequently, that this Court should weigh the
importance of the objectives served by Davis' special admissions
program to see if they are compelling. In addition, he asserts that
this Court must inquire whether, in its judgment, there are
alternatives to racial classifications which would suit Davis'
purposes. Petitioner, on the other hand, states that our proper
role is simply to accept petitioner's determination that the racial
classifications used by its program are reasonably related to what
it tells us are its benign Page 438 U. S. 357 purposes. We reject petitioner's view, but, because our prior
cases are in many respects inapposite to that before us now, we
find it necessary to define with precision the meaning of that
inexact term, "strict scrutiny."

															Unquestionably we have held that a government practice or
statute which restricts "fundamental rights" or which contains
"suspect classifications" is to be subjected to "strict scrutiny,"
and can be justified only if it furthers a compelling government
purpose and, even then, only if no less restrictive alternative is
available. [ Footnote 2/30 ] See, e.g., San Antonio Independent School District v.
Rodriguez, 411 U. S. 1 , 411 U. S. 16 -17
(1973); Dunn v. Blumstein, 405 U.
S. 330 (1972). But no fundamental right is involved
here. See San Antonio, supra at 422 U. S. 29 -36.
Nor do whites, as a class, have any of the

															"traditional indicia of suspectness: the class is not saddled
with such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such a position of
political powerlessness as to command extraordinary protection from
the majoritarian political process." Id. at 422 U. S. 28 ; see United States v. Carolene Products Co., 304 U.
S. 144 , 304 U. S. 152 n. 4 (1938). [ Footnote 2/31 ]

															Moreover, if the University's representations are credited, this
is not a case where racial classifications are "irrelevant, and
therefore prohibited." Hirabayashi, supra at 320 U. S. 100 .
Nor has anyone suggested that the University's purposes contravene
the cardinal principle that racial classifications that stigmatize
-- because they are drawn on the presumption that one race is
inferior to another or because they put the weight of
government Page 438 U. S. 358 behind racial hatred and separatism -- are invalid without more. See Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 374 (1886); [ Footnote 2/32 ] accord, Strauder v. West Virginia, 100 U.
S. 303 , 100 U. S. 308 (1880); Korematsu v. United States, supra at 323 U. S. 223 ; Oyama v. California, 332 U. S. 633 , 332 U. S. 663 (1948) (Murphy, J., concurring); Brown I, 347 U.
S. 483 (1954); McLaughlin v. Florida, supra, at 379 U. S.
191 -192; Loving v. Virginia, supra, at 388 U. S. 11 -12; Reitman v. Mulkey, 387 U. S. 369 , 387 U. S.
375 -376 (1967); United Jewish Organizations v.
Carey, 430 U. S. 144 , 430 U. S. 165 (1977) ( UJO ) (opinion of WHITE, J., joined by REHNQUIST
and STEVENS, JJ.); id. at 430 U. S. 169 (opinion concurring in part). [ Footnote 2/33 ]

															On the other hand, the fact that this case does not fit neatly
into our prior analytic framework for race cases does not mean that
it should be analyzed by applying the very loose rational basis
standard of review that is the very least that is always applied in
equal protection cases. [ Footnote
2/34 ]

															"'[T]he mere recitation of a benign, compensatory purpose is not
an automatic shield Page 438 U. S. 359 which protects.against any inquiry into the actual purpose
underlying a statutory scheme.'" Califano v. Webster, 430 U. S. 313 , 430 U. S. 317 (1977), quoting Weinberger v. Wiesenfeld, 420 U.
S. 636 , 420 U. S. 648 (1975). Instead, a number of considerations -- developed in gender
discrimination cases but which carry even more force when applied
to racial classifications -- lead us to conclude that racial
classifications designed to further remedial purposes " must
serve important governmental objectives, and must be substantially
related to achievement of those objectives.'" Califano v.
Webster, supra at 430 U. S. 317 ,
quoting Craig v. Boren, 429 U. S. 190 , 429 U. S. 197 (1976). [ Footnote 2/35 ] Page 438 U. S. 360 First, race, like, "gender-based classifications, too often
[has] been inexcusably utilized to stereotype and stigmatize
politically powerless segments of society." Kahn v.
Shevin, 416 U. S. 351 , 416 U. S. 357 (1974) (dissenting opinion). While a carefully tailored statute
designed to remedy past discrimination could avoid these vices, see Califano v. Webster, supra; Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, supra, we nonetheless have
recognized that the line between honest and thoughtful appraisal of
the effects of past discrimination and paternalistic stereotyping
is not so clear, and that a statute based on the latter is patently
capable of stigmatizing all women with a badge of inferiority. Cf. Schlesinger v. Ballard, supra at 419 U. S. 508 ; UJO, supra at 430 U. S. 174 ,
and n. 3 (opinion concurring in part); Califano v.
Goldfarb, 430 U. S. 199 , 430 U. S. 223 (1977) (STEVENS, J., concurring in judgment). See also Stanton
v. Stanton, 421 U. S. 7 , 421 U. S. 14 -15
(1975). State programs designed ostensibly to ameliorate the
effects of past racial discrimination obviously create the same
hazard of stigma, since they may promote racial separatism and
reinforce the views of those who believe that members of racial
minorities are inherently incapable of succeeding on their own. See UJO, supra at 430 U. S. 172 (opinion concurring in part); ante at 438 U. S. 298 (opinion of POWELL, J.).

															Second, race, like gender and illegitimacy, see Weber v.
Aetna Casualty & Surety Co., 406 U.
S. 164 (1972), is an immutable characteristic which its
possessors are powerless to escape or set aside. While a
classification is not per se invalid because it divides
classes on the basis of an immutable characteristic, see
supra at 438 U. S.
355 -356, it is nevertheless true that such divisions are
contrary to our deep belief that "legal burdens should bear some
relationship to individual responsibility or Page 438 U. S. 361 wrongdoing," Weber, supra at 406 U. S. 175 ; Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 686 (1973) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.), and that
advancement sanctioned, sponsored, or approved by the State should
ideally be based on individual merit or achievement, or at the
least on factors within the control of an individual. See
UJO, 430 U.S. at 430 U. S. 173 (opinion concurring in part); Kotch v. Board of River Port
Pilot Comm'rs, 330 U. S. 552 , 330 U. S. 566 (1947) (Rutledge, J., dissenting).

															Because this principle is so deeply rooted, it might be supposed
that it would be considered in the legislative process and weighed
against the benefits of programs preferring individuals because of
their race. But this is not necessarily so: the

															"natural consequence of our governing processes [may well be]
that the most 'discrete and insular' of whites . . . will be called
upon to bear the immediate, direct costs of benign
discrimination." UJO, supra at 430 U. S. 174 (opinion concurring in part). Moreover, it is clear from our cases
that there are limits beyond which majorities may not go when they
classify on the basis of immutable characteristics. See, e.g.,
Weber, supra. Thus, even if the concern for individualism is
weighed by the political process, that weighing cannot waive the
personal rights of individuals under the Fourteenth Amendment. See Lucas v. Colorado General Assembly, 377 U.
S. 713 , 377 U. S. 736 (1964).

															In sum, because of the significant risk that racial
classifications established for ostensibly benign purposes can be
misused, causing effects not unlike those created by invidious
classifications, it is inappropriate to inquire only whether there
is any conceivable basis that might sustain such a classification.
Instead, to justify such a classification, an important and
articulated purpose for its use must be shown. In addition, any
statute must be stricken that stigmatizes any group or that singles
out those least well represented in the political process to bear
the brunt of a benign program. Thus, our review under the
Fourteenth Amendment should be Page 438 U. S. 362 strict -- not " strict' in theory and fatal in fact,"
[ Footnote 2/36 ] because it is
stigma that causes fatality -- but strict and searching
nonetheless. IV Davis' articulated purpose of remedying the effects of past
societal discrimination is, under our cases, sufficiently important
to justify the use of race-conscious admissions programs where
there is a sound basis for concluding that minority
underrepresentation is substantial and chronic, and that the
handicap of past discrimination is impeding access of minorities to
the Medical School. A At least since Green v. County School Board, 391 U. S. 430 (1968), it has been clear that a public body which has itself been
adjudged to have engaged in racial discrimination cannot bring
itself into compliance with the Equal Protection Clause simply by
ending its unlawful acts and adopting a neutral stance. Three years
later, Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971),
and its companion cases, Davis v. School Comm'rs of Mobile
County, 402 U. S. 33 (1971); McDaniel v. Barresi, 402 U. S.
39 (1971); and North Carolina Board of Education v.
Swann, 402 U. S. 43 (1971), reiterated that racially neutral remedies for past
discrimination were inadequate where consequences of past
discriminatory acts influence or control present decisions. See, e.g., Charlotte-Mecklenburg, supra at 402 U. S. 28 . And
the Court further held both that courts could enter desegregation
orders which assigned students and faculty by reference to race, Charlotte-Mecklenburg, supra; Davis, supra; United States v.
Montgomery County Board of Ed., 395 U.
S. 225 (1969), and that local school boards could
voluntarily adopt desegregation Page 438 U. S. 363 plans which made express reference to race if this was necessary
to remedy the effects of past discrimination. McDaniel v.
Barresi, supra. Moreover, we stated that school boards, even
in the absence of a judicial finding of past discrimination, could
voluntarily adopt plans which assigned students with the end of
creating racial pluralism by establishing fixed ratios of black and
white students in each school. Charlotte-Mecklenburg,
supra at 402 U. S. 16 . In
each instance, the creation of unitary school systems, in which the
effects of past discrimination had been "eliminated root and
branch," Green, supra at 391 U. S. 438 ,
was recognized as a compelling social goal justifying the overt use
of race.

															Finally, the conclusion that state educational institutions may
constitutionally adopt admissions programs designed to avoid
exclusion of historically disadvantaged minorities, even when such
programs explicitly take race into account, finds direct support in
our cases construing congressional legislation designed to overcome
the present effects of past discrimination. Congress can and has
outlawed actions which have a disproportionately adverse and
unjustified impact upon members of racial minorities and has
required or authorized race-conscious action to put individuals
disadvantaged by such impact in the position they otherwise might
have enjoyed. See Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); Teamsters v. United States, 431 U.
S. 324 (1977). Such relief does not require as a
predicate proof that recipients of preferential advancement have
been individually discriminated against; it is enough that each
recipient is within a general class of persons likely to have been
the victims of discrimination. See id. at 431 U. S.
357 -362. Nor is it an objection to such relief that
preference for minorities will upset the settled expectations of
nonminorities. See Franks, supra. In addition, we have
held that Congress, to remove barriers to equal opportunity, can
and has required employers to use test criteria that fairly reflect
the qualifications of minority applicants Page 438 U. S. 364 vis-a-vis nonminority applicants, even if this means
interpreting the qualifications of an applicant in light of his
race. See Albemarle Paper Co. v. Moody, 422 U.
S. 405 , 422 U. S. 435 (1975). [ Footnote 2/37 ]

															These cases cannot be distinguished simply by the presence of
judicial findings of discrimination, for race-conscious remedies
have been approved where such findings have not been made. McDaniel v. Barresi, supra; UJO; see Califano v. Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U.
S. 498 (1975); Kahn v. Shevin, 416 U.
S. 351 (1974). See also Katzenbach v. Morgan, 384 U. S. 641 (1966). Indeed, the requirement of a judicial determination of a
constitutional or statutory violation as a predicate for
race-conscious remedial actions would be self-defeating. Such a
requirement would severely undermine efforts to achieve voluntary
compliance with the requirements of law. And our society and
jurisprudence have always stressed the value of voluntary efforts
to further the objectives of the law. Judicial intervention is a
last resort to achieve cessation of illegal conduct or the
remedying of its effects, rather than a prerequisite to action.
[ Footnote 2/38 ] Page 438 U. S. 365 Nor can our cases be distinguished on the ground that the entity
using explicit racial classifications itself had violated § 1 of
the Fourteenth Amendment or an antidiscrimination regulation, for
again race-conscious remedies have been approved where this is not
the case. See UJO, 430 U.S. at 430 U. S. 157 (opinion of WHITE, J., joined by BRENNAN, BLACKMUN, and STEVENS,
JJ.); [ Footnote 2/39 ] id. at 430 U. S. 167 (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.);
[ Footnote 2/40 ] cf. Califano
v. Webster, supra, at 430 U. S. 317 ; Kahn v. Shevin, supra. Moreover,
the presence or absence of past discrimination by universities or
employers is largely irrelevant to resolving respondent's
constitutional claims. The claims of those burdened by the
race-conscious actions of a university or employer who has never
been adjudged in violation of an antidiscrimination law are not any
more or less entitled to deference than the claims of the burdened
nonminority workers in Franks v. Bowman Transportation Co.,
supra, in which the employer had violated Title VII, for, in
each case, the employees are innocent of past discrimination. And,
although it might be argued that, where an employer has violated an
antidiscrimination law, the expectations of nonminority workers are
themselves products of discrimination and hence "tainted," see
Franks, supra at 424 U. S. 776 ,
and therefore more easily upset, the same argument can be made with
respect to respondent. If it was reasonable to conclude -- as we
hold that it was -- that the failure of minorities to qualify for
admission at Davis under regular procedures was due principally to
the effects of past discrimination, than there is a reasonable
likelihood that, but for pervasive racial discrimination, Page 438 U. S. 366 respondent would have failed to qualify for admission even in
the absence of Davis' special admissions program. [ Footnote 2/41 ]

															Thus, our cases under Title VII of the Civil Rights Act have
held that, in order to achieve minority participation in previously
segregated areas of public life, Congress may require or authorize
preferential treatment for those likely disadvantaged by societal
racial discrimination. Such legislation has been sustained even
without a requirement of findings of intentional racial
discrimination by those required or authorized to accord
preferential treatment, or a case-by-case determination that those
to be benefited suffered from racial discrimination. These
decisions compel the conclusion that States also may adopt
race-conscious programs designed to overcome substantial, chronic
minority underrepresentation where there is reason to believe that
the evil addressed is a product of past racial discrimination.
[ Footnote 2/42 ] Page 438 U. S. 367 Title VII was enacted pursuant to Congress' power under the
Commerce Clause and § 5 of the Fourteenth Amendment. To he extent
that Congress acted under the Commerce Clause power, it was
restricted in the use of race in governmental decisionmaking by the
equal protection component of the Due Process Clause of the Fifth
Amendment precisely to the same extent as are the States by § 1 of
the Fourteenth Amendment. [ Footnote
2/43 ] Therefore, to the extent that Title VII rests on the
Commerce Clause power, our decisions such a Franks and Page 438 U. S. 368 Teamsters v. United States, 431 U.
S. 324 (1977), implicitly recognize that the affirmative
use of race is consistent with the equal protection component of
the Fifth Amendment, and therefore with the Fourteenth Amendment.
To the extent that Congress acted pursuant to § 5 of the Fourteenth
Amendment, those cases impliedly recognize that Congress was
empowered under that provision to accord preferential treatment to
victims of past discrimination in order to overcome the effects of
segregation, and we see no reason to conclude that the States
cannot voluntarily accomplish under § 1 of the Fourteenth Amendment
what Congress under § 5 of the Fourteenth Amendment validly may
authorize or compel either the States or private persons to do. A
contrary position would conflict with the traditional understanding
recognizing the competence of the States to initiate measures
consistent with federal policy in the absence of congressional
preemption of the subject matter. Nothing whatever in the
legislative history of either the Fourteenth Amendment or the Civil
Rights Acts even remotely suggests that the States are foreclosed
from furthering the fundamental purpose of equal opportunity to
which the Amendment and these Acts are addressed. Indeed, voluntary
initiatives by the States to achieve the national goal of equal
opportunity have been recognized to be essential to its attainment.
"To use the Fourteenth Amendment as a sword against such State
power would stultify that Amendment." Railway Mail Assn. v.
Corsi, 326 U. S. 88 , 326 U. S. 98 (1945) (Frankfurter, J., concurring). [ Footnote 2/44 ] We therefore Page 438 U. S. 369 conclude that Davis' goal of admitting minority students
disadvantaged by the effects of past discrimination is sufficiently
important to justify use of race-conscious admissions criteria. B Properly construed, therefore, our prior cases unequivocally
show that a state government may adopt race-conscious programs if
the purpose of such programs is to remove the disparate racial
impact its actions might otherwise have, and if there is reason to
believe that the disparate impact is itself the product of past
discrimination, whether its own or that of society at large. There
is no question that Davis' program is valid under this test.

															Certainly, on the basis of the undisputed factual submissions
before this Court, Davis had a sound basis for believing that the
problem of underrepresentation of minorities was substantial and
chronic, and that the problem was attributable to handicaps imposed
on minority applicants by past and present racial discrimination.
Until at least 1973, the practice of medicine in this country was,
in fact, if not in law, largely the prerogative of whites.
[ Footnote 2/45 ] In 1950, for
example, while Negroes Page 438 U. S. 370 constituted 10% of the total population, Negro physicians
constituted only 2.2% of the total number of physicians. [ Footnote 2/46 ] The overwhelming majority
of these, moreover, were educated in two predominantly Negro
medical schools, Howard and Meharry. [ Footnote 2/47 ] By 1970, the gap between the proportion
of Negroes in medicine and their proportion in the population had
widened: the number of Negroes employed in medicine remained frozen
at 2.2% [ Footnote 2/48 ] while the
Negro population had increased to 11.1%. [ Footnote 2/49 ] The number of Negro admittees to
predominantly white medical schools, moreover, had declined in
absolute numbers during the years 1955 to 1964. Odegaard 19.

															Moreover, Davis had very good reason to believe that the
national pattern of underrepresentation of minorities in medicine
would be perpetuated if it retained a single admissions standard.
For example, the entering classes in 1968 and 1969, the years in
which such a standard was used, included only 1 Chicano and 2
Negroes out of the 50 admittees for each year. Nor is there any
relief from this pattern of underrepresentation in the statistics
for the regular admissions program in later years. [ Footnote 2/50 ]

															Davis clearly could conclude that the serious and persistent
underrepresentation of minorities in medicine depicted by these
statistics is the result of handicaps under which minority
applicants labor as a consequence of a background of deliberate,
purposeful discrimination against minorities in education Page 438 U. S. 371 and in society generally, as well as in the medical profession.
From the inception of our national life, Negroes have been
subjected to unique legal disabilities impairing access to equal
educational opportunity. Under slavery, penal sanctions were
imposed upon anyone attempting to educate Negroes. [ Footnote 2/51 ] After enactment of the
Fourteenth Amendment the States continued to deny Negroes equal
educational opportunity, enforcing a strict policy of segregation
that itself stamped Negroes as inferior, Brown I, 347 U. S. 483 (1954), that relegated minorities to inferior educational
institutions, [ Footnote 2/52 ] and
that denied them intercourse in the mainstream of professional life
necessary to advancement. See Sweatt v. Painter, 339 U. S. 629 (1950). Segregation was not limited to public facilities, moreover,
but was enforced by criminal penalties against private action as
well. Thus, as late as 1908, this Court enforced a state criminal
conviction against a private college for teaching Negroes together
with whites. Berea College v. Kentucky, 211 U. S.
45 . See also Plessy v. Ferguson, 163 U.
S. 537 (1896). Green v. County School Board, 391 U.
S. 430 (1968), gave explicit recognition to the fact
that the habit of discrimination and the cultural tradition of race
prejudice cultivated by centuries of legal slavery and segregation
were not immediately dissipated when Brown I, supra, announced the constitutional principle that equal educational
opportunity and participation in all aspects of American life could
not be denied on the basis of race. Rather, massive official and
private resistance prevented, and to a lesser extent still
prevents, attainment of equal opportunity in education at all
levels and in the professions. The generation of minority students
applying to Davis Medical School since it opened in 1968 -- most of
whom Page 438 U. S. 372 were born before or about the time Brown I was decided
-- clearly have been victims of this discrimination. Judicial
decrees recognizing discrimination in public education in
California testify to the fact of widespread discrimination
suffered by California-born minority applicants; [ Footnote 2/53 ] many minority group members living
in California, moreover, were born and reared in school districts
in Southern States segregated by law. [ Footnote 2/54 ] Since separation of schoolchildren by
race

															"generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely
ever to be undone," Brown I, supra at 347 U. S. 494 ,
the conclusion is inescapable that applicants to medical school
must be few indeed who endured the effects of de jure segregation, the resistance to Brown I, or the equally
debilitating pervasive private discrimination fostered by our long
history of official discrimination, cf. Reitman v. Mulkey, 387 U. S. 369 (1967), and yet come to the starting line with an education equal
to whites. [ Footnote 2/55 ]

															Moreover, we need not rest solely on our own conclusion that
Davis had sound reason to believe that the effects of past
discrimination were handicapping minority applicants to the Medical
School, because the Department of Health, Education, and Welfare,
the expert agency charged by Congress with promulgating regulations
enforcing Title VI of the Civil Rights Act of 1964, see
supra at 438 U. S.
341 -343, has also reached the conclusion that race may
be taken into account in situations Page 438 U. S. 373 where a failure to do so would limit participation by minorities
in federally funded programs, and regulations promulgated by the
Department expressly contemplate that appropriate race-conscious
programs may be adopted by universities to remedy unequal access to
university programs caused by their own or by past societal
discrimination. See supra at 438 U. S.
344 -345, discussing 45 CFR §§ 80.3(b)(6)(ii) and 80.5(j)
(1977). It cannot be questioned that, in the absence of the special
admissions program, access of minority students to the Medical
School would be severely limited and, accordingly, race-conscious
admissions would be deemed an appropriate response under these
federal regulations. Moreover, the Department's regulatory policy
is not one that has gone unnoticed by Congress. See supra at 438 U. S.
346 -347. Indeed, although an amendment to an
appropriations bill was introduced just last year that would have
prevented the Secretary of Health, Education, and Welfare from
mandating race-conscious programs in university admissions,
proponents of this measure, significantly, did not question the
validity of voluntary implementation of race-conscious admissions
criteria. See ibid. In these circumstances, the conclusion
implicit in the regulations -- that the lingering effects of past
discrimination continue to make race-conscious remedial programs
appropriate means for ensuring equal educational opportunity in
universities -- deserves considerable judicial deference. See,
e.g., Katzenbach v. Morgan, 384 U. S. 641 (1966); UJO, 430 U.S. at 430 U. S.
175 -178 (opinion concurring in part). [ Footnote 2/56 ] C The second prong of our test -- whether the Davis program
stigmatizes any discrete group or individual and whether race Page 438 U. S. 374 is reasonably used in light of the program's objectives -- is
clearly satisfied by the Davis program.

															It is not even claimed that Davis' program in any way operates
to stigmatize or single out any discrete and insular, or even any
identifiable, nonminority group. Nor will harm comparable to that
imposed upon racial minorities by exclusion or separation on
grounds of race be the likely result of the program. It does not,
for example, establish an exclusive preserve for minority students
apart from and exclusive of whites. Rather, its purpose is to
overcome the effects of segregation by bringing the races together.
True, whites are excluded from participation in the special
admissions program, but this fact only operates to reduce the
number of whites to be admitted in the regular admissions program
in order to permit admission of a reasonable percentage -- less
than their proportion of the California population [ Footnote 2/57 ] -- of otherwise
underrepresented qualified minority applicants. [ Footnote 2/58 ] Page 438 U. S. 375 Nor was Bakke in any sense stamped as inferior by the Medical
School's rejection of him. Indeed, it is conceded by all that he
satisfied those criteria regarded by the school as generally
relevant to academic performance better than most of the minority
members who were admitted. Moreover, there is absolutely no basis
for concluding that Bakke's rejection as a result of Davis' use of
racial preference will affect him throughout his life in the same
way as the segregation of the Negro schoolchildren in Brown
I would have affected them. Unlike discrimination against
racial minorities, the use of racial preferences for remedial
purposes does not inflict a pervasive injury upon individual whites
in the sense that, wherever they go or whatever they do, there is a
significant likelihood that they will be treated as second-class
citizens because of their color. This distinction does not mean
that the exclusion of a white resulting from the preferential use
of race is not sufficiently serious to require justification; but
it does mean that the injury inflicted by such a policy is not
distinguishable from disadvantages caused by a wide range of
government actions, none of which has ever been thought
impermissible for that reason alone.

															In addition, there is simply no evidence that the Davis program
discriminates intentionally or unintentionally against any minority
group which it purports to benefit. The program does not establish
a quota in the invidious sense of a ceiling on the number of
minority applicants to be admitted. Nor can the program reasonably
be regarded as stigmatizing the program's beneficiaries or their
race as inferior. The Davis program does not simply advance less
qualified applicants; rather, it compensates applicants, who it is
uncontested are fully qualified to study medicine, for educational
disadvantages which it was reasonable to conclude were a product
of Page 438 U. S. 376 state-fostered discrimination. Once admitted, these students
must satisfy the same degree requirements as regularly admitted
students; they are taught by the same faculty in the same classes;
and their performance is evaluated by the same standards by which
regularly admitted students are judged. Under these circumstances,
their performance and degrees must be regarded equally with the
regularly admitted students with whom they compete for standing.
Since minority graduates cannot justifiably be regarded as less
well qualified than nonminority graduates by virtue of the special
admissions program, there is no reasonable basis to conclude that
minority graduates at schools using such programs would be
stigmatized as inferior by the existence of such programs. D We disagree with the lower courts' conclusion that the Davis
program's use of race was unreasonable in light of its objectives.
First, as petitioner argues, there are no practical means by which
it could achieve its ends in the foreseeable future without the use
of race-conscious measures. With respect to any factor (such as
poverty or family educational background) that may be used as a
substitute for race as an indicator of past discrimination, whites
greatly outnumber racial minorities simply because whites make up a
far larger percentage of the total population, and therefore far
outnumber minorities in absolute terms at every socioeconomic
level. [ Footnote 2/59 ] For
example, of a class of recent medical school applicants from
families with less than $10,000 income, at least 71% were white.
[ Footnote 2/60 ] Of all 1970
families headed by a Page 438 U. S. 377 person not a highschool graduate which included related children
under 18, 80% were white and 20% were racial minorities. [ Footnote 2/61 ] Moreover, while race is
positively correlated with differences in GPA and MCAT scores,
economic disadvantage is not. Thus, it appears that economically
disadvantaged whites do not score less well than economically
advantaged whites, while economically advantaged blacks score less
well than do disadvantaged whites. [ Footnote 2/62 ] These statistics graphically illustrate
that the University's purpose to integrate its classes by
compensating for past discrimination could not be achieved by a
general preference for the economically disadvantaged or the
children of parents of limited education unless such groups were to
make up the entire class.

															Second, the Davis admissions program does not simply equate
minority status with disadvantage. Rather, Davis considers on an
individual basis each applicant's personal history to determine
whether he or she has likely been disadvantaged by racial
discrimination. The record makes clear that only minority
applicants likely to have been isolated from the mainstream of
American life are considered in the special program; other minority
applicants are eligible only through the regular admissions
program. True, the procedure by which disadvantage is detected is
informal, but we have never insisted that educators conduct their
affairs through adjudicatory proceedings, and such insistence here
is misplaced. A case-by-case inquiry into the extent to which each
individual applicant has been affected, either directly or
indirectly, by racial discrimination, would seem to be, as a
practical matter, virtually impossible, despite the fact that there
are excellent reasons for concluding that such effects generally
exist. When individual measurement is impossible or extremely
impractical, there is nothing to prevent a State Page 438 U. S. 378 from using categorical means to achieve its ends, at least where
the category is closely related to the goal. Cf. Gaston County
v. United States, 395 U. S. 285 , 395 U. S. 25 -296
(1969); Katzenbach v. Morgan, 384 U.
S. 641 (1966). And it is clear from our cases that
specific proof that a person has been victimized by discrimination
is not a necessary predicate to offering him relief where the
probability of victimization is great. See Teamsters v. United
States, 431 U. S. 324 (1977). E Finally, Davis' special admissions program cannot be said to
violate the Constitution simply because it has set aside a
predetermined number of places for qualified minority applicants,
rather than using minority status as a positive factor to be
considered in evaluating the applications of disadvantaged minority
applicants. For purposes of constitutional adjudication, there is
no difference between the two approaches. In any admissions program
which accords special consideration to disadvantaged racial
minorities, a determination of the degree of preference to be given
is unavoidable, and any given preference that results in the
exclusion of a white candidate is no more or less constitutionally
acceptable than a program such as that at Davis. Furthermore, the
extent of the preference inevitably depends on how many minority
applicants the particular school is seeking to admit in any
particular year, so long as the number of qualified minority
applicants exceeds that number. There is no sensible, and certainly
no constitutional, distinction between, for example, adding a set
number of points to the admissions rating of disadvantaged minority
applicants as an expression of the preference with the expectation
that this will result in the admission of an approximately
determined number of qualified minority applicants and setting a
fixed number of places for such applicants, as was done here.
[ Footnote 2/63 ] Page 438 U. S. 379 The "Harvard" program, see ante at 438 U. S.
316 -318, as those employing it readily concede, openly
and successfully employs a racial criterion for the purpose of
ensuring that some of the scarce places in institutions of higher
education are allocated to disadvantaged minority students. That
the Harvard approach does not also make public the extent of the
preference and the precise workings of the system, while the Davis
program employs a specific, openly stated number, does not condemn
the latter plan for purposes of Fourteenth Amendment adjudication.
It may be that the Harvard plan is more acceptable to the public
than is the Davis "quota." If it is, any State, including
California, is free to adopt it in preference to a less acceptable
alternative, just as it is generally free, as far as the
Constitution is concerned, to abjure granting any racial
preferences in its admissions program. But there is no basis for
preferring a particular preference program simply because, in
achieving the same goals that the Davis Medical School is pursuing,
it proceeds in a manner that is not immediately apparent to the
public. V Accordingly, we would reverse the judgment of the Supreme Court
of California holding the Medical School's special admissions
program unconstitutional and directing respondent's admission, as
well as that portion of the judgment enjoining the Medical School
from according any consideration to race in the admissions
process.

															[ Footnote 2/1 ]

															We also agree with MR. JUSTICE POWELL that a plan like the
"Harvard" plan, see ante at 438 U. S.
316 -318, is constitutional under our approach, at least
so long as the use of race to achieve an integrated student body is
necessitated by the lingering effects of past discrimination.

															[ Footnote 2/2 ] See Plessy v. Ferguson, 163 U.
S. 537 (1896).

															[ Footnote 2/3 ] New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958); Muir v. Louisville Park Theatrical Assn., 347 U.S.
971 (1954); Mayor of Baltimore v. Dawson, 350 U.S. 877
(1955); Holmes v. Atlanta, 350 U.S. 879 (1955); Gayle
v. Browder, 352 U.S. 903 (1956).

															[ Footnote 2/4 ] See Green v. County School Board, 391 U.
S. 430 (1968).

															[ Footnote 2/5 ] See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); Davis v. School Comm'rs of Mobile County, 402 U. S.
33 (1971); North Carolina Board of Education v.
Swann, 402 U. S. 43 (1971).

															[ Footnote 2/6 ] See, e.g., cases collected in Monell v. New York
City Dept. of Social Services, 436 U.
S. 658 , 436 U. S. 663 n. 5 (1978).

															[ Footnote 2/7 ]

															Section 601 of Title VI provides:

															"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance."

															42 U.S.C. § 2000d.

															[ Footnote 2/8 ]

															MR. JUSTICE WHITE believes we should address the "private right
of action" issue. Accordingly, he has filed a separate opinion
stating his view that there is no private right of action under
Title VI. See post, p. 438 U. S.
379 .

															[ Footnote 2/9 ]

															"Simple justice requires that public funds, to which all
taxpayers of all races contribute, not be spent in any fashion
which encourages, entrenches, subsidizes or results in racial
discrimination. Direct discrimination by Federal, State or local
governments is prohibited by the Constitution. But indirect
discrimination, through the use of Federal funds, is just as
invidious; and it should not be necessary to resort to the courts
to prevent each individual violation. Congress and the Executive
have their responsibilities to uphold the Constitution also. . . .
"

															"Many statutes providing Federal financial assistance, however,
define with such precision both the Administrator's role and the
conditions upon which specified amounts shall be given to
designated recipients that the amount of administrative discretion
remaining -- which might be used to withhold funds if
discrimination were not ended -- is, at best, questionable. No
administrator has the unlimited authority to invoke the
Constitution in opposition to the mandate of the Congress. Nor
would it always be helpful to require unconditionally -- as is
often proposed -- the withdrawal of all Federal funds from programs
urgently needed by Negroes as well as whites, for this may only
penalize those who least deserve it without ending
discrimination."

															"Instead of permitting this issue to become a political device
often exploited by those opposed to social or economic progress, it
would be better at this time to pass a single comprehensive
provision making it clear that the Federal Government is not
required, under any statute, to furnish any kind of financial
assistance -- by way of grant, loan, contract, guaranty, insurance,
or otherwise -- to any program or activity in which racial
discrimination occurs. This would not permit the Federal Government
to cut off all Federal aid of all kinds as a means of punishing an
area for the discrimination occurring therein -- but it would
clarify the authority of any administrator with respect to Federal
funds or financial assistance and discriminatory practices."

															109 Cong.Rec. 11161 (1963).

															[ Footnote 2/10 ] See, e.g., 110 Cong.Rec. 2732 (1964) (Rep. Dawson); id. at 2481-2482 (Rep. Ryan); id. at 2766 (Rep.
Matzunaga); id. at 2595 (Rep. Donahue) .

															[ Footnote 2/11 ]

															There is also language in 42 U.S.C. § 2000d-5, enacted in 1966,
which supports the conclusion that Title VI's standard is that of
the Constitution. Section 2000d-5 provides that,

															"for the purpose of determining whether a local educational
agency is in compliance with [Title VI], compliance by such agency
with a final order or judgment of a Federal court for the
desegregation of the school or school system operated by such
agency shall be deemed to be compliance with [Title VI], insofar as
the matters covered in the order or judgment are concerned."

															This provision was clearly intended to avoid subjecting local
educational agencies simultaneously to the jurisdiction of the
federal courts and the federal administrative agencies in
connection with the imposition of remedial measures designed to end
school segregation. Its inclusion reflects the congressional
judgment that the requirements imposed by Title VI are identical to
those imposed by the Constitution as interpreted by the federal
courts.

															[ Footnote 2/12 ]

															As has already been seen, the proponents of Title VI in the
House were motivated by the identical concern. See remarks
of Representative Celler (110 Cong.Rec. 2467 (1964));
Representative Ryan ( id. at 1643, 2481-2482); H.R.Rep. No.
914, 88th Cong., 1st Sess., pt. 2, Additional Views of Seven
Representatives 2425 (1963).

															[ Footnote 2/13 ] See separate opinion of MR. JUSTICE WHITE, post at 438 U. S.
382 -383, n. 2.

															[ Footnote 2/14 ]

															These remarks also reflect the expectations of Title VI's
proponents that the application of the Constitution to the conduct
at the core of their concern -- the segregation of Negroes in
federally funded programs and their exclusion from the full
benefits of such programs -- was clear. See supra at 438 U. S.
333 -336; infra at 438 U. S.
340 -342, n. 17.

															[ Footnote 2/15 ]

															Testimony of Attorney General Kennedy in Hearings before the
Senate Committee on the Judiciary on S. 1731 and S. 1750, 88th
Cong., 1st Sess., 398-399 (1963).

															[ Footnote 2/16 ] See, e.g., 110 Cong.Rec. 6544, 13820 (1964) (Sen.
Humphrey); id. at 6050 (Sen. Javits); id. at
12677 (Sen. Allott).

															[ Footnote 2/17 ]

															Our Brother STEVENS finds support for a colorblind theory of
Title VI in its legislative history, but his interpretation gives
undue weight to a few isolated passages from among the thousands of
pages of the legislative history of Title VI. See id. at
6547 (Sen. Humphrey); id. at 6047, 7055 (Sen. Pastore); id. at 12675 (Sen. Allott); id. at 6561 (Sen.
Kuchel). These fragmentary comments fall far short of supporting a
congressional intent to prohibit a racially conscious admissions
program designed to assist those who are likely to have suffered
injuries from the effects of past discrimination. In the first
place, these statements must be read in the context in which they
were made. The concern of the speakers was far removed from the
incidental injuries which may be inflicted upon nonminorities by
the use of racial preferences. It was rather with the evil of the
segregation of Negroes in federally financed programs and, in some
cases, their arbitrary exclusion on account of race from the
benefits of such programs. Indeed, in this context, there can be no
doubt that the Fourteenth Amendment does command color blindness,
and forbids the use of racial criteria. No consideration was given
by these legislators, however, to the permissibility of racial
preference designed to redress the effects of injuries suffered as
a result of one's color. Significantly, one of the legislators,
Senator Pastore, and perhaps also Senator Kuchel, who described
Title VI as proscribing decisionmaking based upon skin color, also
made it clear that Title VI does not outlaw the use of racial
criteria in all circumstances. See supra at 438 U. S.
339 -340; 110 Cong.Rec. 6562 (1964). See also
id. at 2494 (Rep. Celler). Moreover, there are many statements
in the legislative history explicitly indicating that Congress
intended neither to require nor to prohibit the remedial use of
racial preferences where not otherwise required or prohibited by
the Constitution. Representative MacGregor addressed directly the
problem of preferential treatment:

															"Your mail and mine, your contacts and mine with our
constituents, indicates a great degree of misunderstanding about
this bill. People complain about racial 'balancing' in the public
schools, about open occupancy in housing, about preferential
treatment or quotas in employment. There is a mistaken belief that
Congress is legislating in these areas in this bill. When we
drafted this bill, we excluded these issues largely because the
problems raised by these controversial questions are more properly
handled at a governmental level close to the American people and by
communities and individuals themselves. The Senate has spelled out
our intentions more specifically." Id. at 15893. Other legislators explained that the
achievement of racial balance in elementary and secondary schools
where there had been no segregation by law was not compelled by
Title VI, but was rather left to the judgment of state and local
communities. See, e.g., id. at 10920 (Sen. Javits); id. at 5807, 5266 (Sen. Keating); id. at 13821
(Sens. Humphrey and Saltonstall). See also id. at 6562
(Sen. Kuchel); id. at 13695 (Sen. Pastore).

															Much the same can be said of the scattered remarks to be found
in the legislative history of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V),
which prohibits employment discrimination on the basis of race in
terms somewhat similar to those contained in Title VI, see 42 U.S.C. § 2000e-2(a)(1) (unlawful "to fail or refuse to hire" any
applicant "because of such individual's race, color, religion, sex,
or national origin. . . . "), to the effect that any deliberate
attempt by an employer to maintain a racial balance is not required
by the statute, and might in fact violate it. See, e.g., 110 Cong.Rec. 7214 (1964) (Sens. Clark and Case); id. at
6549 (Sen. Humphrey); id. at 2560 (Rep. Goodell). Once
again, there is no indication that Congress intended to bar the
voluntary use of racial preferences to assist minorities to
surmount the obstacles imposed by the remnants of past
discrimination. Even assuming that Title VII prohibits employers
from deliberately maintaining a particular racial composition in
their workforce as an end in itself, this does not imply, in the
absence of any consideration of the question, that Congress
intended to bar the use of racial preferences as a tool for
achieving the objective of remedying past discrimination or other
compelling ends. The former may well be contrary to the
requirements of the Fourteenth Amendment (where state action is
involved), while the latter presents very different constitutional
considerations. Indeed, as discussed infra at 438 U. S. 353 ,
this Court has construed Title VII as requiring the use of racial
preferences for the purpose of hiring and advancing those who have
been adversely affected by past discriminatory employment
practices, even at the expense of other employees innocent of
discrimination. Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S.
767 -768 (1976). Although Title VII clearly does not
require employers to take action to remedy the disadvantages
imposed upon racial minorities by hands other than their own, such
an objective is perfectly consistent with the remedial goals of the
statute. See id. at 424 U. S.
762 -770; Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 418 (1975). There is no more indication in the legislative history of
Title VII than in that of Title VI that Congress desired to
prohibit such affirmative action to the extent that it is permitted
by the Constitution, yet judicial decisions as well as subsequent
executive and congressional action clearly establish that Title VII
does not forbid race-conscious remedial action. See infra at 438 U. S.
353 -355, and n. 28.

															[ Footnote 2/18 ]

															HEW has stated that the purpose of these regulations is

															"to specify that affirmative steps to make services more
equitably available are not prohibited and that such steps are
required when necessary to overcome the consequences of prior
discrimination."

															36 Fed.Reg. 23494 (1971). Other federal agencies which provide
financial assistance pursuant to Title VI have adopted similar
regulations. See Supplemental Brief for United States as Amicus Curiae 16 n. 14.

															[ Footnote 2/19 ]

															Moreover, the President has delegated to the Attorney General
responsibility for coordinating the enforcement of Title VI by
federal departments and agencies, and has directed him to "assist
the departments and agencies in accomplishing effective
implementation." Exec.Order No. 11764, 3 CFR 849 (1971-1975 Comp.).
Accordingly, the views of the Solicitor General, as well as those
of HEW, that the use of racial preferences for remedial purposes is
consistent with Title VI are entitled to considerable respect.

															[ Footnote 2/20 ]

															HEW administers at least two explicitly race-conscious programs.
Details concerning them may be found in the Office of Management
and Budget, 1977 Catalogue of Federal Domestic Assistance 205-206,
401-402. The first program, No. 13.375, "Minority Biomedical
Support," has as its objectives:

															"To increase the number of ethnic minority faculty, students,
and investigators engaged in biomedical research. To broaden the
opportunities for participation in biomedical research of ethnic
minority faculty, students, and investigators by providing support
for biomedical research programs at eligible institutions."

															Eligibility for grants under this program is limited to (1)
four-year colleges, universities, and health professional schools
with over 50% minority enrollments; (2) four-year institutions with
significant but not necessarily over 50% minority enrollment
provided they have a history of encouragement and assistance to
minorities; (3) two-year colleges with 50% minority enrollment; and
(4) American Indian Tribal Councils. Grants made pursuant to this
program are estimated to total $9,711,000 for 1977.

															The second program, No. 13.880, entitled "Minority Access To
Research Careers," has as its objective to "assist minority
institutions to train greater numbers of scientists and teachers in
health related fields." Grants under this program are made directly
to individuals and to institutions for the purpose of enabling them
to make grants to individuals.

															[ Footnote 2/21 ]

															H.R.Conf.Rep. No. 9538, p. 22 (1977); 123 Cong.Rec. 26188
(1977). See H.J.Res. 662, 95th Cong., 1st Sess. (1977);
Pub.L. 95-205, 91 Stat. 1460.

															[ Footnote 2/22 ]

															91 Stat. 117, 42 U.S.C. § 6705(f)(2) (1976 ed.).

															[ Footnote 2/23 ]

															123 Cong.Rec.7156 (1977); id. at 5327-5330.

															[ Footnote 2/24 ] See id. at 7156 (Sen. Brooke).

															[ Footnote 2/25 ]

															In addition to the enactment of the 10% quota provision
discussed supra, Congress has also passed other Acts
mandating race-conscious measures to overcome disadvantages
experienced by racial minorities. Although these statutes have less
direct bearing upon the meaning of Title VI, they do demonstrate
that Congress believes race-conscious remedial measures to be both
permissible and desirable under at least some circumstances. This,
in turn, undercuts the likelihood that Congress intended to limit
voluntary efforts to implement similar measures. For example, §
7(a) of the National Science Foundation Authorization Act, 1977,
provides:

															"The Director of the National Science Foundation shall initiate
an intensive search for qualified women, members of minority
groups, and handicapped individuals to fill executive level
positions in the National Science Foundation. In carrying out the
requirement of this subsection, the Director shall work closely
with organizations which have been active in seeking greater
recognition and utilization of the scientific and technical
capabilities of minorities, women, and handicapped individuals. The
Director shall improve the representation of minorities, women, and
handicapped individuals on advisory committees,, review panels, and
all other mechanisms by which the scientific community provides
assistance to the Foundation."

															90 Stat. 2056, note following 42 U.S.C. 1873 (1976 ed.). Perhaps
more importantly, the Act also authorizes the funding of Minority
Centers for Graduate Education. Section 7(C)(2) of the Act, 90
Stat. 2056, requires that these Centers:

															"(A) have substantial minority student enrollment;"

															"(B) are geographically located near minority population
centers;"

															"(C) demonstrate a commitment to encouraging and assisting
minority students, researchers, and faculty;"

															" * * * *" "(F) will serve as a regional resource in science and
engineering for the minority community which the Center is designed
to serve; and"

															"(G) will develop joint educational programs with nearby
undergraduate institutions of higher education which have a
substantial minority student enrollment."

															Once again, there is no indication in the legislative history of
this Act or elsewhere that Congress saw any inconsistency between
the race-conscious nature of such legislation and the meaning of
Title VI. And, once again, it is unlikely in the extreme that a
Congress which believed that it had commanded recipients of federal
funds to be absolutely colorblind would itself expend federal funds
in such a race-conscious manner. See also the Railroad
Revitalization and Regulatory Reform Act of 1976, 45 U.S.C. § 801 et seq. (1976 ed.), 49 U.S.C. § 1657a et seq. (1976 ed.); the Emergency School Aid Act, 20 U.S.C. § 1601 et
seq. (1976 ed.).

															[ Footnote 2/26 ] Cf. Griggs v. Duke Power Co., 401 U.
S. 424 (1971).

															[ Footnote 2/27 ] Ibid.; Albemarle Paper Co. v. Moody, 422 U.
S. 405 (1975).

															[ Footnote 2/28 ] Franks v. Bowman Transportation Co., 424 U.
S. 747 (1976); Teamsters v. United States, 431 U. S. 324 (1977). Executive, judicial, and congressional action subsequent to
the passage of Title VII conclusively established that the Title
did not bar the remedial use of race. Prior to the 1972 amendments
to Title VII (Equal Employment Opportunity Act of 1972, 86 Stat.
103), a number of Courts of Appeals approved race-conscious action
to remedy the effects of employment discrimination. See, e.g.,
Heat & Frost Insulators & Asbestos Workers v. Voler, 407 F.2d 1047 (CA5 1969); United States v. Electrical
Workers, 428 F.2d 144, 149-150 (CA6), cert. denied, 400 U.S. 943 (1970); United States v. Sheetmetal Workers, 416 F.2d 123 (CA8 1969). In 1965, the President issued Exec.Order
No. 11246, 3 CFR 339 (1964-1965 Comp.), which, as amended by
Exec.Order No. 11375, 3 CFR 684 (1966-1970 Comp.), required federal
contractors to take affirmative action to remedy the
disproportionately low employment of racial minorities in the
construction industry. The Attorney General issued an opinion
concluding that the race consciousness required by Exec Order No
11246 did not conflict with Title VII:

															"It is not correct to say that Title VII prohibits employers
from making race or national origin a factor for consideration at
any stage in the process of obtaining employees. The legal
definition of discrimination is an evolving one, but it is now well
recognized in judicial opinions that the obligation of
nondiscrimination, whether imposed by statute or by the
Constitution, does not require and, in some circumstances, may not
permit, obliviousness or indifference to the racial consequences of
alternative courses of action which involve the application of
outwardly neutral criteria."

															42 Op.Atty.Gen. 405, 411 (1969). The federal courts agreed. See, e.g., Contractors Assn. of Eastern Pa. v. Secretary of
Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854
(1971) (which also held, 442 F.2d at 173, that race-conscious
affirmative action was permissible under Title VI); Southern
Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972).
Moreover, Congress, in enacting the 1972 amendments to Title VII,
explicitly considered and rejected proposals to alter Exec.Order
No. 11246 and the prevailing judicial interpretations of Title VII
as permitting, and in some circumstances requiring, race-conscious
action. See Comment, The Philadelphia Plan: A Study in the
Dynamics of Executive Power, 39 U.Chi.L.Rev. 723, 747-757 (1972).
The section-by-section analysis of the 1972 amendments to Title VII
undertaken by the Conference Committee Report on H.R. 1746 reveals
a resolve to accept the then (as now) prevailing judicial
interpretations of the scope of Title VII:

															"In any area where the new law does not address itself, or in
any areas where a specific contrary intent is not indicated, it was
assumed that the present case law as developed by the courts would
continue to govern the applicability and construction of Title
VII."

															Legislative History of the Equal Employment Opportunity Act of
1972, p. 1844 (Comm.Print 1972).

															[ Footnote 2/29 ] United Jewish Organizations v. Carey, 430 U.
S. 144 (1977). See also id. at 430 U. S.
167 -168 (opinion of WHITE, J.).

															[ Footnote 2/30 ]

															We do not pause to debate whether our cases establish a
"two-tier" analysis, a "sliding scale" analysis, or something else
altogether. It is enough for present purposes that strict scrutiny
is applied at least in some cases.

															[ Footnote 2/31 ]

															Of course, the fact that whites constitute a political majority
in our Nation does not necessarily mean that active judicial
scrutiny of racial classifications that disadvantage whites is
inappropriate. Cf. Castaneda v. Partida, 430 U.
S. 482 , 430 U. S.
499 -500 (1977); id. at 430 U. S. 501 (MARSHALL, J., concurring) .

															[ Footnote 2/32 ]

															"[T]he conclusion cannot be resisted, that no reason for [the
refusal to issue permits to Chinese] exists except hostility to the
race and nationality to which the petitioners belong. . . . The
discrimination is, therefore, illegal. . . ."

															[ Footnote 2/33 ]

															Indeed, even in Plessy v. Ferguson, the Court
recognized that a classification by race that presumed one race to
be inferior to another would have to be condemned. See 163
U.S. at 163 U. S.
544 -551.

															[ Footnote 2/34 ]

															Paradoxically, petitioner's argument is supported by the cases
generally thought to establish the "strict scrutiny" standard in
race cases, Hirabayashi v. United States, 320 U. S.
81 (1943), and Korematsu v. United States, 323 U. S. 214 (1944). In Hirabayashi, for example, the Court, responding
to a claim that a racial classification was rational, sustained a
racial classification solely on the basis of a conclusion in the
double negative that it could not say that facts which might have
been available "could afford no ground for differentiating citizens
of Japanese ancestry from other groups in the United States." 320
U.S. at 320 U. S. 101 .
A similar mode of analysis was followed in Korematsu, see 323 U.S. at 323 U. S. 224 ,
even though the Court stated there that racial classifications were
"immediately suspect," and should be subject to "the most rigid
scrutiny." Id. at 323 U. S. 216 .

															[ Footnote 2/35 ]

															We disagree with our Brother POWELL's suggestion, ante at 438 U. S. 303 ,
that the presence of "rival groups which can claim that they, too,
are entitled to preferential treatment" distinguishes the gender
cases or is relevant to the question of scope of judicial review of
race classifications. We are not asked to determine whether groups
other than those favored by the Davis program should similarly be
favored. All we are asked to do is to pronounce the
constitutionality of what Davis has done.

															But, were we asked to decide whether any given rival group --
German-Americans for example -- must constitutionally be accorded
preferential treatment, we do have a "principled basis," ante at 438 U. S. 296 ,
for deciding this question, one that is well established in our
cases: the Davis program expressly sets out four classes which
receive preferred status. Ante at 438 U. S. 274 .
The program clearly distinguishes whites, but one cannot reason
from this a conclusion that German-Americans, as a national group,
are singled out for invidious treatment. And even if the Davis
program had a differential impact on German-Americans, they would
have no constitutional claim unless they could prove that Davis
intended invidiously to discriminate against German-Americans. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S.
264 -265 (1977); Washington v. Davis, 426 U. S. 229 , 426 U. S.
238 -241 (1976). If this could not be shown, then "the
principle that calls for the closest scrutiny of distinctions in
laws denying fundamental rights . . . is inapplicable," Katzenbach v. Morgan, 384 U. S. 641 , 384 U. S. 657 (1966), and the only question is whether it was rational for Davis
to conclude that the groups it preferred had a greater claim to
compensation than the groups it excluded. See ibid.; San
Antonio Independent School District v. Rodriguez, 411 U. S.
1 , 411 U. S. 38 -39
(1973) (applying Katzenbach test to state action intended to remove
discrimination in educational opportunity). Thus, claims of rival
groups, although they may create thorny political problems, create
relatively simple problems for the courts.

															[ Footnote 2/36 ]

															Gunther, The Supreme Court, 1971 Term -- Foreword: In Search of
Evolving Doctrine on a Changing Court: A Model for a Newer Equal
Protection, 86 Harv.L.Rev. 1, 8 (1972).

															[ Footnote 2/37 ]

															In Albemarle, we approved "differential validation" of
employment tests. See 422 U.S. at 422 U. S. 435 .
That procedure requires that an employer must ensure that a test
score of, for example, 50 for a minority job applicant means the
same thing as a score of 50 for a nonminority applicant. By
implication, were it determined that a test score of 50 for a
minority corresponded in "potential for employment" to a 60 for
whites, the test could not be used consistently with Title VII
unless the employer hired minorities with scores of 50 even though
he might not hire nonminority applicants with scores above 50 but
below 60. Thus, it is clear that employers, to ensure equal
opportunity, may have to adopt race-conscious hiring practices.

															[ Footnote 2/38 ]

															Indeed, Titles VI and VII of the Civil Rights Act of 1964 put
great emphasis on voluntarism in remedial action. See
supra at 438 U. S.
336 -338. And, significantly, the Equal Employment
Opportunity Commission has recently proposed guidelines authorizing
employers to adopt racial preferences as a remedial measure where
they have a reasonable basis for believing that they might
otherwise be held in violation of Title VII. See 42
Fed.Reg. 64826 (1977).

															[ Footnote 2/39 ]

															"[T]he [Voting Rights] Act's prohibition . . . is not dependent
upon proving past unconstitutional apportionments. . . ."

															[ Footnote 2/40 ]

															"[T]he State is [not] powerless to minimize the consequences of
racial discrimination by voters when it is regularly practiced at
the polls."

															[ Footnote 2/41 ]

															Our cases cannot be distinguished by suggesting, as our Brother
POWELL does, that in none of them was anyone deprived of "the
relevant benefit." Ante at 438 U. S. 304 .
Our school cases have deprived whites of the neighborhood school of
their choice; our Title VII cases have deprived nondiscriminating
employees of their settled seniority expectations; and UJO deprived the Hassidim of bloc-voting strength. Each of these
injuries was constitutionally cognizable as is respondent's
here.

															[ Footnote 2/42 ]

															We do not understand MR. JUSTICE POWELL to disagree that
providing a remedy for past racial prejudice can constitute a
compelling purpose sufficient to meet strict scrutiny. See
ante at 438 U. S. 305 .
Yet, because petitioner is a corporation administering a
university, he would not allow it to exercise such power in the
absence of "judicial, legislative, or administrative findings of
constitutional or statutory violations." Ante at 438 U. S. 307 .
While we agree that reversal in this case would follow a
fortiori had Davis been guilty of invidious racial
discrimination or if a federal statute mandated that universities
refrain from applying any admissions policy that had a disparate
and unjustified racial impact, see, e.g., McDaniel v.
Barresi, 402 U. S. 39 (1971); Franks v. Bowman Transportation Co., 424 U.
S. 747 (1976), we do not think it of constitutional
significance that Davis has not been so adjudged.

															Generally, the manner in which a State chooses to delegate
governmental functions is for it to decide. Cf. Sweezy v. New
Hampshire, 354 U. S. 234 , 354 U. S. 256 (1957) (Frankfurter, J., concurring in result). California, by
constitutional provision, has chosen to place authority over the
operation of the University of California in the Board of Regents. See Cal.Const., Art. 9, § 9(a). Control over the
University is to be found not in the legislature, but rather in the
Regents who have been vested with full legislative (including
policymaking), administrative, and adjudicative powers by the
citizens of California. See ibid.; Ishimatsu v.
Regents, 266 Cal. App.
2d 854 , 863-864, 72 Cal. Rptr. 756, 762-763 (1968); Goldberg v. Regents, 248 Cal. App.
2d 867 , 874, 57 Cal. Rptr. 463, 468 (1967); 30 Op.Cal.Atty.
Gen. 162, 166 (1957) ("The Regents, not the legislature, have the
general rulemaking or policymaking power in regard to the
University"). This is certainly a permissible choice, see
Sweezy, supra, and we, unlike our Brother POWELL, find nothing
in the Equal Protection Clause that requires us to depart from
established principle by limiting the scope of power the Regents
may exercise more narrowly than the powers that may
constitutionally be wielded by the Assembly.

															Because the Regents can exercise plenary legislative and
administrative power, it elevates form over substance to insist
that Davis could not use race-conscious remedial programs until it
had been adjudged in violation of the Constitution or an
antidiscrimination statute. For, if the Equal Protection Clause
required such a violation as a predicate, the Regents could simply
have promulgated a regulation prohibiting disparate treatment not
justified by the need to admit only qualified students, and could
have declared Davis to have been in violation of such a regulation
on the basis of the exclusionary effect of the admissions policy
applied during the first two years of its operation. See
infra at 438 U. S.
370 .

															[ Footnote 2/43 ]

															"Equal protection analysis in the Fifth Amendment area is the
same as that under the Fourteenth Amendment." Buckley v.
Valeo, 424 U. S. 1 , 424 U. S. 93 (1976) (per curiam), citing Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 638 n. 2 (1975).

															[ Footnote 2/44 ] Railway Mail Assn. held that a state statute forbidding
racial discrimination by certain labor organizations did not
abridge the Association's due process rights secured by the
Fourteenth Amendment, because that result

															"would be a distortion of the policy manifested in that
amendment, which was adopted to prevent state legislation designed
to perpetuate discrimination on the basis of race or color."

															326 U.S. at 326 U. S. 94 .
That case thus established the principle that a State voluntarily
could go beyond what the Fourteenth Amendment required in
eliminating private racial discrimination.

															[ Footnote 2/45 ]

															According to 89 schools responding to a questionnaire sent to
112 medical schools (all of the then-accredited medical schools in
the United States except Howard and Meharry), substantial efforts
to admit minority students did not begin until 1968. That year was
the earliest year of involvement for 34% of the schools; an
additional 66% became involved during the years 1969 to 1973. See C. Odegaard, Minorities in Medicine: From Receptive
Passivity to Positive Action, 1966-1976, p. 19 (1977) (hereinafter
Odegaard). These efforts were reflected in a significant increase
in the percentage of minority M.D. graduates. The number of
American Negro graduates increased from 2.2% in 1970 to 3.3% in
1973 and 5.0% in 1975. Significant percentage increases in the
number of Mexican-American, American Indian, and mainland Puerto
Rican graduates were also recorded during those years. Id. at 40.

															The statistical information cited in this and the following
notes was compiled by Government officials or medical educators,
and has been brought to our attention in many of the briefs.
Neither the parties nor the amici challenge the validity
of the statistics alluded to in our discussion.

															[ Footnote 2/46 ]

															D. Reitzes, Negroes and Medicine, pp. xxvii, 3 (1958).

															[ Footnote 2/47 ]

															Between 1955 and 1964, for example, the percentage of Negro
physicians graduated in the United States who were trained at these
schools ranged from 69.0% to 75.8%. See Odegaard 19.

															[ Footnote 2/48 ]

															U.S. Dept. of Health, Education, and Welfare, Minorities and
Women in the Health Fields 7 (Pub. No. (HRA) 75-22, May, 1974).

															[ Footnote 2/49 ]

															U.S. Dept. of Commerce, Bureau of the Census, 1970 Census, vol.
1, pt. 1, Table 60 (1973).

															[ Footnote 2/50 ] See ante at 438 U. S. 276 n. 6 (opinion of POWELL, J.).

															[ Footnote 2/51 ] See, e.g., R. Wade, Slavery in the Cities: The South
1820-1860, pp. 991 (1964).

															[ Footnote 2/52 ]

															For an example of unequal facilities in California schools, see Sona v. Oxnard School Dist. Board, 386 F.
Supp. 539 , 542 (CD Cal.1974). See also R. Kluger,
Simple Justice (1976).

															[ Footnote 2/53 ] See, e.g., Crawford v. Board of
Education, 17 Cal. 3d
280 , 551 P.2d 28 (1976); Soria v. Oxnard School Dist.
Board, supra; Spangler v. Pasadena City Board of
Education, 311 F.
Supp. 501 (CD Cal.1970); C. Wollenberg, All Deliberate Speed:
Segregation and Exclusion in California Schools, 1855-1975, pp.
136-177 (1976).

															[ Footnote 2/54 ]

															For example, over 40% of American-born Negro males aged 20 to 24
residing in California in 1970 were born in the South, and the
statistic for females was over 48%. These statistics were computed
from data contained in Census, supra, 438
U.S. 265 fn2/49|>n. 49, pt. 6, California, Tables 139,
140.

															[ Footnote 2/55 ] See, e.g., O'Neil, Preferential Admissions: Equalizing
the Access of Minority Groups to Higher Education, 80 Yale L.J.
699, 729-731 (1971).

															[ Footnote 2/56 ]

															Congress and the Executive have also adopted a series of
race-conscious programs, each predicated on an understanding that
equal opportunity cannot be achieved by neutrality, because of the
effects of past and present discrimination. See supra at 438 U. S.
348 -349.

															[ Footnote 2/57 ]

															Negroes and Chicanos alone constitute approximately 22% of
California's population. This percentage was computed from data
contained in Census, supra, 438
U.S. 265 fn2/49|>n. 49, pt. 6, California, sec. 1,6-4, and
Table 139.

															[ Footnote 2/58 ]

															The constitutionality of the special admissions program is
buttressed by its restriction to only 16% of the positions in the
Medical School, a percentage less than that of the minority
population in California, see ibid., and to those minority
applicants deemed qualified for admission and deemed likely to
contribute to the Medical School and the medical profession. Record
67. This is consistent with the goal of putting minority applicants
in the position they would have ben in if not for the evil of
racial discrimination. Accordingly, this case does not raise the
question whether even a remedial use of race would be
unconstitutional if it admitted unqualified minority applicants in
preference to qualified applicants or admitted, as a result of
preferential consideration, racial minorities in numbers
significantly in excess of their proportional representation in the
relevant population. Such programs might well be inadequately
justified by the legitimate remedial objectives. Our allusion to
the proportional percentage of minorities in the population of the
State administering the program is not intended to establish either
that figure or that population universe as a constitutional
benchmark. In this case, even respondent, as we understand him,
does not argue that, if the special admissions program is otherwise
constitutional, the allotment of 16 places in each entering class
for special admittees is unconstitutionally high.

															[ Footnote 2/59 ] See Census, supra, 438
U.S. 265 fn2/49|>n. 49, Sources and Structure of Family
Income, pp. 1-12.

															[ Footnote 2/60 ]

															This percentage was computed from data presented in B. Waldman,
Economic and Racial Disadvantage as Reflected in Traditional
Medical School Selection Factors: A Study of 1976 Applicants to
U.S. Medical Schools 34 (Table A-15), 42 (Table A-23) (Association
of American Medical Colleges 1977).

															[ Footnote 2/61 ]

															This figure was computed from data contained in Census, supra, 438
U.S. 265 fn2/49|>n. 49, pt. 1, United States Summary, Table
209.

															[ Footnote 2/62 ] See Waldman, supra, 438
U.S. 265 fn2/60|>n. 60, at 10-14 (Figures 1-5).

															[ Footnote 2/63 ]

															The excluded white applicant, despite MR. JUSTICE POWELL's
contention to the contrary, ante at 438 U. S. 318 n. 52, receives no more or less "individualized consideration"
under our approach than under his.

															MR. JUSTICE WHITE.

															I write separately concerning the question of whether Title VI
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et
seq., provides for a private cause of action. Four Justices
are apparently of the view that such a private cause of action Page 438 U. S. 380 exists, and four Justices assume it for purposes of this case. I
am unwilling merely to assume an affirmative answer. If, in fact,
no private cause of action exists, this Court and the lower courts
as well are without jurisdiction to consider respondent's Title VI
claim. As I see it, if we are not obliged to do so, it is at least
advisable to address this threshold jurisdictional issue. See
United States v. Griffin, 303 U. S. 226 , 303 U. S. 229 (1938). [ Footnote 3/1 ] Furthermore,
just as it is inappropriate to address constitutional issues
without determining whether statutory grounds urged before us are
dispositive, it is at least questionable practice to adjudicate a
novel and difficult statutory issue without first considering
whether we have jurisdiction to decide it. Consequently, I address
the question of whether respondent may bring suit under Title
VI.

															A private cause of action under Title VI, in terms both of Page 438 U. S. 381 the Civil Rights Act as a whole and that Title, would not be
"consistent with the underlying purposes of the legislative
scheme," and would be contrary to the legislative intent. Cort
v. Ash, 422 U. S. 66 , 422 U. S. 78 (1975). Title II, 42 U.S.C. § 2000a et seq., dealing with
public accommodations, and Title VII, 42 U.S.C. § 2000e et
seq. (1970 ed. and Supp. V), dealing with employment,
proscribe private discriminatory conduct that, as of 1964, neither
the Constitution nor other federal statutes had been construed to
forbid. Both Titles carefully provided for private actions as well
as for official participation in enforcement. Title III, 42 U.S.C.
§ 2000b et seq., and Title IV, 42 U.S.C. § 2000c et
seq. (1970 ed and Supp. V), dealing with public facilities and
public education, respectively, authorize suits by the Attorney
General to eliminate racial discrimination in these areas. Because
suits to end discrimination in public facilities and public
education were already available under 42 U.S.C. § 1983, it was, of
course, unnecessary to provide for private actions under Titles III
and IV. But each Title carefully provided that its provisions for
public actions would not adversely affect preexisting private
remedies. § § 2000b-2 and 2000c-8.

															The role of Title VI was to terminate federal financial support
for public and private institutions or programs that discriminated
on the basis of race. Section 601, 42 U.S.C. § 2000d, imposed the
proscription that no person, on the grounds of race, color, or
national origin, was to be excluded from or discriminated against
under any program or activity receiving federal financial
assistance. But there is no express provision for private actions
to enforce Title VI, and it would be quite incredible if Congress,
after so carefully attending to the matter of private actions in
other Titles of the Act, intended silently to create a private
cause of action to enforce Title VI.

															It is also evident from the face of § 602, 42 U.S.C. § 2000d-1,
that Congress intended the departments and agencies Page 438 U. S. 382 to define and to refine, by rule or regulation, the general
proscription of § 601, subject only to judicial review of agency
action in accordance with established procedures. Section 602
provides for enforcement: every federal department or agency
furnishing financial support is to implement the proscription by
appropriate rule or regulation, each of which requires approval by
the President. Termination of funding as a sanction for
noncompliance is authorized, but only after a hearing and after the
failure of voluntary means to secure compliance. Moreover,
termination may not take place until the department or agency
involved files with the appropriate committees of the House and
Senate a full written report of the circumstances and the grounds
for such action and 30 days have elapsed thereafter. Judicial
review was provided, at least for actions terminating financial
assistance.

															Termination of funding was regarded by Congress as a serious
enforcement step, and the legislative history is replete with
assurances that it would not occur until every possibility for
conciliation had been exhausted. [ Footnote 3/2 ] To allow a private Page 438 U. S. 383 individual to sue to cut off funds under Title VI would
compromise these assurances and short-circuit the procedural
preconditions provided in Title VI. If the Federal Government may
not cut off funds except pursuant to an agency rule, approved by
the President, and presented to the appropriate committee of
Congress for a layover period, and after voluntary means to achieve
compliance have failed, it is inconceivable that Congress intended
to permit individuals to circumvent these administrative
prerequisites themselves.

															Furthermore, although Congress intended Title VI to end federal
financial support for racially discriminatory policies of not only
public but also private institutions and programs, it is extremely
unlikely that Congress, without a word indicating that it intended
to do so, contemplated creating an independent, private statutory
cause of action against all private, as well as public, agencies
that might be in violation of the section. There is no doubt that
Congress regarded private litigation as an important tool to attack
discriminatory practices. It does not at all follow, however, that
Congress anticipated new private actions under Title VI itself.
Wherever a discriminatory program was a public undertaking, such as
a public school, private remedies were already available under
other statutes, and a private remedy under Title VI was Page 438 U. S. 384 unnecessary. Congress was well aware of this fact.
Significantly, there was frequent reference to Simkins v. Moses
H. Cone Memorial Hospital, 323 F.2d 059 (CA4 1963), cert.
denied, 376 U.S. 938 (1964), throughout the congressional
deliberations. See, e.g., 110 Cong.Rec. 654 (1964) (Sen.
Humphrey). Simkins held that, under appropriate
circumstances, the operation of a private hospital with "massive
use of public funds and extensive state-federal sharing in the
common plan" constituted "state action" for the purposes of the
Fourteenth Amendment. 323 F.2d at 967. It was unnecessary, of
course, to create a Title VI private action against private
discriminators where they were already within the reach of existing
private remedies. But when they were not -- and Simkins carefully disclaimed holding that "every subvention by the federal
or state government automatically involves the beneficiary in state action,'" ibid. [ Footnote 3/3 ] -- it is difficult Page 438 U. S. 385 to believe that Congress silently created a private remedy to
terminate conduct that previously had been entirely beyond the
reach of federal law.

															For those who believe, contrary to my views, that Title VI was
intended to create a stricter standard of colorblindness than the
Constitution itself requires, the result of no private cause of
action follows even more readily. In that case, Congress must be
seen to have banned degrees of discrimination, as well as types of
discriminators, not previously reached by law. A Congress careful
enough to provide that existing private causes of action would be
preserved (in Titles III and IV) would not leave for inference a
vast new extension of private enforcement power. And a Congress so
exceptionally concerned with the satisfaction of procedural
preliminaries before confronting fund recipients with the choice of
a cutoff or of stopping discriminating would not permit private
parties to pose precisely that same dilemma in a greatly widened
category of cases with no procedural requirements whatsoever.

															Significantly, in at least three instances, legislators who
played a major role in the passage of Title VI explicitly stated
that a private right of action under Title VI does not exist.
[ Footnote 3/4 ] Page 438 U. S. 386 As an "indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one," Cort v.
Ash, 422 U.S. at 422 U. S. 78 ,
clearer statements cannot be imagined, and under Cort, "an
explicit purpose to deny such cause of action [is] controlling." Id. at 422 U. S. 82 .
Senator Keating, for example, proposed a private "right to sue" for
the "person suffering from discrimination"; but the Department of
Justice refused to include it, and the Senator acquiesced.
[ Footnote 3/5 ] These are not
neutral, ambiguous statements. They indicate the absence of a
legislative intent to create a private remedy. Nor do any of these
statements make nice distinctions between a private cause of action
to enjoin discrimination and one to cut off funds, as MR. JUSTICE
STEVENS and the three Justices who join his opinion apparently
would. See post at 438 U. S.
419 -420, n. 26. Indeed, it would be odd if they did,
since the practical effect of either type of private cause of
action would be identical. If private suits to enjoin conduct
allegedly violative of § 601 were permitted, recipients of federal
funds would be presented with the choice of either ending what the
court, rather than the agency, determined to be a discriminatory
practice within the meaning of Title VI or refusing federal funds,
and thereby escaping from the statute's jurisdictional predicate.
[ Footnote 3/6 ] This is precisely
the same choice as would confront recipients if suit were brought
to cut off funds. Both types of actions would equally jeopardize
the administrative processes so carefully structured into the
law. Page 438 U. S. 387 This Court has always required

															"that the inference of such a private cause of action not
otherwise authorized by the statute must be consistent with the
evident legislative intent and, of course, with the effectuation of
the purposes intended to be served by the Act." National Railroad Passenger Corp. v. National Association of
Railroad Passengers, 414 U. S. 453 , 414 U. S. 458 (1974). See also Securities Investor Protection Corp. v.
Barbour, 421 U. S. 412 , 421 U. S. 418 420 (1975). A private cause of action under Title VI is unable to
satisfy either prong of this test.

															Because each of my colleagues either has a different view or
assumes a private cause of action, however, the merits of the Title
VI issue must be addressed. My views in that regard, as well as my
views with respect to the equal protection issue, are included in
the joint opinion that my Brothers BRENNAN, MARSHALL, and BLACKMUN
and I have filed. [ Footnote
3/7 ]

															[ Footnote 3/1 ]

															It is also clear from Griffin that "lack of
jurisdiction . . . touching the subject matter of the litigation
cannot be waived by the parties. . . ." 303 U.S. at 303 U. S. 229 . See also Mount Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 , 429 U. S. 278 (1977); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 , 211 U. S. 152 (1908); Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 , 111 U. S. 382 (1884).

															In Lau v. Nichols, 414 U. S. 563 (1974), we did adjudicate a Title VI claim brought by a class of
individuals. But the existence of a private cause of action was not
at issue. In addition, the understanding of MR. JUSTICE STEWART's
concurring opinion, which observed that standing was not being
contested, was that the standing alleged by petitioners was as
third-party beneficiaries of the funding contract between the
Department of Health, Education, and Welfare and the San Francisco
United School District, a theory not alleged by the present
respondent. Id. at 414 U. S. 571 n. 2. Furthermore, the plaintiffs in Lau alleged
jurisdiction under 42 U.S.C. § 1983, rather than directly under the
provisions of Title VI, as does the plaintiff in this case.
Although the Court undoubtedly had an obligation to consider the
jurisdictional question, this is surely not the first instance in
which the Court has bypassed a jurisdictional problem not presented
by the parties. Certainly the Court's silence on the jurisdictional
question, when considered in the context of the indifference of the
litigants to it and the fact that jurisdiction was alleged under §
1983, does not foreclose a reasoned conclusion that Title VI
affords no private cause of action.

															[ Footnote 3/2 ]

															"Yet, before that principle [that 'Federal funds are not to be
used to support racial discrimination'] is implemented to the
detriment of any person, agency, or State, regulations giving
notice of what conduct is required must be drawn up by the agency
administering the program. . . . Before such regulations become
effective, they must be submitted to and approved by the
President."

															"Once having become effective, there is still a long road to
travel before any sanction whatsoever is imposed. Formal action to
compel compliance can only take place after the following has
occurred: first, there must be an unsuccessful attempt to obtain
voluntary compliance; second, there must be an administrative
hearing; third, a written report of the circumstances and the
grounds for such action must be filed with the appropriate
committees of the House and Senate; and fourth, 30 days must have
elapsed between such filing and the action denying benefits under a
Federal program. Finally, even that action is by no means final,
because it is subject to judicial review, and can be further
postponed by judicial action granting temporary relief pending
review in order to avoid irreparable injury. It would be difficult
indeed to concoct any additional safeguards to incorporate in such
a procedure."

															110 Cong.Rec. 6749 (1964) (Sen. Moss).

															"[T]he authority to cut off funds is hedged about with a number
of procedural restrictions. . . . [There follow details of the
preliminary steps.]"

															"In short, title VI is a reasonable, moderate, cautious,
carefully worked out solution to a situation that clearly calls for
legislative action." Id. at 6544 (Sen. Humphrey).

															"Actually, no action whatsoever can be taken against
anyone until the Federal agency involved has advised the
appropriate person of his failure to comply with nondiscrimination
requirements and until voluntary efforts to secure compliance have
failed." Id. at 1519 (Rep. Celler) (emphasis added). See
also remarks of Sen. Ribicoff ( id. at 7066-7067);
Sen. Proxmire ( id. at 8345); en. Kuchel ( id. at
6562). These safeguards were incorporated into 42 U.S.C. §
2000d-1.

															[ Footnote 3/3 ]

															This Court has never held that the mere receipt of federal or
state funds is sufficient to make the recipient a federal or state
actor. In Norwood v. Harrison, 413 U.
S. 455 (1973), private schools that received state aid
were held subject to the Fourteenth Amendment's ban on
discrimination, but the Court's test required "tangible financial
aid" with a "significant tendency to facilitate, reinforce, and
support private discrimination." Id. at 413 U. S. 466 .
The mandate of Burton v. Wilmington Parking Authority, 365 U. S. 715 , 365 U. S. 722 (1961), to sift facts and weigh circumstances of governmental
support in each case to determine whether private or state action
was involved, has not been abandoned for an automatic rule based on
receipt of funds.

															Contemporaneous with the congressional debates on the Civil
Rights Act was this Court's decision in Griffin v. School
Board, 377 U. S. 218 (1964). Tuition grants and tax concessions were provided for
parents of students in private schools which discriminated
racially. The Court found sufficient state action, but carefully
limited its holding to the circumstances presented:

															"[C]losing the Prince Edward schools and meanwhile contributing
to the support of the private segregated white schools that took
their place denied petitioners the equal protection of the
laws." Id. at 377 U. S.
232 .

															Hence, neither at the time of the enactment of Title VI nor at
the present time, to the extent this Court has spoken, has mere
receipt of state funds created state action. Moreover, Simkins has not met with universal approval among the
United States Courts of Appeals. See cases cited in Greco v. Orange Memorial Hospital Corp., 423 U.
S. 1000 , 1004 (1975) (WHITE, J., dissenting from denial
of certiorari).

															[ Footnote 3/4 ]

															"Nowhere in this section do you find a comparable right of legal
action for a person who feels he has been denied his rights to
participate in the benefits of Federal funds. Nowhere. Only those
who have been cut off can go to court and present their claim."

															110 Cong.Rec. 2467 (1964) (Rep. Gill).

															"[A] good case could be made that a remedy is provided for the
State or local official who is practicing discrimination, but none
is provided for the victim of the discrimination." Id. at 6562 (Sen. Kuchel).

															"Parenthetically, while we favored the inclusion of the right to
sue on the part of the agency, the State, or the facility which was
deprived of Federal funds, we also favored the inclusion of a
provision granting the right to sue to the person suffering from
discrimination. This was not included in the bill. However, both
the Senator from Connecticut and I are grateful that our other
suggestions were adopted by the Justice Department." Id. at 7065 (Sen. Keating).

															[ Footnote 3/5 ] Ibid. [ Footnote 3/6 ]

															As Senator Ribicoff stated:

															"Sometimes those eligible for Federal assistance may elect to
reject such aid, unwilling to agree to a nondiscrimination
requirement. If they choose that course, the responsibility is
theirs." Id. at 7067.

															[ Footnote 3/7 ]

															I also join Parts I, III-A, and V-C of MR. JUSTICE POWELL's
opinion.

															MR. JUSTICE MARSHALL.

															I agree with the judgment of the Court only insofar as it
permits a university to consider the race of an applicant in making
admissions decisions. I do not agree that petitioner's admissions
program violates the Constitution. For it must be remembered that,
during most of the past 200 years, the Constitution, as interpreted
by this Court, did not prohibit the most ingenious and pervasive
forms of discrimination against the Negro. Now, when a State acts
to remedy the effects of that legacy of discrimination, I cannot
believe that this same Constitution stands as a barrier. I A Three hundred and fifty years ago, the Negro was dragged to this
country in chains to be sold into slavery. Uprooted from his
homeland and thrust into bondage for forced labor, Page 438 U. S. 388 the slave was deprived of all legal rights. It was unlawful to
teach him to read; he could be sold away from his family and
friends at the whim of his master; and killing or maiming him was
not a crime. The system of slavery brutalized and dehumanized both
master and slave. [ Footnote
4/1 ]

															The denial of human rights was etched into the American
Colonies' first attempts at establishing self-government. When the
colonists determined to seek their independence from England, they
drafted a unique document cataloguing their grievances against the
King and proclaiming as "self-evident" that "all men are created
equal" and are endowed "with certain unalienable Rights," including
those to "Life, Liberty and the pursuit of Happiness." The
self-evident truths and the unalienable rights were intended,
however, to apply only to white men. An earlier draft of the
Declaration of Independence, submitted by Thomas Jefferson to the
Continental Congress, had included among the charges against the
King that

															"[h]e has waged cruel war against human nature itself, violating
its most sacred rights of life and liberty in the persons of a
distant people who never offended him, captivating and carrying
them into slavery in another hemisphere, or to incur miserable
death in their transportation thither."

															Franklin 88. The Southern delegation insisted that the charge be
deleted; the colonists themselves were implicated in the slave
trade, and inclusion of this claim might have made it more
difficult to justify the continuation of slavery once the ties to
England were severed. Thus, even as the colonists embarked on a Page 438 U. S. 389 course to secure their own freedom and equality, they ensured
perpetuation of the system that deprived a whole race of those
rights.

															The implicit protection of slavery embodied in the Declaration
of Independence was made explicit in the Constitution, which
treated a slave as being equivalent to three-fifths of a person for
purposes of apportioning representatives and taxes among the
States. Art. I, § 2. The Constitution also contained a clause
ensuring that the "Migration or Importation" of slaves into the
existing States would be legal until at least 1808, Art. I, § 9,
and a fugitive slave clause requiring that, when a slave escaped to
another State, he must be returned on the claim of the master, Art.
IV, § 2. In their declaration of the principles that were to
provide the cornerstone of the new Nation, therefore, the Framers
made it plain that "we the people," for whose protection the
Constitution was designed, did not include those whose skins were
the wrong color. As Professor John Hope Franklin has observed,
Americans

															"proudly accepted the challenge and responsibility of their new
political freedom by establishing the machinery and safeguards that
insured the continued enslavement of blacks."

															Franklin 100.

															The individual States likewise established the machinery to
protect the system of slavery through the promulgation of the Slave
Codes, which were designed primarily to defend the property
interest of the owner in his slave. The position of the Negro slave
as mere property was confirmed by this Court in Dred Scott
v. Sandford , 19 How. 393 (1857), holding that the
Missouri Compromise -- which prohibited slavery in the portion of
the Louisiana Purchase Territory north of Missouri -- was
unconstitutional because it deprived slave owners of their property
without due process. The Court declared that, under the
Constitution, a slave was property, and "[t]he right to traffic in
it, like an ordinary article of merchandise and property, was
guarantied to the citizens of the United Page 438 U. S. 390 States. . . ." Id. at 60 U. S. 451 .
The Court further concluded that Negroes were not intended to be
included as citizens under the Constitution, but were

															"regarded as beings of an inferior order . . . altogether unfit
to associate with the white race, either in social or political
relations; and so far inferior that they had no rights which the
white man was bound to respect . . . ." Id. at 60 U. S.
407 . B The status of the Negro as property was officially erased by his
emancipation at the end of the Civil War. But the long-awaited
emancipation, while freeing the Negro from slavery, did not bring
him citizenship or equality in any meaningful way. Slavery was
replaced by a system of

															"laws which imposed upon the colored race onerous disabilities
and burdens, and curtailed their rights in the pursuit of life,
liberty, and property to such an extent that their freedom was of
little value." Slaughter-House
Cases , 16 Wall. 36, 83 U. S. 70 (1873). Despite the passage of the Thirteenth, Fourteenth, and
Fifteenth Amendments, the Negro was systematically denied the
rights those Amendments were supposed to secure. The combined
actions and inactions of the State and Federal Governments
maintained Negroes in a position of legal inferiority for another
century after the Civil War.

															The Southern States took the first steps to reenslave the
Negroes. Immediately following the end of the Civil War, many of
the provisional legislatures passed Black Codes, similar to the
Slave Codes, which, among other things, limited the rights of
Negroes to own or rent property and permitted imprisonment for
breach of employment contracts. Over the next several decades, the
South managed to disenfranchise the Negroes in spite of the
Fifteenth Amendment by various techniques, including poll taxes,
deliberately complicated balloting processes, property and literacy
qualifications, and, finally, the white primary.

															Congress responded to the legal disabilities being imposed Page 438 U. S. 391 in the Southern States by passing the Reconstruction Acts and
the Civil Rights Acts. Congress also responded to the needs of the
Negroes at the end of the Civil War by establishing the Bureau of
Refugees, Freedmen, and Abandoned Lands, better known as the
Freedmen's Bureau, to supply food, hospitals, land, and education
to the newly freed slaves. Thus, for a time, it seemed as if the
Negro might be protected from the continued denial of his civil
rights, and might be relieved of the disabilities that prevented
him from taking his place as a free and equal citizen.

															That time, however, was short-lived. Reconstruction came to a
close, and, with the assistance of this Court, the Negro was
rapidly stripped of his new civil rights. In the words of C. Vann
Woodward:

															"By narrow and ingenious interpretation [the Supreme Court's]
decisions over a period of years had whittled away a great part of
the authority presumably given the government for protection of
civil rights."

															Woodward 139.

															The Court began by interpreting the Civil War Amendments in a
manner that sharply curtailed their substantive protections. See, e.g., Slaughter-House Cases, supra; United States v.
Reese, 92 U. S. 214 (1876); United States v. Cruikshank, 92 U. S.
542 (1876). Then, in the notorious Civil Rights
Cases, 109 U. S. 3 (1883),
the Court strangled Congress' efforts to use its power to promote
racial equality. In those cases, the Court invalidated sections of
the Civil Rights Act of 1875 that made it a crime to deny equal
access to "inns, public conveyances, theatres and other places of
public amusement." Id. at 109 U. S. 10 .
According to the Court, the Fourteenth Amendment gave Congress the
power to proscribe only discriminatory action by the State. The
Court ruled that the Negroes who were excluded from public places
suffered only an invasion of their social rights at the hands of
private individuals, and Congress had no power to remedy that. Id. at 109 U. S.
24 -25.

															"When a man has emerged from slavery, and, by the aid of
beneficent legislation, has shaken off the inseparable concomitants
of that Page 438 U. S. 392 state,"

															the Court concluded,

															"there must be some stage in the progress of his elevation when
he takes the rank of a mere citizen, and ceases to be the special
favorite of the laws. . . ." Id. at 109 U. S. 25 . As
Mr. Justice Harlan noted in dissent, however, the Civil War
Amendments and Civil Rights Acts did not make the Negroes the
"special favorite" of the laws, but instead

															"sought to accomplish in reference to that race . . . -- what
had already been done in every State of the Union for the white
race -- to secure and protect rights belonging to them as freemen
and citizens; nothing more." Id. at 109 U. S. 61 .

															The Court's ultimate blow to the Civil War Amendments and to the
equality of Negroes came in Plessy v. Ferguson, 163 U. S. 537 (1896). In upholding a Louisiana law that required railway
companies to provide "equal but separate" accommodations for whites
and Negroes, the Court held that the Fourteenth Amendment was not
intended

															"to abolish distinctions based upon color, or to enforce social,
as distinguished from political, equality, or a commingling of the
two races upon terms unsatisfactory to either." Id. at 163 U. S. 544 .
Ignoring totally the realities of the positions of the two races,
the Court remarked:

															"We consider the underlying fallacy of the plaintiff's argument
to consist in the assumption that the enforced separation of the
two races stamps the colored race with a badge of inferiority. If
this be so, it is not by reason of anything found in the act, but
solely because the colored race chooses to put that construction
upon it." Id. at 163 U. S.
551 .

															Mr. Justice Harlan's dissenting opinion recognized the
bankruptcy of the Court's reasoning. He noted that the "real
meaning" of the legislation was "that colored citizens are so
inferior and degraded that they cannot be allowed to sit in public
coaches occupied by white citizens." Id. at 163 U. S. 560 .
He expressed his fear that, if like laws were enacted in other Page 438 U. S. 393 States, "the effect would be in the highest degree mischievous." Id. at 163 U. S. 563 .
Although slavery would have disappeared, the States would retain
the power

															"to interfere with the full enjoyment of the blessings of
freedom; to regulate civil rights, common to all citizens, upon the
basis of race; and to place in a condition of legal inferiority a
large body of American citizens. . . ." Ibid. The fears of Mr. Justice Harlan were soon to be realized. In the
wake of Plessy, many States expanded their Jim Crow laws,
which had, up until that time, been limited primarily to passenger
trains and schools. The segregation of the races was extended to
residential areas, parks, hospitals, theaters, waiting rooms, and
bathrooms. There were even statutes and ordinances which authorized
separate phone booths for Negroes and whites, which required that
textbooks used by children of one race be kept separate from those
used by the other, and which required that Negro and white
prostitutes be kept in separate districts. In 1898, after Plessy, the Charlestown News and Courier printed a parody
of Jim Crow laws:

															"'If there must be Jim Crow cars on the railroads, there should
be Jim Crow cars on the street railways. Also on all passenger
boats. . . . If there are to be Jim Crow cars, moreover, there
should be Jim Crow waiting saloons at all stations, and Jim Crow
eating houses. . . . There should be Jim Crow sections of the jury
box, and a separate Jim Crow dock and witness stand in every court
-- and a Jim Crow Bible for colored witnesses to kiss.'"

															Woodward 68. The irony is that, before many years had passed,
with the exception of the Jim Crow witness stand,

															"all the improbable applications of the principle suggested by
the editor in derision had been put into practice -- down to and
including the Jim Crow Bible." Id. at 69.

															Nor were the laws restricting the rights of Negroes limited Page 438 U. S. 394 solely to the Southern States. In many of the Northern States,
the Negro was denied the right to vote, prevented from serving on
juries, and excluded from theaters, restaurants, hotels, and inns.
Under President Wilson, the Federal Government began to require
segregation in Government buildings; desks of Negro employees were
curtained off; separate bathrooms and separate tables in the
cafeterias were provided; and even the galleries of the Congress
were segregated. When his segregationist policies were attacked,
President Wilson responded that segregation was " not
humiliating, but a benefit,'" and that he was "`rendering [the
Negroes] more safe in their possession of office, and less likely
to be discriminated against.'" Kluger 91. The enforced segregation of the races continued into the middle
of the 20th century. In both World Wars, Negroes were, for the most
part, confined to separate military units; it was not until 1948
that an end to segregation in the military was ordered by President
Truman. And the history of the exclusion of Negro children from
white public schools is too well known and recent to require
repeating here. That Negroes were deliberately excluded from public
graduate and professional schools -- and thereby denied the
opportunity to become doctors, lawyers, engineers, and the like is
also well established. It is, of course, true that some of the Jim
Crow laws (which the decisions of this Court had helped to foster)
were struck down by this Court in a series of decisions leading up
to Brown v. Board of Education, 347 U.
S. 483 (1954). See, e.g., Morgan v. Virginia, 328 U. S. 373 (1946); Sweatt v. Painter, 339 U.
S. 629 (1950); McLaurin v. Oklahoma State
Regents, 339 U. S. 637 (1950). Those decisions, however, did not automatically end
segregation, nor did they move Negroes from a position of legal
inferiority to one of equality. The legacy of years of slavery and
of years of second-class citizenship in the wake of emancipation
could not be so easily eliminated. Page 438 U. S. 395 II The position of the Negro today in America is the tragic but
inevitable consequence of centuries of unequal treatment. Measured
by any benchmark of comfort or achievement, meaningful equality
remains a distant dream for the Negro.

															A Negro child today has a life expectancy which is shorter by
more than five years than that of a white child. [ Footnote 4/2 ] The Negro child's mother is over
three times more likely to die of complications in childbirth,
[ Footnote 4/3 ] and the infant
mortality rate for Negroes is nearly twice that for whites.
[ Footnote 4/4 ] The median income of
the Negro family is only 60% that of the median of a white family,
[ Footnote 4/5 ] and the percentage
of Negroes who live in families with incomes below the poverty line
is nearly four times greater than that of whites. [ Footnote 4/6 ]

															When the Negro child reaches working age, he finds that America
offers him significantly less than it offers his white counterpart.
For Negro adults, the unemployment rate is twice that of whites,
[ Footnote 4/7 ] and the unemployment
rate for Negro teenagers is nearly three times that of white
teenagers. [ Footnote 4/8 ] A Negro
male who completes four years of college can expect a median annual
income of merely $110 more than a white male who has only a high
school diploma. [ Footnote 4/9 ]
Although Negroes Page 438 U. S. 396 represent 11.5% of the population, [ Footnote 4/10 ] they are only 1.2% of the lawyers and
judges, 2% of the physicians, 2.3% of the dentists, 1.1% of the
engineers and 2.6% of the college and university professors.
[ Footnote 4/11 ]

															The relationship between those figures and the history of
unequal treatment afforded to the Negro cannot be denied. At every
point from birth to death, the impact of the past is reflected in
the still disfavored position of the Negro.

															In light of the sorry history of discrimination and its
devastating impact on the lives of Negroes, bringing the Negro into
the mainstream of American life should be a state interest of the
highest order. To fail to do so is to ensure that America will
forever remain a divided society. III I do not believe that the Fourteenth Amendment requires us to
accept that fate. Neither its history nor our past cases lend any
support to the conclusion that a university may not remedy the
cumulative effects of society's discrimination by giving
consideration to race in an effort to increase the number and
percentage of Negro doctors. A This Court long ago remarked that

															"in any fair and just construction of any section or phrase of
these [Civil War] amendments, it is necessary to look to the
purpose which we have said was the pervading spirit of them all,
the evil which they were designed to remedy. . . ." Slaughter-House Cases, 16 Wall. at 83 U. S. 72 . It
is plain that the Fourteenth Amendment was not intended to prohibit
measures designed to remedy the effects of the Page 438 U. S. 397 Nation's past treatment of Negroes. The Congress that passed the
Fourteenth Amendment is the same Congress that passed the 1866
Freedmen's Bureau Act, an Act that provided many of its benefits
only to Negroes. Act of July 16, 1866, ch. 200, 14 Stat. 173; see supra at 438 U. S. 391 .
Although the Freedmen's Bureau legislation provided aid for
refugees, thereby including white persons within some of the relief
measures, 14 Stat. 174; see also Act of Mar. 3, 1865, ch.
90, 13 Stat. 507, the bill was regarded, to the dismay of many
Congressmen, as "solely and entirely for the freedmen, and to the
exclusion of all other persons. . . ." Cong.Globe, 39th Cong., 1st
Sess., 544 (1866) (remarks of Rep. Taylor). See also id. at 634-635 (remarks of Rep. Ritter); id. at App. 78, 80-81
(remarks of Rep. Chandler). Indeed, the bill was bitterly opposed
on the ground that it "undertakes to make the negro in some
respects . . . superior . . . , and gives them favors that the poor
white boy in the North cannot get." Id. at 401 (remarks of
Sen. McDougall). See also id. at 319 (remarks of Sen.
Hendricks); id. at 362 (remarks of Sen. Saulsbury); id. at 397 (remarks of Sen. Willey); id. at 544
(remarks of Rep. Taylor). The bill's supporters defended it not by
rebutting the claim of special treatment, but by pointing to the
need for such treatment:

															"The very discrimination it makes between 'destitute and
suffering' negroes and destitute and suffering white paupers
proceeds upon the distinction that, in the omitted case, civil
rights and immunities are already sufficiently protected by the
possession of political power, the absence of which in the case
provided for necessitates governmental protection." Id. at App. 75 (remarks of Rep. Phelps) .

															Despite the objection to the special treatment the bill would
provide for Negroes, it was passed by Congress. Id. at
421, 688. President Johnson vetoed this bill, and also a subsequent
bill that contained some modifications; one of his principal Page 438 U. S. 398 objections to both bills was that they gave special benefits to
Negroes. 8 Messages and Papers of the Presidents 3596, 3599, 3620,
3623 (1897). Rejecting the concerns of the President and the bill's
opponents, Congress overrode the President's second veto.
Cong.Globe, 39th Cong., 1st Sess., 3842, 3850 (1866).

															Since the Congress that considered and rejected the objections
to the 1866 Freedmen's Bureau Act concerning special relief to
Negroes also proposed the Fourteenth Amendment, it is inconceivable
that the Fourteenth Amendment was intended to prohibit all
race-conscious relief measures. It

															"would be a distortion of the policy manifested in that
amendment, which was adopted to prevent state legislation designed
to perpetuate discrimination on the basis of race or color," Railway Mail Assn. v. Corsi, 326 U. S.
88 , 326 U. S. 94 (1945), to hold that it barred state action to remedy the effects
of that discrimination. Such a result would pervert the intent of
the Framers by substituting abstract equality for the genuine
equality the Amendment was intended to achieve. B As has been demonstrated in our joint opinion, this Court's past
cases establish the constitutionality of race-conscious remedial
measures. Beginning with the school desegregation cases, we
recognized that, even absent a judicial or legislative finding of
constitutional violation, a school board constitutionally could
consider the race of students in making school assignment
decisions. See Swann v. Charlotte-Mecklenburg Board of
Education, 402 U. S. 1 , 402 U. S. 16 (1971); McDaniel v. Barresi, 402 U. S.
39 , 402 U. S. 41 (1971). We noted, moreover, that a

															"flat prohibition against assignment of students for the purpose
of creating a racial balance must inevitably conflict with the duty
of school authorities to disestablish dual school systems. As we
have held in Swann, the Constitution does not compel any
particular degree of Page 438 U. S. 399 racial balance or mixing, but when past and continuing
constitutional violations are found, some ratios are likely to be
useful as starting points in shaping a remedy. An absolute
prohibition against use of such a device -- even as a starting
point -- contravenes the implicit command of Green v. County
School Board, 391 U. S. 430 (1968), that all
reasonable methods be available to formulate an effective
remedy." Board of Education v. Swann, 402 U. S.
43 , 402 U. S. 46 (1971). As we have observed, "[a]ny other approach would freeze the status quo that is the very target of all desegregation
processes." McDaniel v. Barresi, supra at 402 U. S.
41 .

															Only last Term, in United Jewish Organizations v.
Carey, 430 U. S. 144 (1977), we upheld a New York reapportionment plan that was
deliberately drawn on the basis of race to enhance the electoral
power of Negroes and Puerto Ricans; the plan had the effect of
diluting the electoral strength of the Hasidic Jewish community. We
were willing in UJO to sanction the remedial use of a
racial classification even though it disadvantaged otherwise
"innocent" individuals. In another case last Term, Califano v.
Webster, 430 U. S. 313 (1977), the Court upheld a provision in the Social Security laws
that discriminated against men because its purpose was " the
permissible one of redressing our society's longstanding disparate
treatment of women.'" Id. at 430 U. S. 317 ,
quoting Califano v. Goldfarb, 430 U.
S. 199 , 430 U. S. 209 n. 8 (1977) (plurality opinion). We thus recognized the
permissibility of remedying past societal discrimination through
the use of otherwise disfavored classifications. Nothing in those cases suggests that a university cannot
similarly act to remedy past discrimination. [ Footnote 4/12 ] It is true that, Page 438 U. S. 400 in both UJO and Webster, the use of the
disfavored classification was predicated on legislative or
administrative action, but in neither case had those bodies made
findings that there had been constitutional violations or that the
specific individuals to be benefited had actually been the victims
of discrimination. Rather, the classification in each of those
cases was based on a determination that the group was in need of
the remedy because of some type of past discrimination. There is
thus ample support for the conclusion that a university can employ
race-conscious measures to remedy past societal discrimination
without the need for a finding that those benefited were actually
victims of that discrimination. IV While I applaud the judgment of the Court that a university may
consider race in its admissions process, it is more than a little
ironic that, after several hundred years of class-based
discrimination against Negroes, the Court is unwilling to hold that
a class-based remedy for that discrimination is permissible. In
declining to so hold, today's judgment ignores the fact that. for
several hundred years, Negroes have been discriminated against not
as individuals, but rather solely because of the color of their
skins. It is unnecessary in 20th-century America to have individual
Negroes demonstrate that they have been victims of racial
discrimination; the racism of our society has been so pervasive
that none, regardless of wealth or position, has managed to escape
its impact. The experience of Negroes in America has been different
in kind, not just in degree, from that of other ethnic groups. It
is not merely the history of slavery alone, but also that a whole
people were marked as inferior by the law. And that mark has
endured. The dream of America as the great melting pot has Page 438 U. S. 401 not been realized for the Negro; because of his skin color, he
never even made it into the pot.

															These differences in the experience of the Negro make it
difficult for me to accept that Negroes cannot be afforded greater
protection under the Fourteenth Amendment where it is necessary to
remedy the effects of past discrimination. In the Civil Rights
Cases, supra, the Court wrote that the Negro emerging from
slavery must cease "to be the special favorite of the laws." 109
U.S. at 109 U. S. 25 ; see supra at 438 U. S. 392 .
We cannot, in light of the history of the last century, yield to
that view. Had the Court, in that decision and others, been willing
to

															"do for human liberty and the fundamental rights of American
citizenship what it did . . . for the protection of slavery and the
rights of the masters of fugitive slaves,"

															109 U.S. at 109 U. S. 53 (Harlan, J., dissenting), we would not need now to permit the
recognition of any "special wards."

															Most importantly, had the Court been willing in 1896, in Plessy v. Ferguson, to hold that the Equal Protection
Clause forbids differences in treatment based on race, we would not
be faced with this dilemma in 1978. We must remember, however, that
the principle that the "Constitution is colorblind" appeared only
in the opinion of the lone dissenter. 163 U.S. at 163 U. S. 559 .
The majority of the Court rejected the principle of color
blindness, and for the next 60 years, from Plessy to Brown v. Board of Education, ours was a Nation where, by
law, an individual could be given "special" treatment based on the
color of his skin.

															It is because of a legacy of unequal treatment that we now must
permit the institutions of this society to give consideration to
race in making decisions about who will hold the positions of
influence, affluence, and prestige in America. For far too long,
the doors to those positions have been shut to Negroes. If we are
ever to become a fully integrated society, one in which the color
of a person's skin will not determine the opportunities available
to him or her, we must be willing Page 438 U. S. 402 to take steps to open those doors. I do not believe that anyone
can truly look into America's past and still find that a remedy for
the effects of that past is impermissible.

															It has been said that this case involves only the individual,
Bakke, and this University. I doubt, however, that there is a
computer capable of determining the number of persons and
institutions that may be affected by the decision in this case. For
example, we are told by the Attorney General of the United States
that at least 27 federal agencies have adopted regulations
requiring recipients of federal funds to take

															"' affirmative action to overcome the effects of
conditions which resulted in limiting participation . . . by
persons of a particular race, color, or national origin.'"

															Supplemental Brief for United States as Amicus Curiae 16 (emphasis added). I cannot even guess the number of state and
local governments that have set up affirmative action programs,
which may be affected by today's decision.

															I fear that we have come full circle. After the Civil War, our
Government started several "affirmative action" programs. This
Court, in the Civil Rights Cases and Plessy v.
Ferguson, destroyed the movement toward complete equality. For
almost a century, no action was taken, and this nonaction was with
the tacit approval of the courts. Then we had Brown v. Board of
Education and the Civil Rights Acts of Congress, followed by
numerous affirmative action programs. Now, we have this Court again
stepping in, this time to stop affirmative action programs of the
type used by the University of California.

															[ Footnote 4/1 ]

															The history recounted here is perhaps too well known to require
documentation. But I must acknowledge the authorities on which I
rely in retelling it. J. Franklin, From Slavery to Freedom (4th
ed.1974) (hereinafter Franklin); R. Kluger, Simple Justice (1975)
(hereinafter Kluger); C. Woodward, The Strange Career of Jim Crow
(3d ed.1974) (hereinafter Woodward).

															[ Footnote 4/2 ]

															U.S. Dept. of Commerce, Bureau of the Census, Statistical
Abstract of the United States 65 (1977) (Table 94).

															[ Footnote 4/3 ] Id. at 70 (Table 102) .

															[ Footnote 4/4 ] Ibid. [ Footnote 4/5 ]

															U.S. Dept. of Commerce, Bureau of the Census, Current Population
Reports, Series P-60, No. 107, p. 7 (1977) (Table 1).

															[ Footnote 4/6 ] Id. at 20 (Table 14).

															[ Footnote 4/7 ]

															U.S. Dept. of Labor, Bureau of Labor Statistics, Employment and
Earnings, January, 1978, p. 170 (Table 44).

															[ Footnote 4/8 ] Ibid. [ Footnote 4/9 ]

															U.S. Dept. of Commerce, Bureau of the Census, Current Population
Reports, Series P-60, No. 105, p. 198 (1977) (Table 47).

															[ Footnote 4/10 ]

															U.S. Dept. of Commerce, Bureau of the Census, Statistical
Abstract, supra, at 25 (Table 24).

															[ Footnote 4/11 ] Id. at 407-408 (Table 662) (based on 1970 census).

															[ Footnote 4/12 ]

															Indeed, the action of the University finds support in the
regulations promulgated under Title VI by the Department of Health,
Education, and Welfare and approved by the President, which
authorize a federally funded institution to take affirmative steps
to overcome past discrimination against groups even where the
institution was not guilty of prior discrimination. 45 CFR §
80.3(b)(6)(ii) (1977).

															MR. JUSTICE BLACKMUN.

															I participate fully, of course, in the opinion, ante p. 438 U. S. 324 ,
that bears the names of my Brothers BRENNAN, WHITE, MARSHALL, and
myself. I add only some general observations that hold particular
significance for me, and then a few comments on equal
protection. Page 438 U. S. 403 I At least until the early 1970's, apparently only a very small
number, less than 2%, of the physicians, attorneys, and medical and
law students in the United States were members of what we now refer
to as minority groups. In addition, approximately three-fourths of
our Negro physicians were trained at only two medical schools. If
ways are not found to remedy that situation, the country can never
achieve its professed goal of a society that is not
race-conscious.

															I yield to no one in my earnest hope that the time will come
when an "affirmative action" program is unnecessary and is, in
truth, only a relic of the past. I would hope that we could reach
this stage within a decade, at the most. But the story of Brown
v. Board of Education, 347 U. S. 483 (1954), decided almost a quarter of a century ago, suggests that
that hope is a slim one. At some time, however, beyond any period
of what some would claim is only transitional inequality, the
United States must and will reach a stage of maturity where action
along this line is no longer necessary. Then persons will be
regarded as persons, and discrimination of the type we address
today will be an ugly feature of history that is instructive, but
that is behind us.

															The number of qualified, indeed highly qualified, applicants for
admission to existing medical schools in the United States far
exceeds the number of places available. Wholly apart from racial
and ethnic considerations, therefore, the selection process
inevitably results in the denial of admission to many qualified
persons, indeed, to far more than the number of those who are
granted admission. Obviously, it is a denial to the deserving. This
inescapable fact is brought into sharp focus here because Allan
Bakke is not himself charged with discrimination, and yet is the
one who is disadvantaged, and because the Medical School of the
University of California at Davis itself is not charged with
historical discrimination.

															One theoretical solution to the need for more minority Page 438 U. S. 404 members in higher education would be to enlarge our graduate
schools. Then all who desired and were qualified could enter, and
talk of discrimination would vanish. Unfortunately, this is neither
feasible nor realistic. The vast resources that apparently would be
required simply are not available. And the need for more
professional graduates, in the strict numerical sense, perhaps has
not been demonstrated at all.

															There is no particular or real significance in the 84-16
division at Davis. The same theoretical, philosophical, social,
legal, and constitutional considerations would necessarily apply to
the case if Davis' special admissions program had focused on any
lesser number, that is, on 12 or 8 or 4 places or, indeed, on only
1.

															It is somewhat ironic to have us so deeply disturbed over a
program where race is an element of consciousness, and yet to be
aware of the fact, as we are, that institutions of higher learning,
albeit more on the undergraduate than the graduate level, have
given conceded preferences up to a point to those possessed of
athletic skills, to the children of alumni, to the affluent who may
bestow their largess on the institutions, and to those having
connections with celebrities, the famous, and the powerful.

															Programs of admission to institutions of higher learning are
basically a responsibility for academicians and for administrators
and the specialists they employ. The judiciary, in contrast, is
ill-equipped and poorly trained for this. The administration and
management of educational institutions are beyond the competence of
judges and are within the special competence of educators, provided
always that the educators perform within legal and constitutional
bounds. For me, therefore, interference by the judiciary must be
the rare exception, and not the rule. II I, of course, accept the propositions that (a) Fourteenth
Amendment rights are personal; (b) racial and ethnic
distinctions, Page 438 U. S. 405 where they are stereotypes, are inherently suspect and call for
exacting judicial scrutiny; (c) academic freedom is a special
concern of the First Amendment; and (d) the Fourteenth Amendment
has expanded beyond its original 1868 concept, and now is
recognized to have reached a point where, as MR. JUSTICE POWELL
states, ante at 438 U. S. 293 ,
quoting from the Court's opinion in McDonald v. Santa Fe Trail
Transp. Co., 427 U. S. 273 , 427 U. S. 296 (1976), it embraces a "broader principle."

															This enlargement does not mean for me, however, that the
Fourteenth Amendment has broken away from its moorings and its
original intended purposes. Those original aims persist. And that,
in a distinct sense, is what "affirmative action," in the face of
proper facts, is all about. If this conflicts with idealistic
equality, that tension is original Fourteenth Amendment tension,
constitutionally conceived and constitutionally imposed, and it is
part of the Amendment's very nature until complete equality is
achieved in the area. In this sense, constitutional equal
protection is a shield.

															I emphasize in particular that the decided cases are not easily
to be brushed aside. Many, of course, are not precisely on point,
but neither are they off point. Racial factors have been given
consideration in the school desegregation cases, in the employment
cases, in Lau v. Nichols, 414 U.
S. 563 (1974), and in United Jewish Organizations v.
Carey, 430 U. S. 144 (1977). To be sure, some of these may be "distinguished" on the
ground that victimization was directly present. But who is to say
that victimization is not present for some members of today's
minority groups, although it is of a lesser and perhaps different
degree. The petitioners in United Jewish Organizations certainly complained bitterly of their reapportionment treatment,
and I rather doubt that they regard the "remedy" there imposed as
one that was "to improve" the group's ability to participate, as
MR. JUSTICE POWELL describes it, ante at 438 U. S. 305 .
And surely. in Lau v. Nichols, we looked to ethnicity. Page 438 U. S. 406 I am not convinced, as MR. JUSTICE POWELL seems to be, that the
difference between the Davis program and the one employed by
Harvard is very profound, or constitutionally significant. The line
between the two is a thin and indistinct one. In each, subjective
application is at work. Because of my conviction that admission
programs are primarily for the educators, I am willing to accept
the representation that the Harvard program is one where good faith
in its administration is practiced, as well as professed. I agree
that such a program, where race or ethnic background is only one of
many factors, is a program better formulated than Davis' two-track
system. The cynical, of course, may say that, under a program such
as Harvard's, one may accomplish covertly what Davis concedes it
does openly. I need not go that far, for, despite its two-track
aspect, the Davis program, for me, is within constitutional bounds,
though perhaps barely so. It is surely free of stigma, and, as in United Jewish Organizations, I am not willing to infer a
constitutional violation.

															It is worth noting, perhaps, that governmental preference has
not been a stranger to our legal life. We see it in veterans'
preferences. We see it in the aid-to-the-handicapped programs. We
see it in the progressive income tax. We see it in the Indian
programs. We may excuse some of these on the ground that they have
specific constitutional protection or, as with Indians, that those
benefited are wards of the Government. Nevertheless, these
preferences exist, and may not be ignored. And in the admissions
field, as I have indicated, educational institutions have always
used geography, athletic ability, anticipated financial largess,
alumni pressure, and other factors of that kind.

															I add these only as additional components on the edges of the
central question as to which I join my Brothers BRENNAN, WHITE, and
MARSHALL in our more general approach. It is gratifying to know
that the Court at least finds it constitutional for an academic
institution to take race and ethnic background into consideration
as one factor, among many, in Page 438 U. S. 407 the administration of its admissions program. I presume that
that factor always has been there, though perhaps not conceded or
even admitted. It is a fact of life, however, and a part of the
real world of which we are all a part. The sooner we get down the
road toward accepting and being a part of the real world, and not
shutting it out and away from us, the sooner will these
difficulties vanish from the scene.

															I suspect that it would be impossible to arrange an affirmative
action program in a racially neutral way and have it successful. To
ask that this be so is to demand the impossible. In order to get
beyond racism, we must first take account of race. There is no
other way. And in order to treat some persons equally, we must
treat them differently. We cannot -- we dare not -- let the Equal
Protection Clause perpetuate racial supremacy.

															So the ultimate question, as it was at the beginning of this
litigation, is: among the qualified, how does one choose?

															A long time ago, as time is measured for this Nation, a Chief
Justice, both wise and far-sighted, said:

															"In considering this question, then, we must never forget, that
it is a constitution we are expounding." McCulloch v.
Maryland , 4 Wheat. 316, 17 U. S. 407 (1819) (emphasis in original). In the same opinion, the Great Chief
Justice further observed:

															"Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are
constitutional." Id. at 17 U. S. 421 .
More recently, one destined to become a Justice of this Court
observed:

															"The great generalities of the constitution have a content and a
significance that vary from age to age."

															B. Cardozo, The Nature of the Judicial Process 17 (1921). Page 438 U. S. 408 And an educator who became a President of the United States
said:

															"But the Constitution of the United States is not a mere
lawyers' document: it is a vehicle of life, and its spirit is
always the spirit of the age."

															W. Wilson, Constitutional Government in the United States 69
(1911).

															These precepts of breadth and flexibility and ever-present
modernity are basic to our constitutional law. Today, again, we are
expounding a Constitution. The same principles that governed
McCulloch's case in 1819 govern Bakke's case in 1978. There can be
no other answer.

															MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE REHNQUIST join, concurring in the judgment
in part and dissenting in part.

															It is always important at the outset to focus precisely on the
controversy before the Court. [ Footnote
5/1 ] It is particularly important to do so in this case,
because correct identification of the issues will determine whether
it is necessary or appropriate to express any opinion about the
legal status of any admissions program other than petitioner's. I This is not a class action. The controversy is between two
specific litigants. Allan Bakke challenged petitioner's special
admissions program, claiming that it denied him a place in medical
school because of his race in violation of the Federal and
California Constitutions and of Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d et seq. The California Supreme
Court upheld his challenge and ordered him admitted. If the Page 438 U. S. 409 state court was correct in its view that the University's
special program was illegal, and that Bakke was therefore
unlawfully excluded from the Medical School because of his race, we
should affirm its judgment, regardless of our views about the
legality of admissions programs that are not now before the
Court.

															The judgment as originally entered by the trial court contained
four separate paragraphs, two of which are of critical importance.
[ Footnote 5/2 ] Paragraph 3 declared
that the University's special admissions program violated the
Fourteenth Amendment, the State Constitution, and Title VI. The
trial court did not order the University to admit Bakke, because it
concluded that Bakke had not shown that he would have been admitted
if there had been no special program. Instead, in paragraph 2 of
its judgment, it ordered the University to consider Bakke's
application for admission without regard to his race or the race of
any other applicant. The order did not include any broad Page 438 U. S. 410 prohibition against any use of race in the admissions process;
its terms were clearly limited to the University's consideration of
Bakke's application. [ Footnote 5/3 ]
Because the University has since been ordered to admit Bakke,
paragraph 2 of the trial court's order no longer has any
significance.

															The California Supreme Court, in a holding that is not
challenged, ruled that the trial court incorrectly placed the
burden on Bakke of showing that he would have been admitted in the
absence of discrimination. The University then conceded "that it
[could] not meet the burden of proving that the special admissions
program did not result in Mr. Bakke's failure to be admitted."
[ Footnote 5/4 ] Accordingly, the
California Supreme Court directed the trial court to enter judgment
ordering Bakke's admission. [ Footnote
5/5 ] Since that order superseded paragraph Page 438 U. S. 411 2 of the trial court's judgment, there is no outstanding
injunction forbidding any consideration of racial criteria in
processing applications.

															It is therefore perfectly clear that the question whether race
can ever be used as a factor in an admissions decision is not an
issue in this case, and that discussion of that issue is
inappropriate. [ Footnote 5/6 ] II Both petitioner and respondent have asked us to determine the
legality of the University's special admissions program by
reference to the Constitution. Our settled practice, however, is to
avoid the decision of a constitutional issue if a case can be
fairly decided on a statutory ground.

															"If there is one doctrine more deeply rooted than any other in
the process of constitutional adjudication, it is that we ought not
to pass on questions of constitutionality . . . unless such
adjudication is unavoidable." Spector Motor Co. v. McLaughlin, 323 U.
S. 101 , 323 U. S. 105 .
[ Footnote 5/7 ] The more important
the issue, the more force Page 438 U. S. 412 there is to this doctrine. [ Footnote
5/8 ] In this case, we are presented with a constitutional
question of undoubted and unusual importance. Since, however, a
dispositive statutory claim was raised at the very inception of
this case, and squarely decided in the portion of the trial court
judgment affirmed by the California Supreme Court, it is our plain
duty to confront it. Only if petitioner should prevail on the
statutory issue would it be necessary to decide whether the
University's admissions program violated the Equal Protection
Clause of the Fourteenth Amendment. III Section 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42
U.S.C. § 2000d, provides:

															"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance."

															The University, through its special admissions policy, excluded
Bakke from participation in its program of medical education
because of his race. The University also acknowledges that it was,
and still is, receiving federal financial assistance. [ Footnote 5/9 ] The plain language of the
statute therefore requires affirmance of the judgment below. A
different result Page 438 U. S. 413 cannot be justified unless that language misstates the actual
intent of the Congress that enacted the statute or the statute is
not enforceable in a private action. Neither conclusion is
warranted.

															Title VI is an integral part of the far-reaching Civil Rights
Act of 1964. No doubt, when this legislation was being debated,
Congress was not directly concerned with the legality of "reverse
discrimination" or "affirmative action" programs. Its attention was
focused on the problem at hand, the "glaring . . . discrimination
against Negroes which exists throughout our Nation," [ Footnote 5/10 ] and, with respect to Title
VI, the federal funding of segregated facilities. [ Footnote 5/11 ] The genesis of the legislation,
however, did not limit the breadth of the solution adopted. Just as
Congress responded to the problem of employment discrimination by
enacting a provision that protects all races, see McDonald v.
Santa Fe Trail Transp. Co., 427 U. S. 273 , 427 U. S. 279 ,
[ Footnote 5/12 ] so, too, its
answer to the problem of federal funding of segregated facilities
stands as a broad prohibition against the exclusion of any individual from a federally funded program "on the ground of race."
In the words of the House Report, Title VI stands for

															"the general principle that no person . . . be excluded
from participation . . . on the ground of race, color, or national
origin under any program or activity receiving Federal financial
assistance."

															H.R.Rep. No. 914, 88th Page 438 U. S. 414 Cong., 1st Sess, pt. l, p. 25 (1963) (emphasis added). This same
broad view of Title VI and § 601 was echoed throughout the
congressional debate and was stressed by every one of the major
spokesmen for the Act. [ Footnote
5/13 ]

															Petitioner contends, however, that exclusion of applicants on
the basis of race does not violate Title VI if the exclusion
carries with it no racial stigma. No such qualification or
limitation of § 601's categorical prohibition of "exclusion" is
justified by the statute or its history. The language of the entire
section is perfectly clear; the words that follow "excluded from"
do not modify or qualify the explicit outlawing of any exclusion on
the stated grounds.

															The legislative history reinforces this reading. The only
suggestion that § 601 would allow exclusion of nonminority
applicants came from opponents of the legislation, and then only by
way of a discussion of the meaning of the word "discrimination."
[ Footnote 5/14 ] The opponents
feared that the term "discrimination" Page 438 U. S. 415 would be read as mandating racial quotas and "racially balanced"
colleges and universities, and they pressed for a specific
definition of the term in order to avoid this possibility.
[ Footnote 5/15 ] In response, the
proponents of the legislation gave repeated assurances that the Act
would be "colorblind" in its application. [ Footnote 5/16 ] Senator Humphrey, the Senate floor
manager for the Act, expressed this position as follows:

															"[T]he word 'discrimination' has been used in many a court case.
What it really means in the bill is a distinction in treatment . .
. given to different individuals because of their different race,
religion or national origin. . . ."

															"The answer to this question [what was meant by
'discrimination'] is that if race is not a factor, we do not have
to worry about discrimination because of race. . . . The Internal
Revenue Code does not provide that colored people do not have to
pay taxes, or that they can pay their taxes 6 months later than
everyone else."

															110 Cong.Rec. 5864 (1964).

															"[I]f we started to treat Americans as Americans, not as fat
ones, thin ones, short ones, tall ones, brown ones, green ones,
yellow ones, or white ones, but as Americans. If we did that, we
would not need to worry about discrimination." Id. at 5866. Page 438 U. S. 416 In giving answers such as these, it seems clear that the
proponents of Title VI assumed that the Constitution itself
required a colorblind standard on the part of government, [ Footnote 5/17 ] but that does not mean
that the legislation only codifies an existing constitutional
prohibition. The statutory prohibition against discrimination in
federally funded projects contained in § 601 is more than a simple
paraphrasing of what the Fifth or Fourteenth Amendment would
require. The Act's proponents plainly considered Title VI
consistent with their view of the Constitution, and they sought to
provide an effective weapon to implement that view. [ Footnote 5/18 ] As a distillation of what
the supporters of the Act believed the Constitution demanded of
State and Federal Governments, § 601 has independent force, with
language and emphasis in addition to that found in the
Constitution. [ Footnote 5/19 ] Page 438 U. S. 417 As with other provisions of the Civil Rights Act, Congress'
expression of it policy to end racial discrimination may
independently proscribe conduct that the Constitution does not.
[ Footnote 5/20 ] However, we need
not decide the congruence -- or lack of congruence -- of the
controlling statute and the Constitution Page 438 U. S. 418 since the meaning of the Title VI ban on exclusion is crystal
clear: race cannot be the basis of excluding anyone from
participation in a federally funded program.

															In short, nothing in the legislative history justifies the
conclusion that the broad language of § 601 should not be given its
natural meaning. We are dealing with a distinct statutory
prohibition, enacted at a particular time with particular concerns
in mind; neither its language nor any prior interpretation suggests
that its place in the Civil Rights Act, won after long debate, is
simply that of a constitutional appendage. [ Footnote 5/21 ] In unmistakable terms, the Act prohibits
the exclusion of individuals from federally funded programs because
of their race. [ Footnote 5/22 ] As
succinctly phrased during the Senate debate, under Title VI, it is
not "permissible to say yes' to one person, but to say `no' to
another person, only because of the color of his skin." [ Footnote 5/23 ] Belatedly, however, petitioner argues that Title VI cannot be
enforced by a private litigant. The claim is unpersuasive in the
context of this case. Bakke requested injunctive and declaratory
relief under Title VI; petitioner itself then joined Page 438 U. S. 419 issue on the question of the legality of its program under Title
VI by asking for a declaratory judgment that it was in compliance
with the statute. [ Footnote 5/24 ]
Its view during state court litigation was that a private cause of
action does exist under Title VI. Because petitioner questions the
availability of a private cause of action for the first time in
this Court, the question is not properly before us. See
McGoldrick v. Companie Generale Transatlantique, 309 U.
S. 430 , 309 U. S. 434 .
Even if it were, petitioner's original assumption is in accord with
the federal courts' consistent interpretation of the Act. To date,
the courts, including this Court, have unanimously concluded or
assumed that a private action may be maintained under Title VI.
[ Footnote 5/25 ] The United States
has taken the same position; in its amicus curiae brief
directed to this specific issue, it concluded that such a remedy is
clearly available, [ Footnote
5/26 ] Page 438 U. S. 420 and Congress has repeatedly enacted legislation predicated on
the assumption that Title VI may be enforced in a private action.
[ Footnote 5/27 ] The conclusion
that an individual may maintain a private cause of action is amply
supported in the legislative history of Title VI itself. [ Footnote 5/28 ] In short, a fair
consideration of Page 438 U. S. 421 petitioner's tardy attack on the propriety of Bakke's suit under
Title VI requires that it be rejected.

															The University's special admissions program violated Title VI of
the Civil Rights Act of 1964 by excluding Bakke from the Medical
School because of his race. It is therefore our duty to affirm the
judgment ordering Bakke admitted to the University.

															Accordingly, I concur in the Court's judgment insofar as it
affirms the judgment of the Supreme Court of California. To the
extent that it purports to do anything else, I respectfully
dissent.

															[ Footnote 5/1 ]

															Four Members of the Court have undertaken to announce the legal
and constitutional effect of this Court's judgment. See opinion of JUSTICES BRENNAN, WHITE, MARSHALL, and BLACKMUN, ante at 438 U. S.
324 -325. It is hardly necessary to state that only a
majority can speak for the Court or determine what is the "central
meaning" of any judgment of the Court.

															[ Footnote 5/2 ]

															The judgment first entered by the trial court read, in its
entirety, as follows:

															"IT IS HEREBY ORDERED, ADJUDGED AND DECREED:"

															"1. Defendant, the Regents of the University of California, have
judgment against plaintiff, Allan Bakke, denying the mandatory
injunction requested by plaintiff ordering his admission to the
University of California at Davis Medical School;"

															"2. That plaintiff is entitled to have his application for
admission to the medical school considered without regard to his
race or the race of any other applicant, and defendants are hereby
restrained and enjoined from considering plaintiff's race or the
race of any other applicant in passing upon his application for
admission;"

															"3. Cross-defendant Allan Bakke have judgment against
cross-complaint, the Regents of the University of California,
declaring that the special admissions program at the University of
California at Davis Medical School violates the Fourteenth
Amendment to the United States Constitution, Article 1, Section 21
of the California Constitution, and the Federal Civil Rights Act
[42 U.S.C. § 2000d];"

															"4. That plaintiff have and recover his court costs incurred
herein in the sum of $217.35."

															App. to Pet. for Cert. 120a.

															[ Footnote 5/3 ]

															In paragraph 2, the trial court ordered that

															"plaintiff [Bakke] is entitled to have his application for
admission to the medical school considered without regard to his
race or the race of any other applicant, and defendants are hereby
restrained and enjoined from considering plaintiff's race or the
race of any other applicant in passing upon his application for admission." See 438
U.S. 265 fn5/2|>n. 2, supra, (emphasis added). The
only way in which this order can be broadly read as prohibiting any
use of race in the admissions process, apart from Bakke's
application, is if the final "his" refers to "any other applicant."
But the consistent use of the pronoun throughout the paragraph to
refer to Bakke makes such a reading entirely unpersuasive, as does
the failure of the trial court to suggest that it was issuing
relief to applicants who were not parties to the suit.

															[ Footnote 5/4 ]

															Appendix B to Application for Stay A19-A20.

															[ Footnote 5/5 ] 18 Cal. 3d 34 ,
64, 553 P.2d 1152, 1172 (1976). The judgment of the Supreme Court
of the State of California affirms only paragraph 3 of the trial
court's judgment. The Supreme Court's judgment reads as
follows:

															"IT IS ORDERED, ADJUDGED, AND DECREED by the Court that the
judgment of the Superior Court[,] County of Yolo[,] in the
above-entitled cause, is hereby affirmed insofar as it determines
that the special admission program is invalid; the judgment is
reversed insofar as it denies Bakke an injunction ordering that he
be admitted to the University, and the trial court is directed to
enter judgment ordering Bakke to be admitted. 'Bakke shall recover
his costs on these appeals.'"

															[ Footnote 5/6 ]

															"This Court . . . reviews judgments, not statements in
opinions." Black v. Cutter Laboratories, 351 U.
S. 292 , 351 U. S.
297 .

															[ Footnote 5/7 ]

															"From Hayburn's Case , 2 Dall. 409,
to Alma
Motor Co. v. Timken-Detroit Axle Co. [, 329 U. S.
129 ,] and the Hatch Act case \[United Public Workers v.
Mitchell , 330 U. S. 75 ,] decided this term,
this Court has followed a policy of strict necessity in disposing
of constitutional issues. The earliest exemplifications, too well
known for repeating the history here, arose in the Court's refusal
to render advisory opinions and in applications of the related
jurisdictional policy drawn from the case and controversy
limitation. U.S.Const., Art. III. . . ."

															"The policy, however, has not been limited to jurisdictional
determinations. For, in addition,"

															"the Court [has] developed, for its own governance in the cases
confessedly within its jurisdiction, a series of rules under which
it has avoided passing upon a large part of all the constitutional
questions pressed upon it for decision."

															"Thus, as those rules were listed in support of the statement
quoted, constitutional issues affecting legislation will not be
determined in friendly, nonadversary proceedings; in advance of the
necessity of deciding them; in broader terms than are required by
the precise facts to which the ruling is to be applied; if the
record presents some other ground upon which the case may be
disposed of; at the instance of one who fails to show that he is
injured by the statute's operation, or who has availed himself of
its benefits; or if a construction of the statute is fairly
possible by which the question may be avoided." Rescue Army v. Municipal Court, 331 U.
S. 549 , 331 U. S.
568 -569 (footnotes omitted). See also Ashwander v.
TVA, 297 U. S. 288 , 297 U. S.
346 -348 (Brandeis, J., concurring).

															[ Footnote 5/8 ]

															The doctrine reflects both our respect for the Constitution as
an enduring set of principles and the deference we owe to the
Legislative and Executive Branches of Government in developing
solutions to complex social problems. See A. Bickel, The
Least Dangerous Branch 131 (1962).

															[ Footnote 5/9 ]

															Record 29.

															[ Footnote 5/10 ]

															H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18
(1963).

															[ Footnote 5/11 ]

															It is apparent from the legislative history that the immediate
object of Title VI was to prevent federal funding of segregated
facilities. See, e.g., 110 Cong.Rec. 1521 (1964) (remarks
of Rep. Celler); id. at 6544 (remarks of Sen.
Humphrey).

															[ Footnote 5/12 ]

															In McDonald v. Santa Fe Trail Transp. Co., the Court
held that "Title VII prohibits racial discrimination against . . .
white petitioners . . . upon the same standards as would be
applicable were they Negroes. . . ." 427 U.S. at 427 U. S. 280 .
Quoting from our earlier decision in Griggs v Duke Power
Co., 401 U. S. 424 , 401 U. S. 431 ,
the Court reaffirmed the principle that the statute "prohibit[s] [d]iscriminatory preference for any [racial] group, minority or majority. '" 427 U.S. at 427 U. S. 279 (emphasis in original). [ Footnote 5/13 ] See, e.g., 110 Cong.Rec. 1520 (1964) (remarks of Rep.
Celler); id. at 5864 (remarks of Sen. Humphrey); id. at 6561 (remarks of Sen. Kuchel); id. at 7055
(remarks of Sen. Pastore). (Representative Celler and Senators
Humphrey and Kuchel were the House and Senate floor managers for
the entire Civil Rights Act, and Senator Pastore was the majority
Senate floor manager for Title VI.)

															[ Footnote 5/14 ]

															Representative Abernethy's comments were typical:

															"Title VI has been aptly described as the most harsh and
unprecedented proposal contained in the bill. . . . "

															"It is aimed toward eliminating discrimination in federally
assisted programs. It contains no guideposts and no yardsticks as
to what might constitute discrimination in carrying out federally
aided programs and projects. . . ."

															" * * * *" "Presumably, the college would have to have a 'racially
balanced' staff from the dean's office to the cafeteria. . . ."

															"The effect of this title, if enacted into law, will interject
race as a factor in every decision involving the selection of an
individual. . . . The concept of 'racial imbalance' would hover
like a black cloud over every transaction. . . ." Id. at 1619. See also, e.g., id. at 5611-5613
(remarks of Sen. Ervin); id. at 9083 (remarks of Sen.
Gore).

															[ Footnote 5/15 ] E.g., id. at 5863, 5874 (remarks of Sen. Eastland).

															[ Footnote 5/16 ] See, e.g., id. at 8364 (remarks off Sen. Proxmire)
("Taxes are collected from whites and Negroes, and they should be
expended without discrimination"); id. at 7055 (remarks of
Sen. Pastore) ("[Title VI] will guarantee that the money collected
by colorblind tax collectors will be distributed Federal and State
administrators who are equally colorblind"); and id. at
6543 (remarks of Sen. Humphrey) (" Simple justice requires that
public funds, to which all taxpayers of all races contribute, not
be spent in any fashion which encourages, entrenches, subsidizes,
or results in racial discrimination'") (quoting from President
Kennedy's Message to Congress, June 19, 1963). [ Footnote 5/17 ] See, e.g., 110 Cong.Rec. 5253 (1964) (remarks of Sen.
Humphrey); and id. at 7102 (remarks of Sen. Javits). The
parallel between the prohibitions of Title VI and those of the
Constitution was clearest with respect to the immediate goal of the
Act -- an end to federal funding of "separate but equal"
facilities.

															[ Footnote 5/18 ]

															"As in Monroe \[v. Pape , 365 U. S.
167 ], we have no occasion here to"

															"reach the constitutional question whether Congress has the
power to make municipalities liable for acts of its officers that
violate the civil rights of individuals."

															"365 U.S. at 365 U. S. 191 . For in
interpreting the statute, it is not our task to consider whether
Congress was mistaken in 1871 in its view of the limit of its power
over municipalities; rather, we must construe the statute in light
of the impressions under which Congress did, in fact, act, see
Ries v. Lynskey, 452 F.2d at 175." Moor v. County of Alameda, 411 U.
S. 693 , 411 U. S.
709 .

															[ Footnote 5/19 ]

															Both Title VI and Title VII express Congress' belief that, in
the long struggle to eliminate social prejudice and the effects of
prejudice, the principle of individual equality, without regard to
race or religion, was one on which there could be a "meeting of the
minds" among all races and a common national purpose. See Los
Angeles Dept. of Water & Power v. Manhart, 435 U.
S. 702 , 435 U. S. 709 ("[T]he basic policy of the statute [Title VII] requires that we
focus on fairness to individuals, rather than fairness to
classes"). This same principle of individual fairness is embodied
in Title VI.

															"The basic fairness of title VI is so clear that I find it
difficult to understand why it should create any opposition. . .
."

															" * * * *" "Private prejudices, to be sure, cannot be eliminated overnight.
However, there is one area where no room at all exists for private
prejudices. That is the area of governmental conduct. As the first
Mr. Justice Harlan said in his prophetic dissenting opinion in Plessy v. Ferguson, 163 U. S. 537 , 163 U. S.
559 :"

															"Our Constitution is color-blind."

															"So -- I say to Senators -- must be our Government. . . ."

															"Title VI closes the gap between our purposes as a democracy and
our prejudices as individuals. The cuts of prejudice need healing.
The costs of prejudice need understanding. We cannot have hostility
between two great parts of our people without tragic loss in our
human values. . . . "

															"Title VI offers a place for the meeting of our minds as to
Federal money."

															110 Cong.Rec. 7063-7064 (1964) (remarks of Sen. Pastore). Of
course, one of the reasons marshaled in support of the conclusion
that Title VI was "noncontroversial" was that its prohibition was
already reflected in the law. See ibid. (remarks of Sen.
Pell and Sen. Pastore).

															[ Footnote 5/20 ]

															For example, private employers now under duties imposed by Title
VII were wholly free from the restraints imposed by the Fifth and
Fourteenth Amendments which are directed only to governmental
action.

															In Lau v. Nichols, 414 U. S. 563 , the
Government's brief stressed that

															"the applicability of Title VI . . . does not depend upon the
outcome of the equal protection analysis. . . . [T]he statute
independently proscribes the conduct challenged by petitioners, and
provides a discrete basis for injunctive relief."

															Brief for United States as Amicus Curiae, O.T. 1973,
No. 72-6520, p. 15. The Court, in turn, rested its decision on
Title VI. MR. JUSTICE POWELL takes pains to distinguish Lau from the case at hand because the Lau decision "rested solely on the statute." Ante at 438 U. S. 304 . See also Washington v. Davis, 426 U.
S. 229 , 426 U. S.
238 -239; Allen v. State Board of Elections, 393 U. S. 544 , 393 U. S. 588 (Harlan, J., concurring and dissenting).

															[ Footnote 5/21 ]

															As explained by Senator Humphrey, § 601 expresses a principle
imbedded in the constitutional and moral understanding of
the times.

															"The purpose of title VI is to make sure that funds of the
United States are not used to support racial discrimination. In many instances, the practices of segregation or
discrimination, which title VI seeks to end, are unconstitutional.
. . . In all cases, such discrimination is contrary to
national policy, and to the moral sense of the Nation. Thus, title
VI is simply designed to insure that Federal funds are spent in
accordance with the Constitution and the moral sense of the
Nation."

															110 Cong.Rec. 6544 (1964) (emphasis added).

															[ Footnote 5/22 ]

															Petitioner's attempt to rely on regulations issued by HEW for a
contrary reading of the statute is unpersuasive. Where no
discriminatory policy was in effect., HEW's example of permissible
"affirmative action" refers to "special recruitment policies." 45
CFR § 80.5(j) (1977). This regulation, which was adopted in 1973,
sheds no light on the legality of the admissions program that
excluded Bakke in this case.

															[ Footnote 5/23 ]

															110 Cong.Rec. 6047 (1964) (remarks of Sen. Pastore).

															[ Footnote 5/24 ]

															Record 30-31.

															[ Footnote 5/25 ] See, e.g., Lau v. Nichols, supra; Bossier Parish School
Board v. Lemon, 370 F.2d 847 (CA5 1967), cert.
denied, 388 U.S. 911; Uzzell v. Friday, 547 F.2d 801
(CA4 1977), opinion on rehearing en banc, 558 F.2d 727, cert. pending, No. 77-635; Serna v. Portales, 499
F.2d 1147 (CA10 1974); cf. Chambers v. Omaha Public School
District, 536 F.2d 222, 225 n. 2 (CA8 1976) (indicating doubt
over whether a money judgment can be obtained under Title
VI). Indeed, the Government's brief in Lau v. Nichols,
supra, succinctly expressed this common assumption: "It is
settled that petitioners . . . have standing to enforce Section
601. . . ." Brief for United States as Amicus Curiae in Lau v. Nichols, O.T. 1973, No. 72-6520, p. 13 n. 5.

															[ Footnote 5/26 ]

															Supplemental Brief for United States as Amicus Curiae 24-34. The Government's supplemental brief also suggests that there
may be a difference between a private cause of action brought to
end a particular discriminatory practice and such an action brought
to cut off federal funds. Id. at 28-30. Section 601 is
specifically addressed to personal rights, while § 602 -- the fund
cutoff provision -- establishes "an elaborate mechanism for governmental enforcement by federal agencies."
Supplemental Brief, supra at 28 (emphasis added).
Arguably, private enforcement of this "elaborate mechanism" would
not fit within the congressional scheme, see separate
opinion of MR. JUSTICE WHITE, ante at 438 U. S.
380 -383. But Bakke did not seek to cut off the
University's federal funding; he sought admission to medical
school. The difference between these two courses of action is clear
and significant. As the Government itself states:

															"[T]he grant of an injunction or a declaratory judgment in a
private action would not be inconsistent with the administrative
program established by Section 602. . . . A declaratory judgment or
injunction against future discrimination would not raise the
possibility that funds would be terminated, and it would not
involve bringing the forces of the Executive Branch to bear on
state programs; it therefore would not implicate the concern that
led to the limitations contained in Section 602."

															Supplemental Brief, supra at 30 n. 25.

															The notion that a private action seeking injunctive or
declaratory judgment relief is inconsistent with a federal statute
that authorizes termination of funds has clearly been rejected by
this Court in prior cases. See Rosado v. Wyman, 397 U. S. 397 , 397 U. S.
420 .

															[ Footnote 5/27 ] See 29 U.S.C. § 794 (1976 ed.) (the Rehabilitation Act
of 1973) (in particular, the legislative history discussed in Lloyd v. Regional Transportation Authority, 548 F.2d 1277,
1285-1286 (CA7 1977)); 20 U.S.C. § 1617 (1976 ed.) (attorney fees
under the Emergency School Aid Act); and 31 U.S.C. § 1244 (1976
ed.) (private action under the Financial Assistance Act). Of
course, none of these subsequent legislative enactments is
necessarily reliable evidence of Congress' intent in 1964 in
enacting Title VI, and the legislation was not intended to change
the existing status of Title VI.

															[ Footnote 5/28 ]

															Framing the analysis in terms of the four-part Cort v.
Ash test, see 422 U. S. 66 , 422 U. S. 78 , it
is clear that all four parts of the test are satisfied. (1) Bakke's
status as a potential beneficiary of a federally funded program
definitely brings him within the " class for whose especial benefit the statute was enacted,'" ibid. (emphasis in original). (2) A cause of action based on race
discrimination has not been "traditionally relegated to state law." Ibid. (3) While a few excerpts from the voluminous
legislative history suggest that Congress did not intend to create
a private cause of action, see opinion of MR. JUSTICE
POWELL, ante at 438 U. S. 283 n. 18, an examination of the entire legislative history makes it
clear that Congress had no intention to foreclose a private right
of action. (4) There is ample evidence that Congress considered
private causes of action to be consistent with, if not essential
to, the legislative scheme. See, e.g., remarks of Senator
Ribicoff: "We come then to the crux of the dispute -- how this right [to
participate in federally funded programs without discrimination]
should be protected. And even this issue becomes clear upon the
most elementary analysis. If Federal funds are to be dispensed on a
nondiscriminatory basis, the only possible remedies must fall into
one of two categories: first, action to end discrimination; or
second, action to end the payment of funds. Obviously action to end
discrimination is preferable, since that reaches the objective of
extending the funds on a nondiscriminatory basis. But if the
discrimination persists and cannot be effectively terminated, how
else can the principle of nondiscrimination be vindicated except by
nonpayment of funds?"

															110 Cong.Rec. 7065 (1964). See also id. at 5090, 6543,
6544 (remarks of Sen. Humphrey); id. at 7103, 12719
(remarks of Sen. Javits); id. at 7062, 7063 (remarks of
Sen. Pastore).

															The congressional debates thus show a clear understanding that
the principle embodied in § 601 involves personal federal rights
that administrative procedures would not, for the most part, be
able to protect. The analogy to the Voting Rights Act of 1965, 42
U.S.C. § 1973 et seq. (1970 ed. and Supp. V), is clear.
Both that Act and Title VI are broadly phrased in terms of personal
rights ("no person shall be denied . . ."); both Acts were drafted
with broad remedial purposes in mind; and the effectiveness of both
Acts would be "severely hampered" without the existence of a
private remedy to supplement administrative procedures. See
Allen v. State Bd. of Elections, 393 U.
S. 544 , 393 U. S. 556 .
In Allen, of course, this Court found a private right of
action under the Voting Rights Act.

Summary:
The University of California, Davis, Medical School had two admissions programs, a regular admissions program and a special admissions program for minority applicants. White applicant Allan Bakke was twice denied admission, and he sued, alleging that the special admissions program violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

The Supreme Court of California concluded that the special admissions program was unconstitutional and ordered Bakke admitted. The U.S. Supreme Court affirmed in part and reversed in part.

The Court held that the Constitution prohibited state and federal governments from discriminating on the basis of race, but universities could use race as one of many factors in admissions decisions. The Court found that the Medical School's use of fixed quotas in its special admissions program was impermissible racial discrimination and violated Title VI and the Equal Protection Clause.

However, the Court also held that universities had a compelling interest in achieving a diverse student body, and race could be considered as part of a holistic review of applicants. The Court emphasized that universities must ensure that each applicant is evaluated as an individual, and race-conscious admissions policies must be limited in time.

In this case, the Court struck down the Medical School's rigid racial quota but allowed race to be considered as a factor in admissions, provided it was part of a flexible, holistic review process and was limited in duration. This decision shaped affirmative action policies in higher education for decades.