|GRATZ V. BOLLINGER (02-516) 539 U.S. 244 (2003)
Reversed in part and remanded.
[ Rehnquist ]
[ OConnor ]
[ Thomas ]
[ Breyer ]
[ Stevens ]
[ Souter ]
[ Ginsburg ]
JENNIFER GRATZ and PATRICK HAMACHER,
PETITIONERS v. LEE BOLLINGER et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 23, 2003]
Chief Justice Rehnquist delivered the opinion of the Court.
We granted certiorari in this case to decide whether the University of Michigans use of racial preferences in undergraduate admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d), or 42 U.S.C. § 1981. Brief for Petitioners i. Because we find that the manner in which the University considers the race of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Courts decision upholding the guidelines.
Petitioners Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigans (University) College of Literature, Science, and the Arts (LSA) as residents of the State of Michigan. Both petitioners are Caucasian. Gratz, who applied for admission for the fall of 1995, was notified in January of that year that a final decision regarding her admission had been delayed until April. This delay was based upon the Universitys determination that, although Gratz was
Hamacher applied for admission to the LSA for the fall of 1997. A final decision as to his application was also postponed because, though his
In October 1997, Gratz and Hamacher filed a lawsuit in the United States District Court for the Eastern District of Michigan against the University of Michigan, the LSA,2 James Duderstadt, and Lee Bollinger.3 Petitioners complaint was a class-action suit alleging violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment , and for racial discrimination in violation of 42 U.S.C. § 1981 1983, and 2000d et seq. App. 33. Petitioners sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that respondents violated petitioners rights to nondiscriminatory treatment, an injunction prohibiting respondents from continuing to discriminate on the basis of race in violation of the Fourteenth Amendment, and an order requiring the LSA to offer Hamacher admission as a transfer student.4 Id., at 40.
The District Court granted petitioners motion for class certification after determining that a class action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2). The certified class consisted of those individuals who applied for and were not granted admission to the College of Literature, Science and the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treated less favorably on the basis of race in considering their application for admission. App. 7071. And Hamacher, whose claim the District Court found to challenge a
The University has changed its admissions guidelines a number of times during the period relevant to this litigation, and we summarize the most significant of these changes briefly. The Universitys Office of Undergraduate Admissions (OUA) oversees the LSA admissions process.6 In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines for each academic year. Admissions counselors make admissions decisions in accordance with these guidelines.
OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and leadership. OUA also considers race. During all periods relevant to this litigation, the University has considered African-Americans, Hispanics, and Native Americans to be underrepresented minorities, and it is undisputed that the University admits virtually every qualified applicant from these groups. App. to Pet. for Cert. 111a.
During 1995 and 1996, OUA counselors evaluated applications according to grade point average combined with what were referred to as the SCUGA factors. These factors included the quality of an applicants high school (S), the strength of an applicants high school curriculum (C), an applicants unusual circumstances (U), an applicants geographical residence (G), and an applicants alumni relationships (A). After these scores were combined to produce an applicants GPA 2 score, the reviewing admissions counselors referenced a set of Guidelines tables, which listed GPA 2 ranges on the vertical axis, and American College Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each table was divided into cells that included one or more courses of action to be taken, including admit, reject, delay for additional information, or postpone for reconsideration.
In both years, applicants with the same GPA 2 score and ACT/SAT score were subject to different admissions outcomes based upon their racial or ethnic status.7 For example, as a Caucasian in-state applicant, Gratzs GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratzs scores would have fallen within a cell calling for admission.
In 1997, the University modified its admissions procedure. Specifically, the formula for calculating an applicants GPA 2 score was restructured to include additional point values under the U category in the SCUGA factors. Under this new system, applicants could receive points for underrepresented minority status, socioeconomic disadvantage, or attendance at a high school with a predominantly underrepresented minority population, or underrepresentation in the unit to which the student was applying (for example, men who sought to pursue a career in nursing). Under the 1997 procedures, Hamachers
GPA 2 score and ACT score placed him in a cell on the in-state applicant table calling for postponement of a final admissions decision. An underrepresented minority applicant placed in the same cell would generally have been admitted.
Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a selection index, on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows: 100150 (admit); 9599 (admit or postpone); 9094 (postpone or admit); 7589 (delay or postpone); 74 and below (delay or reject).
Each application received points based on high school grade point average, standardized test scores, academic quality of an applicants high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. Of particular significance here, under a miscellaneous category, an applicant was entitled to 20 points based upon his or her membership in an underrepresented racial or ethnic minority group. The University explained that the
In all application years from 1995 to 1998, the guidelines provided that qualified applicants from underrepresented minority groups be admitted as soon as possible in light of the Universitys belief that such applicants were more likely to enroll if promptly notified of their admission. Also from 1995 through 1998, the University carefully managed its rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of protected seats. Specific groupsincluding athletes, foreign students, ROTC candidates, and underrepresented minoritieswere protected categories eligible for these seats. A committee called the Enrollment Working Group (EWG) projected how many applicants from each of these protected categories the University was likely to receive after a given date and then paced admissions decisions to permit full consideration of expected applications from these groups. If this space was not filled by qualified candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates remaining in the applicant pool, including those on the waiting list.
During 1999 and 2000, the OUA used the selection index, under which every applicant from an underrepresented racial or ethnic minority group was awarded 20 points. Starting in 1999, however, the University established an Admissions Review Committee (ARC), to provide an additional level of consideration for some applications. Under the new system, counselors may, in their discretion, flag an application for the ARC to review after determining that the applicant (1) is academically prepared to succeed at the University,8 (2) has achieved a minimum selection index score, and (3) possesses a quality or characteristic important to the Universitys composition of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented race, ethnicity, or geography. After reviewing flagged applications, the ARC determines whether to admit, defer, or deny each applicant.
The parties filed cross-motions for summary judgment with respect to liability. Petitioners asserted that the LSAs use of race as a factor in admissions violates Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d and the Equal Protection Clause of the Fourteenth Amendment. Respondents relied on Justice Powells opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), to respond to petitioners arguments. As discussed in greater detail in the Courts opinion in Grutter v. Bollinger, post, at 1013, Justice Powell, in Bakke, expressed the view that the consideration of race as a factor in admissions might in some cases serve a compelling government interest. See 438 U.S., at 317. Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. Respondent-intervenors asserted that the LSA had a compelling interest in remedying the Universitys past and current discrimination against minorities.9
The District Court began its analysis by reviewing this Courts decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED Mich. 2001). Although the court acknowledged that no decision from this Court since Bakke has explicitly accepted the diversity rationale discussed by Justice Powell, see 122 F. Supp. 2d, at 820821, it also concluded that this Court had not, in the years since Bakke, ruled out such a justification for the use of race. 122 F. Supp. 2d, at 820821. The District Court concluded that respondents and their amici curiae had presented solid evidence that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See id., at 822824.
The court next considered whether the LSAs admissions guidelines were narrowly tailored to achieve that interest. See id., at 824. Again relying on Justice Powells opinion in Bakke, the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the Universitys interest in the educational benefits that flow from a racially and ethnically diverse student body. See 122 F. Supp. 2d, at 827. The court emphasized that the LSAs current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See ibid. The award of 20 points for membership in an underrepresented minority group, in the District Courts view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See id., at 828. Likewise, the court rejected the assertion that the LSAs program operates like the two-track system Justice Powell found objectionable in Bakke on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, at 828829. The court also dismissed petitioners assertion that the LSAs current system is nothing more than a means by which to achieve racial balancing. See id., at 831. The court explained that the LSA does not seek to achieve a certain proportion of minority students, let alone a proportion that represents the community. See ibid.
The District Court found the admissions guidelines the LSA used from 1995 through 1998 to be more problematic. In the courts view, the Universitys prior practice of protecting or reserving seats for underrepresented minority applicants effectively kept nonprotected applicants from competing for those slots. See id., at 832. This system, the court concluded, operated as the functional equivalent of a quota and ran afoul of Justice Powells opinion in Bakke.10 See 122 F. Supp. 2d, at 832.
Based on these findings, the court granted petitioners motion for summary judgment with respect to the LSAs admissions programs in existence from 1995 through 1998, and respondents motion with respect to the LSAs admissions programs for 1999 and 2000. See id., at 833. Accordingly, the District Court denied petitioners request for injunctive relief. See id., at 814.
The District Court issued an order consistent with its rulings and certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U.S.C. § 1292(b). Both parties appealed aspects of the District Courts rulings, and the Court of Appeals heard the case en banc on the same day as Grutter v. Bollinger. The Sixth Circuit later issued an opinion in Grutter, upholding the admissions program used by the University of Michigan Law School, and the petitioner in that case sought a writ of certiorari from this Court. Petitioners asked this Court to grant certiorari in this case as well, despite the fact that the Court of Appeals had not yet rendered a judgment, so that this Court could address the constitutionality of the consideration of race in university admissions in a wider range of circumstances. We did so. See 537 U.S. 1044 (2002).
As they have throughout the course of this litigation, petitioners contend that the Universitys consideration of race in its undergraduate admissions decisions violates §1 of the Equal Protection Clause of the Fourteenth Amendment,11 Title VI,12 and 42 U.S.C. § 1981.13 We consider first whether petitioners have standing to seek declaratory and injunctive relief, and, finding that they do, we next consider the merits of their claims.
Although no party has raised the issue, Justice Stevens argues that petitioners lack Article III standing to seek injunctive relief with respect to the Universitys use of race in undergraduate admissions. He first contends that because Hamacher did not actually appl[y] for admission as a transfer student[,] [h]is claim of future injury is at best conjectural or hypothetical rather than real and immediate.
It is well established that intent may be relevant to standing in an Equal Protection challenge. In Clements v. Fashing, 457 U.S. 957 (1982), for example, we considered a challenge to a provision of the Texas Constitution requiring the immediate resignation of certain state officeholders upon their announcement of candidacy for another office. We concluded that the plaintiff officeholders had Article III standing because they had alleged that they would have announced their candidacy for other offices were it not for the automatic resignation provision they were challenging. Id., at 962; accord, Turner v. Fouche, 396 U.S. 346, 361362, n. 23 (1970) (plaintiff who did not own property had standing to challenge property ownership requirement for membership on school board even though there was no evidence that plaintiff had applied and been rejected); Quinn v. Millsap, 491 U.S. 95, 103, n. 8 (1989) (plaintiffs who did not own property had standing to challenge property ownership requirement for membership on government board even though they lacked standing to challenge the requirement as applied). Likewise, in Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993), we considered whether an association challenging an ordinance that gave preferential treatment to certain minority-owned businesses in the award of city contracts needed to show that one of its members would have received a contract absent the ordinance in order to establish standing. In finding that no such showing was necessary, we explained that [t]he injury in fact in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit . And in the context of a challenge to a set-aside program, the injury in fact is the inability to compete on an equal footing in the bidding process, not the loss of contract. Id., at 666. We concluded that in the face of such a barrier, [t]o establish standing, a party challenging a set-aside program like Jacksonvilles need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis. Ibid.
In bringing his equal protection challenge against the Universitys use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Hamacher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been admitted. See App. to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated that he was able and ready to apply as a transfer student should the University cease to use race in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the Universitys continued use of race in undergraduate admissions.
Justice Stevens raises a second argument as to standing. He contends that the Universitys use of race in undergraduate transfer admissions differs from its use of race in undergraduate freshman admissions, and that therefore Hamacher lacks standing to represent absent class members challenging the latter. Post, at 5 (dissenting opinion). As an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.15
From the time petitioners filed their original complaint through their brief on the merits in this Court, they have consistently challenged the Universitys use of race in undergraduate admissions and its asserted justification of promoting diversity. See, e.g., App. 38; Brief for Petitioners 13. Consistent with this challenge, petitioners requested injunctive relief prohibiting respondent from continuing to discriminate on the basis of race. App. 40. They sought to certify a class consisting of all individuals who were not members of an underrepresented minority group who either had applied for admission to the LSA and been rejected or who intended to apply for admission to the LSA, for all academic years from 1995 forward. Id., at 3536. The District Court determined that the proposed class satisfied the requirements of the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality, and typicality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court further concluded that Hamacher was an adequate representative for the class in the pursuit of compensatory and injunctive relief for purposes of Rule 23(a)(4), see App. 6169, and found the record utterly devoid of the presence of
antagonism between the interests of
Hamacher, and the members of the class which [he] seek[s] to represent, id., at 61. Finally, the District Court concluded that petitioners claim was appropriate for class treatment because the Universitys
Justice Stevens cites Blum v. Yaretsky, 457 U.S. 991 (1982), in arguing that the District Court erred. Post, at 8. In Blum, we considered a class action suit brought by Medicaid beneficiaries. The named representatives in Blum challenged decisions by the States Medicaid Utilization Review Committee (URC) to transfer them to lower levels of care without, in their view, sufficient procedural safeguards. After a class was certified, the plaintiffs obtained an order expanding class certification to include challenges to URC decisions to transfer patients to higher levels of care as well. The defendants argued that the named representatives could not represent absent class members challenging transfers to higher levels of care because they had not been threatened with such transfers. We agreed. We noted that [n]othing in the record suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers. 457 U.S., at 1001. And we found that transfers to lower levels of care involved a number of fundamentally different concerns than did transfers to higher ones. Id., at 10011002 (noting, for example, that transfers to lower levels of care implicated beneficiaries property interests given the concomitant decrease in Medicaid benefits, while transfers to higher levels of care did not).
In the present case, the Universitys use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions. Respondents challenged Hamachers standing at the certification stage, but never did so on the grounds that the Universitys use of race in undergraduate transfer admissions involves a different set of concerns than does its use of race in freshman admissions. Respondents failure to allege any such difference is simply consistent with the fact that no such difference exists. Each year the OUA produces a document entitled COLLEGE OF LITERATURE SCIENCE AND THE ARTS GUIDELINES FOR ALL TERMS, which sets forth guidelines for all individuals seeking admission to the LSA, including freshman applicants, transfer applicants, international student applicants, and the like. See, e.g., 2 App. in No. 011333 etc. (CA6), pp. 507542. The guidelines used to evaluate transfer applicants specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to the Universitys stated goal of diversity are identical to that used to evaluate freshman applicants. For example, in 1997, when the class was certified and the District Court found that Hamacher had standing to represent the class, the transfer guidelines contained a separate section entitled CONTRIBUTION TO A DIVERSE STUDENT BODY. 2 id., at 531. This section explained that any transfer applicant who could contribut[e] to a diverse student body should generally be admitted even with substantially lower qualifications than those required of other transfer applicants. Ibid. (emphasis added). To determine whether a transfer applicant was capable of contribut[ing] to a diverse student body, admissions counselors were instructed to determine whether that transfer applicant met the criteria as defined in Section IV of the U category of [the] SCUGA factors used to assess freshman applicants. Ibid. Section IV of the U category, entitled Contribution to a Diverse Class, explained that [t]he University is committed to a rich educational experience for its students. A diverse, as opposed to a homogenous, student population enhances the educational experience for all students. To insure a diverse class, significant weight will be given in the admissions process to indicators of students contribution to a diverse class. 1 id., at 432. These indicators, used in evaluating freshman and transfer applicants alike, list being a member of an underrepresented minority group as establishing an applicants contribution to diversity. See 3 id., at 11331134, 11531154. Indeed, the only difference between the Universitys use of race in considering freshman and transfer applicants is that all underrepresented minority freshman applicants receive 20 points and virtually all who are minimally qualified are admitted, while generally all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners standing to challenge the Universitys use of race in undergraduate admissions and its assertion that diversity is a compelling state interest that justifies its consideration of the race of its undergraduate applicants.16
Particularly instructive here is our statement in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982), that [i]f [defendant-employer] used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the
requirements of Rule 23(a). Id., at 159, n. 15 (emphasis added). Here, the District Court found that the sole rationale the University had provided for any of its race-based preferences in undergraduate admissions was the interest in the educational benefits that result from having a diverse student body. App. to Pet. for Cert. 8a. And petitioners argue that an interest in diversity is not a compelling state interest that is ever capable of justifying the use of race in undergraduate admissions. See, e.g., Brief for Petitioners 1113. In sum, the same set of concerns is implicated by the Universitys use of race in evaluating all undergraduate admissions applications under the guidelines.17 We therefore agree with the District Courts carefully considered decision to certify this class-action challenge to the Universitys consideration of race in undergraduate admissions. See App. 67 (
Petitioners argue, first and foremost, that the Universitys use of race in undergraduate admissions violates the Fourteenth Amendment. Specifically, they contend that this Court has only sanctioned the use of racial classifications to remedy identified discrimination, a justification on which respondents have never relied. Brief for Petitioners 1516. Petitioners further argue that diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute a compelling interest capable of supporting narrowly-tailored means. Id., at 1718, 4041. But for the reasons set forth today in Grutter v. Bollinger, post, at 1521, the Court has rejected these arguments of petitioners.
Petitioners alternatively argue that even if the Universitys interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the Universitys use of race in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not remotely resemble the kind of consideration of race and ethnicity that Justice Powell endorsed in Bakke. Brief for Petitioners 18. Respondents reply that the Universitys current admissions program is narrowly tailored and avoids the problems of the Medical School of the University of California at Davis program (U. C. Davis) rejected by Justice Powell.18 They claim that their program hews closely to both the admissions program described by Justice Powell as well as the Harvard College admissions program that he endorsed. Brief for Respondents 32. Specifically, respondents contend that the LSAs policy provides the individualized consideration that Justice Powell considered a hallmark of a constitutionally appropriate admissions program. Id., at 35. For the reasons set out below, we do not agree.
It is by now well established that all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224 (1995). This
To withstand our strict scrutiny analysis, respondents must demonstrate that the Universitys use of race in its current admission program employs narrowly tailored measures that further compelling governmental interests. Id., at 227. Because [r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification, Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J., dissenting), our review of whether such requirements have been met must entail
In Bakke, Justice Powell reiterated that [p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. 438 U.S., at 307. He then explained, however, that in his view it would be permissible for a university to employ an admissions program in which race or ethnic background may be deemed a plus in a particular applicants file. Id., at 317. He explained that such a program might allow for [t]he file of a particular black applicant [to] 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. Ibid. Such a system, in Justice Powells view, would be flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant. Ibid.
Justice Powells opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individuals ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a universitys diversity. See id., at 315. See also Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 618 (1990) (OConnor, J., dissenting) (concluding that the FCCs policy, which embodie[d] the related notions that a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants because [the applicant is] likely to provide [a] distinct perspective, impermissibly value[d] individuals based on a presumption that persons think in a manner associated with their race). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicants entire application.
The current LSA policy does not provide such individualized consideration. The LSAs policy automatically distributes 20 points to every single applicant from an underrepresented minority group, as defined by the University. The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powells example, where the race of a particular black applicant could be considered without being decisive, see Bakke, 438 U.S., at 317, the LSAs automatic distribution of 20 points has the effect of making the factor of race decisive for virtually every minimally qualified underrepresented minority applicant. Ibid.19
Also instructive in our consideration of the LSAs system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in Bakke. The example was included to illustrate the kind of significance attached to race under the Harvard College program. Id., at 324. It provided as follows:
The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it. Ibid. (emphasis added).
This example further demonstrates the problematic nature of the LSAs admissions system. Even if student Cs extraordinary artistic talent rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSAs system. See App. 234235. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSAs system does not offer applicants the individualized selection process described in Harvards example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his extraordinary talent.20
Respondents emphasize the fact that the LSA has created the possibility of an applicants file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the Universitys system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted. Student A, an applicant with promise of superior academic performance, would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the University would never consider student As individual background, experiences, and characteristics to assess his individual potential contribution to diversity, Bakke, supra, at 317. Instead, every applicant like student A would simply be admitted.
It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the review committee can look at the applications individually and ignore the points, once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSAs admissions program. See App. to Pet. for Cert. 117a (The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG).21 Additionally, this individualized review is only provided after admissions counselors automatically distribute the Universitys version of a plus that makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant.
Respondents contend that [t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use the
admissions system upheld by the Court today in Grutter. Brief for Respondents 6, n. 8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J. A. Croson Co., 488 U.S., at 508 (citing Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (plurality opinion of Brennan, J.) (rejecting
We conclude, therefore, that because the Universitys use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.22 We further find that the admissions policy also violates Title VI and 42 U.S.C. § 1981.23 Accordingly, we reverse that portion of the District Courts decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion.
It is so ordered.
1. Although Hamacher indicated that he intend[ed] to apply to transfer if the [LSAs] discriminatory admissions system [is] eliminated, he has since graduated from Michigan State University. App. 34.
2. The University of Michigan Board of Regents was subsequently named as the proper defendant in place of the University and the LSA. See id., at 17.
3. Duderstadt was the president of the University during the time that Gratzs application was under consideration. He has been sued in his individual capacity. Bollinger was the president of the University when Hamacher applied for admission. He was originally sued in both his individual and official capacities, but he is no longer the president of the University. Id., at 35.
4. A group of African-American and Latino students who applied for, or intended to apply for, admission to the University, as well as the Citizens for Affirmative Actions Preservation, a nonprofit organization in Michigan, sought to intervene pursuant to Federal Rule of Civil Procedure 24. See App. 1314. The District Court originally denied this request, see id., at 1415, but the Sixth Circuit reversed that decision. See Gratz v. Bollinger, 188 F.3d 394 (1999).
5. The District Court decided also to consider petitioners request for injunctive and declaratory relief during the liability phase of the proceedings. App. 71.
6. Our description is taken, in large part, from the Joint Proposed Summary of Undisputed Facts Regarding Admissions Process filed by the parties in the District Court. App. to Pet. for Cert. 108a117a.
7. In 1995, counselors used four such tables for different groups of applicants: (1) in-state, nonminority applicants; (2) out-of-state, non-minority applicants; (3) in-state, minority applicants; and (4) out-of-state, minority applicants. In 1996, only two tables were used, one for in-state applicants and one for out-of-state applicants. But each cell on these two tables contained separate courses of action for minority applicants and nonminority applicants whose GPA 2 scores and ACT/SAT scores placed them in that cell.
8. LSA applicants who are Michigan residents must accumulate 80 points from the selection index criteria to be flagged, while out-of-state applicants need to accumulate 75 points to be eligible for such consideration. See App. 257.
9. The District Court considered and rejected respondent-intervenors arguments in a supplemental opinion and order. See 135 F. Supp. 2d 790 (ED Mich. 2001). The court explained that respondent-intervenors failed to present any evidence that the discrimination alleged by them, or the continuing effects of such discrimination, was the real justification for the LSAs race-conscious admissions programs. Id., at 795. We agree, and to the extent respondent-intervenors reassert this justification, a justification the University has never asserted throughout the course of this litigation, we affirm the District Courts disposition of the issue.
10. The District Court determined that respondents Bollinger and Duderstadt, who were sued in their individual capacities under Rev. Stat. §1979, 42 U.S.C. § 1983 were entitled to summary judgment based on the doctrine of qualified immunity. See 122 F. Supp. 2d, at 833834. Petitioners have not asked this Court to review this aspect of the District Courts decision. The District Court denied the Board of Regents motion for summary judgment with respect to petitioners Title VI claim on Eleventh Amendment immunity grounds. See id., at 834836. Respondents have not asked this Court to review this aspect of the District Courts decision.
12. Title VI provides that [n]o 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.
13. Section 1981(a) provides that: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.
14. This finding is further corroborated by Hamachers request that the District Court [r]equir[e] the LSA College to offer [him] admission as a transfer student. App. 40.
15. Although we do not resolve here whether such an inquiry in this case is appropriately addressed under the rubric of standing or adequacy, we note that there is tension in our prior cases in this regard. See, e.g., Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22 U. C. D. L. Rev. 1239, 12401241 (1989); General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 149 (1982) (Mexican-American plaintiff alleging that he was passed over for a promotion because of race was not an adequate representative to maintain a class action on behalf of Mexican-American applicants who were not hired by the same employer); Blum v. Yaretsky, 457 U.S. 991 (1982) (class representatives who had been transferred to lower levels of medical care lacked standing to challenge transfers to higher levels of care).
16. Because the Universitys guidelines concededly use race in evaluating both freshman and transfer applications, and because petitioners have challenged any use of race by the University in undergraduate admissions, the transfer admissions policy is very much before this Court. Although petitioners did not raise a narrow tailoring challenge to the transfer policy, as counsel for petitioners repeatedly explained, the transfer policy is before this Court in that petitioners challenged any use of race by the University to promote diversity, including through the transfer policy. See Tr. of Oral Arg. 4 ([T]he [transfer] policy is essentially the same with respect to the consideration of race); id., at 5 (The transfer policy considers race); id., at 6 (same); id., at 7 ([T]he transfer policy and the [freshman] admissions policy are fundamentally the same in the respect that they both consider race in the admissions process in a way that is discriminatory); id., at 78 ([T]he University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor).
17. Indeed, as the litigation history of this case demonstrates, the class-action device save[d] the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion. Califano v. Yamasaki, 442 U.S. 682, 701 (1979). This case was therefore quite unlike General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982), in which we found that the named representative, who had been passed over for a promotion, was not an adequate representative for absent class members who were never hired in the first instance. As we explained, the plaintiffs evidentiary approaches to the individual and class claims were entirely different. He attempted to sustain his individual claim by proving intentional discrimination. He tried to prove the class claims through statistical evidence of disparate impact . It is clear that the maintenance of respondents action as a class action did not advance the efficiency and economy of litigation which is a principal purpose of the procedure. Id., at 159 (quoting American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974)).
18. U. C. Davis set aside 16 of the 100 seats available in its first year medical school program for economically and/or educationally disadvantaged applicants who were also members of designated minority groups as defined by the university. 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. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 274, 289 (1978) (principal opinion). Justice Powell found that the program employed an impermissible two-track system that disregard[ed] . . . individual rights as guaranteed by the Fourteenth Amendment. Id., at 315. He reached this conclusion even though the university argued that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups was the only effective means of serving the interest of diversity. Ibid. Justice Powell concluded that such arguments misunderstood the very nature of the diversity he found to be compelling. See ibid.
19. Justice Souter recognizes that the LSAs use of race is decisive in practice, but he attempts to avoid that fact through unsupported speculation about the self-selection of minorities in the applicant pool. See Post, at 6 (dissenting opinion).
20. Justice Souter is therefore wrong when he contends that applicants to the undergraduate college are [not] denied individualized consideration. Post, at 6. As Justice OConnor explains in her concurrence, the LSAs program ensures that the diversity contributions of applicants cannot be individually assessed. Post, at 4.
21. Justice Souter is mistaken in his assertion that the Court take[s] it upon itself to apply a newly formulated legal standard to an undeveloped record. Post, at 7, n. 3. He ignores the fact that the respondents have told us all that is necessary to decide this case. As explained above, respondents concede that only a portion of the applications are reviewed by the ARC and that the bulk of admissions decisions are based on the point system. It should be readily apparent that the availability of this review, which comes after the automatic distribution of points, is far more limited than the individualized review given to the large middle group of applicants discussed by Justice Powell and described by the Harvard plan in Bakke. 438 U.S., at 316 (internal quotation marks omitted).
22. Justice Ginsburg in her dissent observes that [o]ne can reasonably anticipate . . . that colleges and universities will seek to maintain their minority enrollment . . . whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Post, at 7-8. She goes on to say that [i]f honesty is the best policy, surely Michigans accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises. Post, at 8. These observations are remarkable for two reasons. First, they suggest that universitiesto whose academic judgment we are told in Grutter v. Bollinger, post, at 16, we should deferwill pursue their affirmative-action programs whether or not they violate the United States Constitution. Second, they recommend that these violations should be dealt with, not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities.
23. We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v. Sandoval, 532 U.S. 275, 281 (2001); United States v. Fordice, 505 U.S. 717, 732, n. 7 (1992); Alexander v. Choate, 469 U.S. 287, 293 (1985). Likewise, with respect to §1981, we have explained that the provision was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295296 (1976). Furthermore, we have explained that a contract for educational services is a contract for purposes of §1981. See Runyon v. McCrary, 427 U.S. 160, 172 (1976). Finally, purposeful discrimination that violates the Equal Protection Clause of the Fourteenth Amendment will also violate §1981. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389390 (1982).