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2010 Winter Write-On

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					Texas Review of Law
    and Politics
          2010
 WINTER WRITE-ON PACKET
Instructions: TROLP Write-on Packet
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are to assimilate some or all of the material contained within and write a cohesive
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We look forward to reading your papers!

                           The TROLP Senior Staff
                                             TABLE OF CONTENTS

Constitutional Provisions:

The Fourteenth Amendment ................................................................................ 1

Cases:

Plessy v. Ferguson ............................................................................................... 3

Brown v. Board of Education of Topeka .............................................................. 10

Regents of the University of California v. Bakke ................................................. 18

Grutter v. Bollinger .............................................................................................................. 22

Articles:

Race Norming in Law School Admissions .......................................................... 38

Rule of Law: So Far, Clinton Can‟t Kick His Quota Addiction .......................... 45

Affirmative Action: A Solution ........................................................................... 48

The Proof is in the Performance .......................................................................... 59

The Broader Case for Affirmative Action ........................................................... 61
The Fourteenth Amendment
        Section 1




                           1
                                  Amendment XIV
                                    Section 1

        All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.




                                                                                        2
Plessy v. Ferguson




                     3
                                                 PLESSY v. FERGUSON

                                                               No. 210

                                     SUPREME COURT OF THE UNITED STATES

                            163 U.S. 537; 16 S. Ct. 1138; 41 L. Ed. 256; 1896 U.S. LEXIS 3390

                                                  Argued April 13, 1896.

                                                       May 18, 1896



OPINION:                                                          dividing the passenger coaches by a partition so as to
                                                                  secure separate accommodations." Under this statute, no
                                                                  colored person is permitted to occupy a seat in a coach
     [*552] or politically. If one race be inferior to the
                                                                  assigned to white persons; nor any white person, to
other socially, the Constitution of the United States
                                                                  occupy a seat in a coach assigned to colored persons.
cannot put them upon the same plane.
                                                                  The managers of the railroad are not allowed to exercise
     It is true that the question of the proportion of            any discretion in the premises, but are required to assign
colored blood necessary to constitute a colored person, as        each passenger to some coach or compartment set apart
distinguished from a white person, is one upon which              for the exclusive use of his race. If a passenger insists
there is a difference of opinion in the different States,         upon going into a coach or compartment not set apart for
some holding that any visible admixture of black blood            persons of his race, [*553] he is subject to be fined, or
stamps the person as belonging to the colored race, (State        to be imprisoned in the parish jail. Penalties are
v. Chavers, 5 Jones, [N.C.] 1, p. 11); others that it             prescribed for the refusal or neglect of the officers,
depends upon the preponderance of blood, ( Gray v.                directors, conductors and employes of railroad
State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665);          companies to comply with the provisions of the act.
and still others that the predominance of white blood
                                                                       Only "nurses attending children of the other race"
must only be in the proportion of three fourths. ( People
                                                                  are excepted from the operation of the statute. No
v. Dean, 14 Michigan, 406; Jones v. Commonwealth, 80
                                                                  exception is made of colored attendants travelling with
Virginia, 538.) But these are question to be determined
                                                                  adults. A white man is not permitted to have his colored
under the laws of each State and are not properly put in
                                                                  servant with him in the same coach, even if his condition
issue in this case. Under the allegations of his petition it
                                                                  of health requires the constant, personal assistance of
may undoubtedly become a question of importance
                                                                  such servant. If a colored maid insists upon riding in the
whether, under the laws of Louisiana, the petitioner
                                                                  same coach with a white woman whom she has been
belongs to the white or colored race.
                                                                  employed to serve, and who may need her personal
    The judgment of the court below is, therefore,                attention while travelling, she is subject to be fined or
                                                                  imprisoned for such an exhibition of zeal in the discharge
    Affirmed.
                                                                  of duty.
                                                                       While there may be in Louisiana persons of different
DISSENTBY:                                                        races who are not citizens of the United States, the words
   HARLAN                                                         in the act, "white and colored races," necessarily include
                                                                  all citizens of the United States of both races residing in
DISSENT:                                                          that State. So that we have before us a state enactment
                                                                  that compels, under penalties, the separation of the two
    MR. JUSTICE HARLAN dissenting.
                                                                  races in railroad passenger coaches, and makes it a crime
     By the Louisiana statute, the validity of which is           for a citizen of either race to enter a coach that has been
here involved, all railway companies (other than street           assigned to citizens of the other race.
railroad companies) carrying passengers in that State are              Thus the State regulates the use of a public highway
required to have separate but equal accommodations for
                                                                  by citizens of the United States solely upon the basis of
white and colored persons, "by providing two or more
                                                                  race.
passenger coaches for each passenger train, or by


                                                                                                                           4
    However apparent the injustice of such legislation           body or judicial tribunal may have regard to the [*555]
may be, we have only to consider whether it is consistent        race of citizens when the civil rights of those citizens are
with the Constitution of the United States.                      involved. Indeed, such legislation, as that here in
                                                                 question, is inconsistent not only with that equality of
     That a railroad is a public highway, and that the
                                                                 rights which pertains to citizenship, National and State,
corporation which owns or operates it is in the exercise
                                                                 but with the personal liberty enjoyed by every one within
of public functions, is not, at this day, to be disputed.
                                                                 the United States.
Mr. Justice Nelson, speaking for this court in New Jersey
Steam Navigation Co. v. Merchants' Bank, 6 How. 344,                  The Thirteenth Amendment does not permit the
382, said that a common carrier was in the exercise "of a        withholding or the deprivation of any right necessarily
sort of public office, and has public duties to perform,         inhering in freedom. It not only struck down the
from which he should not be permitted to exonerate               institution of slavery as previously existing in the United
himself without the assent of the parties concerned." Mr.        States, but it prevents the imposition of any burdens or
Justice Strong, delivering the judgment of [*554] this           disabilities that constitute badges of slavery or servitude.
court in Olcott v. The Supervisors, 16 Wall. 678, 694,           It decreed universal civil freedom in this country. This
said: "That railroads, though constructed by private             court has so adjudged. But that amendment having been
corporations and owned by them, are public highways,             found inadequate to the protection of the rights of those
has been the doctrine of nearly all the courts ever since        who had been in slavery, it was followed by the
such conveniences for passage and transportation have            Fourteenth Amendment, which added greatly to the
had any existence. Very early the question arose                 dignity and glory of American citizenship, and to the
whether a State's right of eminent domain could be               security of personal liberty, by declaring that "all persons
exercised by a private corporation created for the               born or naturalized in the United States, and subject to
purpose of constructing a railroad. Clearly it could not,        the jurisdiction thereof, are citizens of the United States
unless taking land for such a purpose by such an agency          and of the State wherein they reside," and that "no State
is taking land for public use. The right of eminent              shall make or enforce any law which shall abridge the
domain nowhere justifies taking property for a private           privileges or immunities of citizens of the United States;
use. Yet it is a doctrine universally accepted that a state      nor shall any State deprive any person of life, liberty or
legislature may authorize a private corporation to take          property without due process of law, nor deny to any
land for the construction of such a road, making                 person within its jurisdiction the equal protection of the
compensation to the owner. What else does this doctrine          laws." These two amendments, if enforced according to
mean if not that building a railroad, though it be built by      their true intent and meaning, will protect all the civil
a private corporation, is an act done for a public use?"         rights that pertain to freedom and citizenship. Finally,
So, in Township of Pine Grove v. Talcott, 19 Wall. 666,          and to the end that no citizen should be denied, on
676; "Though the corporation [a railroad company] was            account of his race, the privilege of participating in the
private, its work was public, as much so as if it were to        political control of his country, it was declared by the
be constructed by the State." So, in Inhabitants of              Fifteenth Amendment that "the right of citizens of the
Worcester v. Western Railroad Corporation, 4 Met. 564:           United States to vote shall not be denied or abridged by
"The establishment of that great thoroughfare is regarded        the United States or by any State on account of race,
as a public work, established by public authority,               color or previous condition of servitude."
intended for the public use and benefit, the use of which
                                                                      These notable additions to the fundamental law were
is secured to the whole community, and constitutes,
                                                                 welcomed by the friends of liberty throughout the world.
therefore, like a canal, turnpike or highway, a public
                                                                 They removed the race line from our governmental
easement." It is true that the real and personal property,
                                                                 systems. They had, as this court has said, a common
necessary to the establishment and management of the
                                                                 purpose, namely, to secure "to a race recently
railroad, is vested in the corporation; but it is in trust for
                                                                 emancipated, a race that through          [*556]     many
the public."
                                                                 generations have been held in slavery, all the civil rights
     In respect of civil rights, common to all citizens, the     that the superior race enjoy." They declared, in legal
Constitution of the United States does not, I think, permit      effect, this court has further said, "that the law in the
any public authority to know the race of those entitled to       States shall be the same for the black as for the white;
be protected in the enjoyment of such rights. Every true         that all persons, whether colored or white, shall stand
man has pride of race, and under appropriate                     equal before the laws of the States, and, in regard to the
circumstances when the rights of others, his equals              colored race, for whose protection the amendment was
before the law, are not to be affected, it is his privilege to   primarily designed, that no discrimination shall be made
express such pride and to take such action based upon it         against them by law because of their color." We also
as to him seems proper. But I deny that any legislative          said: "The words of the amendment, it is true, are


                                                                                                                           5
prohibitory, but they contain a necessary implication of a        government, proceeding alone on grounds of race, can
positive immunity, or right, most valuable to the colored         prevent it without infringing the personal liberty of each.
race -- the right to exemption from unfriendly legislation
                                                                       It is one thing for railroad carriers to furnish, or to be
against them distinctively as colored -- exemption from
                                                                  required by law to furnish, equal accommodations for all
legal discriminations, implying inferiority in civil
                                                                  whom they are under a legal duty to carry. It is quite
society, lessening the security of their enjoyment of the
                                                                  another thing for government to forbid citizens of the
rights which others enjoy, and discriminations which are
                                                                  white and black races from travelling in the same public
steps towards reducing them to the condition of a subject
                                                                  conveyance, and to punish officers of railroad companies
race." It was, consequently, adjudged that a state law that
                                                                  for permitting persons of the two races to occupy the
excluded citizens of the colored race from juries, because
                                                                  same passenger coach. If a State can prescribe, as a rule
of their race and however well qualified in other respects
                                                                  of civil conduct, that whites and blacks shall not travel as
to discharge the duties of jurymen, was repugnant to the
                                                                  passengers in the same railroad coach, why may it not so
Fourteenth Amendment. Strauder v. West Virginia, 100
                                                                  regulate the use of the streets of its cities and towns as to
U.S. 303, 306, 307; Virginia v. Rives, 100 U.S. 313; Ex
                                                                  compel white citizens to keep on one side of a street and
parte Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S.
                                                                  black citizens to keep on the other? Why may it not,
370, 386; Bush v. Kentucky, 107 U.S. 110, 116. At the
                                                                  upon like grounds, punish whites and blacks who ride
present term, referring to the previous adjudications, this
                                                                  together in street cars or in open vehicles on a public
court declared that "underlying all of those decisions is
                                                                  road [*558] of street? Why may it not require sheriffs to
the principle that the Constitution of the United States, in
                                                                  assign whites to one side of a court-room and blacks to
its present form, forbids, so far as civil and political
                                                                  the other? And why may it not also prohibit the
rights are concerned, discrimination by the General
                                                                  commingling of the two races in the galleries of
Government or the States against any citizen because of
                                                                  legislative halls or in public assemblages convened for
his race. All citizens are equal before the law." Gibson
                                                                  the considerations of the political questions of the day?
v. Mississippi, 162 U.S. 565.
                                                                  Further, if this statute of Louisiana is consistent with the
     The decisions referred to show the scope of the              personal liberty of citizens, why may not the State
recent amendments of the Constitution. They also show             require the separation in railroad coaches of native and
that it is not within the power of a State to prohibit            naturalized citizens of the United States, or of Protestants
colored citizens, because of their race, from participating       and Roman Catholics?
as jurors in the administration of justice.
                                                                       The answer given at the argument to these questions
     It was said in argument that the statute of Louisiana        was that regulations of the kind they suggest would be
does [*557] not discriminate against either race, but             unreasonable, and could not, therefore, stand before the
prescribes a rule applicable alike to white and colored           law. Is it meant that the determination of questions of
citizens. But this argument does not meet the difficulty.         legislative power depends upon the inquiry whether the
Every one knows that the statute in question had its              statute whose validity is questioned is, in the judgment of
origin in the purpose, not so much to exclude white               the courts, a reasonable one, taking all the circumstances
persons from railroad cars occupied by blacks, as to              into consideration? A statute may be unreasonable
exclude colored people from coaches occupied by or                merely because a sound public policy forbade its
assigned to white persons. Railroad corporations of               enactment. But I do not understand that the courts have
Louisiana did not make discrimination among whites in             anything to do with the policy or expediency of
the matter of accommodation for travellers. The thing to          legislation. A statute may be valid, and yet, upon
accomplish was, under the guise of giving equal                   grounds of public policy, may well be characterized as
accommodation for whites and blacks, to compel the                unreasonable. Mr. Sedgwick correctly states the rule
latter to keep to themselves while travelling in railroad         when he says that the legislative intention being clearly
passenger coaches. No one would be so wanting in                  ascertained, "the courts have no other duty to perform
candor as to assert the contrary. The fundamental                 than to execute the legislative will, without any regard to
objection, therefore, to the statute is that it interferes with   their views as to the wisdom or justice of the particular
the personal freedom of citizens. "Personal liberty," it          enactment." Stat. & Const. Constr. 324. There is a
has been well said, "consists in the power of locomotion,         dangerous tendency in these latter days to enlarge the
of changing situation, or removing one's person to                functions of the courts, by means of judicial interference
whatsoever places one's own inclination may direct,               with the will of the people as expressed by the
without imprisonment or restraint, unless by due course           legislature. Our institutions have the distinguishing
of law." 1 Bl. Com. *134. If a white man and a black              characteristic that the three departments of government
man choose to occupy the same public conveyance on a              are coordinate and separate. Each must keep within the
public highway, it is their right to do so, and no                limits defined by the Constitution. And the courts best


                                                                                                                               6
discharge their duty by executing the will of the law-           supposed, had eradicated these principles from our
making power, constitutionally expressed, leaving the            institutions. But it seems that we have yet, in some of
results of legislation to be dealt with by the people            the States, a dominant race -- a superior class of citizens,
through their representatives. Statutes must always have         which assumes to regulate the enjoyment of civil rights,
a reasonable construction. Sometimes they are to be              common to all citizens, upon the basis of race. The
construed strictly; sometimes, liberally, in order to carry      present decision, it may well be apprehended, will not
out the legislative [*559] will. But however construed,          only stimulate aggressions, more or less brutal and
the intent of the legislature is to be respected, if the         irritating, upon the admitted rights of colored citizens,
particular statute in question is valid, although the courts,    but will encourage the belief that it is possible, by means
looking at the public interests, may conceive the statute        of state enactments, to defeat the beneficent purposes
to be both unreasonable and impolitic. If the power              which the people of the United States had in view when
exists to enact a statute, that ends the matter so far as the    they adopted the recent amendments of the Constitution,
courts are concerned. The adjudged cases in which                by one of which the blacks of this country were made
statutes have been held to be void, because unreasonable,        citizens of the United States and of the States in which
are those in which the means employed by the legislature         they respectively reside, and whose privileges and
were not at all germane to the end to which the                  immunities, as citizens, the States are forbidden to
legislature was competent.                                       abridge. Sixty millions of whites are in no danger from
                                                                 the presence here of eight millions of blacks. The
      The white race deems itself to be the dominant race
                                                                 destinies of the two races, in this country, are
in this country. And so it is, in prestige, in achievements,
                                                                 indissolubly linked together, and the interests of both
in education, in wealth and in power. So, I doubt not, it
                                                                 require that the common government of all shall not
will continue to be for all time, if it remains true to its
                                                                 permit the seeds of race hate to be planted under the
great heritage and holds fast to the principles of
                                                                 sanction of law. What can more certainly arouse race
constitutional liberty. But in view of the Constitution, in
                                                                 hate, what more certainly create and perpetuate a feeling
the eye of the law, there is in this country no superior,
                                                                 of distrust between these races, than state enactments,
dominant, ruling class of citizens. There is no caste here.
                                                                 which, in fact, proceed on the ground that colored
Our Constitution is color-blind, and neither knows nor
                                                                 citizens are so inferior and degraded that they cannot be
tolerates classes among citizens. In respect of civil
                                                                 allowed to sit in public coaches occupied by white
rights, all citizens are equal before the law. The
                                                                 citizens? That, as all will admit, is the real meaning of
humblest is the peer of the most powerful. The law
                                                                 such legislation as was enacted in Louisiana.
regards man as man, and takes no account of his
surroundings or of his color when his civil rights as                 The sure guarantee of the peace and security of each
guaranteed by the supreme law of the land are involved.          race is the clear, distinct, unconditional recognition by
It is, therefore, to be regretted that this high tribunal, the   our governments, National and State, of every right that
final expositor of the fundamental law of the land, has          inheres in civil freedom, and of the equality before the
reached the conclusion that it is competent for a State to       law of all citizens of the United States without regard to
regulate the enjoyment by citizens of their civil rights         race. State enactments, regulating the enjoyment of civil
solely upon the basis of race.                                   rights, upon the basis of race, and cunningly devised to
                                                                 defeat legitimate results of the [*561] war, under the
     In my opinion, the judgment this day rendered will,
                                                                 pretence of recognizing equality of rights, can have no
in time, prove to be quite as pernicious as the decision
                                                                 other result than to render permanent peace impossible,
made by this tribunal in the Dred Scott case. It was
                                                                 and to keep alive a conflict of races, the continuance of
adjudged in that case that the descendants of Africans
                                                                 which must do harm to all concerned. This question is
who were imported into this country and sold as slaves
                                                                 not met by the suggestion that social equality cannot
were not included nor intended to be included under the
                                                                 exist between the white and black races in this country.
word "citizens" in the Constitution, and could not claim
                                                                 That argument, if it can be properly regarded as one, is
any of the rights and privileges which that instrument
                                                                 scarcely worthy of consideration; for social equality no
provided for and secured to citizens of the United States;
                                                                 more exists between two races when travelling in a
that at the time of the adoption of the Constitution they
                                                                 passenger coach or a public highway than when
were "considered as a subordinate and inferior class of
                                                                 members of the same races sit by each other in a street
beings, who had been subjugated by the dominant
                                                                 car or in the jury box, or stand or sit with each other in a
[*560]     race, and, whether emancipated or not, yet
                                                                 political assembly, or when they use in common the
remained subject to their authority, and had no rights or
                                                                 streets of a city or town, or when they are in the same
privileges but such as those who held the power and the
                                                                 room for the purpose of having their names placed on the
government might choose to grant them." 19 How. 393,
                                                                 registry of voters, or when they approach the ballot-box
404. The recent amendments of the Constitution, it was
                                                                 in order to exercise the high privilege of voting.


                                                                                                                           7
     There is a race so different from our own that we do       that astute men of the dominant race, who affect to be
not permit those belonging to it to become citizens of the      disturbed at the possibility that the integrity of the white
United States. Persons belonging to it are, with few            race may be corrupted, or that its supremacy will be
exceptions, absolutely excluded from our country. I             imperilled, by contact on public highways with black
allude to the Chinese race. But by the statute in question,     people, will endeavor to procure statutes requiring white
a Chinaman can ride in the same passenger coach with            and black jurors to be separated in the jury box by a
white citizens of the United States, while citizens of the      "partition," and that, upon retiring from the court room to
black race in Louisiana, many of whom, perhaps, risked          consult as to their verdict, such partition, if it be a
their lives for the preservation of the Union, who are          moveable one, shall be taken to their consultation room,
entitled, by law, to participate in the political control of    and set up in such way as to prevent black jurors from
the State and nation, who are not excluded, by law or by        coming too close to their brother jurors of the white race.
reason of their race, from public stations of any kind, and     If the "partition" used in the court room happens to be
who have all the legal rights that belong to white              stationary, provision could be made for screens with
citizens, are yet declared to be criminals, liable to           openings through [*563] which jurors of the two races
imprisonment, if they ride in a public coach occupied by        could confer as to their verdict without coming into
citizens of the white race. It is scarcely just to say that a   personal contact with each other. I cannot see but that,
colored citizen should not object to occupying a public         according to the principles this day announced, such state
coach assigned to his own race. He does not object, nor,        legislation, although conceived in hostility to, and
perhaps, would he object to separate coaches for his race,      enacted for the purpose of humiliating citizens of the
if his rights under the law were recognized. But he             United States of a particular race, would be held to be
objects, and ought never to cease objecting to the              consistent with the Constitution.
proposition, that citizens of the white and black races can
                                                                     I do not deem it necessary to review the decisions of
be adjudged criminals because they sit, or claim the right
                                                                state courts to which reference was made in argument.
to sit, in the same public coach on a public highway.
                                                                Some, and the most important, of them are wholly
     [*562] The arbitrary separation of citizens, on the        inapplicable, because rendered prior to the adoption of
basis of race, while they are on a public highway, is a         the last amendments of the Constitution, when colored
badge of servitude wholly inconsistent with the civil           people had very few rights which the dominant race felt
freedom and the equality before the law established by          obliged to respect. Others were made at a time when
the Constitution. It cannot be justified upon any legal         public opinion, in many localities, was dominated by the
grounds.                                                        institution of slavery; when it would not have been safe
                                                                to do justice to the black man; and when, so far as the
      If evils will result from the commingling of the two
                                                                rights of blacks were concerned, race prejudice was,
races upon public highways established for the benefit of
                                                                practically, the supreme law of the land. Those decisions
all, they will be infinitely less than those that will surely
                                                                cannot be guides in the era introduced by the recent
come from state legislation regulating the enjoyment of
                                                                amendments of the supreme law, which established
civil rights upon the basis of race. We boast of the
                                                                universal civil freedom, gave citizenship to all born or
freedom enjoyed by our people above all other peoples.
                                                                naturalized in the United States and residing her,
But it is difficult to reconcile that boast with a state of
                                                                obliterated the race line from our systems of
the law which, practically, puts the brand of servitude
                                                                governments, National and State, and placed our free
and degradation upon a large class of our fellow-citizens,
                                                                institutions upon the broad and sure foundation of the
our equals before the law. The thin disguise of "equal"
                                                                equality of all men before the law.
accommodations for passengers in railroad coaches will
not mislead any one, nor atone for the wrong this day                I am of opinion that the statute of Louisiana is
done.                                                           inconsistent with the personal liberty of citizens, white
                                                                and black, in that State, and hostile to both the spirit and
     The result of the whole matter is, that while this
                                                                letter of the Constitution of the United States. If laws of
court has frequently adjudged, and at the present term
                                                                like character should be enacted in the several States of
has recognized the doctrine, that a State cannot,
                                                                the Union, the effect would be in the highest degree
consistently with the Constitution of the United States,
                                                                mischievous. Slavery, as an institution tolerated by law
prevent white and black citizens, having the required
                                                                would, it is true, have disappeared from our country, but
qualifications for jury service, from sitting in the same
                                                                there would remain a power in the States, by sinister
jury box, it is now solemnly held that a State may
                                                                legislation, to interfere with the full enjoyment of the
prohibit white and black citizens from sitting in the same
                                                                blessings of freedom; to regulate civil rights, common to
passenger coach on a public highway, or may require
                                                                all citizens, upon the basis of race; and to place in a
that they be separated by a "partition," when in the same
                                                                condition of legal inferiority a large body of American
passenger coach. May it not now be reasonably expected


                                                                                                                          8
citizens, now constituting a part of the political          the supreme law of the land, anything in the constitution
community called the [*564] People of the United            or laws of any State to the contrary notwithstanding.
States, for whom, and by whom through representatives,
                                                                For the reasons stated, I am constrained to withhold
our government is administered. Such a system is
                                                            my assent from the opinion and judgment of the
inconsistent with the guarantee given by the Constitution
                                                            majority.
to each State of a republican form of government, and
may be stricken down by Congressional action, or by the         MR. JUSTICE BREWER did not hear the argument
courts in the discharge of their solemn duty to maintain    or participate in the decision of this case.




                                                                                                                   9
Brown v. Board of Education of Topeka




                                        10
                       BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL.

                                                          No. 1

                                     SUPREME COURT OF THE UNITED STATES

                     347 U.S. 483; 74 S. Ct. 686; 98 L. Ed. 873; 1954 U.S. LEXIS 2094; 53 Ohio Op.
                                                326; 38 A.L.R.2d 1180

                                               December 9, 1952, Argued

                                                 May 17, 1954, Decided



SUBSEQUENT HISTORY:                                           of the full development of public education and its
                                                              present place in American life throughout the Nation.
                                                              Pp. 492-493.
    Reargued December 8, 1953.
                                                                   (c) Where a State has undertaken to provide an
                                                              opportunity for an education in its public schools, such
PRIOR HISTORY:
                                                              an opportunity is a right which must be made available to
   APPEAL FROM THE UNITED STATES
                                                              all on equal terms. P. 493.
DISTRICT COURT FOR THE DISTRICT OF
KANSAS. *                                                          (d) Segregation of children in public schools solely
                                                              on the basis of race deprives children of the minority
            * Together with No. 2, Briggs et al. v. Elliott
                                                              group of equal educational opportunities, even though
       et al., on appeal from the United States District
                                                              the physical facilities and other "tangible" factors may be
       Court for the Eastern District of South Carolina,
                                                              equal. Pp. 493-494.
       argued December 9-10, 1952, reargued December
       7-8, 1953; No. 4, Davis et al. v. County School             (e) The "separate but equal" doctrine adopted in
       Board of Prince Edward County, Virginia, et al.,       Plessy v. Ferguson, 163 U.S. 537, has no place in the
       on appeal from the United States District Court        field of public education. P. 495.
       for the Eastern District of Virginia, argued
                                                                   (f) The cases are restored to the docket for further
       December 10, 1952, reargued December 7-8,
                                                              argument on specified questions relating to the forms of
       1953; and No. 10, Gebhart et al. v. Belton et al.,
                                                              the decrees. Pp. 495-496.
       on certiorari to the Supreme Court of Delaware,
       argued December 11, 1952, reargued December
       9, 1953.                                               COUNSEL:
                                                                  Robert L. Carter argued the cause for appellants in
SYLLABUS:                                                     No. 1 on the original argument and on the reargument.
                                                              Thurgood Marshall argued the cause for appellants in
    Segregation of white and Negro children in the            No. 2 on the original argument and Spottswood W.
public schools of a State solely on the basis of race,        Robinson, III, for appellants in No. 4 on the original
pursuant to state laws permitting or requiring such           argument, and both argued the causes for appellants in
segregation, denies to Negro children the equal               Nos. 2 and 4 on the reargument. Louis L. Redding and
protection of the laws guaranteed by the Fourteenth           Jack Greenberg argued the cause for respondents in No.
Amendment -- even though the physical facilities and          10 on the original argument and Jack Greenberg and
other "tangible" factors of white and Negro schools may       Thurgood Marshall on the reargument.
be equal. Pp. 486-496.
                                                                   On the briefs were Robert L. Carter, Thurgood
    (a) The history of the Fourteenth Amendment is            Marshall, Spottswood W. Robinson, III, Louis L.
inconclusive as to its intended effect on public education.   Redding, Jack Greenberg, George E. C. Hayes, William
Pp. 489-490.                                                  R. Ming, Jr., Constance Baker Motley, James M. Nabrit,
                                                              Jr., Charles S. Scott, Frank D. Reeves, Harold R.
     (b) The question presented in these cases must be
                                                              Boulware and Oliver W. Hill for appellants in Nos. 1, 2
determined, not on the basis of conditions existing when
                                                              and 4 and respondents in No. 10; George M. Johnson for
the Fourteenth Amendment was adopted, but in the light


                                                                                                                      11
appellants in Nos. 1, 2 and 4; and Loren Miller for          JUDGES:
appellants in Nos. 2 and 4. Arthur D. Shores and A. T.           Warren, Black, Reed, Frankfurter, Douglas, Jackson,
Walden were on the Statement as to Jurisdiction and a        Burton, Clark, Minton
brief opposing a Motion to Dismiss or Affirm in No. 2.
                                                             OPINIONBY:
     Paul E. Wilson, Assistant Attorney General of
                                                                WARREN
Kansas, argued the cause for appellees in No. 1 on the
original argument and on the reargument. With him on
                                                             OPINION:
the briefs was Harold R. Fatzer, Attorney General.
    John W. Davis argued the cause for appellees in No.         [*486] [**687] [***876] MR. CHIEF JUSTICE
2 on the original argument and for appellees in Nos. 2       WARREN delivered the opinion of the Court.
and 4 on the reargument. With him on the briefs in No. 2
were T. C. Callison, Attorney General of South Carolina,
Robert McC. Figg, Jr., S. E. Rogers, William R. Meagher
                                                                  These cases come to us from the States of Kansas,
and Taggart Whipple.
                                                             South Carolina, Virginia, and Delaware. They are
     J. Lindsay Almond, Jr., Attorney General of             premised on different facts and different local conditions,
Virginia, and T. Justin Moore argued the cause for           but a common legal question justifies their consideration
appellees in No. 4 on the original argument and for          together in this consolidated opinion. n1
appellees in Nos. 2 and 4 on the reargument. On the
briefs in No. 4 were J. Lindsay Almond, Jr., Attorney
General, and Henry T. Wickham, Special Assistant                         n1 In the Kansas case, Brown v. Board of
Attorney General, for the State of Virginia, and T. Justin          Education, the plaintiffs are Negro children of
Moore, Archibald G. Robertson, John W. Riely and T.                 elementary school age residing in Topeka. They
Justin Moore, Jr. for the Prince Edward County School               brought this action in the United States District
Authorities, appellees.                                             Court for the District of Kansas to enjoin
                                                                    enforcement of a Kansas statute which permits,
    H. Albert Young, Attorney General of Delaware,
                                                                    but does not require, cities of more than 15,000
argued the cause for petitioners in No. 10 on the original
                                                                    population to maintain separate school facilities
argument and on the reargument. With him on the briefs
                                                                    for Negro and white students. Kan. Gen. Stat. §
was Louis J. Finger, Special Deputy Attorney General.
                                                                    72-1724 (1949). Pursuant to that authority, the
     By special leave of Court, Assistant Attorney                  Topeka Board of Education elected to establish
General Rankin argued the cause for the United States on            segregated elementary schools. Other public
the reargument, as amicus curiae, urging reversal in Nos.           schools in the community, however, are operated
1, 2 and 4 and affirmance in No. 10. With him on the                on a nonsegregated basis.        The three-judge
brief were Attorney General Brownell, Philip Elman,                 District Court, convened under 28 U. S. C. § §
Leon Ulman, William J. Lamont and M. Magdelena                      2281 and 2284, found that segregation in public
Schoch. James P. McGranery, then Attorney General,                  education has a detrimental effect upon Negro
and Philip Elman filed a brief for the United States on             children, but denied relief on the ground that the
the original argument, as amicus curiae, urging reversal            Negro and white schools were substantially equal
in Nos. 1, 2 and 4 and affirmance in No. 10.                        with respect to buildings, transportation,
                                                                    curricula, and educational qualifications of
     Briefs of amici curiae supporting appellants in No. 1
                                                                    teachers. 98 F.Supp. 797. The case is here on
were filed by Shad Polier, Will Maslow and Joseph B.
                                                                    direct appeal under 28 U. S. C. § 1253.
Robison for the American Jewish Congress; by Edwin J.
Lukas, Arnold Forster, Arthur Garfield Hays, Frank E.                    In the South Carolina case, Briggs v. Elliott,
Karelsen, Leonard Haas, Saburo Kido and Theodore                    the plaintiffs are Negro children of both
Leskes for the American Civil Liberties Union et al.; and           elementary and high school age residing in
by John Ligtenberg and Selma M. Borchardt for the                   Clarendon County. They brought this action in
American Federation of Teachers. Briefs of amici curiae             the United States District Court for the Eastern
supporting appellants in No. 1 and respondents in No. 10            District of South Carolina to enjoin enforcement
were filed by Arthur J. Goldberg and Thomas E. Harris               of provisions in the state constitution and
for the Congress of Industrial Organizations and by                 statutory code which require the segregation of
Phineas Indritz for the American Veterans Committee,                Negroes and whites in public schools. S. C.
Inc.                                                                Const., Art. XI, § 7; S. C. Code § 5377 (1942).
                                                                    The three-judge District Court, convened under


                                                                                                                     12
28 U. S. C. § § 2281 and 2284, denied the                     white children, on the ground that the Negro
requested relief. The court found that the Negro              schools were inferior with respect to teacher
schools were inferior to the white schools and                training, pupil-teacher ratio, extracurricular
ordered the defendants to begin immediately to                activities, physical plant, and time and distance
equalize the facilities. But the court sustained the          involved in travel. 87 A. 2d 862. The Chancellor
validity of the contested provisions and denied               also found that segregation itself results in an
the plaintiffs admission to the white schools                 inferior education for Negro children (see note
during the equalization program. 98 F.Supp. 529.              10, infra), but did not rest his decision on that
This Court vacated the District Court's judgment              ground. Id., at 865. The Chancellor's decree was
and remanded the case for the purpose of                      affirmed by the Supreme Court of Delaware,
obtaining the court's views on a report filed by              which intimated, however, that the defendants
the defendants concerning the progress made in                might be able to obtain a modification of the
the equalization program. 342 U.S. 350. On                    decree after equalization of the Negro and white
remand, the District Court found that substantial             schools had been accomplished. 91 A. 2d 137,
equality had been achieved except for buildings               152. The defendants, contending only that the
and that the defendants were proceeding to rectify            Delaware courts had erred in ordering the
this inequality as well. 103 F.Supp. 920. The                 immediate admission of the Negro plaintiffs to
case is again here on direct appeal under 28 U. S.            the white schools, applied to this Court for
C. § 1253.                                                    certiorari. The writ was granted, 344 U.S. 891.
                                                              The plaintiffs, who were successful below, did
     In the Virginia case, Davis v. County School
                                                              not submit a cross-petition.
Board, the plaintiffs are Negro children of high
school age residing in Prince Edward County.
They brought this action in the United States
District Court for the Eastern District of Virginia
                                                             [*487] [**688] [***877] In each of the cases,
to enjoin enforcement of provisions in the state
                                                       minors of the Negro race, through their legal
constitution and statutory code which require the
                                                       representatives, seek the aid of the courts in obtaining
segregation of Negroes and whites in public
                                                       admission to the public schools of their community on a
schools. Va. Const., § 140; Va. Code § 22-221
                                                       nonsegregated basis. In each instance, [*488] they had
(1950). The three-judge District Court, convened
                                                       been denied admission to schools attended by white
under 28 U. S. C. § § 2281 and 2284, denied the
                                                       children under laws requiring or permitting segregation
requested relief. The court found the Negro
                                                       according to race. This segregation was alleged to
school inferior in physical plant, curricula, and
                                                       deprive the plaintiffs of the equal protection of the laws
transportation, and ordered the defendants
                                                       under the Fourteenth Amendment. In each of the cases
forthwith to provide substantially equal curricula
                                                       other than the Delaware case, a three-judge federal
and transportation and to "proceed with all
                                                       district court denied relief to the plaintiffs on the so-
reasonable diligence and dispatch to remove" the
                                                       called "separate but equal" doctrine announced by this
inequality in physical plant. But, as in the South
                                                       Court in Plessy v. Ferguson, 163 U.S. 537. Under that
Carolina case, the court sustained the validity of
                                                       doctrine, equality of treatment is accorded when the
the contested provisions and denied the plaintiffs
                                                       races are provided substantially equal facilities, even
admission to the white schools during the
                                                       though these facilities be separate. In the Delaware case,
equalization program. 103 F.Supp. 337. The case
                                                       the Supreme Court of Delaware adhered to that doctrine,
is here on direct appeal under 28 U. S. C. § 1253.
                                                       but ordered that the plaintiffs be admitted to the white
     In the Delaware case, Gebhart v. Belton, the      schools because of their superiority to the Negro schools.
plaintiffs are Negro children of both elementary
                                                           The plaintiffs contend that segregated public schools
and high school age residing in New Castle
                                                       are not "equal" and cannot be made "equal," and that
County.      They brought this action in the
                                                       hence they are deprived of the equal protection of the
Delaware Court of Chancery to enjoin
                                                       laws. Because of the obvious importance of the question
enforcement of provisions in the state
                                                       presented, the Court took jurisdiction. n2 Argument was
constitution and statutory code which require the
                                                       heard in the 1952 Term, and reargument was heard this
segregation of Negroes and whites in public
                                                       Term on certain questions propounded by the Court. n3
schools. Del. Const., Art. X, § 2; Del. Rev. Code
§ 2631 (1935). The Chancellor gave judgment
for the plaintiffs and ordered their immediate
                                                                   n2 344 U.S. 1, 141, 891.
admission to schools previously attended only by


                                                                                                              13
           n3 345 U.S. 972. The Attorney General of                        n4 For a general study of the development of
       the United States participated both Terms as                  public education prior to the Amendment, see
       amicus curiae.                                                Butts and Cremin, A History of Education in
                                                                     American Culture (1953), Pts. I, II; Cubberley,
                                                                     Public Education in the United States (1934 ed.),
     [*489]                                                          cc. II-XII. School practices current at the time of
                                                                     the adoption of the Fourteenth Amendment are
                                                                     described in Butts and Cremin, supra, at 269-275;
 Reargument was largely devoted to the circumstances
                                                                     Cubberley, supra, at 288-339, 408-431; Knight,
surrounding the adoption of the Fourteenth Amendment                 Public Education in the South (1922), cc. VIII,
in 1868. It covered exhaustively consideration of the                IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d
Amendment in Congress, ratification by the states, then
                                                                     Sess. (1871). Although the demand for free
existing practices [***878] in racial segregation, and
                                                                     public schools followed substantially the same
the views of proponents and opponents of the
                                                                     pattern in both the North and the South, the
Amendment. This discussion and our own investigation
                                                                     development in the South did not begin to gain
convince us that, although these sources cast some light,            momentum until about 1850, some twenty years
it [**689] is not enough to resolve the problem with                 after that in the North. The reasons for the
which we are faced. At best, they are inconclusive. The
                                                                     somewhat slower development in the South (e. g.,
most avid proponents of the post-War Amendments
                                                                     the rural character of the South and the different
undoubtedly intended them to remove all legal
                                                                     regional attitudes toward state assistance) are
distinctions among "all persons born or naturalized in the
                                                                     well explained in Cubberley, supra, at 408-423.
United States." Their opponents, just as certainly, were             In the country as a whole, but particularly in the
antagonistic to both the letter and the spirit of the                South, the War virtually stopped all progress in
Amendments and wished them to have the most limited
                                                                     public education. Id., at 427-428. The low status
effect. What others in Congress and the state legislatures
                                                                     of Negro education in all sections of the country,
had in mind cannot be determined with any degree of
                                                                     both before and immediately after the War, is
certainty.                                                           described in Beale, A History of Freedom of
     An additional reason for the inconclusive nature of             Teaching in American Schools (1941), 112-132,
the Amendment's history, with respect to segregated                  175-195. Compulsory school attendance laws
schools, is the status of public education at that time. n4          were not generally adopted until after the
In the South, the movement toward free common                        ratification of the Fourteenth Amendment, and it
schools, supported [*490] by general taxation, had not               was not until 1918 that such laws were in force in
yet taken hold. Education of white children was largely              all the states. Cubberley, supra, at 563-565.
in the hands of private groups. Education of Negroes
was almost nonexistent, and practically all of the race
were illiterate. In fact, any education of Negroes was
forbidden by law in some states. Today, in contrast,               In the first cases in this Court construing the
many Negroes have achieved outstanding success in the         Fourteenth Amendment, decided shortly after its
arts and sciences as well as in the business and              adoption, the Court interpreted it as proscribing all state-
professional world.       It is true that public school       imposed discriminations against the Negro race. n5 The
education at the time of the Amendment had advanced           doctrine of [*491] "separate but [**690] equal" did not
further in the North, but the effect of the Amendment on      make its appearance [***879] in this Court until 1896
Northern States was generally ignored in the                  in the case of Plessy v. Ferguson, supra, involving not
congressional debates. Even in the North, the conditions      education but transportation. n6 American courts have
of public education did not approximate those existing        since labored with the doctrine for over half a century.
today.     The curriculum was usually rudimentary;            In this Court, there have been six cases involving the
ungraded schools were common in rural areas; the school       "separate but equal" doctrine in the field of public
term was but three months a year in many states; and          education. n7 In Cumming v. County Board of
compulsory school attendance was virtually unknown.           Education, 175 U.S. 528, and Gong Lum v. Rice, 275
As a consequence, it is not surprising that there should be   U.S. 78, the validity of the doctrine itself was not
so little in the history of the Fourteenth Amendment          challenged. n8 In more recent cases, all on the graduate
relating to its intended effect on public education.          school [*492] level, inequality was found in that
                                                              specific benefits enjoyed by white students were denied
                                                              to Negro students of the same educational qualifications.
                                                              Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel


                                                                                                                       14
v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S.                   n7 See also Berea College v. Kentucky, 211
629; McLaurin v. Oklahoma State Regents, 339 U.S.                    U.S. 45 (1908).
637. In none of these cases was it necessary to re-
                                                                          n8 In the Cumming case, Negro taxpayers
examine the doctrine to grant relief to the Negro
                                                                     sought an injunction requiring the defendant
plaintiff. And in Sweatt v. Painter, supra, the Court
                                                                     school board to discontinue the operation of a
expressly reserved decision on the question whether
                                                                     high school for white children until the board
Plessy v. Ferguson should be held inapplicable to public
                                                                     resumed operation of a high school for Negro
education.
                                                                     children. Similarly, in the Gong Lum case, the
                                                                     plaintiff, a child of Chinese descent, contended
                                                                     only that state authorities had misapplied the
           n5 Slaughter-House Cases, 16 Wall. 36, 67-
                                                                     doctrine by classifying him with Negro children
       72 (1873); Strauder v. West Virginia, 100 U.S.
                                                                     and requiring him to attend a Negro school.
       303, 307-308 (1880):

       "It ordains that no State shall deprive any person          In the instant cases, that question is directly
       of life, liberty, or property, without due process     presented. Here, unlike Sweatt v. Painter, there are
       of law, or deny to any person within its               findings below that the Negro and white schools
       jurisdiction the equal protection of the laws.         involved have been equalized, or are being equalized,
       What is this but declaring that the law in the         with respect to buildings, curricula, qualifications and
       States shall be the same for the black as for the      salaries of teachers, and other "tangible" factors. n9 Our
       white; that all persons, whether colored or white,     decision, therefore, cannot turn on merely a [***880]
       shall stand equal before the laws of the States,       comparison of these tangible factors [**691] in the
       and, in regard to the colored race, for whose          Negro and white schools involved in each of the cases.
       protection the amendment was primarily                 We must look instead to the effect of segregation itself
       designed, that no discrimination shall be made         on public education.
       against them by law because of their color? The
       words of the amendment, it is true, are
       prohibitory, but they contain a necessary                          n9 In the Kansas case, the court below found
       implication of a positive immunity, or right, most            substantial equality as to all such factors. 98
       valuable to the colored race, -- the right to                 F.Supp. 797, 798. In the South Carolina case, the
       exemption from unfriendly legislation against                 court below found that the defendants were
       them distinctively as colored, -- exemption from              proceeding "promptly and in good faith to
       legal discriminations, implying inferiority in civil          comply with the court's decree." 103 F.Supp. 920,
       society, lessening the security of their enjoyment            921. In the Virginia case, the court below noted
       of the rights which others enjoy, and                         that the equalization program was already "afoot
       discriminations which are steps towards reducing              and progressing" (103 F.Supp. 337, 341); since
       them to the condition of a subject race."                     then, we have been advised, in the Virginia
                                                                     Attorney General's brief on reargument, that the
       See also Virginia v. Rives, 100 U.S. 313, 318                 program has now been completed. In the
       (1880); Ex parte Virginia, 100 U.S. 339, 344-345              Delaware case, the court below similarly noted
       (1880).                                                       that the state's equalization program was well
                                                                     under way. 91 A. 2d 137, 149.
            n6 The doctrine apparently originated in
       Roberts v. City of Boston, 59 Mass. 198, 206
       (1850), upholding school segregation against
       attack as being violative of a state constitutional
       guarantee of equality. Segregation in Boston
       public schools was eliminated in 1855. Mass.
                                                                  In approaching this problem, we cannot turn the
       Acts 1855, c. 256. But elsewhere in the North
                                                              clock back to 1868 when the Amendment was adopted,
       segregation in public education has persisted in
                                                              or even to 1896 when Plessy v. Ferguson was written.
       some communities until recent years. It is
       apparent that such segregation has long been a         We must consider public education in the light of its full
       nationwide problem, not merely one of sectional        development and its present place in American life
                                                              throughout [*493] the Nation. Only in this way can it
       concern.
                                                              be determined if segregation in public schools deprives
                                                              these plaintiffs of the equal protection of the laws.

                                                                                                                     15
                                                               usually interpreted as denoting the inferiority of the
                                                               negro group.      A sense of inferiority affects the
                                                               motivation of a child to learn. Segregation with the
     Today, education is perhaps the most important
                                                               sanction of law, therefore, has a tendency to [retard] the
function of state and local governments. Compulsory
                                                               educational and mental development of negro children
school attendance laws and the great expenditures for
                                                               and to deprive [***881] them of some of the benefits
education both demonstrate our recognition of the
                                                               they would receive in a racial[ly] integrated school
importance of education to our democratic society. It is
                                                               system." n10
required in the performance of our most basic public
responsibilities, even service in the armed forces. It is
the very foundation of good citizenship. Today it is a          [**692] Whatever may have been the extent of
principal instrument in awakening the child to cultural        psychological knowledge at the time of Plessy v.
values, in preparing him for later professional training,      Ferguson, this finding is amply supported by modern
and in helping him to adjust normally to his                   authority. n11 Any language [*495] in Plessy v.
environment. In these days, it is doubtful that any child      Ferguson contrary to this finding is rejected.
may reasonably be expected to succeed in life if he is
denied the opportunity of an education. Such an
                                                                          n10 A similar finding was made in the
opportunity, where the state has undertaken to provide it,
                                                                      Delaware case: "I conclude from the testimony
is a right which must be made available to all on equal
                                                                      that in our Delaware society, State-imposed
terms.
                                                                      segregation in education itself results in the
                                                                      Negro children, as a class, receiving educational
                                                                      opportunities which are substantially inferior to
                                                                      those available to white children otherwise
     We come then to the question presented: Does
                                                                      similarly situated." 87 A. 2d 862, 865.
[HN1] segregation of children in public schools solely on
the basis of race, even though the physical facilities and                 n11 K. B. Clark, Effect of Prejudice and
other "tangible" factors may be equal, deprive the                    Discrimination on Personality Development
children of the minority group of equal educational                   (Midcentury White House Conference on
opportunities? We believe that it does.                               Children and Youth, 1950); Witmer and
                                                                      Kotinsky, Personality in the Making (1952), c.
     In Sweatt v. Painter, supra, in finding that [HN2] a
                                                                      VI; Deutscher and Chein, The Psychological
segregated law school for Negroes could not provide
                                                                      Effects of Enforced Segregation: A Survey of
them equal educational opportunities, this Court relied in
                                                                      Social Science Opinion, 26 J. Psychol. 259
large part on "those qualities which are incapable of
                                                                      (1948); Chein, What are the Psychological
objective measurement but which make for greatness in a
                                                                      Effects of Segregation Under Conditions of Equal
law school." In McLaurin v. Oklahoma State Regents,
                                                                      Facilities?, 3 Int. J. Opinion and Attitude Res.
supra, the Court, [HN3] in requiring that a Negro
                                                                      229 (1949); Brameld, Educational Costs, in
admitted to a white graduate school be treated like all
                                                                      Discrimination and National Welfare (MacIver,
other students, again resorted to intangible
                                                                      ed., 1949), 44-48; Frazier, The Negro in the
considerations: "... his ability to study, to engage in
                                                                      United States (1949), 674-681.         And see
discussions and exchange views with other students, and,
                                                                      generally Myrdal, An American Dilemma (1944).
in general, to learn his profession." [*494] Such
considerations apply with added force to children in
grade and high schools. To separate them from others of
similar age and qualifications solely because of their race
generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a
                                                                   [HN5] We conclude that in the field of public
way unlikely ever to be undone. The effect of this
                                                               education the doctrine of "separate but equal" has no
separation on their educational opportunities was well
                                                               place. Separate educational facilities are inherently
stated by a finding in the Kansas case by a court which
                                                               unequal. Therefore, we hold that the plaintiffs and others
nevertheless felt compelled to rule against the Negro
                                                               similarly situated for whom the actions have been
plaintiffs:
                                                               brought are, by reason of the segregation complained of,
     [HN4] "Segregation of white and colored children in       deprived of the equal protection of the laws guaranteed
public schools has a detrimental effect upon the colored       by the Fourteenth Amendment. This disposition makes
children. The impact is greater when it has the sanction       unnecessary any discussion whether such segregation
of the law; for the policy of separating the races is


                                                                                                                      16
also violates the Due Process Clause of the Fourteenth               "(a) would a decree necessarily follow
Amendment. n12                                                   providing that, within the limits set by normal
                                                                 geographic school districting, Negro children
                                                                 should forthwith be admitted to schools of their
           n12 See Bolling v. Sharpe, post, p. 497,              choice, or
       concerning the Due Process Clause of the Fifth
                                                                     "(b) may this Court, in the exercise of its
       Amendment.
                                                                 equity powers, permit an effective gradual
                                                                 adjustment to be brought about from existing
                                                                 segregated systems to a system not based on
     Because these are class actions, because of the wide        color distinctions?
applicability of this decision, and because of the great
variety of local conditions, the formulation of decrees in            "5. On the assumption on which questions 4
these cases presents problems of considerable                    (a) and (b) are based, and assuming further that
complexity.      On reargument, the consideration of             this Court will exercise its equity powers to the
appropriate relief was necessarily subordinated to the           end described in question 4 (b),
primary question -- the constitutionality of segregation in
                                                                     "(a) should this Court formulate detailed
public education. We have now announced that such
                                                                 decrees in these cases;
segregation is a denial of the equal protection of the
laws. In order that we may have the full assistance of the           "(b) if so, what specific issues should the
parties in formulating decrees, the cases will be restored       decrees reach;
to the docket, and the parties are requested to present
                                                                     "(c) should this Court appoint a special
further argument on Questions 4 and 5 previously
                                                                 master to hear evidence with a view to
propounded by the Court for the reargument this Term.
                                                                 recommending specific terms for such decrees;
n13 The Attorney General [*496] of the United
[***882] States is again invited to participate. The                   "(d) should this Court remand to the courts of
Attorneys General of the states requiring or permitting          first instance with directions to frame decrees in
segregation in public education will also be permitted to        these cases, and if so what general directions
appear as amici curiae upon request to do so by                  should the decrees of this Court include and what
September 15, 1954, and submission of briefs by                  procedures should the courts of first instance
October 1, 1954. n14                                             follow in arriving at the specific terms of more
                                                                 detailed decrees?"
                                                                      n14 See Rule 42, Revised Rules of this Court
           n13 "4. Assuming it is decided that
                                                                 (effective July 1, 1954).
       segregation in public schools violates the
       Fourteenth Amendment
                                                              It is so ordered.




                                                                                                                  17
Regents of the University of California v. Bakke




                                                   18
                        REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE

                                                       No. 76-811

                                    SUPREME COURT OF THE UNITED STATES

                   438 U.S. 265; 98 S. Ct. 2733; 57 L. Ed. 2d 750; 1978 U.S. LEXIS 5; 17 Fair Empl.
                            Prac. Cas. (BNA) 1000; 17 Empl. Prac. Dec. (CCH) P8402

                                               October 12, 1977, Argued

                                                 June 28, 1978, Decided



DISPOSITION:                                                            assumption of the rule of law is the worthiness of
     18 Cal. 3d 34, 553 P. 2d 1152, affirmed in part and                a system of justice based on fairness to the
reversed in part.                                                       individual. As Mr. Justice Frankfurter declared
                                                                        in another connection, "[justice] must satisfy the
OPINION:                                                                appearance of justice." Offutt v. United States,
                                                                        348 U.S. 11, 14 (1954).
     [*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
                                                                    B
Housing Dev. Corp., 429 U.S. 252 (1977); Washington
v. Davis, 426 U.S. 229 (1976); Swain v. Alabama, 380
U.S. 202 (1965). n53                                           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.
            n53 Universities, like the prosecutor in          It tells applicants who are not Negro, Asian, or Chicano
       Swain, may make individualized decisions, in           that they are totally excluded from a specific percentage
       which ethnic background plays a part, under a          of the seats in an entering class. No matter how strong
       presumption of legality and legitimate                 their qualifications, quantitative and extracurricular,
       educational purpose. So long as the university         including their own potential for contribution to
       proceeds on an individualized, case-by-case            educational diversity, they are never afforded the chance
       basis, there is no warrant for judicial interference   to compete with applicants from the preferred groups for
       in the academic process. If an applicant can           the special admissions seats. At the same time, the
       establish that the institution does not adhere to a    preferred [*320] applicants have the opportunity to
       policy of individual comparisons, or can show          compete for every seat in the class.
       that a systematic exclusion of certain groups
                                                                   The fatal flaw in petitioner's preferential program is
       results, the presumption of legality might be
                                                              its disregard of individual rights as guaranteed by the
       overcome, creating the necessity of proving
                                                              Fourteenth Amendment. Shelley v. Kraemer, 334 U.S., at
       legitimate educational purpose.
                                                              22. Such rights are not absolute. But when a State's
            There also are strong policy reasons that         distribution of benefits or imposition of burdens hinges
       correspond to the constitutional distinction           on ancestry or the color of a person's skin, that individual
       between petitioner's preference program and one        is entitled to a demonstration that the challenged
       that assures a measure of competition among all        classification is necessary to promote a substantial state
       applicants. Petitioner's program will be viewed        interest. Petitioner has failed to carry this burden. For
       as inherently unfair by the public generally as        this reason, that portion of the California court's
       well as by applicants for admission to state           judgment holding petitioner's special admissions
       universities. Fairness in individual competition       program invalid under the Fourteenth Amendment must
       for opportunities, especially those provided by        be affirmed.
       the State, is a widely cherished American ethic.
                                                                    C
       Indeed, in a broader sense, an underlying


                                                                                                                       19
 In enjoining petitioner from ever considering the race of
                                                                           n55 This statement appears in the Appendix
any applicant, however, the courts below failed to
                                                                       to the Brief for Columbia University, Harvard
recognize that the State has a substantial interest that
                                                                       University, Stanford University, and the
legitimately may be served by a properly devised
                                                                       University of Pennsylvania, as Amici Curiae.
admissions program involving the competitive
consideration of race and ethnic origin. For this reason,
so much of the California court's judgment as enjoins
                                                                     For the past 30 years Harvard College has received
petitioner from any consideration of the race of any
applicant must be reversed.                                     each year applications for admission that greatly exceed
                                                                the number of places in the freshman class. The number
     VI                                                         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
 With respect to respondent's entitlement to an injunction
                                                                teachers' recommendations that they have the academic
directing his admission         to the Medical School,
                                                                ability to do adequate work at Harvard, and perhaps to do
petitioner has conceded that it could not carry its burden
                                                                it with distinction. Faced with the dilemma of choosing
of proving that, but for the existence of its unlawful
                                                                among a large number of "qualified" candidates, the
special admissions program, respondent still would not
                                                                Committee on Admissions could use the single criterion
have been admitted. Hence, respondent is entitled to the
                                                                of scholarly excellence and attempt to determine who
injunction, and that portion of the judgment must be
                                                                among the candidates were likely to perform best
affirmed. n54
                                                                academically. But for the past 30 years the Committee
                                                                on Admissions has never adopted this approach. The
               n54 There is no occasion for remanding the       belief has been that if scholarly excellence were the sole
          case to permit petitioner to reconstruct what         or even predominant criterion, Harvard College would
          might have happened if it had been operating the      lose a great deal of its vitality and intellectual excellence
          type of program described as legitimate in Part V,    and that the quality of the educational               [*322]
          supra. Cf. Mt. Healthy City Board of Ed. v.           experience offered to all students would suffer. Final
          Doyle, 429 U.S. 274, 284-287 (1977). In Mt.           Report of W. J. Bender, Chairman of the Admission and
          Healthy, there was considerable doubt whether         Scholarship Committee and Dean of Admissions and
          protected First Amendment activity had been the       Financial Aid, pp. 20 et seq. (Cambridge, 1960).
          "but for" cause of Doyle's protested discharge.       Consequently, after selecting those students whose
          Here, in contrast, there is no question as to the     intellectual potential will seem extraordinary to the
          sole reason for respondent's rejection --             faculty -- perhaps 150 or so out of an entering class of
          purposeful racial discrimination in the form of the   over 1,100 -- the Committee seeks --
          special admissions program. Having injured
          respondent solely on the basis of an unlawful
                                                                variety in making its choices. This has seemed important
          classification, petitioner cannot now hypothesize
                                                                ... in part because it adds a critical ingredient to the
          that it might have employed lawful means of
                                                                effectiveness of the educational experience [in Harvard
          achieving the same result. See Arlington Heights
                                                                College].... The effectiveness of our students'
          v. Metropolitan Housing Dev. Corp., 429 U.S., at
                                                                educational experience has seemed to the Committee to
          265-266. No one can say how -- or even if --
                                                                be affected as importantly by a wide variety of interests,
          petitioner would have operated its admissions
                                                                talents, backgrounds and career goals as it is by a fine
          process if it had known that legitimate
                                                                faculty and our libraries, laboratories and housing
          alternatives were available. Nor is there a record
                                                                arrangements. (Dean of Admissions Fred L. Glimp,
          revealing that legitimate alternative grounds for
                                                                Final Report to the Faculty of Arts and Sciences, 65
          the decision existed, as there was in Mt. Healthy.
                                                                Official Register of Harvard University No. 25, 93, 104-
          In sum, a remand would result in fictitious
                                                                105 (1968) (emphasis supplied).
          recasting of past conduct.
                                                                     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
     [*321] APPENDIX TO OPINION OF POWELL,                      ago, however, diversity meant students from California,
J.                                                              New York, and Massachusetts; city dwellers and farm
                                                                boys; violinists, painters and football players; biologists,
     Harvard College Admissions Program n55
                                                                historians and classicists; potential stockbrokers,


                                                                                                                          20
academics and politicians. The result was that very few       of the Mississippi who are to be admitted. It means only
ethnic or racial minorities attended Harvard College. In      that in choosing among thousands of applicants who are
recent years Harvard College has expanded the concept         not only "admissible" academically but have other strong
of diversity to include students from disadvantaged           qualities, the Committee, with a number of criteria in
economic, racial and ethnic groups. Harvard College           mind, pays some attention to distribution among many
now recruits not only Californians or Louisianans but         types and categories of students.
also blacks and Chicanos and other minority students.
                                                                    The further refinements sometimes required help to
Contemporary conditions in the United States mean that
                                                              illustrate the kind of significance attached to race. The
if Harvard College is to continue to offer a first-rate
                                                              Admissions Committee, with only a few places left to
education to its students, [*323] minority representation
                                                              fill, might find itself forced to choose between A, the
in the undergraduate body cannot be ignored by the
                                                              child of a successful black physician in an academic
Committee on Admissions.
                                                              community with promise of superior academic
     In practice, this new definition of diversity has        performance, and B, a black who grew up in an inner-
meant that race has been a factor in some admission           city ghetto of semi-literate parents whose academic
decisions. When the Committee on Admissions reviews           achievement was lower but who had demonstrated
the large middle group of applicants who are                  energy and leadership as well as an apparently-abiding
"admissible" and deemed capable of doing good work in         interest in black power. If a good number of black
their courses, the race of an applicant may tip the balance   students much like A but few like B had already been
in his favor just as geographic origin or a life spent on a   admitted, the Committee might prefer B; and vice versa.
farm may tip the balance in other candidates' cases. A        If C, a white student with extraordinary artistic talent,
farm boy from Idaho can bring something to Harvard            were also seeking one of the remaining places, his
College that a Bostonian cannot offer. Similarly, a           unique quality might give him an edge over both A and
black student can usually bring something that a white        B. Thus, the critical criteria are often individual qualities
person cannot offer. The quality of the educational           or experience not dependent upon race but sometimes
experience of all the students in Harvard College             associated with it.
depends in part on these differences in the background
and outlook that students bring with them.
                                                              CONCURBY:
     In Harvard College admissions the Committee has             BRENNAN (In Part); WHITE (In                        Part);
not set target-quotas for the number of blacks, or of         MARSHALL (In Part); BLACKMUN (In                       Part);
musicians, football players, physicists or Californians to    STEVENS (In Part)
be admitted in a given year. At the same time the
Committee is aware that if Harvard College is to provide      DISSENTBY:
a truly [heterogeneous] environment that reflects the rich       BRENNAN (In Part); WHITE (In                        Part);
diversity of the United States, it cannot be provided         MARSHALL (In Part); BLACKMUN (In                       Part);
without some attention to numbers. It would not make          STEVENS (In Part)
sense, for example, to have 10 or 20 students out of
1,100 whose homes are west of the Mississippi.                DISSENT:
Comparably, 10 or 20 black students could not begin to
bring to their classmates and to each other the variety of        Opinion of MR. JUSTICE BRENNAN, MR.
points of view, backgrounds and experiences of blacks in      JUSTICE WHITE, MR. JUSTICE MARSHALL, and
the United States. Their small numbers might also create      MR. JUSTICE BLACKMUN, concurring in the
a sense of isolation among the black students themselves      judgment in part and dissenting in part.
and thus make it more difficult for them to develop and
                                                                   The Court today, in reversing in part the judgment of
achieve their potential. Consequently, when making its
                                                              the Supreme Court of             California, affirms the
decisions, the Committee on Admissions is aware that
                                                              constitutional power of Federal and State Governments
there is some relationship between numbers and
                                                              to act affirmatively to achieve equal opportunity for all.
achieving the benefits to be derived from a diverse
                                                              The difficulty of the issue presented -- whether
student body, and between numbers and providing a
                                                              government may use race-conscious programs to redress
reasonable environment for those students admitted. But
                                                              the continuing effects of past discrimination --
[*324] that awareness does not mean that the Committee
sets a minimum number of blacks or of people from west




                                                                                                                        21
Grutter v. Bollinger




                       22
                            BARBARA GRUTTER, Petitioner v. LEE BOLLINGER et al.

                                                        No. 02-241

                                   SUPREME COURT OF THE UNITED STATES

                       539 U.S. 306; 123 S. Ct. 2325; 156 L. Ed. 2d 304; 2003 U.S. LEXIS 4800; 71
                  U.S.L.W. 4498; 91 Fair Empl. Prac. Cas. (BNA) 1761; 84 Empl. Prac. Dec. (CCH)
                      P41,415; 2003 Cal. Daily Op. Service 5378; 16 Fla. L. Weekly Fed. S 367

                                                   April 1, 2003, Argued
                                                  June 23, 2003, Decided

JUDGES: O'Connor, J., delivered the opinion of the             on the use of race in university admissions. See Regents
Court, in which Stevens, Souter, Ginsburg, and Breyer,         of Univ. of Cal. v. Bakke, 438 U.S. 265, 57 L. Ed. 2d 750,
JJ., joined, and in which Scalia and Thomas, JJ., joined       98 S. Ct. 2733 (1978). [*315] Upon the unanimous
in part insofar as it is consistent with the views expressed   adoption of the committee's report by the Law School
in Part VII of the opinion of Thomas, J. Ginsburg, J.,         faculty, it became the Law School's official admissions
filed a concurring opinion, in which Breyer, J., joined.       policy.
Scalia, J., filed an opinion concurring in part and
                                                                    The hallmark of that policy is its focus on academic
dissenting in part, in which Thomas, J., joined. Thomas,
                                                               ability coupled with a flexible assessment of applicants'
J., filed an opinion concurring in part and dissenting in
                                                               talents, experiences, and potential "to contribute to the
part, in which SCALIA, J., joined as to Parts I-VII.
                                                               learning of those around them." App. 111. The policy
Rehnquist, C. J., filed a dissenting opinion, in which
                                                               requires admissions officials to evaluate each applicant
Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J.,
                                                               based on all the information available in the file,
filed a dissenting opinion.
                                                               including     a    personal     statement,    letters   of
                                                               recommendation, and an essay describing the ways in
OPINIONBY: O'CONNOR [*311]
                                                               which the applicant will contribute to the life and
                                                               diversity of the [***324] Law School. Id., at 83-84,
OPINION: Justice O'Connor delivered the opinion of
                                                               114-121. In reviewing an applicant's file, admissions
the Court.
                                                               officials must consider the applicant's undergraduate
     This case requires us to decide whether the use of        grade point average (GPA) and Law School Admissions
race as a factor in student admissions by the University       Test (LSAT) score because they are important (if
of Michigan Law School (Law School) is unlawful.               imperfect) predictors of academic success in law school.
                                                               Id., at 112. The policy stresses that "no applicant should
     [*312] I
                                                               be admitted unless we expect that applicant to do well
    A                                                          enough to graduate with no serious academic problems."
                                                               Id., at 111.
     The Law School ranks among the Nation's top law
schools. It receives more than 3,500 applications each              The policy makes clear, however, that even the
year for a class [*313] of around 350 students. Seeking        highest possible score does not guarantee admission to
to "admit a group of students who individually and             the Law School. Id., at 113. Nor does a low score
collectively are among the most capable," the Law              automatically disqualify an applicant. Ibid. Rather, the
School looks for individuals with "substantial [*314]          policy requires admissions officials to look beyond
promise for success in law school" and "a strong               grades and test scores to other criteria that are important
likelihood of succeeding in the practice of law and            to the Law School's educational objectives. Id., at 114.
contributing in diverse ways to the well-being of others."     So-called "'soft' variables" such as "the enthusiasm of
App. 110. More broadly, the Law School seeks "a mix            recommenders, the quality of the undergraduate
of students with varying backgrounds and experiences           institution, the quality of the applicant's essay, and the
who will respect and learn from each other." Ibid. In          areas and difficulty of undergraduate course selection"
1992, the dean of the Law School charged a faculty             are all brought to bear in assessing an "applicant's likely
committee with crafting a written admissions policy to         contributions to the intellectual and social life of the
implement these goals. In particular, the Law School           institution." Ibid.
sought to ensure that its efforts to achieve student body
diversity complied with this Court's most recent ruling


                                                                                                                       23
      The policy aspires to "achieve that diversity which      1992 admissions policy was adopted and is now Dean of
has the potential to enrich everyone's education and thus      Vanderbilt Law School. In addition to his testimony at
make a law school class stronger than the sum of its           trial, Syverud submitted several expert reports on the
parts." Id., at 118. [*316] The policy does not restrict       educational benefits of diversity. Syverud's testimony
the types of diversity contributions eligible for              indicated that when a critical mass of underrepresented
"substantial weight" in the admissions process, but            minority students is present, [*320] racial stereotypes
instead recognizes "many possible bases for diversity          lose their force because nonminority students learn there
admissions." Id., at 118, 120. The policy does, however,       is no "'minority viewpoint'" but rather a variety of
reaffirm the Law School's longstanding commitment to           viewpoints among minority students. Id., at 215a.
"one particular type of diversity," that is, "racial and
                                                                    In an attempt to quantify the extent to which the
ethnic diversity with special reference to the inclusion of
                                                               Law School actually considers race in making
students from groups which have been historically
                                                               admissions decisions, the parties introduced voluminous
discriminated against, like African-Americans, Hispanics
                                                               evidence at trial. Relying on data obtained from the Law
and Native Americans, who without this commitment
                                                               School, petitioner's expert, Dr. Kinley Larntz, generated
might not be represented in our student body in
                                                               and analyzed "admissions grids" for the years in question
meaningful numbers." Id., at 120. By enrolling a
                                                               (1995-2000). These grids show the number of applicants
"'critical mass' of [underrepresented] minority students,"
                                                               and the number of admittees for all combinations of
the Law School seeks to "ensure their ability to make
                                                               GPAs and LSAT scores. Dr. Larntz made "'cell-by-cell'"
unique contributions to the character of the Law School."
                                                               comparisons between applicants of different races to
Id., at 120-121.
                                                               determine whether a statistically significant relationship
     The policy does not define diversity "solely in terms     existed between race and admission rates. He concluded
of racial and ethnic status." Id., at 121. Nor is the policy   that membership in certain minority groups "'is an
"insensitive to the competition among all students for         extremely strong factor in the decision for acceptance,'"
admission to the Law School." Ibid. Rather, the policy         and that applicants from these minority groups "'are
seeks to guide admissions officers in "producing classes       given an extremely large allowance for admission'" as
both diverse and academically outstanding, classes made        compared to applicants who are members of nonfavored
up of students who promise to continue the tradition of        groups. Id., at 218a-220a. Dr. Larntz conceded,
outstanding contribution by Michigan Graduates to the          however, that race is not the predominant factor in the
legal profession." Ibid.                                       Law School's admissions calculus. 12 Tr. 11-13 (Feb.
                                                               10, 2001).
    B
                                                                    Dr. Stephen Raudenbush, the Law School's expert,
     Petitioner Barbara Grutter is a white Michigan
                                                               focused on the predicted effect of eliminating race as a
resident who applied to the Law School in 1996 with a
                                                               factor in the Law School's admission process. In Dr.
3.8 grade point average and 161 LSAT score. . . .
                                                               Raudenbush's view, a race-blind admissions system
                           ***                                 would have a "'very dramatic,'" negative effect on
                                                               underrepresented minority admissions. App. to Pet. for
     Erica Munzel, who succeeded Shields as Director of
                                                               Cert. 223a. He testified that in 2000, 35 percent of
Admissions, testified that "'critical mass'" means
                                                               underrepresented minority applicants were admitted.
"'meaningful numbers'" or "'meaningful representation,         Ibid. Dr. Raudenbush predicted that if race were not
'" which she understood to mean a number that                  considered, only 10 percent of those applicants would
encourages underrepresented minority students to
                                                               have been admitted.          Ibid. Under this scenario,
participate in the classroom and not feel isolated. Id., at
                                                               underrepresented minority students would have
208a-209a.       Munzel stated there is no number,
                                                               comprised 4 percent of the entering class in 2000 instead
percentage, or range of numbers or percentages that            of the actual figure of 14.5 percent. Ibid.
constitute critical mass. Id., at 209a. Munzel also
asserted that she must consider the race of applicants                                   ***
because a critical mass of underrepresented minority
                                                                   II
students could not be enrolled if admissions decisions
were based primarily on undergraduate GPAs and LSAT                A
scores. Ibid.
                                                                    We last addressed the use of race in public higher
                           ***                                 education over 25 years ago. In the landmark Bakke
                                                               case, we reviewed a racial set-aside program that
    Kent Syverud was the final witness to testify about
                                                               reserved 16 out of 100 seats in a medical school class for
the Law School's use of race in admissions decisions.
Syverud was a professor at the Law School when the

                                                                                                                      24
members of certain minority groups. 438 U.S. 265, 57 L.       School has a compelling interest in attaining a diverse
Ed. 2d 750, 98 S. Ct. 2733. . . .                             student body.
                          ***                                      The Law School's educational judgment that such
                                                              diversity is essential to its educational mission is one to
     . . . [F]or the reasons set out below, today we
                                                              which we defer. The Law School's assessment that
endorse Justice Powell's view that student body diversity
                                                              diversity will, in fact, yield educational benefits is
is a compelling state interest that can justify the use of
                                                              substantiated by respondents and their amici. Our
race in university admissions.
                                                              scrutiny of the interest asserted by the Law School is no
     [*326] B                                                 less strict for taking into account complex educational
                                                              judgments in an area that lies primarily within the
                          ***                                 expertise of the university. Our holding today is in
    We have held that all racial classifications imposed      keeping with our tradition of giving a degree of
by government "must be analyzed by a reviewing court          deference to a university's academic decisions, within
under strict scrutiny." . . .                                 constitutionally prescribed limits. . . .
     Strict scrutiny is not "strict in theory, but fatal in                                ***
fact." . . . When race-based action is necessary to further       As part of its goal of "assembling a class that is both
a compelling governmental interest, such action does not      exceptionally academically qualified and broadly
violate the constitutional guarantee of equal protection so
                                                              diverse, " the Law School seeks to "enroll a 'critical
long as the narrow-tailoring requirement is also satisfied.
                                                              mass' of minority students." Brief for Respondents
                          ***                                 Bollinger et al. 13. The Law School's interest is not
                                                              simply "to assure within its student body some specified
    III                                                       percentage of a particular group merely because of its
    A                                                         race or ethnic origin." Bakke, 438 U.S., at 307, 57 L Ed
                                                              2d 750, 98 S Ct 2733 (opinion of Powell, J.). That would
     With these principles in mind, we turn to the            amount to outright racial balancing, which is patently
question whether the Law School's use of race is justified    unconstitutional. Ibid.; Freeman v. Pitts, 503 U.S. 467,
by a compelling state interest. Before this Court, as they    494, 118 L. Ed. 2d 108, 112 S. Ct. 1430 (1992) ("Racial
have [*328] throughout this litigation, respondents           balance is not to be achieved for its own sake");
assert only one justification for their use of race in the    Richmond v. J. A. Croson Co., 488 U.S., at 507, 102 L
admissions process: obtaining "the educational benefits       Ed 2d 854, 109 S Ct 706. Rather, the Law School's
that flow from a diverse student body." Brief for             concept of critical mass is defined by reference to the
Respondents Bollinger et al. i. In other words, the Law       educational benefits that diversity is designed to produce.
School asks us to recognize, in the context of higher
education, a compelling state interest in student body             These benefits are substantial. As the District Court
diversity.                                                    emphasized, the Law School's admissions policy
                                                              promotes "cross-racial understanding," helps to break
      We first wish to dispel the notion that the Law         down racial stereotypes, and "enables [students] to better
School's argument has been foreclosed, either expressly       understand persons of different races." App. to Pet. for
or implicitly, by our affirmative-action cases decided        Cert. 246a. These benefits are "important and laudable,"
since Bakke. It is true that some language in those           because "classroom discussion is livelier, more spirited,
opinions might be read to suggest that remedying past         and simply more enlightening and interesting" when the
discrimination is the only permissible justification for      students have "the greatest possible variety of
race-based governmental action. See, e.g., Richmond v.        backgrounds." Id., at 246a, 244a.
J. A. Croson Co., supra, at 493, 102 L Ed 2d 854, 109 S
Ct 706 (plurality opinion) (stating that unless                    The Law School's claim of a compelling interest is
classifications based on race are "strictly reserved for      further bolstered by its amici, who point to the
remedial settings, they may in fact promote notions of        educational benefits that flow from student body
racial inferiority and lead to a politics of racial           diversity. In addition to the expert studies and reports
hostility"). But we have never held that the only             entered into evidence at trial, numerous studies show that
governmental use of race that can survive strict scrutiny     student body diversity promotes learning outcomes, and
is remedying past discrimination. Nor, since Bakke, have      "better prepares students for an increasingly diverse
we directly addressed the use of race in the context of       workforce and society, and better prepares them as
public higher education. Today, we hold that the Law          professionals." Brief for American Educational Research
                                                              Association et al. as Amici Curiae 3; see, e.g., W. Bowen
                                                              & D. Bok, The Shape of the River (1998); Diversity


                                                                                                                      25
Challenged: Evidence on the Impact of Affirmative                   acute than in the context of higher education." Ibid.
Action (G. Orfield & M. Kurlaender eds. 2001);                      Effective participation by members of all racial and
Compelling Interest: Examining the Evidence on Racial               ethnic groups in the civic life of our Nation is essential if
Dynamics in Colleges and Universities (M. Chang, D.                 the dream of one Nation, indivisible, is to be realized.
Witt, J. Jones, & K. Hakuta eds. 2003).
                                                                         Moreover, universities, and in particular, law
     These benefits are not theoretical but real, as major          schools, represent the training ground for a large number
American businesses have made clear that the skills                 of our Nation's leaders. Sweatt v. Painter, 339 U.S. 629,
needed in today's increasingly global marketplace can               634, 94 L. Ed. 1114, 70 S. Ct. 848 (1950) (describing law
only be developed through exposure to widely diverse                school as a "proving ground for legal learning and
people, cultures, ideas, and viewpoints. Brief for 3M et            practice"). Individuals with law degrees occupy roughly
al. as Amici Curiae 5; [*331] Brief for General Motors              half the state governorships, more than half the seats in
Corp. as Amicus Curiae 3-4. What is more, high-ranking              the United States Senate, and more than a third of the
retired officers and civilian leaders of the United States          seats in the United States House of Representatives. See
military assert that, "based on [their] decades of                  Brief for Association of American Law Schools as
experience," a "highly qualified, racially diverse officer          Amicus Curiae 5-6. The pattern is even more striking
corps . . . is essential to the military's ability to fulfill its   when it comes to highly selective law schools. A
principle mission to provide national security." Brief for          handful of these schools accounts for 25 of the 100
Julius W. Becton, Jr. et al. as Amici Curiae 27. The                United States Senators, 74 United States Courts of
primary sources for the Nation's officer corps are the              Appeals judges, and nearly 200 of the more than 600
service academies and the Reserve Officers Training                 United States District Court judges. Id., at 6.
Corps (ROTC), the latter comprising students already
                                                                         In order to cultivate a set of leaders with legitimacy
admitted to participating colleges and universities. Id., at
                                                                    in the eyes of the citizenry, it is necessary that the path to
5. At present, "the military cannot achieve an officer
                                                                    leadership be visibly open to talented and qualified
corps that is both highly qualified and racially diverse
                                                                    individuals of every race and ethnicity. All members of
unless the service academies and the ROTC used limited
                                                                    our heterogeneous society must have confidence in the
race-conscious recruiting and admissions policies." Ibid.
                                                                    openness and integrity of the educational institutions that
(emphasis in original). To fulfill its mission, the military
                                                                    provide this training. As we have recognized, law
"must be selective in admissions for training and
                                                                    schools "cannot be effective in isolation from the
education for the officer corps, and it must train and
                                                                    individuals and institutions with which the law interacts."
educate a highly qualified, racially diverse officer corps
                                                                    See Sweatt v. Painter, supra, at 634, 94 L Ed 1114, 70 S
in a racially diverse setting." Id., at 29 (emphasis in
                                                                    Ct 848. Access to legal education (and thus the legal
original). We agree that "it requires only a small step
                                                                    profession) must be inclusive of talented and qualified
from this analysis to conclude that our country's other
                                                                    individuals of every race and ethnicity, so that all
most selective institutions must remain both diverse and
                                                                    members of our heterogeneous society [*333] may
selective." Ibid.
                                                                    participate in the educational institutions that provide the
      We have repeatedly acknowledged the overriding                training and education necessary to succeed in America.
importance of preparing students for work and
                                                                         The Law School does not premise its need for
citizenship, describing education as pivotal to "sustaining
                                                                    critical mass on "any belief that minority students always
our political and cultural heritage" with a fundamental
                                                                    (or even consistently) express some characteristic
role in maintaining the fabric of society. Plyler v. Doe,
                                                                    minority viewpoint on any issue." Brief for Respondent
457 U.S. 202, 221, 72 L. Ed. 2d 786, 102 S. Ct. 2382
                                                                    Bollinger et al. 30. To the contrary, diminishing the
(1982). This Court has long recognized that "education .
                                                                    force of such stereotypes is both a crucial part of the Law
. . is the very foundation of good citizenship." Brown v.
                                                                    School's mission, and one that it cannot accomplish with
Board of Education, 347 U.S. 483, 493, 98 L. Ed. 873, 74
                                                                    only token numbers of minority students. Just as
S. Ct. 686 (1954). For this reason, the diffusion of
                                                                    growing up in a particular region or having particular
knowledge and opportunity through public institutions of
                                                                    professional experiences is likely to affect an individual's
higher education must be accessible to all individuals
                                                                    views, so too is one's own, unique experience of being a
regardless of race or ethnicity. The United States, as
                                                                    racial minority in a society, like our own, in which race
amicus curiae, affirms that "ensuring that public
                                                                    unfortunately still matters.      The Law School has
institutions are open and available to all segments of
                                                                    determined, based on its experience and expertise, that a
American [*332] society, including people of all races
                                                                    "critical mass" of underrepresented minorities is
and ethnicities, represents a paramount government
                                                                    necessary to further its compelling interest in securing
objective." Brief for United States as Amicus Curiae 13.
                                                                    the educational benefits of a diverse student body.
And, "nowhere is the importance of such openness more


                                                                                                                               26
    B                                                         separate admissions tracks. See id., at 315-316, 57 L Ed
                                                              2d 750, 98 S Ct 2733. Nor can universities insulate
      Even in the limited circumstance when drawing
                                                              applicants who belong to certain racial or ethnic groups
racial distinctions is permissible to further a compelling
                                                              from the competition for admission. Ibid. Universities
state interest, government is still "constrained in how it
                                                              can, however, consider race or ethnicity more flexibly as
may pursue that end: [T]he means chosen to accomplish
                                                              a "plus" factor in the context of individualized
the [government's] asserted purpose must be specifically
                                                              consideration of each and every applicant. Ibid.
and narrowly framed to accomplish that purpose." Shaw
v. Hunt, 517 U.S. 899, 908, 135 L. Ed. 2d 207, 116 S. Ct.          We are satisfied that the Law School's admissions
1894 (1996) (internal quotation marks and citation            program, like the Harvard plan described by Justice
omitted).      The purpose of the narrow tailoring            Powell, does not operate as a quota.               Properly
requirement is to ensure that "the means chosen 'fit' . . .   understood, a "quota" is a program in which a certain
the compelling goal so closely that there is little or no     fixed number or proportion of opportunities are
possibility that the motive for the classification was        "reserved exclusively for certain minority groups."
illegitimate racial prejudice or stereotype." Richmond v.     Richmond v. J. A. Croson Co., supra, at 496, 102 L Ed
J. A. Croson Co., 488 U.S., at 493, 102 L Ed 2d 854, 109      2d 854, 109 S Ct 706 (plurality opinion). Quotas
S Ct 706 (plurality opinion).                                 "'impose a fixed number or percentage which must be
                                                              attained, or which cannot be exceeded,'" Local 28 of
     Since Bakke, we have had no occasion to define the
                                                              Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421,
contours of the narrow-tailoring inquiry with respect to
                                                              495, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (1986) (O'Connor,
race-conscious university admissions programs. That
                                                              J., concurring in part and dissenting in part), and
inquiry [*334] must be calibrated to fit the distinct
                                                              "insulate the individual from comparison with all other
issues raised by the use of race to achieve student body
                                                              candidates for the available seats." Bakke, supra, at 317,
diversity in public higher education. Contrary to Justice
                                                              57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.). In
Kennedy's assertions, we do not "abandon[] strict
                                                              contrast, "a permissible goal . . . requires only a good-
scrutiny," see post, at 539 U.S. 306, 156 L Ed 2d, 304,
                                                              faith effort . . . to come within a range demarcated by the
374, 123 S. Ct. 2325 (dissenting opinion). Rather, as we
                                                              goal itself," Sheet Metal Workers v. EEOC, supra, at
have already explained, ante, at 156 L Ed 2d, at 331, we
                                                              495, 92 L Ed 2d 344, 106 S Ct 3019, and permits
adhere to Adarand's teaching that the very purpose of
                                                              consideration of race as a "plus" factor in any given case
strict scrutiny is to take such "relevant differences into
                                                              while still ensuring that each candidate "competes with
account." 515 US, at 228, 132 L Ed 2d 158, 115 S Ct
                                                              all other qualified applicants," Johnson v. Transportation
2097 (internal quotation marks omitted).
                                                              Agency, Santa Clara Cty., 480 U.S. 616, 638, 94 L. Ed.
     To be narrowly tailored, a race-conscious                2d 615, 107 S. Ct. 1442 (1987).
admissions program cannot use a quota system--it cannot
                                                                                         ***
"insulate each category of applicants with certain desired
qualifications from competition with all other                     That a race-conscious admissions program does not
applicants." Bakke, supra, at 315, 57 L Ed 2d 750, 98 S       operate as a quota does not, by itself, satisfy the
Ct 2733 (opinion of Powell, J.). Instead, a university        requirement of individualized consideration. When
may consider race or ethnicity only as a "'plus' in a         using race as a "plus" [*337] factor in university
particular applicant's file," without "insulating the         admissions, a university's admissions program must
individual from comparison with all other candidates for      remain flexible enough to ensure that each applicant is
the available seats." Id., at 317, 57 L Ed 2d 750, 98 S Ct    evaluated as an individual and not in a way that makes an
2733. In other words, an admissions program must be           applicant's race or ethnicity the defining feature of his or
"flexible enough to consider all pertinent elements of        her application. The importance of this individualized
diversity in light of the particular qualifications of each   consideration in the context of a race-conscious
applicant, and to place them on the same footing for          admissions program is paramount. See Bakke, supra, at
consideration, although not necessarily according them        318, n. 52, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of
the same weight." Ibid.                                       Powell, J.) (identifying the "denial . . . of the right to
                                                              individualized consideration" as the "principal evil" of
     We find that the Law School's admissions program
                                                              the medical school's admissions program).
bears the hallmarks of a narrowly tailored plan. As
Justice Powell made clear in Bakke, truly individualized                                 ***
consideration demands that race be used in a flexible,
                                                                   We also find that, like the Harvard plan Justice
nonmechanical way. It follows from this mandate that
                                                              Powell referenced in Bakke, the Law School's race-
universities cannot establish quotas for members of
                                                              conscious admissions program adequately ensures that
certain racial groups or put members of those groups on
                                                              all factors that may contribute to student body diversity


                                                                                                                       27
are meaningfully considered alongside race in                  work in their courses, the race of an applicant may tip the
admissions decisions. With respect [*338] to the use of        balance in his favor'").
race itself, all underrepresented minority students
                                                                    Petitioner and the United States argue that the Law
admitted by the Law School have been deemed qualified.
                                                               School's plan is not narrowly tailored because race-
By virtue of our Nation's struggle with racial inequality,
                                                               neutral means exist to obtain the educational benefits of
such students are both likely to have experiences of
                                                               student body diversity that the Law School seeks. We
particular importance to the Law School's mission, and
                                                               disagree. Narrow tailoring does not require exhaustion
less likely to be admitted in meaningful numbers on
                                                               of every conceivable race-neutral alternative. Nor does it
criteria that ignore those experiences. See App. 120.
                                                               require a university to choose between maintaining a
     The Law School does not, however, limit in any way        reputation for excellence or fulfilling a commitment to
the broad range of qualities and experiences that may be       provide educational opportunities to members of all
considered valuable contributions to student body              racial groups. . . .
diversity. To the contrary, the 1992 policy makes clear
                                                                                         ***
"there are many possible bases for diversity admissions,"
and provides examples of admittees who have lived or                The Law School's current admissions program
traveled widely abroad, are fluent in several languages,       considers race as one factor among many, in an effort to
have overcome personal adversity and family hardship,          assemble a student body that is diverse in ways broader
have exceptional records of extensive community                than race. Because a lottery would make that kind of
service, and have had successful careers in other fields.      nuanced judgment impossible, it would effectively
Id., at 118-119. The Law School seriously considers            sacrifice all other educational values, not to mention
each "applicant's promise of making a notable                  every other kind of diversity. So too with the suggestion
contribution to the class by way of a particular strength,     that the Law School simply lower admissions standards
attainment, or characteristic--e.g., an unusual intellectual   for all students, a drastic remedy that would require the
achievement, employment experience, nonacademic                Law School to become a much different institution and
performance, or personal background." Id., at 83-84. All       sacrifice a vital component of its educational mission.
applicants have the opportunity to highlight their own         The United States advocates "percentage plans," recently
potential diversity contributions through the submission       adopted by public undergraduate institutions in Texas,
of a personal statement, letters of recommendation, and        Florida, and California to guarantee admission to all
an essay describing the ways in which the applicant will       students above a certain class-rank threshold in every
contribute to the life and diversity of the Law School.        high school in the State. Brief for United States as
                                                               Amicus Curiae 14-18. The United States does not,
     What is more, the Law School actually gives
                                                               however, explain how such plans could work for
substantial weight to diversity factors besides race. The
                                                               graduate and professional schools. More-over, even
Law School frequently accepts nonminority applicants
                                                               assuming such plans are race-neutral, they may preclude
with grades and test scores lower than underrepresented
                                                               the university from conducting the individualized
minority applicants (and other nonminority applicants)
                                                               assessments necessary to assemble a student body that is
who are rejected. See Brief for Respondents Bollinger et
                                                               not just racially diverse, but diverse along all the
al. 10; App. 121-122. This shows that the Law School
                                                               qualities valued by the university. We are satisfied that
seriously weighs many other diversity factors besides
                                                               the Law School adequately considered race-neutral
race that can make a real and dispositive difference for
                                                               alternatives currently capable of producing a critical
nonminority applicants as well. By this [*339] flexible
                                                               mass without forcing the Law School to abandon the
approach, the Law School sufficiently takes into account,
                                                               academic selectivity that is the cornerstone of its
in practice as well as in theory, a wide variety of
                                                               educational mission.
characteristics besides race and ethnicity that contribute
to a diverse student body. Justice Kennedy speculates               We acknowledge that "there are serious problems of
that "race is likely outcome determinative for many            justice connected with the idea of preference itself."
members of minority groups" who do not fall within the         Bakke, 438 U.S., at 298, 57 L Ed 2d 750, 98 S Ct 2733
upper range of LSAT scores and grades. Post, at 156 L          (opinion of Powell, J.). Narrow tailoring, therefore,
Ed 2d, at 371 (dissenting opinion). But the same could         requires that a race-conscious admissions program not
be said of the Harvard plan discussed approvingly by           unduly harm members of any racial group. Even
Justice Powell in Bakke, and indeed of any plan that uses      remedial race-based governmental action generally
race as one of many factors. See 438 US, at 316, 57 L          "remains subject to continuing oversight to assure that it
Ed 2d 750, 98 S Ct 2733 ("'When the Committee on               will work the least harm possible to other innocent
Admissions reviews the large middle group of applicants        persons competing for the benefit." Id., at 308, 57 L Ed
who are "admissible" and deemed capable of doing good          2d 750, 98 S Ct 2733. To be narrowly tailored, a race-


                                                                                                                       28
conscious admissions program must not "unduly burden       California, Florida, and Washington State, where racial
individuals who are not members of the favored racial      preferences in admissions are prohibited by state law, are
and ethnic groups." Metro Broadcasting, Inc. v. FCC,       currently engaged in experimenting with a wide variety
497 U.S. 547, 630, 111 L. Ed. 2d 445, 110 S. Ct. 2997      of alternative approaches. Universities in other States
(1990) (O'Connor, J., dissenting).                         can and should draw on the most promising aspects of
                                                           these race-neutral alternatives as they develop. Cf.
     We are satisfied that the Law School's admissions
                                                           United States v. Lopez, 514 U.S. 549, 581, 131 L. Ed. 2d
program does not. Because the Law School considers
                                                           626, 115 S. Ct. 1624 (1995) (Kennedy, J., concurring)
"all pertinent elements of diversity," it can (and does)
                                                           ("The States may perform their role as laboratories for
select nonminority applicants who have greater potential
                                                           experimentation to devise various solutions where the
to enhance student body diversity over underrepresented
                                                           best solution is far from clear").
minority applicants. See Bakke, supra, at 317, 57 L Ed
2d 750, 98 S Ct 2733 (opinion of Powell, J.). As Justice                             ***
Powell recognized in Bakke, so long as a race-conscious
                                                                We take the Law School at its word that it would
admissions program uses race as a "plus" factor in the
                                                           "like nothing better than to find a race-neutral admissions
context of individualized consideration, a rejected
                                                           formula" and will terminate its race-conscious
applicant
                                                           admissions program as soon as practicable. See Brief for
            "will not have been foreclosed from            Respondents Bollinger et al. 34; Bakke, supra, at 317-
       all consideration for that seat simply              318, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell,
       because he was not the right color or had           J.) (presuming good faith of university officials in the
       the wrong surname . . . .             His           absence of a showing to the contrary). It has been 25
       qualifications would have been weighed              years since Justice Powell first approved the use of race
       fairly and competitively, and he would              to further an interest in student body diversity in the
       have no basis to complain of unequal                context of public higher education. Since that time, the
       treatment     under    the    Fourteenth            number of minority applicants with high grades and test
       Amendment." 438 US, at 318, 57 L Ed 2d              scores has indeed increased. See Tr. of Oral Arg. 43.
       750, 98 S Ct 2733.                                  We expect that 25 years from now, the use of racial
                                                           preferences will no longer be necessary to further the
    We agree that, in the context of its individualized
                                                           interest approved today.
inquiry into the possible diversity contributions of all
applicants, the Law School's race-conscious admissions         IV
program does not unduly harm nonminority applicants.
                                                                In summary, the Equal Protection Clause does not
     We are mindful, however, that "[a] core purpose of    prohibit the Law School's narrowly tailored use of race in
the Fourteenth Amendment was to do away with all           admissions decisions to further a compelling interest in
governmentally imposed discrimination based on race."      obtaining the educational benefits that flow from a
Palmore v. Sidoti, [*342] 466 U.S. 429, 432, 80 L. Ed.     diverse student body. Consequently, petitioner's statutory
2d 421, 104 S. Ct. 1879 (1984). Accordingly, race-         claims based on Title VI and 42 USC § 1981 [42 USCS
conscious admissions policies must be limited in time.     § 1981] also fail. See Bakke, supra, at 287, 57 L Ed 2d
This requirement reflects that racial classifications,     750, 98 S Ct 2733 (opinion of Powell, J.) ("Title VI . . .
however compelling their goals, are potentially so         proscribes only those racial classifications that would
dangerous that they may be employed no more broadly        violate the Equal Protection Clause or the Fifth
than the interest demands. Enshrining a permanent          Amendment"); General Building Contractors Assn., Inc.
justification for racial preferences would offend this     v. Pennsylvania, 458 U.S. 375, 389-391, 73 L. Ed. 2d
fundamental equal protection principle. We see no          835, 102 S. Ct. 3141 (1982) (the prohibition against
reason to exempt race-conscious admissions programs        discrimination in § 1981 is co-extensive with the Equal
from the requirement that all governmental use of race     Protection Clause). The judgment [*344] of the Court
must have a logical end point. The Law School, too,        of Appeals for the Sixth Circuit, accordingly, is affirmed.
concedes that all "race-conscious programs must have
                                                               It is so ordered.
reasonable durational limits." Brief for Respondents
Bollinger et al. 32.
                                                           CONCUR: Justice Ginsburg, with whom Justice
    In the context of higher education, the durational     Breyer joins, concurring.
requirement can be met by sunset provisions in race-
                                                                                     ***
conscious admissions policies and periodic reviews to
determine whether racial preferences are still necessary       It is well documented that conscious and
to achieve student body diversity. Universities in         unconscious race bias, even rank discrimination based on

                                                                                                                   29
race, remain alive in our land, impeding realization of            I agree with the Court that, "in the limited
our highest values and ideals. See, e.g., Gratz v             circumstance when drawing racial distinctions is
Bollinger, ante, at 156 L Ed 2d 257, 123 S Ct 2411            permissible," the government must ensure that its means
(Ginsburg, J., dissenting); Adarand Constructors, Inc. v.     are narrowly tailored to achieve a compelling state
Pena, 515 U.S. 200, 272-274, 132 L. Ed. 2d 158, 115 S.        interest. Ante, at 156 L Ed 2d, at 335; see also Fullilove
Ct. 2097 (1995) (Ginsburg, J., dissenting); Krieger, Civil    v. Klutznick, 448 U.S. 448, 498, 65 L. Ed. 2d 902, 100 S.
Rights Perestroika: Intergroup Relations after                Ct. 2758 (1980) (Powell, J., concurring) ("Even if the
Affirmative Action, 86 Calif. L. Rev. 1251, 1276-1291,        government proffers a compelling interest to support
1303 (1998) . As to public education, data for the years      reliance upon a suspect classification, the means selected
2000-2001 show that 71.6% of African-American                 must be narrowly drawn to fulfill the governmental
children and 76.3% of Hispanic children attended a            [*379] purpose"). I do not believe, however, that the
school in which minorities made up a majority of the          University of Michigan Law School's (Law School)
student body. See E. Frankenberg, C. Lee, & G. Orfield,       means are narrowly tailored to the interest it asserts. The
A Multiracial Society with Segregated Schools: Are We         Law School claims it must take the steps it does to
Losing     the     Dream?      p    4     (Jan.    2003),     achieve a "'critical mass'" of underrepresented minority
http://www.civilrightsproject.harvard.edu/research/reseg      students. Brief for Respondents Bollinger et al. 13. But
03/AreWeLosingtheDrea m.pdf (as visited June 16,              its actual program bears no relation to this asserted goal.
2003, and available in Clerk of Court's case file). And       Stripped of its "critical mass" veil, the Law School's
schools in predominantly minority communities lag far         program is revealed as a naked effort to achieve racial
behind others measured by the educational resources           balancing.
available to them. See id., at 11; Brief for National
                                                                                         ***
Urban League et al. as Amici Curiae 11-12 (citing
General Accounting Office, Per-Pupil Spending                      Although the Court recites the language of our strict
Differences Between Selected Inner City and Suburban          scrutiny analysis, its application of that review is
Schools Varied by Metropolitan Area, 17 (2002)).              unprecedented in its deference.
      [*346] However strong the public's desire for                                      ***
improved education systems may be, see P. Hart & R.
Teeter, A National Priority: Americans Speak on                   In practice, the Law School's program bears little or
                                                              no relation to its asserted goal of achieving "critical
Teacher Quality 2, 11 (2002) (public opinion research
                                                              mass." Respondents explain that the Law School seeks to
conducted for Educational Testing Service); The No
                                                              accumulate a "critical mass" of each underrepresented
Child Left Behind Act of 2001, Pub L 107-110, 115 Stat
                                                              minority group. See, e.g., id., at 49, n 79 ("The Law
1425, 20 USC § 7231 [20 USCS § 7231], it remains the
current reality that many minority students encounter         School's . . . current policy . . . provides a special
markedly inadequate and unequal educational                   commitment to enrolling a 'critical mass' of 'Hispanics'").
                                                              But the record demonstrates that the Law School's
opportunities. Despite these inequalities, some minority
                                                              admissions practices with respect to these groups differ
students are able to meet the high threshold requirements
                                                              dramatically and cannot be defended under any
set for admission to the country's finest undergraduate
                                                              consistent use of the term "critical mass."
and graduate educational institutions. As lower school
education in minority communities improves, an increase            From 1995 through 2000, the Law School admitted
in the number of such students may be anticipated. From       between 1,130 and 1,310 students. Of those, between 13
today's vantage point, one may hope, but not firmly           and 19 were Native American, between 91 and 108 were
forecast, that over the next generation's span, progress      African-Americans, and between 47 and 56 were
toward nondiscrimination and genuinely equal                  Hispanic. If the Law School is admitting between 91 and
opportunity will make it safe to sunset affirmative action.   108 African-Americans in order to achieve "critical
                                                              mass," thereby preventing African-American students
DISSENTBY: REHNQUIST; Kennedy; Scalia (In Part);              from feeling "isolated or like spokespersons for their
Thomas (In Part)                                              race," one would think that a number of the same order
                                                              of magnitude would be necessary to accomplish the same
DISSENT:                                                      purpose for Hispanics and Native Americans. Similarly,
     [EDITOR'S NOTE: The page numbers of this                 even if all of the Native American applicants admitted in
document may appear to be out of sequence; however,           a given year matriculate, which the record demonstrates
                                                              is not at all the case, * how can this possibly constitute a
this pagination accurately reflects the pagination of the
                                                              "critical mass" of Native Americans in a class of over
original published document.]
                                                              350 students? In order for this pattern of admission to be
                                                              consistent with the Law School's explanation of "critical


                                                                                                                       30
mass," one would have to believe that the objectives of     more individuals from one underrepresented minority
"critical mass" offered by respondents are achieved with    group are needed in order to achieve "critical mass" or
only half the number of Hispanics and one-sixth the         further student body diversity. They certainly have not
number of Native Americans as compared to African-          explained why Hispanics, who they [*383] have said
Americans. But respondents offer no race-specific           are among "the groups most isolated by racial barriers in
reasons for such disparities. Instead, they simply          our country," should have their admission capped out in
emphasize the importance of achieving "critical mass,"      this manner. Brief for Respondents Bollinger et al. 50.
without any explanation of why that concept is applied      True, petitioner is neither Hispanic nor Native American.
differently among the three underrepresented minority       But the Law School's disparate admissions practices with
groups.                                                     respect to these minority groups demonstrate that its
                                                            alleged goal of "critical mass" is simply a sham.
                                                            Petitioner may use these statistics to expose this sham,
            * Indeed, during this 5-year time period,       which is the basis for the Law School's admission of less
       enrollment of Native American students dropped       qualified underrepresented minorities in preference to
       to as low as three such students. Any assertion      her. Surely strict scrutiny cannot permit these sort of
       that such a small group constituted a "critical      disparities without at least some explanation.
       mass" of Native Americans is simply absurd.
                                                                 Only when the "critical mass" label is discarded
                                                            does a likely explanation for these numbers emerge. The
     [*382] These different numbers, moreover, come         Court states that the Law School's goal of attaining a
only as a result of substantially different treatment       "critical mass" of underrepresented minority students is
among the three underrepresented minority groups, as is     not an interest in merely "'assuring within its student
apparent in an example offered by the Law School and        body some specified percentage of a particular group
highlighted by the Court: The school asserts that it        merely because of its race or ethnic origin.'" Ante, at 156
"frequently accepts nonminority applicants with grades      L Ed 2d, at 333 (quoting Bakke, 438 U.S., at 307, 57 L
and test scores lower than underrepresented minority        Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.)). The
applicants (and other nonminority applicants) who are       Court recognizes that such an interest "would amount to
rejected." Ante, at 156 L Ed 2d, at 335 (citing Brief for   outright racial balancing, which is patently
Respondents Bollinger et al. 10). Specifically, the Law     unconstitutional." Ante, at 156 L Ed 2d, at 333. The
School states that "sixty-nine minority applicants were     Court concludes, however, that the Law School's use of
rejected between 1995 and 2000 with at least a 3.5          race in admissions, consistent with Justice Powell's
[Grade Point Average (GPA)] and a [score of] 159 or         opinion in Bakke, only pays "'some attention to
higher on the [Law School Admissions Test (LSAT)]"          numbers.'" Ante, at 156 L Ed 2d, at 337 (quoting Bakke,
while a number of Caucasian and Asian-American              supra, at 323, 57 L Ed 2d 750, 98 S Ct 2733).
applicants with similar or lower scores were admitted.
                                                                 But the correlation between the percentage of the
Brief for Respondents Bollinger et al. 10.
                                                            Law School's pool of applicants who are members of the
     Review of the record reveals only 67 such              three minority groups and the percentage of the admitted
individuals. Of these 67 individuals, 56 were Hispanic,     applicants who are members of these same groups is far
while only 6 were African-American, and only 5 were         too precise to be dismissed as merely the result of the
Native American. This discrepancy reflects a consistent     school paying "some attention to [the] numbers." As the
practice. For example, in 2000, 12 Hispanics who scored     tables below show, from 1995 through 2000 the
between a 159-160 on the LSAT and earned a GPA of           percentage of admitted applicants who were members of
3.00 or higher applied for admission and only 2 were        these minority groups closely tracked the percentage of
admitted. App. 200-201. Meanwhile, 12 African-              individuals in the school's applicant pool who were from
Americans in the same range of qualifications applied for   the same groups. [*384]
admission and all 12 were admitted. Id., at 198.
                                                                                      ***
Likewise, that same year, 16 Hispanics who scored
between a 151-153 on the LSAT and earned a 3.00 or               For example, in 1995, when 9.7% of the applicant
higher applied for admission and only 1 of those            pool was African-American, 9.4% of the admitted class
applicants was admitted. Id., at 200-201. Twenty-three      was African-American. By 2000, only 7.5% of the
similarly qualified African-Americans applied for           applicant pool was African-American, and 7.3% of the
admission and 14 were admitted. Id., at 198.                admitted class was African-American. This correlation
                                                            is striking. Respondents themselves emphasize that the
     These statistics have a significant bearing on
                                                            number of underrepresented minority students admitted
petitioner's case. Respondents have never offered any
                                                            to the Law School would be significantly smaller if the
race-specific arguments explaining why significantly


                                                                                                                    31
race of each applicant were not considered. See App. to        judiciary. 438 U.S. 265, 289-291, 315-318, 57 L. Ed. 2d
Pet. for Cert. 223a; Brief for Respondents Bollinger et al.    750, 98 S. Ct. 2733 (1978).            This is a unitary
6 (quoting App. to Pet. for Cert. of Bollinger et al. 299a).   formulation.     If strict scrutiny is abandoned or
But, as the examples above illustrate, the measure of the      manipulated to distort its real and accepted meaning, the
decrease would differ dramatically among the groups.           Court lacks authority to approve the use of race even in
The tight correlation between the percentage of                this modest, limited way. The opinion by Justice Powell,
applicants and admittees of a given race, therefore, must      in my view, states the correct rule for resolving this case.
result from careful race based planning by the Law             The Court, however, does not apply strict scrutiny. By
School. It suggests a formula for admission based on the       trying to say otherwise, it undermines both the test and
aspirational assumption that all applicants are equally        its own controlling precedents.
qualified academically, and therefore that the proportion
                                                                                          ***
of each group admitted should be the same as the
proportion of that group in the applicant pool. See Brief           The Court, in a review that is nothing short of
for Respondents Bollinger et al. 43, n 70 (discussing          perfunctory, accepts the University of Michigan Law
admissions officers' use of "periodic reports" to track        School's [*389] assurances that its admissions process
"the racial composition of the developing class").             meets with constitutional requirements. The majority
                                                               fails to confront the reality of how the Law School's
                           ***
                                                               admissions policy is implemented. The dissenting
     I do not believe that the Constitution gives the Law      opinion by The Chief Justice, which I join in full,
School such free rein in the use of race. The Law School       demonstrates beyond question why the concept of critical
has offered no explanation for its actual admissions           mass is a delusion used by the Law School to mask its
practices and, unexplained, we are bound to conclude           attempt to make race an automatic factor in most
that the Law School has managed its admissions                 instances    and     to    achieve    numerical     goals
program, not to achieve a "critical mass," but to extend       indistinguishable from quotas. An effort to achieve racial
offers of admission to members of selected minority            balance among the minorities the school seeks to attract
groups in proportion to their statistical representation in    is, by the Court's own admission, "patently
the applicant pool. But this is precisely the type of racial   unconstitutional." Ante, at 156 L Ed 2d, at 333; see also
balancing that the Court itself calls "patently                Bakke, 438 U. S, at 307, 57 L Ed 2d 750, 98 S Ct 2733
unconstitutional." Ante, at 156 L Ed 2d, at 333.               (opinion of Powell, J.). It remains to point out how
                                                               critical mass becomes inconsistent with individual
                           ***
                                                               consideration in some more specific aspects of the
     The Court suggests a possible 25-year limitation on       admissions process.
the Law School's current program. See ante, at 156 L Ed
                                                                    About 80 to 85 percent of the places in the entering
2d, at 341. Respondents, on the other hand, remain more
                                                               class are given to applicants in the upper range of Law
ambiguous, explaining that "the Law School of course
                                                               School Admissions Test scores and grades. An applicant
recognizes that race-conscious programs must have
                                                               with these credentials likely will be admitted without
reasonable durational limits, and the Sixth Circuit
                                                               consideration of race or ethnicity. With respect to the
properly found such a limit in the Law School's resolve
                                                               remaining 15 to 20 percent of the seats, race is likely
to cease considering race when genuine race-neutral
                                                               outcome determinative for many members of minority
alternatives become available." Brief for Respondents
                                                               groups. That is where the competition becomes tight and
Bollinger et al. 32. These discussions of a time [*387]
                                                               where any given applicant's chance of admission is far
limit are the vaguest of assurances. In truth, they permit
                                                               smaller if he or she lacks minority status. At this point
the Law School's use of racial preferences on a
                                                               the numerical concept of critical mass has the real
seemingly permanent basis.          Thus, an important
                                                               potential to compromise individual review.
component of strict scrutiny--that a program be limited
in time--is casually subverted.                                     The Law School has not demonstrated how
                                                               individual consideration is, or can be, preserved at this
                         ***                                   stage of the application process given the instruction to
Justice Kennedy, dissenting.                                   attain what it calls critical mass. In fact the evidence
                                                               shows otherwise. There was little deviation among
    The separate opinion by Justice Powell in Regents of
                                                               admitted minority students during the years from 1995 to
Univ. of Cal. v Bakke is based on the principle that a
                                                               1998. The percentage of enrolled minorities fluctuated
university admissions program may take account of race
                                                               only by 0.3%, from 13.5% to 13.8%. The number of
as one, nonpredominant factor in a system designed to
                                                               minority students to whom offers were extended varied
consider each applicant as an individual, provided the
program can meet the test of strict scrutiny by the


                                                                                                                        32
by just a slightly greater magnitude of 2.2%, from the        Action: Past, Present, and Future, 20 Yale L. & Pol'y
high of 15.6% in 1995 to the low of 13.4% in 1998.            Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U. Pa. J.
                                                              Const. L. 573, 577-578 (2000); Rubenfeld, Affirmative
                          ***
                                                              Action, 107 Yale L. J. 427, 471 (1997)). This is not to
     The Law School has the burden of proving, in             suggest the faculty at Michigan or other law schools do
conformance with the standard of strict scrutiny, that it     not pursue aspirations they consider laudable and
did not utilize race in an unconstitutional way. Adarand      consistent with our constitutional [*394] traditions. It is
Constructors, 515 U.S. 200, 224, 132 L Ed 2d 158, 115 S       but further evidence of the necessity for scrutiny that is
Ct 2097. At the very least, the constancy of admitted         real, not feigned, where the corrosive category of race is
minority students and the close correlation between the       a factor in decisionmaking. Prospective students, the
racial breakdown of admitted minorities and the               courts, and the public can demand that the State and its
composition of the applicant pool, discussed by The           law schools prove their process is fair and constitutional
Chief Justice, ante, at 156 L Ed 2d, at 324-328, require      in every phase of implementation.
the Law School either to produce a convincing
                                                                   It is difficult to assess the Court's pronouncement
explanation or to show it has taken adequate steps to
                                                              that race-conscious admissions programs will be
ensure individual assessment. The Law School does
                                                              unnecessary 25 years from now. Ante, at 156 L Ed 2d, at
neither.
                                                              341-342. If it is intended to mitigate the damage the
                          ***                                 Court does to the concept of strict scrutiny, neither
                                                              petitioners nor other rejected law school applicants will
     The consultation of daily reports during the last
                                                              find solace in knowing the basic protection put in place
stages in the admissions process suggests there was no
                                                              by Justice Powell will be suspended for a full quarter of a
further attempt at individual review save for race itself.    century. Deference is antithetical to strict scrutiny, not
The admissions officers could use the reports to              consistent with it.
recalibrate the plus factor given to race depending on
how close they were to achieving the Law School's goal                                   ***
of critical mass. The bonus factor of race would then
                                                                  Justice Scalia, with whom Justice Thomas joins,
become divorced from individual review; it would be
                                                              concurring in part and dissenting in part.
premised instead on the numerical objective set by the
Law School.                                                        I join the opinion of The Chief Justice. As he
                                                              demonstrates, the University of Michigan Law School's
                          ***
                                                              mystical [*347cont] "critical mass" justification for its
     The Court's refusal to apply meaningful strict           discrimination by race challenges even the most gullible
scrutiny will lead to serious consequences. By deferring      mind. The admissions statistics show it to be a sham to
to the law schools' choice of minority admissions             cover a scheme of racially proportionate admissions.
programs, the courts will lose the talents and resources of
                                                                   I also join Parts I through VII of Justice Thomas's
the faculties and administrators in devising new and
                                                              opinion. n** I find particularly unanswerable his central
fairer ways to ensure individual consideration. Constant
                                                              point: that the allegedly "compelling state interest" at
and rigorous judicial review forces the law school
                                                              issue here is not the incremental "educational benefit"
faculties to undertake their responsibilities as state
                                                              that emanates from the fabled "critical mass" of minority
employees in this most sensitive of areas with utmost
                                                              students, but rather Michigan's interest in maintaining a
fidelity to the mandate of the Constitution. Dean Allan
                                                              "prestige" law school whose normal admissions
Stillwagon, who directed the Law School's Office of
                                                              standards disproportionately exclude blacks and other
Admissions from 1979 to 1990, explained the difficulties
                                                              minorities. If that is a compelling state interest,
he encountered in defining racial groups entitled to
                                                              everything is.
benefit under the School's affirmative action policy. He
testified that faculty members were "breathtakingly                                      ***
cynical" in deciding who would qualify as a member of
                                                                   Unlike a clear constitutional holding that racial
underrepresented minorities. An example he offered was
                                                              preferences in state educational institutions are
faculty debate as to whether Cubans should be counted
                                                              impermissible, or even a clear anticonstitutional holding
as Hispanics: One professor objected on the grounds that
                                                              that racial preferences in state educational institutions are
Cubans were Republicans. Many academics at other law
                                                              OK, today's Grutter-Gratz split double header seems
schools who are "affirmative action's more forthright
                                                              perversely designed to prolong the controversy and the
defenders readily concede that diversity is merely the
                                                              litigation. Some future lawsuits will presumably focus
current rationale of convenience for a policy that they
                                                              on whether the discriminatory scheme in question
prefer to justify on other grounds." Schuck, Affirmative
                                                              contains enough evaluation of the applicant "as an

                                                                                                                        33
individual," ante, at 156 L Ed 2d, at 337, and sufficiently           All I ask is, give him a chance to stand on
avoids "separate admissions tracks" ante, at 156 L Ed 2d,             his own legs! Let him alone! . . . Your
at 336, to fall under Grutter rather than Gratz. Some will            interference is doing him positive injury."
focus on whether a university has gone beyond the                     ...
bounds of a "'good faith effort'" and has so zealously
                                                                                         ***
pursued its "critical mass" as to make it an
unconstitutional de facto quota system, rather than                 No one would argue that a university could set up a
merely "'a permissible goal.'" Ante, at 156 L Ed 2d, at        lower general admission standard and then impose
336 (quoting Local 28 of Sheet Metal Workers' Int'l Ass'n      heightened requirements only on black applicants.
v. EEOC, 478 U.S. 421, 495, 92 L Ed 2d 344, 106 S Ct           Similarly, a university may not maintain a high
3019 (1986) O'Connor, J., concurring in part and               admission standard and grant exemptions to favored
dissenting in part)). Other lawsuits may focus on              races. The Law School, of its own choosing, and for its
whether, in the particular setting at issue, any educational   own purposes, maintains an exclusionary admissions
benefits flow from racial diversity. (That issue was not       system that it knows produces racially disproportionate
contested in Grutter; and while the opinion accords "a         results. Racial discrimination is not a permissible
degree of deference to a university's academic                 solution to the self-inflicted wounds of this elitist
decisions," ante, at 156 L Ed 2d, at 332, "deference does      admissions policy.
not imply [*349] abandonment or abdication of judicial
                                                                                         ***
review," Miller-El v. Cockrell, 537 U.S. 322, 340, 154 L.
Ed. 2d 931, 123 S. Ct. 1029 (2003).) Still other suits may          One must also consider the Law School's refusal to
challenge the bona fides of the institution's expressed        entertain changes to its current admissions system that
commitment to the educational benefits of diversity that       might produce the same educational benefits. The Law
immunize the discriminatory scheme in Grutter.                 School adamantly disclaims any race-neutral alternative
(Tempting targets, one would suppose, will be those            that would reduce "academic selectivity," which would
universities that talk the talk of multiculturalism and        in turn "require the Law School to become a very
racial diversity in the courts but walk the walk of            different institution, and to sacrifice a core part of its
tribalism and racial segregation on their campuses--           educational mission." Brief for Respondents Bollinger et
through minority-only student organizations, separate          al. 33-36. In other words, the Law School seeks to
minority housing opportunities, separate minority student      improve marginally the education it offers [*356]
centers, even separate minority-only graduation                without sacrificing too much of its exclusivity and elite
ceremonies.) . . .                                             status.

Justice Thomas, with whom Justice Scalia joins as to                                     ***
Parts I-VII, concurring in part and dissenting in part.             Under the proper standard, there is no pressing
     Frederick Douglass, speaking to a group of                public necessity in maintaining a public law school at all
abolitionists almost 140 years ago, delivered a message        and, it follows, certainly not an elite law school.
lost on today's majority:                                      Likewise, marginal improvements in legal education do
                                                               not qualify as a compelling state interest.
            "In regard to the colored people, there
       is always more that is benevolent, I                                              ***
       perceive, than just, manifested towards us.                  The Court's deference to the Law School's
       What I ask for the negro is not                         conclusion that its racial experimentation leads to
       benevolence, not pity, not sympathy, but                educational benefits will, if adhered to, have serious
       simply justice. The American people have                collateral consequences. The Court relies heavily on
       always been anxious to know what they                   social science evidence to justify its deference. See ante,
       shall do with us . . . . I have had but one             at 156 L Ed 2d, at 333-335; but see also Rothman,
       answer from the beginning. Do nothing                   Lipset, & Nevitte, Racial Diversity Reconsidered, 151
       with us! Your doing with us has already                 Public Interest 25 (2003) (finding that the racial mix of a
       played the mischief with us. Do nothing                 student body produced by racial discrimination of the
       with us! If the apples will not remain on               type practiced by the Law School in fact hinders
       the tree of [*350] their own strength, if               students' perception of academic quality). The Court
       they are worm-eaten at the core, if they                never acknowledges, however, the growing evidence that
       are early ripe and disposed to fall, let                racial (and other sorts) of heterogeneity actually impairs
       them fall! . . . And if the negro cannot                learning among black students. See, e.g., Flowers &
       stand on his own legs, let him fall also.               Pascarella, Cognitive Effects of College Racial


                                                                                                                       34
Composition on African American Students After 3             Apparently where the status quo being defended is that
Years of College, 40 J. of College Student Development       of the elite establishment--here the Law School--rather
669, 674 (1999) (concluding that black students              than a less fashionable Southern military institution, the
experience superior cognitive development at                 Court will defer without serious inquiry and without
Historically Black Colleges (HBCs) and that, even            regard to the applicable legal standard.
among blacks, "a substantial diversity moderates the
                                                                                        ***
cognitive effects of attending an HBC"); Allen, The
Color of Success: African-American College Student                Putting aside the absence of any legal support for the
[*365]      Outcomes at Predominantly White and              majority's reflexive deference, there is much to be said
Historically Black Public Colleges and Universities, 62      for the view that the use of tests and other measures to
Harv. Educ. Rev. 26, 35 (1992) (finding that black           "predict" academic performance is a poor substitute for a
students attending HBCs report higher academic               system that gives every applicant a chance to prove he
achievement than those attending predominantly white         can succeed in the study of law. The rallying cry that in
colleges).                                                   the absence of racial discrimination in admissions there
                                                             would be a true [*368] meritocracy ignores the fact that
     At oral argument in Gratz v. Bollinger, ante,156 L
                                                             the entire process is poisoned by numerous exceptions to
Ed 2d 257, 123 S Ct 2411 , counsel for respondents
                                                             "merit." For example, in the national debate on racial
stated that "most every single one of [the HBCs] do have
                                                             discrimination in higher education admissions, much has
diverse student bodies." Tr. of Oral Arg. in No. 02-516, p
                                                             been made of the fact that elite institutions utilize a so-
52. What precisely counsel meant by "diverse" is
                                                             called "legacy" preference to give the children of alumni
indeterminate, but it is reported that in 2000 at
                                                             an advantage in admissions. This, and other, exceptions
Morehouse College, one of the most distinguished HBC's
                                                             to a "true" meritocracy give the lie to protestations that
in the Nation, only 0.1% of the student body was white,
                                                             merit admissions are in fact the order of the day at the
and only 0.2% was Hispanic. College Admissions Data
                                                             Nation's universities. The Equal Protection Clause does
Handbook 2002-2003, p 613 (43d ed. 2002) (hereinafter
                                                             not, however, prohibit the use of unseemly legacy
College Admissions Data Handbook).                And at
                                                             preferences or many other kinds of arbitrary admissions
Mississippi Valley State University, a public HBC, only
                                                             procedures. What the Equal Protection Clause does
1.1% of the freshman class in 2001 was white. Id., at
                                                             prohibit are classifications made on the basis of race. So
603. If there is a "critical mass" of whites at these
                                                             while legacy preferences can stand under the
institutions, then "critical mass" is indeed a very small
                                                             Constitution, racial discrimination cannot. I will not twist
proportion.
                                                             the Constitution to invalidate legacy preferences or
                          ***                                otherwise impose my vision of higher education
                                                             admissions on the Nation. The majority should similarly
     Moreover one would think, in light of the Court's
                                                             stay its impulse to validate faddish racial discrimination
decision in United States v. Virginia, 518 U.S. 515, 135
                                                             the Constitution clearly forbids.
L. Ed. 2d 735, 116 S. Ct. 2264 (1996), that before being
given license to use racial discrimination, the Law                                     ***
School would be required to radically reshape its
                                                                  Putting aside what I take to be the Court's implicit
admissions process, even to the point of sacrificing some
                                                             rejection of Adarand's holding that beneficial and
elements of its character. In Virginia, a majority of the
                                                             burdensome racial classifications are equally invalid, I
Court, without a word about academic freedom, accepted
                                                             must contest the notion that the Law School's
the all-male Virginia Military Institute's (VMI)
                                                             discrimination benefits those admitted as a result of it.
representation that some changes in its "adversative"
                                                             The Court spends considerable time discussing the
method of education would be required with the
                                                             impressive display of amicus support for the Law School
admission of women, id., at 540, 135 L Ed 2d 735, 116 S
                                                             in this case from all corners of society. Ante, at 156 L Ed
Ct 2264, but did not defer to VMI's judgment that these
                                                             2d, at 333-334. But nowhere in any of the filings in this
changes would be too great.            Instead, the Court
                                                             Court is any evidence that the purported "beneficiaries"
concluded that they were "manageable." Id., at 551, n.
                                                             of this racial discrimination prove themselves by
19, 135 L Ed 2d 735, 116 S Ct 2264. That case involved
                                                             performing at (or even near) the same level as those
sex discrimination, which is subjected to intermediate,
                                                             students who receive no preferences. Cf. Thernstrom &
not strict, scrutiny. Id., at 533, 135 L Ed 2d 735, 116 S
                                                             Thernstrom, Reflections on the Shape of the River, 46
Ct 2264; Craig v. Boren, 429 U.S. 190, 197, 50 L. Ed. 2d
                                                             UCLA L. Rev. 1583, 1605-1608 (1999) (discussing the
397, 97 S. Ct. 451 (1976). So in Virginia, where the
                                                             failure of defenders of racial discrimination in
standard of review dictated that greater flexibility be
                                                             admissions to consider the fact that its "beneficiaries" are
granted to VMI's educational policies than the Law
                                                             underperforming in the classroom).
School deserves here, this Court gave no deference.


                                                                                                                      35
    The silence in this case is deafening to those of us             [*373] Beyond the harm the Law School's racial
who view higher education's purpose as imparting               discrimination visits upon its test subjects, no social
knowledge and skills to students, rather than a                science has disproved the notion that this discrimination
communal, rubber-stamp, [*372] credentialing process.          "engenders attitudes of superiority or, alternatively,
The Law School is not looking for those students who,          provoke[s] resentment among those who believe that
despite a lower LSAT score or undergraduate grade point        they have been wronged by the government's use of
average, will succeed in the study of law. The Law             race." Adarand, 515 U.S., at 241, 132 L Ed 2d 158, 115
School seeks only a facade--it is sufficient that the class    S Ct 2097 (Thomas, J., concurring in part and concurring
looks right, even if it does not perform right.                in judgment). "These programs stamp minorities with a
                                                               badge of inferiority and may cause them to develop
     The Law School tantalizes unprepared students with
                                                               dependencies or to adopt an attitude that they are
the promise of a University of Michigan degree and all
                                                               'entitled' to preferences." Ibid.
of the opportunities that it offers. These overmatched
students take the bait, only to find that they cannot               It is uncontested that each year, the Law School
succeed in the cauldron of competition. And this               admits a handful of blacks who would be admitted in the
mismatch crisis is not restricted to elite institutions. See   absence of racial discrimination. See Brief for
T. Sowell, Race and Culture 176-177 (1994) ("Even if           Respondents Bollinger et al. 6. Who can differentiate
most minority students are able to meet the normal             between those who belong and those who do not? The
standards at the 'average' range of colleges and               majority of blacks are admitted to the Law School
universities, the systematic mismatching of minority           because of discrimination, and because of this policy all
students begun at the top can mean that such students are      are tarred as undeserving. This problem of stigma does
generally overmatched throughout all levels of higher          not depend on determinacy as to whether those
education").     Indeed, to cover the tracks of the            stigmatized are actually the "beneficiaries" of racial
aestheticists, this cruel farce of racial discrimination       discrimination. When blacks take positions in the highest
must continue--in selection for the Michigan Law               places of government, industry, or academia, it is an
Review, see University of Michigan Law School Student          open question today whether their skin color played a
Handbook 2002-2003, pp 39-40 (noting the presence of a         part in their advancement. The question itself is the
"diversity plan" for admission to the review), and in          stigma--because either racial discrimination did play a
hiring at law firms and for judicial clerkships--until the     role, in which case the person may be deemed "otherwise
"beneficiaries" are no longer tolerated. While these           unqualified," or it did not, in which case asking the
students may graduate with law degrees, there is no            question itself unfairly marks those blacks who would
evidence that they have received a qualitatively better        succeed without discrimination. Is this what the Court
legal education (or become better lawyers) than if they        means by "visibly open"? Ante, at 156 L Ed 2d, at 335.
had gone to a less "elite" law school for which they were
                                                                    Finally, the Court's disturbing reference to the
better prepared. And the aestheticists will never address
                                                               importance of the country's law schools as training
the real problems facing "underrepresented minorities,"
                                                               grounds meant to cultivate "a set of leaders with
n11 instead continuing their social experiments on other
                                                               legitimacy in the eyes of the citizenry," ibid., through the
people's children.
                                                               use of racial discrimination deserves discussion. As
                                                               noted earlier, the Court has soundly [*374] rejected the
                                                               remedying of societal discrimination as a justification for
            n11 For example, there is no recognition by
                                                               governmental use of race. Wygant, 476 U.S., at 276, 90
       the Law School in this case that even with their
                                                               L Ed 2d 260, 106 S Ct 1842 (plurality opinion); Croson,
       racial discrimination in place, black men are
                                                               488 U.S., at 497, 102 L Ed 2d 854, 109 S Ct 706
       "underrepresented" at the Law School. See ABA-
                                                               (plurality opinion); id., at 520-521, 102 L Ed 2d 854, 109
       LSAC Guide 426 (reporting that the Law School
                                                               S Ct 706 (Scalia, J., concurring in judgment). For those
       has 46 black women and 28 black men). Why
                                                               who believe that every racial disproportionality in our
       does the Law School not also discriminate in
                                                               society is caused by some kind of racial discrimination,
       favor of black men over black women, given this
                                                               there can be no distinction between remedying societal
       underrepresentation? The answer is, again, that
                                                               discrimination and erasing racial disproportionalities in
       all the Law School cares about is its own image
                                                               the country's leadership caste. And if the lack of
       among know-it-all elites, not solving real
                                                               proportional racial representation among our leaders is
       problems like the crisis of black male
                                                               not caused by societal discrimination, then "fixing" it is
       underperformance.
                                                               even less of a pressing public necessity.
                                                                                          ***



                                                                                                                        36
     The Court also holds that racial discrimination in              Statistical Reports (1984 and 2000). Today,
admissions should be given another 25 years before it is             however, unless blacks were to begin applying to
deemed no longer narrowly tailored to the Law School's               law school in proportions greater than their
fabricated compelling state interest. Ante, at 156 L Ed              representation in the general population, the
2d, at 341. While I agree that in 25 years the practices of          growth in absolute numbers of high scoring
the Law School will be illegal, they are, for the reasons I          blacks should be expected to plateau, and it has.
have given, illegal now. The majority does not and                   In 1992, 63 black applicants to law school had
cannot rest its time limitation on any evidence that the             LSAT scores above 165. In 2000, that number
gap in credentials between black and white [*376]                    was 65. See LSAC Statistical Reports (1992 and
students is shrinking or will be gone in that timeframe. In          2000).
recent years there has been virtually no change, for
example, in the proportion of law school applicants with
                                                                    [*377]     Indeed, the very existence of racial
LSAT scores of 165 and higher who are black. n14 In
                                                              discrimination of the type practiced by the Law School
1993 blacks constituted 1.1% of law school applicants in
                                                              may impede the narrowing of the LSAT testing gap. An
that score range, though they represented 11.1% of all
                                                              applicant's LSAT score can improve dramatically with
applicants. Law School Admission Council, National
                                                              preparation, but such preparation is a cost, and there
Statistical Report (1994) (hereinafter LSAC Statistical
                                                              must be sufficient benefits attached to an improved score
Report). In 2000 the comparable numbers were 1.0%
                                                              to justify additional study. Whites scoring between 163
and 11.3%. LSAC Statistical Report (2001). No one can
                                                              and 167 on the LSAT are routinely rejected by the Law
seriously contend, and the Court does not, that the racial
                                                              School, and thus whites aspiring to admission at the Law
gap in academic credentials will disappear in 25 years.
                                                              School have every incentive to improve their score to
Nor is the Court's holding that racial discrimination will
                                                              levels above that range. See App. 199 (showing that in
be unconstitutional in 25 years made contingent on the
                                                              2000, 209 out of 422 white applicants were rejected in
gap closing in that time. n15
                                                              this scoring range). Blacks, on the other hand, are nearly
            n14 I use a score of 165 as the benchmark         guaranteed admission if they score above 155. Id., at
       here because the Law School feels it is the            198 (showing that 63 out of 77 black applicants are
       relevant score range for applicant consideration       accepted with LSAT scores above 155). As admission
       (absent race discrimination). See Brief for            prospects approach certainty, there is no incentive for the
       Respondents Bollinger et al. 5; App. to Pet. for       black applicant to continue to prepare for the LSAT once
       Cert. 309a (showing that the median LSAT score         he is reasonably assured of achieving the requisite score.
       for all accepted applicants from 1995-1998 was         It is far from certain that the LSAT test-taker's behavior
       168); id., at 310a-311a (showing the median            is responsive to the Law School's admissions policies.
       LSAT score for accepted applicants was 167 for         Nevertheless, the possibility remains that this racial
       the years 1999 and 2000); University of Michigan       discrimination will help fulfill the bigot's prophecy about
       Law       School    Website,     available     at      black underperformance--just as it confirms the
       http://www.law.umich.edu/prospectivestudents/A         conspiracy theorist's belief that "institutional racism" is
       dmissions/index.htm (showing that the median           at fault for every racial disparity in our society.
       LSAT score for accepted applicants in 2002 was
                                                                   I therefore can understand the imposition of a 25-
       166).
                                                              year time limit only as a holding that the deference the
            n15 The majority's non sequitur observation       Court pays to the Law School's educational judgments
       that since 1978 the number of blacks that have         and refusal to change its admissions policies will itself
       scored in these upper ranges on the LSAT has           expire. At that point these policies will clearly have
       grown, ante, at 156 L Ed 2d, at 342, says nothing      failed to "'eliminate [*378] the [perceived] need for any
       about current trends. First, black participation in    racial or ethnic'" discrimination because the academic
       the LSAT until the early 1990's lagged behind          credentials gap will still be there. . . .
       black representation in the general population.
       For instance, in 1984 only 7.3% of law school                 ***
       applicants were black, whereas in 2000 11.3% of
       law school applicants were black. See LSAC




                                                                                                                      37
Race Norming in Law School Admissions
               (Article)




                                        38
39
40
41
42
43
44
Rule of Law: So Far, Clinton Can’t Kick His Quota Addiction
                          (Article)




                                                              45
                             THE WALL STREET JOURNAL
                Rule of Law: So Far, Clinton Can‟t Kick His Quota Addiction

                                    Wednesday, June 12, 1996

        The Supreme Court‟s Adarand decision marks its first anniversary today, and corks
unexpectedly are popping at the White House. For a year after the perceived death knell for race-
based affirmative action, the Clinton administration has managed to sustain the vast apparatus of
race preferences—even while creating the public facade of phasing them out.
        In recent back-to-back actions, the White House moved to preserve preferences in two areas
in which they are especially pervasive: government contracts and higher education. With much
ballyhoo, it announced new federal procurement rules that ostensibly will phase out racial
preferences but in fact do not curtail a single preference. And it filed a brief urging the Supreme
Court to overturn the recent Fifth Circuit Court of Appeals‟ Hopwood ruling striking down
admissions preferences at the University of Texas law school.
        In both contexts the administration presents no new thinking but a parade of euphemisms.
In the realm of federal contracting, “goals and timetables” become “benchmarks,” and “set-asides”
are nor “sheltered bidding.” In university admissions, it embraces “diversity” as a last gasp
justification for preferences—perhaps the most open-ended rationale yet.
        The new procurement rules are supposed to align federal practices with last year‟s Adarand
Constructors, Inc. v. Pena decision, in which the Supreme Court ruled that racial preferences can be
justified only as a “narrowly tailored” remedy to specific past discrimination. It‟s hard to argue that
discrimination exists in federal contract awards, because in most instances the lowest bidder wins—
the ultimate objective merit-based standard.
        So instead the Clinton administration has resorted to “disparity studies” to demonstrate
rampant discrimination in the various industries with which the government contracts. Trouble is,
the Supreme Court has never accepted statistics to prove a constitutional violation allowing race-
conscious remedies. Nor has the administration explained why it must resort to racial preferences
instead of eradicating the underlying discrimination that supposedly is so pervasive.
        In any event, the statistics yielded by these studies are used to set goals—er, benchmarks—
for minority participation in each industry. Agencies are allowed to use “sole source contracting
and sheltered competition” or “bidding credits” of up to 10% of the “fair market price” to reach
minority contracting or subcontracting benchmarks. So much for low-bid wins.
        The administration also purported to toughen participation standards. Most of the
preference programs are supposed to assist “socially and economically disadvantaged” individuals.
Under the new Clinton rules, members of specified minority groups are still presumed to be socially
and economically disadvantaged. But instead of merely identifying themselves as “disadvantaged,”
preference recipients now will have to identify the particular minority group membership that
entitles them to the preference. There is no standard by which to determine who is a minority and
who is not. Maybe the administration can dust off the old Louisiana race statutes, circa 1896, under
which Adolph Plessy was consigned to a “colored-only” railroad car because he was one-eight
black.
        The new rules assure that “when the effects of discrimination have been eliminated, as
demonstrated by minority success in obtaining procurement contracts, reliance on race will
terminate.” In other words, maybe never. The unacknowledged secret is that after 30 years of


                                                                                                     46
social engineering, the racial chasm is widening, not shrinking. So long as nearly 75% of black
children are born to unwed mothers, only 12% of black high school seniors are proficient in reading
and math, and one-third of young black men are under judicial supervision, no amount of corporate
welfare for minority business is going to heal the breach, even if discrimination disappeared
tomorrow.
         The administration seems to recognize this grim truth when it predicts in its brief in the
University of Texas law school case that curtailing racial preferences will “return most prestigious
institutions within state university systems to their former „white‟ status.” Here the administration
has to shift gears: The naked truth of racial preferences are justified not by continuing
discrimination—no university wants to turn away minorities—but by “the goal of educational
diversity.”
         The fatal flaw in the diversity rationale is that it is inherently subjective and has no logical
stopping point. In rejecting a similar argument that the need for “role models” could justify racial
preferences, Justice Lewis Powell declared in his 1985 Wygant v. Jackson Board of Education
decision that such rationales “could uphold remedies that are ageless in their reach in to the past,
and timeless in their ability to affect the future.”
         In its brief, the administration makes the remarkable assertion that “if left unreviewed, this
decision will effectively eliminate all affirmative action admissions programs in higher education
within the Fifth Circuit.” Discrimination, yes; affirmative action, not necessarily.
         Consider what is happening in California. After Gov. Pete Wilson forbade the University of
California at Berkeley from using racial preferences in admissions, it changed the way it did
business. Instead of evaluating applicants as members of racial groups, it began looking at
applicants as individuals, giving credit whenever they had overcome real disadvantages. More
important, the university became actively involved in the educational process at elementary and
secondary levels, trying to increase the pool of minority candidates who can compete on an equal
basis. That‟s what affirmative action should be about: fostering human capital, not redistributing
opportunities on the most pernicious of bases.
         The Clinton administration has created an anomaly in its civil rights policies; it has lost
every single race preference case I which it has participated in the Supreme Court yet somehow it
cannot find a single preference it considers unconstitutional. Meanwhile, it has done painfully little
to solve the underlying problems of inner-city-schools, welfare dependency and crime that fuel the
racial divide.
         Not long ago I was picked up by a cab driver from Nigeria. Holder of a doctorate in his
native country, he is working his way up the economic ladder in his adopted land. He expressed
strong reservations about the raced-based admissions process in higher education. “The problem,
you see, is not in college,” he remarked. “The problem is in kindergarten.”
         Ignoring such wisdom, the Clinton administration has spent a year evading Supreme Court
mandates. That leaves it to Congress and the people to make good on the core goal of civil rights:
to stop classifying Americans on the basis of race.




                                                                                                       47
Affirmative Action: A Solution
           (Article)




                                 48
               NEITHER COLOR-BLINDNESS NOR QUOTA-MONGERING.
                       AFFIRMATIVE ACTION: A SOLUTION

                                      Jeffrey Rosen
                                    The New Republic
                                       May 8, 1995
                                         Page 20


Is there a middle ground on affirmative action, an oasis between radical color-
blindness on the right and racial quota-mongering on the left? As President Clinton
prepares to unveil his conclusions on the subject, it's hard not to sympathize with
his political predicament, but hard also not to anticipate his speech with a sense of
dread. Having raised expectations so dramatically, he no longer has the luxury of
embracing contradictory positions, or retreating into euphemisms. But is his task
impossible? It's an urgent question, made all the more so by the inadequacy of the
two alternatives.

Color-blindness, for all its moral and political appeal, is not really a practical option.
When asked point-blank, few conservatives are honestly willing to accept the
widespread resegregation that would follow from a rigid ban on racial preferences.
As the gap between the lsat scores of white and black candidates at the University
of Texas shows, the end of affirmative action would mean, in many cases, a return
to lily-white universities and workplaces (see "Is Affirmative Action Doomed?" tnr,
October 17, 1994). Moreover, even if the Congress decided tomorrow to prohibit
discrimination in favor or against any person on the basis of race or gender, the
questions at the heart of affirmative action would endure: How do you identify
"discrimination"? Should it be inferred from intent or result? Are informal quotas the
safest way of avoiding it? Both the California civil rights initiative and the federal
statute endorsed by Senator Bob Dole, for example, forbid discrimination but don't
manage to define it.

To make matters worse, affirmative action bureaucracies and beliefs are so
entrenched that a sweeping color-blind law might lead to a renewed attack on
objective standards. When Congress forbade race-norming in the Civil Rights Act of
1991, for example, many employers dropped their aptitude tests altogether, or set
the cut-off points for all candidates at the lowest possible levels: they were more
concerned with keeping up appearances than obeying the spirit of the law. The
desire to "look like America," in short, has become too much a part of our social
fabric to be suppressed by a legal rule.




                                                                                         49
The left-wing attempt to legislate equality of outcomes is just as utopian. The
expectation that each race and gender should, always and everywhere, be
represented in numbers that reflect its position in society at large is doomed to fail,
and to stir racial resentment at the same time. Blaming white racism for the failure
of minorities to be proportionally represented in all professions is no longer entirely
plausible. If more than 40 percent of the freshman class at Berkeley is Asian
American, and if more than 30 percent of law professors at Berkeley are Jewish,
this sort of "over-representation" reflects the fact that talents and ambitions are
distributed differently in different fields.

Similarly, if only a fraction of women are now CEOs as the tendentious federal
Glass Ceiling Commission reported in March, this is hardly a result of discrimination
alone. It takes twenty-five years of full-time work to rise to the top of a field; and
women have only recently worked full-time in large numbers. (In 1968, women left
work for ten years, on average, after their children were born; in 1987, the average
was six months.) The cookie-cutter ideal of proportionalism does an injustice not
only to white men, but to women and men of all ethnic groups who, through their
own efforts, have succeeded beyond their numbers.

Some factions in the Clinton administration, unfortunately, refuse to acknowledge
that proportionalism has costs. Consider the Labor Department's draft report,
released on March 23, which purports to review all federal cases involving reverse
discrimination between 1990 and 1994. Prepared by Alfred Blumrosen of Rutgers
University, the report concludes that reverse discrimination cases represent less
than 3 percent of all discrimination cases; that plaintiffs prevailed in "only" 30
percent of the twenty-one cases reported; and that "[n]othing in these cases would
justify dismantling the existing structure of equal employment opportunity
programs."

The report is gratuitously sarcastic--it ridicules the unsuccessful plaintiffs with
headlines such as "the sleeping supervisor" and "the professor who didn't like
competition"--and statistically meaningless. First, the sample of twenty-one cases is
so small the results might as well be random. And even if it's true that plaintiffs win
in 30 percent of reverse discrimination cases, the number is hardly low. As law
professors George Priest and Benjamin Klein have pointed out, when one party in a
civil suit is much more likely to win than the other, the case tends to settle before
going to trial. Therefore, if 30 percent of reverse discrimination plaintiffs prevail in
court, the number is comparable to the percentage of plaintiffs who win medical
malpractice cases (32 percent) and product liability cases (42 percent). This doesn't
mean that doctors aren't committing malpractice, or employers aren't discriminating
against white men. It means that doctors and employers, when clearly guilty, are
eager to avoid trials that they're likely to lose.


                                                                                      50
After acknowledging the need for a middle ground, Clinton would be in a perfect
position to define it. He might start with a clear distinction: mandatory race and
gender preferences, imposed by federal statutes and executive order, are more
troubling than those adopted voluntarily by private employers. Rather than trying to
take a position on all affirmative action in every sphere of society, Clinton could limit
himself to examining the programs that he is directly responsible for administering:
the 160 federal race and gender preferences collected by the Congressional
Research Service at Senator Dole's request.

In his more moderate moments, Clinton has toyed with two alternatives to the
current regime: class-based preferences and affirmative action along the military
model. The class-based alternative (see "Class, Not Race," by Richard Kahlenberg,
tnr April 3) would be especially perverse for a president who is concerned, above
all, with racial diversity. A college board survey, described in Andrew Hacker's Two
Nations, reveals the problem starkly. In 1992 the average combined SAT score for
black students whose parents earn more than $70,000 a year was 854, twenty-five
points lower than the average SAT for white students whose parents earn less than
$20,000. This statistic fatally undermines the premise that disadvantage is a useful
proxy for race; and it suggests that need-based preferences, honestly applied,
would replace middle-class black students with lower-class white students. Like the
color-blind rule, it would produce virtually all-white universities.

Class-based preferences become even more perverse when they're extended
beyond university admissions. Imagine two candidates for a promotion to office
manager, one of whom got the entry-level job ten years ago because his father was
a sharecropper but who is now, thanks to the preference, a middle-class
professional. Can he dramatically resurrect his former disadvantage to leapfrog
over a colleague named Cabot who, despite a Skull and Bones pedigree, is
currently his social and economic equal? The prospect is absurd in a nation
founded on the idea that social class is always mutable; and the administration,
presumably, will give class-based preferences a discreet burial.

Clinton's second model for affirmative action--the military--is also problematic. The
most obvious flaw in the analogy is the abundance in the military of able African
American recruits. More than 5 percent of all black men between the ages of 18
and 21 now apply for military service--nearly twice the rate of white applicants.
David Armor of George Mason University estimates that if the military admitted all
applicants on the basis of a lottery, about half of the force would be African
American. But ever since the 1970s, the military has required all candidates to take
aptitude tests, and eliminated those in the bottom quartile. During the 1980s and
1990s, about one-half of all black candidates, and one-third of white candidates,
were ineligible to join the military, mainly because of low scores.


                                                                                       51
Because the military has so many able minorities to choose from, it can eliminate
the weakest candidates and still achieve a disproportionately large number of
African American cadets. Nearly one-third of the enlisted men in the Army are now
black, more than three times the percentage of blacks in civilian society. This is
hardly a useful model for university admissions or federal employment, where the
far smaller numbers of minority applicants create hydraulic pressure to apply
different standards to white and black candidates.

The authoritarianism of the military also makes it an unlikely model for the country
at large. To enforce racial harmony, the Army has imposed a range of social
controls that would hardly be tolerated in civilian society, including extensive
surveillance techniques, "shock treatment" sensitivity training and ruthless
suppression of racial epithets. Soldiers are not allowed to join unions or strike in the
middle of battles. It's possible, therefore, to admire the military's successes in race
relations while recoiling at the thought of trying to duplicate its methods in a liberal
democracy.

Despite the obvious problems with the analogy, the military does have some useful
lessons for Clinton's affirmative action review. The White House has prominently
cited the work of Charles Moskos of Northwestern University, who recently met with
Clinton. Moskos points to three core principles of affirmative action in the military
(see "How Do They Do It?" tnr, August 5, 1991). First, the Army eschews quotas,
but it does have goals. Promotions boards are encouraged to promote minority and
female officers equivalent to their percentages in the promotion pool, not to the
number of minorities and women in the Army as a whole. Second, white and black
candidates are held to the same aptitude standards: there is no hint of separate
promotion lists. Most important of all, there are no "timetables" to meet the goals.
When there are not enough qualified candidates, Moskos claims, the Army refuses
to relax its standards.

But having endorsed Moskos's three principles of affirmative action in the military,
Clinton will need an iron will to enforce them. For many of the 160 race and gender
preferences administered by the federal government violate all three of Moskos's
principles. Most dramatically, Executive Order 11,246 and its accompanying
regulations require federal contractors to adopt "goals and timetables" pegged to
rigid expectations of proportional representation: exactly what Moskos says the
military rejects. Similar requirements pervade the federal register. "On a statistical
basis," says a Labor Department regulation, "staff representative of the racial and
ethnic characteristics in the workforce shall be distributed in substantially the same
proportion among (1) all `job groups' ... and (2) all offices in the plan(s)." Even more
crudely, Education Department guidelines provide that whenever there is a
significant "under-representation or overrepresentation" of protected groups, the
imbalance will be presumed to result from discrimination.

                                                                                      52
In addition to creating coercive incentives to achieve racial proportionalism,
Executive Order 11,246 has failed to achieve its purported goal of expanding
opportunity for needy minorities. The most careful survey of the econometric
literature, conducted by George Rutherglen of the University of Virginia, suggests
that the federal executive order has modestly increased the number of African
Americans employed by federal contractors (in the neighborhood of .15 percent
annually), but has had little long-term effect on wages. If Clinton is looking for a
dramatic gesture as proof of his good faith, therefore, he should repeal Executive
Order 11,246, a relic of the Johnson era that has outlived its purposes.

What about the other race and gender preferences administered by the federal
government? Clinton, of course, has no power to repeal congressional statutes. But
since he has promised to review the entire range of federal race and gender
programs, determining "what works and what doesn't," he will have to take a
position on the rest of the 160 racial preference programs compiled by the
Congressional Research Service. Despite the daunting length of the list, the
preferences tend to be minute variations on similar themes; and they can be divided
into three broad categories--roughly corresponding to the education market, capital
market and labor market.

The first and least controversial category consists of federal aid targeted at
"historically black colleges and universities." Between 1992 and 1995, for example,
historically black colleges were exempted from a regulation disqualifying schools
with a high default rate from receiving student loans. Other programs involve set-
asides for federal grants: 15 percent of National Science Foundation funds for
faculty exchanges are targeted at institutions with "a substantial percentage of
minority students." But, although the educational merits of historically black colleges
are hotly disputed (according to the American Council on Education, their retention
rates for black students are now no higher than predominantly white colleges), all of
them are at least formally open to whites as well as blacks. This sort of aid seems
less discriminatory than the minority scholarship at the University of Maryland
whose constitutionality is being challenged because it is limited to blacks. Clinton
can defend the programs in this category as affirmative action at its most benign.

The second broad category on the list is based on the assumption that women and
minorities have a harder time getting access to capital than white men do. For
example, a long list of federal agencies "encourage" grant recipients to use minority
and female-owned banks, including the Departments of Agriculture, Labor and
Veterans Affairs, the Rural Economic Development Program and the special
Supplemental Food Program for Women, Infants, and Children. The Resolution
Trust Completion Act (which expires this year) included a "minority preference in
acquisition of institutions in predominantly minority neighborhoods." And other
regulations award "preference points" to expand bank ownership by minorities and

                                                                                       53
women. Are these preferences really necessary? The Equal Credit Opportunity Act,
passed in 1974, forbids lending discrimination on the basis of race or gender; and
the Community Reinvestment Act, passed in 1977, requires that banks lend in low-
and moderate-income communities. Vigorous enforcement of these two laws
seems like a more effective way of rooting out lending discrimination than resorting
to special preferences for minority-owned banks. In 1992 there were only thirty-six
banks owned by blacks and six banks owned by women in the country, which
makes it unlikely that they can have much influence on the credit markets, no
matter how much "encouragement" they get from the government. And the
evidence is mixed about whether black-owned banks actually have a better record
of lending to minorities: some studies suggest that they may be more cautious
because their assets are more vulnerable.

The most questionable program in this category is the Federal Communication
Commission's bidding preferences for minorities and women in auctions for cellular
telephone licenses. In 1993 Congress told the FCC "to ensure that small
businesses, rural telephone companies, and businesses owned by members of
minority groups and women" are given the opportunity to own radio and cellular
licenses. The commission, accordingly, set aside one-third of its licenses for small
businesses, minorities and women. Small businesses with gross revenues under
$40 million get a bidding credit of 10 percent. But the Achilles' heel of the program
is that businesses owned by women or minorities get an additional 15 percent
bidding credit, whether or not they are small--that is, even if they have revenues
over $40 million. The FCC defines minorities, as "[t]hose of Black, Hispanic
Surnamed, American Eskimo, Aleut, American Indian and Asiatic American
extraction."

Congress and the FCC don't even try to justify the program in the name of diversity
of the airwaves, or compensatory justice. Instead, they claim that bidding
preferences are necessary because women and minorities face discrimination in
the commercial credit markets. But this premise is hard to accept in a program that
favors successful minorities and women, who may have an easier time getting
capital than their smaller, non-minority competitors. To justify its empirical claims,
the commission relies heavily on a 1992 study by the Federal Reserve Bank of
Boston, which concluded that black and Hispanic applicants in the Boston area are
roughly 60 percent more likely to be denied a mortgage loan than white applicants
with similar income and education. But the premise of the Boston Fed study has
been hotly contested. If lending discrimination were a serious problem, only the
strongest black applicants would get loans; and the default rate for black borrowers
would be lower than the default rate for whites. In fact, as Jonathan Macey of
Cornell Law School points out, the reverse is true. A recent study by the Federal
Reserve Board compared default rates among 220,000 loans insured by the


                                                                                     54
Federal Housing Administration in the late 1980s. The study found that the average
default rate for blacks was 9 percent, significantly above the default rate for Asians
(3.2 percent), whites (4.3 percent), Hispanics (5.1 percent) and American Indians (6
percent). All this suggests that, far from discrimination against black borrowers,
banks may be discriminating in favor of them.

In the scheme of things, the FCC's bidding preference might be defended as less of
a displacement of the free market than crude set-asides for minority contractors.
The government is providing a license to compete, rather than a guarantee of
monopoly profits; and minority entrepreneurs who make bad business decisions will
lose money for themselves and their investors. Nevertheless, the real question is
why the government should be going out of its way to help successful minority
businesses in the first place. If Clinton is really concerned about trimming away the
excesses of affirmative action, then the bidding preferences for minorities and
women, like the infamous tax credits for conglomerates that sell to minorities, are
ripe for repeal.

The third and largest category of preferences on the Congressional Research
Service list includes minority business set-asides for federal contractors. They are
modeled on Section 8(d) of the Small Business Act, which requires a certain
percentage of federal contracts--at least 10 percent and usually more--to be set
aside for "socially and economically disadvantaged business," defined as
businesses owned by the following groups: "Black Americans; Hispanic Americans;
Native Americans (American Indians, Eskimos, Aleuts or Native Hawaiians); Asian
Pacific Americans (persons with origins from Japan, China, the Philippines,
Vietnam, Korea, Samoa, Guam, U.S. Trust Territory of the Pacific Islands, Northern
Mariana Islands, Laos, Cambodia or Taiwan)." And women, too.

As Drew Days, the U.S. solicitor general, argued as a Yale law professor, this is
one of the largest and least defensible of federal affirmative action programs.
Despite its rhetoric about correcting past discrimination, Congress never
convincingly established a compensatory rationale for this program when it was
established in 1978--there was little evidence of discrimination against recent Asian
immigrants in the construction industry--and in the succeeding two decades, the
program has drifted even further from its flimsy moorings. The Department of
Veterans Affairs, the State Department and the Secretaries of Commerce and
Agriculture are required to "establish regular performance monitoring and reporting
system to assure that goals are being achieved." Even the Resolution Trust
Corporation must set aside work for minorities, although the agency didn't exist
when the original set-aside was created in 1978, and so is hardly atoning for past
sins.



                                                                                    55
Minority set-asides for contractors violate all three principles of affirmative action
along the military model. The rigid numerical targets must be considered quotas
rather than a goal. There is no effort to tailor the goal to the number of qualified
firms in the relevant labor market: Colorado, which has a tiny Aleut population, must
meet the same minimum targets as Alaska. Furthermore, because prime
contractors do most of their own work on highway projects, only a small portion of
every job is available for subcontracting to begin with. Therefore, to meet the rigid
requirement that 10 percent of the entire job must be set aside for minorities,
contractors must often reserve virtually all of their subcontracting work for minority
firms. Finally, the program is so easily abused by front men, and has been so
polluted by corruption, that it gives the rest of affirmative action a bad name.

The minority set-aside program is now being challenged before the Supreme Court.
A sweeping decision in June, striking down the program as unconstitutional, would
be Bill Clinton's wildest dream: it would relieve him of the need to take a position on
the issue. Still, federal set-asides are so deeply entrenched that even a thunderbolt
from the Court is unlikely to obliterate them. In May, 1992, for example, the U.S.
Court of Appeals for the D.C. Circuit struck down the District of Columbia's minority
business enterprise program, which was modeled on the federal set-asides. A
month later, the D.C. City Council responded by renaming the program the "Equal
Opportunity for Local, Small and Disadvantaged Business Enterprise Emergency
Act" and establishing a 50 percent set-aside "to provide a preference for local and
disadvantaged business enterprises in all available areas of District Government
contracting."

Aside from the name, however, nothing else has changed. At the beginning of April,
for example, the District held a "maxaccess Minority Business Conference" at the
Washington Convention Center, promising "Direct access to key people awarding
$2 billion in local government (MD, DC, VA) contracts each year." Although the
District's refurbished program is supposedly based on need rather than race, the
conference revealed that the D.C. government grants "reciprocity" to minority
businesses registered in surrounding counties, where the definitions are far more
lax. Fairfax County, for example, defines a minority business enterprise as a
business, no matter how large or successful, controlled by "African Americans,
Hispanic Americans, Asian Americans, American Indians, Eskimos and Aleuts,
women regardless of race or ethnicity, all persons with a physical or mental
impairment that substantially limits one or more of the major life activities of such
individuals, a record of such impairments, or who are regarded as having such
impairments." While claiming to focus on economic disadvantage, in short, D.C. still
awards contracts on the basis of an expanding list of victimhood.

Unless the justices swoop down to his rescue, Clinton will have to take some
position on the minority set-asides, which are, after Executive Order 11,246, the

                                                                                     56
largest preference program the federal government administers. By any measure--
remedying past discrimination, helping the disadvantaged or preventing future
discrimination--the program is hard to defend. Clinton's options are to repeal the
set-asides entirely, or reformulate them as small business preferences that would
benefit needy entrepreneurs regardless of race. But this would require real, rather
than cosmetic, changes in contracting as it is currently practiced.

If Bill Clinton is serious about separating defensible from indefensible affirmative
action, in short, he will have to eliminate most of the mandatory racial preferences
that the federal government now administers. But by acting swiftly and decisively on
this score, Clinton would have the political and moral capital to draw a crucial
distinction: federally mandated affirmative action, which puts the U.S. government
in the business of classifying its citizens by race and gender, is more offensive to
the ideal of equal citizenship than private affirmative action, voluntarily adopted by
individual employers. In practice, those who feel aggrieved by affirmative action
may not especially care if they are victims of preferences mandated by the
government or chosen by private employers. But Clinton can seize the high ground
by embracing a principle of presidential neutrality as the centerpiece of his middle
way: affirming the non-discrimination principle in the public sphere; and leaving it up
to employers to choose or reject race-consciousness in the private sphere.

In practice, of course, affirmative action as most Americans experience it would be
largely undisturbed. In corporate bureaucracies, it's easier to administer crude
statistical goals than to develop nuanced rules. And vigorous enforcement of the
Civil Rights Act of 1991 would continue to create strong informal pressures for
employers to be exquisitely race-conscious and to adopt vigorous affirmative action
plans. The act provides that employers can be found guilty of employment
discrimination, even when they don't intend to discriminate, whenever their
employment practices have a "disparate impact" on minority applicants. To avoid
being held liable under a "disparate impact" theory, employers have a strong
incentive to reject color-blind hiring strategies, and to take refuge in the safe
harbors of racial proportionalism.

If Republicans are committed to color-blindness, therefore, they will have to take
the debate to an entirely new level. The bill endorsed by Senator Dole would merely
prohibit the federal government from discriminating in favor or against anyone on
the basis of race, but would leave private affirmative action undisturbed. A
principled commitment to color-blindness, by contrast, would require the
Republicans to repeal, or radically refine, the Civil Rights Act of 1991, an act that
four years ago many of them supported. Waving the banner of President Bush, the
Republicans could try to resurrect the original meaning of discrimination: disparate
treatment rather than disparate impact.


                                                                                     57
This is a battle that Democrats should relish. Flush with the glow of having ended
federal classifications by race, Clinton could try to paint the Republicans as the
party of resegregation. In fact, as Richard Epstein has argued in Forbidden
Grounds, individual minorities might fare best if all civil rights laws that regulate
behavior in private employment markets were repealed. This would leave the
handful of unreconstructed racists free to marginalize themselves, and everyone
else free to engage in even more aggressive preferential treatment than current law
allows. But Republicans, having boxed themselves into a color-blind corner, do not
have the luxury of rejecting the non-discrimination principle entirely.

Perhaps the endless distinctions this sort of middle ground would require are too
legalistic to be politically compelling: federal set-asides and the executive order
mandating goals and timetables should be repealed, but the Civil Rights Act of
1991 should be retained; the private sphere would look more like America than the
public sphere, and so forth. Perhaps, in the next year or so, the entire apparatus of
preferences and set-asides will be swept away by judicial or by congressional fiat;
and the color-blind principle will be the law of the land for the first time since it was
proposed and rejected during Reconstruction. But the search for a middle ground is
worth the effort. No laws can save us from our obsessive race-consciousness,
which is why it may be more honest simply to take government out of the business
of requiring or forbidding racial preferences, except at the margins. Each sphere of
society will then be free to sort out its conflicted impulses, with all deliberate speed.




                                                                                       58
The Proof is in Performance
         (Article)




                              59
                                     BUSINESS WEEK
                                  The Proof is in Performance
                                       Mike McNamee

                                          June 15, 1996

        Critics of affirmative action charge that it means companies hire less qualified female and
minority workers—and pay a price in poorer performance. New research says they‟re half-right.
        Michigan state University economists Harry Holzer and David Neumark surveyed 800
employers in Atlanta, Boston, Detroit, and Los Angeles between June, 1992, and May, 1994. Each
company was asked about its most recent hire. The economists asked about job requirements—
especially the education needed—and how well the successful candidate met them.
        Some 45% of respondents said affirmative action played a role in their latest hire. And it
had a clear effect: White women and black and Hispanic males benefited when affirmative action
was used in hiring (chart).
        Holzer and Neumark also found that minority workers hired under affirmative action tended
to be less well qualified: They had less education than whites hired at similar companies and less
than the jobs‟ stated requirements. Black males hired at affirmative-action companies, for example,
had 1.4 years less schooling than white males hired at such companies.
        In the workplace, however, the disparities didn‟t matter much. After some job experience,
female and minority workers hired under affirmative action had the same performance ratings as
white males. Critics of affirmative action, the economists say, “focus too narrowly on one or two
easily observable measures of qualification,” and not on “the most important measure—job
performance.”




                                                                                                 60
        The Broader Case for Affirmative Action:
Desegregation, Academic Excellence, and Future Leadership
                        (Article)




                                                            61
                          The Broader Case for Affirmative Action:
                  Desegregation, Academic Excellence, and Future Leadership

                                          Douglas Laycock
                                     78 Tul. L. Rev. 1767 (2004)
   I. Diversity

    In his controlling opinion in Regents of the University of California v. Bakke, Justice Powell
chose diversity as the ground for upholding race-based affirmative action in university admissions.
In a system based on precedent, his solo choice created powerful incentives a quarter-century later
for the lawyers representing the University of Michigan in Grutter v. Bollinger and Gratz v.
Bollinger, and a prominent path of least resistance for justices [*1770] inclined to uphold
affirmative action in those cases. Whatever each justice's personal reasons for upholding affirmative
action, there were powerful advantages to putting those reasons under the heading of diversity. And
so the law is that affirmative action in university admissions is permissible because diversity in
higher education is a compelling governmental interest.
                                                   ***
    Diversity is emphatically not confined to racial and ethnic diversity. If a university's admissions
process considers race, it must also "meaningfully" consider "all factors that may contribute to
student body diversity." But the Court twice pointed out that the university need not give equal
weight to all diversity factors, and it upheld a Michigan program that gave special weight to "one
particular type of diversity, that is, racial and ethnic [*1771] diversity with special reference to the
inclusion of students from groups which have been historically discriminated against, like African-
Americans, Hispanics and Native Americans, who without this commitment might not be
represented in our student body in meaningful numbers." Racial and ethnic diversity cannot be
considered in isolation from other forms of diversity, but racial and ethnic diversity can be given
special weight for reasons that sound in past discrimination and continuing underrepresentation.
    Racial and ethnic diversity in the classroom has obvious relevance to full discussion in some
disciplines. Law schools are a familiar example. Our nation's history has made racial questions
central to much of constitutional law. Perspectives related to race are often important in criminal
law, criminal procedure, family law, poverty law, statutory discrimination law, and other courses. A
moment's reflection on the nation's polarized reaction to the trial of O.J. Simpson, or the
controversy over racial profiling, or the many judicial decisions on racially polarized voting, reveals
the importance of race to disagreements over legal and public policy issues. To ignore this reality in
the name of colorblindness is indeed to act blindly. . . .
    It is equally important for students to learn that these disagreements among the races are only
statistical tendencies - that on any given issue, and even when there are sharp racial disparities in
the opinion polls, many minority individuals will not hold the presumed or stereotypical minority
position, and many white individuals will not hold the presumed or stereotypical white position.
The differences within each racial group are as important as the differences between racial groups,
but students cannot experience either set of differences without genuine racial diversity in the
classroom. One or two black students in a classroom are cast, or feel as though they are cast, as
representatives of their race. Larger numbers of black students in a [*1772] classroom can feel


                                                                                                     62
freer to disagree with each other in the presence of whites. Only then does the classroom begin to
seriously erode racial stereotypes and reveal the full individuality of students of other races.
    In some disciplines, race has less discipline-specific relevance. I doubt that there are significant
racial perspectives on differential equations, although there may be different learning styles in
mathematics, and these learning styles may have some correlation with race and ethnicity. But the
Court in Grutter emphasized another important task of American higher education, equally relevant
in all disciplines. American higher education prepares young people to function as workers and
citizens in a highly diverse society. Racial stereotypes are an important barrier to knowledge and
understanding, and communication across racial lines is essential to America's future. Diversity in
the classroom "promotes "cross-racial understanding,' helps to break down racial stereotypes, and
"enables [students] to better understand persons of different races.'"
                                                 ***
    For the Grutter Court, the label "diversity" includes the education of a diverse set of future
leaders. This is how the Court uses the much-noted military brief. The Court cites that brief not for
the claim that military officers need to have been educated in a diverse classroom, but for the much
broader claim that the officer corps must itself be "highly qualified and racially diverse."
     [*1773] The Court then expands this point from the military and national security to the
population generally. It notes "the overriding importance of preparing students for work and
citizenship" and says that education has "a fundamental role in maintaining the fabric of society."
"Education ... is the very foundation of good citizenship." "For this reason, the diffusion of
knowledge and opportunity through public institutions of higher education must be accessible to all
individuals regardless of race or ethnicity." "Effective participation by members of all racial and
ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to
be realized."
    Then the Court extends this reasoning to the nation's leadership class. "Universities[] and ... law
schools [are] the training ground for a large number of our Nation's leaders." This is especially so of
"highly selective law schools." And so we get to the question of political legitimacy:
       In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is
   necessary that the path to leadership be visibly open to talented and qualified individuals of
   every race and ethnicity. All members of our heterogeneous society must have confidence in
   the openness and integrity of the educational institutions that provide this training.

    These passages go vastly beyond Justice Powell's conception of diversity. They are not about
more effective learning in the classroom. They are not about informal interactions on the campus, or
even about breaking down racial stereotypes. These comments are about access; they are about
bringing more minority young people into the most selective schools and into positions of
leadership. They are about the legitimacy of selective institutions of higher education and the
legitimacy of the nation's leadership. They are about the perceptions of the minority community,
which "must have confidence" in the openness of the system. The label, "diversity," is [*1774] the
same, and retaining that label had rhetorical advantages for the Court, but the meaning has
fundamentally changed.
   Critics of affirmative action have argued that race is a crude proxy for diversity of ideas. This
argument was always aimed at a straw man; no serious supporter of affirmative action ever claimed

                                                                                                      63
that all blacks think alike. But the argument is obviously inapplicable to the Court's concerns in
Grutter; race is the very factor at issue when minority parents doubt whether the system is open to
their children. Indeed, race ceases to be a proxy as soon as Justice Powell's focus is expanded even a
little bit, to include breaking down racial stereotypes. Then race matters directly, for diversity
within and among racial groups is part of the lesson to be taught.
    Nor does the focus on racial diversity imply that no one cares about other kinds of diversity.
Race may be uniquely important in light of our history, and racial exclusion is often much more
visible than other kinds of exclusion. And no doubt there are voting members of faculties who value
minority representation but not intellectual diversity - who would be happy to exclude students and
faculty they disagree with. But no university would take that position as an institution, and special
attention to racial diversity does not depend on anything like that position. Race is far from the only
important source of diverse experiences and perspectives, but it is one important source, and it is
one of the few sources that is largely eliminated by the workings of the ordinary admission process.
   Selective universities need make no special efforts to admit men and women, Democrats and
Republicans, liberal arts majors and science majors, or Protestants, Catholics, Jews, and
nonbelievers.
                                                ***
     The Court requires that universities take into account a broad range of diversity factors. So far
as I am aware, all universities with individualized admissions systems have done so, and some of
those with mechanical admissions systems have done so as well. But the Court has not required that
all these diversity factors get the same weight as race. The tendency of ordinary admission criteria
to exclude minorities makes race special even as to intellectual diversity. And the Court's other
reasons for upholding consideration of race - especially the importance of a diverse future
leadership and keeping [*1776] the pathway to leadership visibly open to all races and ethnicities -
are directly about race.
    Neither supporters nor critics of affirmative action should be fooled by the Court's adherence to
the diversity label. The Court's understanding of that label has expanded; it now includes some, but
not all, of the other reasons for affirmative action. These alternative rationales remain important
politically, and they remain important to future litigation under the much expanded rubric of
diversity.
   II. Desegregation

    Affirmative action that directly considers race has been essential to the efforts of selective
institutions in the South to meet their desegregation obligations. After the period of massive
resistance, and after the period of passive resistance and deliberate foot-dragging, one of the
greatest remaining obstacles at the historically white schools was selective admission standards.
Across-the-board changes in admission standards threatened to destroy the mission of selective
institutions. Affirmative action enabled selective institutions to maintain their admission standards,
to admit greater numbers of minority students, and to select the best minority students as evaluated
on the same criteria applied to all other applicants.

                                                ***
   III. Selective Admissions

                                                                                                    64
    Affirmative action that considers race is the one successful method that has enabled selective
schools to significantly reduce their racial identifiability. Each school can apply the predictors of
academic success that work best for it, and it can apply those selective admission standards across
the board, to all applicants. Such schools can then consider race at the margin, giving special
consideration to those minority applicants who have already demonstrated strong academic
qualifications under the usual standards. This marginal consideration of race is essential to negate
the segregative impact of highly selective admission standards.
    This marginal consideration of race is equally essential to hold back the political assault on
selective admission standards. It is always hard to hold the votes for admission standards that only a
small fraction of the populace can meet.
                                                 ***
    It is very difficult for highly selective admissions to carry the political burden of justifying the
appearance of racial exclusion. And if much of the public has come to view disproportionately
white institutions as presumptively discriminatory, then the selective admission standards
themselves appear to many people to be presumptively discriminatory. Affirmative action that
reduces the exclusionary effects of these standards protects the admission standards themselves;
ending affirmative action would have created inexorable pressure to distort and reduce those
standards.
    This fear is not just theoretical; it was demonstrated in a series of Texas statutes modifying
admission standards in response to Hopwood v. Texas. Graduate and professional schools are
forbidden to use standardized test scores unless they compare those scores "with those of other
applicants from similar socioeconomic backgrounds;" they are forbidden to rely on any test score,
no matter how low, as a "sole" or "primary" criterion that ends consideration of an applicant.
                                                 ***
    When affirmative action is done right, a school selects admission criteria, based on its own
experience, academic judgment, and institutional needs, to produce the best student body for its
programs. In a large undergraduate institution, these criteria might be a simple matrix of grades and
test scores, although that must change after Grutter at any school that wishes to engage in
affirmative action. In graduate and professional admissions, the criteria are nearly always more
complex and more dependent on human judgment. But whatever those criteria are, they can be
applied to applicants of all races, and the school can identify the very best applicants of each race,
as judged by the same criteria.
    Some schools have at times disagreed, but in my experience a successful affirmative action plan
will admit only those minority applicants who fall in the same part of the distribution on these
criteria as white and Asian students who are being admitted with no consideration of race or other
diversity factors, or who are not substantially different on these criteria from the lower end of the
distribution of white and Asian students being admitted. When I say I base this point on experience,
I mean principally the difference between affirmative action at The University of Texas Law School
in the early 1980s, when the effects of going too low in the pool were visible and disruptive in the
classroom and a source of racial tension, and affirmative action at the same school in the early
1990s, when we had deliberately reduced the racial gap in academic credentials and the [*1795]
program had become largely uncontroversial among the faculty - save for one outspoken dissenter.

                                                                                                     65
                                                ***
   As Elizabeth Anderson has pointed out:
        Integrative affirmative action imposes an inherent limit on the permissible degree of
   racial preference. Because its point is to empower agents of integration, it will fail if it
   recruits people who cannot perform in that role... . This means that affirmative action can
   compromise valid meritocratic standards only at the margin.
Lino Graglia revels in describing the minority students who have not achieved academically, but a
well run affirmative action program admits minority students who have succeeded academically,
nearly as well as the other students admitted and as judged by the same criteria.

                                                ***
    Despite the importance of grades and test scores, no law school relies on these predictors alone.
At nearly all law schools, admission officers go on to review the entire application file. A recent
study found that, nationwide, grades and LSAT scores explain about seventy percent of the variance
in law school admission decisions for white applicants, and large but somewhat smaller fractions of
the variance for minority applicants. This analysis was conducted separately for each racial group,
so the remaining variance has nothing to do with race. Instead, it presumably derives from factors
that are not subject to ready quantification, but which are familiar to all persons with experience in
law school admissions. Most of this remaining variance is presumably explained by subjective
assessments of other academic predictors: quality of undergraduate institution; rigor of
undergraduate curriculum; recommendations; essays and writing samples; other activities and
accomplishments that show initiative, perseverance, creativity, or other skills; and random error in
the selection process. Some of the remaining variance is explained by considerations of
socioeconomic and geographic diversity, some by other factors important to the missions of
particular law schools.
     [*1797] The mix of these factors undoubtedly varies from school to school. But whatever mix
a school uses, it can apply its system to all applicants, considering race only at the margins. This is
apparent even in the grids of which Barbara Grutter's attorneys made so much. At Michigan, grades
and test scores were powerful predictors of minority admissions as well as of white admissions; as
one moves from left to right on the grids, or from bottom to top on the grids, the chances of
admission steadily increase for all races. The correlation of admission decisions with grades and test
scores was imperfect for all races, because the more subjective predictors of academic achievement
influenced admission decisions for all races but were not reflected in the grids. Admission was
extended to minority applicants with academic credentials equal to and slightly less than those of
white applicants admitted in high percentages - as measured by the same criteria.
    It was of course undisputed that minority applicants were admitted with weaker grades and test
scores than white and Asian applicants. Grutter's attorneys' attempted to magnify the difference by
emphasizing the odds of admission for different races at the border between high and low chances
of admissibility. But this showed only that there was a preference, not that it was large. Even if race
were used only as a literal tiebreaker among applicants with identical scores, Grutter would have
been able to calculate a large ratio - possibly an infinite ratio - between the admission chances of
minority and white applicants at the marginal score where ties were broken.
    [*1798] The real measure of the preference is the difference between the marginal minority
applicants admitted and the marginal white applicants rejected. This comparison focuses on the

                                                                                                    66
range in which race is determinative. It avoids an important distortion in comparing all admitted
applicants. Even in a purely colorblind system, the mean grades and test scores of disadvantaged
minority groups would be significantly lower than those of other groups, because a larger
proportion of those minority students above the threshold for admission would be only a little bit
above it, in the lower ranges of the class.
    The proper measure, the difference at the margin, is generally small. LSAT scores range from
120 to 180, and undergraduate GPA generally ranges from 2.0 to 4.0. Grutter showed thirty-six cells
of 2 and 3 points on the LSAT and .25 points of GPA. She emphasized a much smaller number of
cells in the middle of this portion of the grid, cells where her lawyers believed that race mattered
greatly. If she had shown the whole grid in this way, it would be at least 176 cells: 8 cells tall and at
least 22 cells wide. (The uncertainty results from her irregular use of 2-point cells.) Michigan's
preference for minority applicants was thus confined to a small part of the range of the principal
academic predictors. The standard error of the LSAT is 2.6 points, meaning that if a student scores
160, there is a 68% chance that her "true score" is between 157.4 and 162.6, and a 95% chance that
her "true score" is between 154.8 and 165.2. Looked at impressionistically, which is the way Grutter
presented it, Michigan's racial preference was about the size of the statistical confidence belt around
the test scores. What the trial judge found in the Texas case was equally true at Michigan: "the
applicants selected for admission come from a relatively narrow band within the full range of
scores."
                                                 ***
    In affirmative action plans like those at Texas and Michigan, and like those suggested by the
Wightman data, race is considered only at the margin and affects only a small number of offers of
admission. These offers have no significant effect on the quality of the student body, because they
are so few and because the best minority applicants are selected on the same criteria as all the other
applicants. But each student who benefits from consideration of race contributes fully to the
compelling interest in diversity, because every such applicant is a member of a disadvantaged
minority group. Thus, a properly administered affirmative action program makes the maximum
contribution to diversity with the minimum effect on academic excellence.
    Critics sometimes wonder how a small preference can make a large difference in minority
enrollment. The key to the explanation is that at schools where minorities are seriously
underrepresented, there are so many more white applicants than minority applicants. In the range of
academic talent at the margin between admission and nonadmission, the number of minorities is
often substantial when compared to the number of minorities already admitted, but small when
compared to the number of white and Asian applicants in the same range. If all admissions must be
colorblind, only a small fraction [*1800] of the minority applicants in this range will be admitted.
But if a school can directly consider race, it can admit all or most of the minority applicants in this
range, thus significantly increasing minority representation in the student body, without
significantly changing the range from which students are admitted.
    Primary reliance on each school's preferred selection criteria, applied to applicants of all races,
serves important interests. It preserves high academic standards, it preserves the distinctive missions
of different schools, and it preserves incentives to hard work and academic achievement on the part
of potential applicants. Explicit consideration of race, confined to a relatively narrow band as
measured by established race-neutral selection criteria, preserves these criteria and the interests they
serve. If explicit consideration of race were ended, all the interests in diversity and desegregation

                                                                                                      67
would remain, and at least in some states, the political pressure would become overwhelming to
reduce or abolish selective admission standards across the board.
   IV. Future Leadership

    The academic goals of excellence in teaching and research require flagship schools to be
academically selective in their admission of students. At the same time, these schools are public
institutions that must serve, and be seen to serve, all the communities of their respective states. And
they must educate a disproportionate share of the future leaders of the state and of the nation.
     Failure to educate a leadership class among disadvantaged minority populations would be a
permanent threat to equality and social stability. In some states, this threat is imminent and large.
Across the southern tier of the country, from California to Florida, historically disadvantaged
minorities are now a majority or near-majority of the college-age population. The following table
lists eight states, containing a third of the nation's population, where more than forty percent of the
college-age population comes from the three disadvantaged minority groups most commonly
preferred in affirmative action programs - blacks, Hispanics, and Native Americans.


College-Age Population (18-24) by State and Race (2000)
State       Black Hispanic Native              Total
                               American
Arizona     3.5% 34.9%         5.9%            44.3%
California  6.7% 42.4%         1.1%            50.2%
Florida     20.0% 22.1%        .4%             42.5%
Georgia     32.0% 10.3%        .3%             42.6%
Louisiana   37.1% 3.0%         .6%             40.7%
Mississippi 42.4% 2.1%         .5%             45.0%
New         2.3% 49.0%         11.5%           62.8%
Mexico
Texas       12.3% 40.0%        .6%             52.9%

    In all these states, the minority population is younger than the non-Hispanic white population. It
is therefore reproducing more rapidly and dying more slowly. And Hispanic population growth is
fueled by continued immigration. For all these reasons, the minority percentage of the population is
growing rapidly. The three states with the largest absolute population growth between 1990 and
2000 also experienced large increases in the black, Hispanic, and Native American fraction of the
college-age population: from 44.2% to 50.2% in California, from 32.3% to 42.5% in Florida, and
from 44.6% to 52.9% in Texas.
    [*1802] Projections for the future are even more dramatic than these data suggest. Steve
Murdock, the State Demographer of Texas, projects that in 2040 Texas will be fifty-nine percent
Hispanic, nine percent black, twenty-four percent white, and eight percent other races. The median
age of the Hispanic population will still be nearly twelve years younger than the median age of the
white population; even apart from immigration, the Hispanic increase as a percentage of the state's
population will not yet have peaked.
                                                ***

                                                                                                    68
   To maintain highly selective admission standards without regard to racial and ethnic
consequences is to put the state on track to a Third-World future, with a wealthier and more
educated white minority trying to protect its privileges from a poorer and less educated black and
brown majority. Any attempt to reserve a grossly disproportionate share of elite positions for the
white population is madness, whether done in the name of old-fashioned racism or of unbending
commitment to colorblindness.
    All of this is but to elaborate the Court's point in Grutter. The pathway to future leadership must
be visibly open to talented citizens of all races and ethnicities. If we want our future leadership to be
both highly qualified and ethnically diverse, then we must educate more minority students at the
highest levels. Some states, and some opponents of affirmative action, may believe they can have a
[*1803] leadership class that is highly qualified and not diverse. But in much of the South and
Southwest, and in other states with minority populations only slightly smaller, that choice is not
available. Future leadership will inevitably be diverse; the ordinary workings of democracy will see
to that. The question is whether we can fix our educational systems in time to ensure that those
leaders are also highly trained and highly qualified.
   V. Past and Present Discrimination

    Average differences in academic skills and entering credentials have multiple and complicated
causes, but the public education system is necessarily one of the causes. The overwhelming
majority of minority children are educated in public schools. The persistent differences in academic
skills that plague admissions to higher education are thus largely the product of the public education
system at lower levels.
    Even de jure segregation persists. At the time of the 1994 trial in Hopwood v. Texas,
desegregation litigation continued in more than forty Texas school districts, and a majority of the
in-state applicant pool to the University of Texas Law School attended public schools that were still
held to be de jure segregated by federal courts. Children who entered kindergarten in a segregated
public school in 1994 will be law school applicants in 2011 and later.
    De facto segregation not only persists, but is actually increasing. Nationwide, 72% of blacks and
76% of Hispanics attend schools where a majority of the students are from a minority group. About
37% of each group attends schools that are more than 90% minority, and 18% of blacks and 11% of
Hispanics attend schools that are more than 99% minority. These problems are not confined to the
South or any other part of the country. By one important [*1804] measure, Michigan has the most
segregated public schools in the country, with 62.5% of its black children attending schools that are
more than 90% minority.
    With or without segregation, American public schools educate minority students far less
effectively than they educate white students. Racial gaps in educational achievement and attainment
remain serious at every level, from reading and math scores in elementary school, to rates of high
school graduation, college attendance, and college graduation.
    The complexities of causation and of collective governmental motivation make it impossible to
know how much of public school segregation is unconstitutional under the Court's standards, or
how much of the racial and ethnic achievement gap is caused by differential neglect or other forms
of discrimination. Universities cannot prove how the credentials of their applicants would be
distributed if there were no discrimination in public education. But difficulties of proof should not


                                                                                                      69
lead policy makers to draw the implausible inference that the states bear no responsibility for the
racially uneven consequences of their elementary and secondary education systems, or the even
more implausible inference that no state agency can accept any responsibility for those
consequences. Affirmative action in admissions is not a response to mere "societal" discrimination;
public universities are parts of educational systems, each extending under state supervision,
coordination, and funding from early childhood to young adulthood. [*1805] Universities cannot
ignore the unequal output of the earlier stages of the systems of which they are a part.
                                                 ***
    Recognizing that the public educational system has poorly served many minority students in
earlier years, public universities can attempt to reduce the damage by preferentially admitting those
minority applicants who have achieved despite the system and who appear to be capable of
academic success at the next level.
    Of course the minority students admitted to universities, and especially to the most selective
schools, will never be the students who suffered most from discrimination or inadequate education
in elementary and secondary school. The students who suffered most have been rendered incapable
of competing at higher levels, even with preferential admissions and remedial help. They and their
successors deserve a remedy, in the form of dramatic improvement in elementary and secondary
education, and where it is too late for that, in the form of further education in junior colleges,
nonselective four-year colleges, vocational training programs, adult literacy programs, and other
efforts that meet the needs of the victims. But their remedy will not come in selective institutions,
and affirmative action at such institutions will not help them.
    Affirmative action at the university level addresses the consequences of past and present
discrimination, at the level of groups and the level of social consequences, by alleviating its effects
on racial and ethnic representation. The shortage of highly qualified minority students, which
threatens future leadership and threatens segregation of selective universities, is in substantial part a
large-scale consequence of past and present discrimination in public education. We cannot remedy
the effects of discrimination in elementary and secondary education by transporting students from
the bottom of the distribution to the top. But we can move many minority students one or two steps
up on the competitive escalator. The individual benefits flow to those minority students who are
most deserving on traditional meritocratic [*1806] criteria, to those who have achieved the most
despite the state's educational failures. But the social benefits flow more broadly in increased
diversity in all its senses, in desegregation, in educating leaders, and in preserving selective
admission standards. Affirmative action is a form of group remedy for past and present
discrimination, but, more fundamentally, past and present discrimination is why affirmative action
is needed for all the other interests it serves.




                                                                                                      70
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                71
t and present
discrimination, at the level of groups and the level of social consequences, by alleviating its effects
on racial and ethnic representation. The shortage of highly qualified minority students, which
threatens future leadership and threatens segregation of selective universities, is in substantial part a
large-scale consequence of past and present discrimination in public education. We cannot remedy
the effects of discrimination in elementary and secondary education by transporting st udents from
the bottom of the distribution to the top. But we can move many minority students one or two steps
up on the competitive escalator. The individ ual benefits flow to those minority students who are
most deserving on traditional meritocratic [*1806] criteria, to those who have achieved the most
despite the state's educational failures. But the social benefits flow more broadly in increased
diversity in all its senses, in desegregation, in educating leaders, and in preserving selective
admission standards. Affirmative action is a form of group remedy for past and present
discrimination, but, more fundamentally, past and present discrimination is why affirmative action
is needed for all the other interests it serves.




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                71

				
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