The United States Supreme Court
The University of Michigan Admissions Lawsuits

Grutter v. Bollinger
(No. 02-241 -- June 23, 2003)


YES! Justice O'CONNOR (delivering the Opinion of the Court, joined by Justices Stevens, Souter, Ginsburg and Breyer, pp 9-21): Student body diversity produces substantial and important educational benefits, including cross-racial understanding and the breaking down of racial stereotypes. It improves the preparation of students as professionals and as members of an increasingly diverse workforce and society.

NO! Justice THOMAS (dissenting, joined by Justice Scalia, pp 3-20, 23-32): Only a government's needs to remedy discrimination it caused, to combat anarchy, or to prevent violence, qualify as compelling interests. By this standard of public necessity, neither the educational benefits of Michigan's diversity policy, the retention of the School's elite status, nor even its existence, would constitute a compelling state interest.

Comments by Curtis Crawford,* indented in italics.

Justice O'Connor (at page 9)

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

 *This is Justice O'Connor's statement of the two-part question before the Court. The following sections of her Opinion address the first part: viz, whether student body diversity in publicly supported universities is a compelling governmental interest.



We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. 438 U. S. 265 (1978). The decision [-10-] produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to "remedy disadvantages cast on minorities by past racial prejudice." Id., at 325 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). *Four other Justices avoided the constitutional question altogether and struck down the program on statutory grounds.* Id., at 408 (opinion of Stevens, J., joined by Burger, C. J., and Stewart and Rehnquist, JJ., concurring in judgment in part and dissenting in part). Justice Powell provided a fifth vote not only for invalidating the set-aside program, but also for reversing the state court's injunction against any use of race whatsoever. The only holding for the Court in Bakke was that a "State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." Id., at 320. Thus, we reversed that part of the lower court's judgment that enjoined the university "from any consideration of the race of any applicant." Ibid.

 * The statute cited by "the four other Justices" is Title VI, Section 601, of the Civil Rights Act of 1964. It mandates that, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Since this Court's splintered decision in Bakke, Justice Powell's opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views on permissible race-conscious policies. See, e.g., Brief for Judith Areen et al. as Amici Curiae 12-13 (law school admissions programs employ "methods designed from and based on Justice Powell's opinion in Bakke"); Brief for Amherst College et al. as Amici Curiae 27 ("After Bakke, each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of Justice Powell's opinion ... and set sail accordingly"). [-11-] We therefore discuss Justice Powell's opinion in some detail.

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

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

Justice Powell approved the university's use of race to further only one interest: "the attainment of a diverse student body." Id., at 311. With the important proviso that "constitutional limitations protecting individual rights may not be disregarded," Justice Powell grounded his analysis in the academic freedom that "long has been [-12-] viewed as a special concern of the First Amendment." Id., at 312, 314. Justice Powell emphasized that nothing less than the "'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples."Id., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967)). *In seeking the "right to select those students who will contribute the most to the 'robust exchange of ideas,' " a university seeks "to achieve a goal that is of paramount importance in the fulfillment of its mission."* 438 U. S., at 313. Both "tradition and experience lend support to the view that the contribution of diversity is substantial." Ibid.


* Certainly, "the contribution [of certain kinds] of diversity" to the "robust exchange of ideas" is substantial. Dialogue, when most educational, thrives on diversity of experience, personality, opinion, taste, and talent. However, the contribution of certain kinds of similarity is equally important: viz, similarity in ample openmindedness, honesty, fairness, and courage; also, in the ability to reason and listen well. Diversity in some respects and similarity in others are both valuable, but whenever similarity benefits, diversity harms, and vice versa. Any notion that diversity per se is a compelling interest, or more important than similarity, would be foolish.

Justice Powell was, however, careful to emphasize that in his view race "is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." Id., at 314. For Justice Powell, "[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," that can justify the use of race. Id., at 315. Rather, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Ibid.

 Justice Powell's language ("attaining the goal of a heterogeneous student body") implied that university student bodies were not already "diverse." As a general statement, this would be absurd. There was enormous variety in the background, personality, experience and viewpoint, as well as in the racial and ethnic origin, of the students who attended American colleges and graduate schools in the 1970s.

In the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice Powell's diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent under Marks. In that case, we explained that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." 430 U. S., at 193 (internal quotation marks and citation omitted). As the divergent opinions of [-13-] the lower courts demonstrate, however, "[t]his test is more easily stated than applied to the various opinions supporting the result in [Bakke]." Nichols v. United States, 511 U. S. 738, 745-746 (1994). Compare, e.g., Johnson v. Board of Regents of Univ. of Ga., 263 F. 3d 1234 (CA11 2001) (Justice Powell's diversity rationale was not the holding of the Court); Hopwood v. Texas, 236 F. 3d 256, 274-275 (CA5 2000) (Hopwood II ) (same); Hopwood I, 78 F. 3d 932 (same), with Smith v. University of Wash. Law School, 233 F. 3d 1199 (Justice Powell's opinion, including the diversity rationale, is controlling under Marks).

We do not find it necessary to decide whether Justice Powell's opinion is binding under Marks. It does not seem "useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it." Nichols v. United States, supra, at 745-746. More important, for the reasons set out below, *today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions.*


* This is the conclusion to be proved. Note some careful limitations: It concerns "student body diversity," but not "diversity" in faculty or other public employment, in public contracting or in other state-sponsored activities; it concerns "the use of race in university admissions," but not in other university decisions. On the central point, however, the conclusion erects a standard that is hopelessly indeterminate and ambiguous.

The concept of "student body diversity" as a public interest is unsuitable partly because of its breadth. According to the dictionary, "diverse" means different; its opposite is "similar." These two words can be said of everything that exists. At any university, the students will be different from each other in myriad ways, and similar in myriad other ways.

Both "diversity" and "similarity" are necessary and universal categories of being, but neither deserves to be enshrined as an educational necessity in itself. Both may be good in some respects and bad in others, or good up to a point and not past that point. With campus diversity much in vogue, people neglect the corresponding benefits of similarity. The acquisition of knowledge and understanding is eased by the possession of a common language, adherence to common rules of logic and scientific validation, and similarly high standards and ability for academic work. There is also the common humanity that enables students to learn from contemporaries with different characteristics and backgrounds, as well as from writers of other times and places.

A specific kind and degree of student body diversity might be sufficiently definite and unambiguous to be considered as a compelling interest. But the designation of student body diversity, unspecified, as such an interest is nonsense. It suggests the proverbial warrior, mounting his steed and riding off in all directions. It also presents the Court with a logically impossible task. There is no way of determining whether student body diversity, unspecified as to kind and amount, is a compelling interest or not. How will the court go about doing what cannot be done?


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

We have held that all racial classifications imposed by government "must be analyzed by a reviewing court under strict scrutiny." Ibid. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. "Absent searching judicial inquiry into the justification for such race-based measures," we have no way to determine what "classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to " 'smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.

Strict scrutiny is not "strict in theory, but fatal in fact." Adarand Constructors, Inc. v. Peņa, supra, at 237 (internal quotation marks and citation omitted). Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, "whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection." 515 U. S., at 229-230. But that observation "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny." Id., at 230. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied. [-15-]

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


* In addition to "the importance and the sincerity of the reasons advanced" for a policy, its results, both beneficial and harmful, surely need to be weighed. A scrutiny of the intentions, but not of the experienced or predictable consequences, would not be very strict.



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

We first wish to dispel the notion that the Law School's argument has been foreclosed, either expressly or implicitly, by our *affirmative-action cases* decided since Bakke. It is true that some language in those opinions might be read to suggest that *remedying past discrimination* is the [-16-] only permissible justification for *race-based governmental action.* See, e.g., Richmond v. J. A. Croson Co., supra, at 493 (plurality opinion) (stating that unless classifications based on race are "strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility"). But we have never held that the only *governmental use of race* that can survive strict scrutiny is *remedying past discrimination.* Nor, since Bakke, have we directly addressed *the use of race* in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.

 * When referring to unequal treatment that favors whites over minorities, Justice O'Connor calls it "discrimination." When referring to unequal treatment that favors minorities over whites, she calls it "affirmative action," "race-based governmental action," or "use of race." Her language discriminates, based on race.

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


* Student body "diversity" in which respects, and to what extent? How can the Court "defer" to an "educational judgment" that X is essential, without knowing what X is?

** "Educational benefits" from what kinds of student body "diversity"? How can "respondents and their amici" substantiate the "educational benefits" of X when X is unspecified?

Henceforth, I shall refer to "student body diversity" simply as X, unless or until the court specifies the kind and amount of such "diversity" that is under consideration.

We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. See, e.g., Wieman v. Updegraff, 344 U. S. 183, 195 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957); Shelton v. Tucker, 364 U. S. 479, 487 (1960); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S., at 603. *In [-17-] announcing the principle of student body diversity as a compelling state interest, Justice Powell* invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: "The freedom of a university to make its own judgments as to education includes the selection of its student body." Bakke, supra, at 312. **From this premise, Justice Powell reasoned that by claiming "the right to select those students who will contribute the most to the 'robust exchange of ideas,' " a university "seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission." **438 U. S., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., supra, at 603). Our conclusion that the Law School has a compelling interest in a diverse student body is informed by ***our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission,*** and that "good faith" on the part of a university is "presumed" absent "a showing to the contrary." 438 U. S., at 318-319.


*When opining that X is a "compelling state interest," did Justice Powell specify what kind of X and how much? If he did, Justice O'Connor does not report it. If he did not, determining whether X is essential was as impossible for him as for the present Majority.

** As noted in my comment at page 12, a "robust exchange of ideas" depends not only on specific kinds of student body diversity but also on specific kinds of student body similarity. If such diversity factors deserve to be recognized as compelling state interests, why not also such similarity factors?

***Not disheartened by the obstacles to determining whether X is a compelling state interest, the Court boldly declares that X is also "at the heart of the law school's proper institutional mission." The declaration's enthusiasm is matched by its meaninglessness.

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


* In its Brief, the Law School named a particular kind and amount of racial and ethnic diversity, which it especially desires: a "critical mass" of "minority students." The School defined "critical mass" as a percentage large enough to supply extensive interracial interaction, which is necessary for the educational benefits envisioned. By "minority" students, however, the School did not mean Americans of Chinese, Japanese, Korean, Vietnamese, Filipino or Arab ancestry, or of Italian, Polish, Serbian, Russian or Scandinavian ancestry, or foreign students, although all of these would provide racial or ethnic diversity. The school meant only "African-Americans, Hispanics, and Native Americans." (Brief for Respondents Bollinger et al., at page 4, here)

If the Court had thus specified the "diversity" interest, it would have been sufficiently definite to be considered as possibly compelling. The litigation could then have turned on the following questions:
1. Based on prior decisions and concept analysis, what are the criteria for declaring a governmental interest to be "compelling"?
2. In theory, would the specified interest satisfy these criteria?
3. If so, what are the probable benefits from pursuing the specified interest?
4. What are the probable harms from the use of racial preference in its pursuit?
5. Are the benefits greater than the harms? ? (On this question, the Court would have the nation's experience of more than three decades on which to base a fair judgment. My own is available here.)

These benefits are substantial. As the District Court emphasized, the Law School's admissions policy promotes [-18-] "cross-racial understanding," helps to break down racial stereotypes, and "enables [students] to better understand persons of different races." App. to Pet. for Cert. 246a. These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds." Id., at 246a, 244a.

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

 * Typical of the vagueness of this Opinion, the alleged "educational benefits" and "learning outcomes" " claimed by amici are not specified, nor the kinds of X that produce them, nor the kinds of "workforce and society" diversity for which the students are supposedly being prepared.

These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principle mission to provide national security." Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the [-19-] Nation's officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, "the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies." Ibid. (emphasis in original). To fulfill its mission, the military "must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting." Id., at 29 (emphasis in original). We agree that "[i]t requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective." Ibid.

 Most people would agree that national security is a sufficient basis for an exception to the Constitution's prohibition of racial discrimination. If (1) the military cannot function effectively without substantial proportions of blacks and Hispanics in the officer corps, and (2) racial preference is necessary to obtain such proportions, the Equal Protection Clause would presumably permit the preference. But whether propositions (1) and (2) are true is not before the Court.

We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage" with a fundamental role in maintaining the fabric of society. Plyler v. Doe, 457 U. S. 202, 221 (1982). This Court has long recognized that "education ... is the very foundation of good citizenship." Brown v. Board of Education, 347 U. S. 483, 493 (1954). For this reason, *the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.* The United States, as amicus curiae, affirms that "[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective." Brief for United States as Amicus Curiae 13. And,
"[n]owhere is the importance of such openness more acute than in the context of higher education." Ibid. **Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the [-20-] dream of one Nation, indivisible, is to be realized.**


* I fully agree with the goal enunciated here. It is exactly what occurs when colleges and universities do not admit or reject -- do not discriminate for or against -- anyone, based on race or ethnicity. What makes the Court think that this goal authorizes racial targets and preferences in university admissions?

**Does the Court mean that no one, based on race or ethnicity, should be barred from being a citizen, voter, alderman, mayor, delegate, lawyer, judge, legislator, lobbyist, governor, president? If so, splendid! Implementing this rule is indeed "essential if the dream of one Nation, indivisible, is to be realized." Or is the Court sliding toward racial and ethnic percentage-goals for participation in "civic life "? That way lies a Nation wretchedly and dangerously divided.

The statements that evoke my two comments were standard themes in the long American struggle against racial and ethnic discrimination. Using these themes to sell the Law School's admissions policy cloaks racial preference in the language of racial non-discrimination.

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

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


* This proposition is unexceptionable, a splendid reason for racial nondiscrimination in college admissions. To support racial preference, it would require alteration. Suppose it stated: the path to leadership must be visibly more open to less talented and qualified minorities, and less open to more talented and qualified whites. So worded, the proposition would be a suitable premise for racial discrimination in admissions.

The Law School does not premise its need for critical mass on "any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue." Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes [-21-] is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a "critical mass" of underrepresented minorities is necessary to further *its compelling interest in securing the educational benefits of a diverse student body.*


*Confusion confounded. In this sentence, reporting the Law School's view, the "compelling interest" lies not in X (student body "diversity"), but in the "educational benefits" expected from X. Is this now the Court's view? If so, why, during its discourse concerning "compelling interest," is X regularly named as the subject? If not, why does the Court conclude the discourse by shifting the emphasis to "educational benefits"? Justice Thomas' dissent (at p. 8) will seize upon this statement.

The Court's remarks concerning X as a compelling government interest end at this point. The remarks have focussed almost exclusively on two kinds of X, racial and ethnic. A reader might be excused for thinking that these were the only kinds that interest the Court. However, in the section of its Opinion on narrow tailoring (available here), the Court will mention other kinds of X. Thus, X will garner some specificity, but not nearly enough for a rational judgement as to whether it is a compelling interest.

I have maintained that unless X is specified as to kind and amount, no determination of its necessity is logically possible. Nothing in the Opinion removes this obstacle, or suggests that the Court is aware of it. The Opinion seems to ride on two complacencies: (1) We all know what X is, so we don't need to specify it. (2) We all know that X is a Wonderful Thing, so we don't need to prove its necessity.

Justice Thomas, at page 3


The majority agrees that the Law School's racial discrimination should be subjected to strict scrutiny. Ante, at 14. Before applying that standard to this case, I will briefly revisit the Court's treatment of racial classifications.

The strict scrutiny standard that the Court purports to apply in this case was first enunciated in Korematsu v. United States, 323 U. S. 214 (1944). There the Court held that "[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can." Id., at 216. This standard of "pressing public necessity" has more frequently been termed "compelling governmental interest,"1 see, e.g., Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 299 (1978) (opinion of Powell, J.). A majority of the Court has validated only two circumstances where "pressing public necessity" or a "compelling state interest" can possibly justify racial discrimination by state actors. *First, the lesson of Korematsu is that national security constitutes a "pressing public necessity," though the government's use of race to advance that objective must be narrowly tailored. Second, the Court has recognized as a compelling state interest a government's effort to remedy past discrimination for which it is responsible.* Richmond v. J. A. Croson Co., 488 U. S. 469, 504 (1989).

  * These two precedents establish, in Justice Thomas' view, two circumstances that can justify racial discrimination by the government: a danger to "national security," and the need for government "to remedy past discrimination for which it is responsible."

The contours of "pressing public necessity" can be further discerned from those interests the Court has rejected [-4-] as bases for racial discrimination. For example, Wygant v. Jackson Bd. of Ed., 476 U. S. 267 (1986), found unconstitutional a collective-bargaining agreement between a school board and a teachers' union that favored certain minority races. The school board defended the policy on the grounds that minority teachers provided "role models" for minority students and that a racially "diverse" faculty would improve the education of all students. See Brief for Respondents, O. T. 1984, No. 84-1340, pp. 27-28; 476 U. S., at 315 (Stevens, J., dissenting) ("[A]n integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white faculty"). Nevertheless, the Court found that the use of race violated the Equal Protection Clause, deeming both asserted state interests insufficiently compelling. Id., at 275-276 (plurality opinion); id., at 295 (White, J., concurring in judgment) ("None of the interests asserted by the [school board] ... justify this racially discriminatory layoff policy").2

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

Finally, the Court has rejected an interest in remedying [-5-] general societal discrimination as a justification for race discrimination. See Wygant, supra, at 276 (plurality opinion); Croson, 488 U. S., at 496-498 (plurality opinion); id., at 520-521 (Scalia, J., concurring in judgment). "Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy" because a "court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future." Wygant, supra, at 276 (plurality opinion). But see Gratz v. Bollinger, ante, p. ___ (Ginsburg, J., dissenting).

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


In the above paragraph, Justice Thomas determines the standard for judging a public interest to be "compelling" by analyzing the Court's precedents, an appropriate judicial task, which Justice O'Connor did not undertake.

* In Footnote 1, Justice Thomas states that he uses the terms "pressing public necessity" and "compelling state interest" interchangeably. If so, why does this summary omit the "necessity" for a State to remedy its own discrimination?

The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. "Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that such classifications ultimately have a destructive impact on the individual and our society." Adarand Construction, Inc. v. Peņa,, 515 U. S. 200, 240 (1995) (Thomas, J., concurring in part and concurring in judgment). [-6-]


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

 * I applaud Justice Thomas' determination "to define with precision the interest" that is asserted to be "so compelling as to justify racial discrimination." But isn't it the Court's judgement concerning compelling interest, not the Law School's, that Justice Thomas needs to refute? If the Court's definition of the interest under consideration differs from the Law School's definition, it is surely the former on which judgement is passed.

Undoubtedly there are other ways to "better" the education of law students aside from ensuring that the student body contains a "critical mass" of underrepresented minority students. Attaining "diversity," whatever it means,3 is the mechanism [-7-] by which the Law School obtains educational benefits, not an end of itself. *The Law School, however, apparently believes that only a racially mixed student body can lead to the educational benefits it seeks.* How, then, is the Law School's interest in these allegedly unique educational "benefits" not simply the forbidden interest in "racial balancing," ante, at 17, that the majority expressly rejects?

  * Not true. This statement ignores the frequent references in the School's Brief and in the Court's Opinion to other kinds of "diversity" and their benefits.

*A distinction between these two ideas (unique educational benefits based on racial aesthetics and race for its own sake) is purely sophistic*--so much so that the majority uses them interchangeably. Compare ante, at 16 ("[T]he Law School has a compelling interest in attaining a diverse student body"), with ante, at 21 (referring to the "compelling interest in securing the educational benefits of a diverse student body" (emphasis added)). **The Law School's argument, as facile as it is, can only be understood in one way: Classroom aesthetics yields educational benefits, racially discriminatory admissions policies are required to achieve the right racial mix, and therefore the policies are required to achieve the educational benefits. It is the educational benefits that are the end, or allegedly compelling state interest, not "diversity."**But see ante, at 20 (citing the need for "openness and integrity of the educational institutions that provide [legal] training" without reference to any consequential educational benefits).


* Not true. "Race for its own sake," i.e., racial descrimination as an end in itself, is clearly different from racial discrimination as a means to other ends. They may both be wrong, but they are not the same thing.

** The Law School's chain of means and ends, according to Justice Thomas:
(a) racial preference is a necessary means to
(b) classroom racial diversity, which is a necessary means to
(c) the educational benefits from such "diversity," the asserted compelling interest.

One must also consider the Law School's refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce "academic selectivity," which would in turn "require the Law School to become a very different institution, and to sacrifice a core part of its educational [-8-] mission." Brief for Respondents Bollinger et al. 33-36. In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status.4

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

 I agree with Justice Thomas that the Court's decision upholding "the use of racial discrimination as a tool" advances the School's combined interest of "offering a marginally superior education while maintaining an elite institution." But this combined interest was not claimed by the Court to be compelling. So how would proof that it is not compelling refute the Court's judgement that the interest it recognized is compelling?



A close reading of the Court's opinion reveals that all of its legal work is done through one conclusory statement: *The Law School has a "compelling interest in securing the educational benefits of a diverse student body."* Ante, at 21. No serious effort is made to explain how these benefits fit with the state interests the Court has recognized (or rejected) as compelling, see Part I, supra, or to place any theoretical constraints on an enterprising court's desire to discover still more justifications for racial discrimination. In the absence of any explanation, one might expect the Court to fall back on the judicial policy of stare decisis. But the Court eschews even this weak defense of its holding, [-9-] shunning an analysis of the extent to which Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), is binding, ante, at 13, in favor of an unfounded wholesale adoption of it.

 * In the passage cited, Justice O'Connor reports the Law School's view, not the Court's, which does focus on "educational benefits" as the "compelling interest" that should be recognized. The Court's view, repeatedly stated, emphasizes "student body diversity" as the "compelling state interest that can justify the use of race in university admissions" (ante, p. 13).

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


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


* Under the "proper standard," according to Justice Thomas, only "a government's effort to remedy past discrimination for which it is responsible," or steps it "must take to provide a bulwark against anarchy, or to prevent violence," qualify as a "pressing public necessity" or "compelling state interest." Is this "standard" a fair summary of the Court's precedents? The Majority Opinion does not discuss this view, and implicitly rejects it.

To determine whether a public interest meets a "proper standard," one must first specify both. Justice Thomas has specified the "standard" he means to apply, but the Court has failed its responsibility to specify the "public interest" it deems compelling. The name of the interest is "student body diversity." But "diversity" (defined in the dictionary as difference or variety) is indeterminate and ambiguous. There is no way to determine whether, unspecified as to kind and amount, it is desirable or harmful, let alone essential. Justice Thomas, of course, is free to specify a kind and amount of "diversity," and then to argue that it is not a "compelling interest." But the Court could then respond that that is not what it has in mind.


While legal education at a public university may be good policy or otherwise laudable, it is obviously not a pressing public necessity when the correct legal standard is applied. *Additionally, circumstantial evidence as to whether a state activity is of pressing public necessity can be obtained* by asking whether all States feel compelled to engage in that activity. Evidence that States, in general, engage in a certain activity by no means demonstrates that the activity constitutes a pressing public necessity, given the expansive role of government in today's society. [-10-] The fact that some fraction of the States reject a particular enterprise, however, creates a presumption that the enterprise itself is not a compelling state interest. In this sense, the absence of a public, American Bar Association (ABA) accredited, law school in Alaska, Delaware, Massachusetts, New Hampshire, and Rhode Island, see ABA-LSAC Official Guide to ABA-Approved Law Schools (W. Margolis, B. Gordon, J. Puskarz, & D. Rosenlieb, eds. 2004) (hereinafter ABA-LSAC Guide), provides further evidence that Michigan's maintenance of the Law School does not constitute a compelling state interest.

 * For those who agree with Justice Thomas' view of the "proper standard," further evidence would presumably be unnecessary. It becomes relevant for anyone inclined to define "compelling interest" more broadly than he does.


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

This Court has limited the scope of equal protection review to interests and activities that occur within that State's jurisdiction. The Court held in Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938), that Missouri could not satisfy the demands of "separate but equal" by paying for legal training of blacks at neighboring state law schools, while maintaining a segregated law school within the State. The equal protection

 "obligation is imposed by the Constitution upon the States severally as governmental entities--each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained [-11-] under our dual system." Id., at 350 (emphasis added).

The Equal Protection Clause, as interpreted by the Court in Gaines, does not permit States to justify racial discrimination on the basis of what the rest of the Nation "may do or fail to do." The only interests that can satisfy the Equal Protection Clause's demands are those found within a State's jurisdiction.

The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State's citizens and the training of that State's lawyers. James Campbell's address at the opening of the Law Department at the University of Michigan on October 3, 1859, makes this clear:

 "It not only concerns the State that every one should have all reasonable facilities for preparing himself for any honest position in life to which he may aspire, but it also concerns the community that the Law should be taught and understood... . There is not an office in the State in which serious legal inquiries may not frequently arise... . In all these matters, public and private rights are constantly involved and discussed, and ignorance of the Law has frequently led to results deplorable and alarming... . [I]n the history of this State, in more than one instance, that ignorance has led to unlawful violence, and the shedding of innocent blood." E. Brown, Legal Education at Michigan 1859-1959, pp. 404-406 (1959) (emphasis added).

The Law School today, however, does precious little training of those attorneys who will serve the citizens of Michigan. In 2002, graduates of the University of Michigan Law School made up less than 6% of applicants to the Michigan bar, Michigan Lawyers Weekly, available at http: // www.michiganlawyersweekly.com / barpassers0202.cfm, barpassers0702.cfm (all Internet materials as visited June 13, 2003, and available in Clerk of Court's case file), even [-12-] though the Law School's graduates constitute nearly 30% of all law students graduating in Michigan. Ibid. Less than 16% of the Law School's graduating class elects to stay in Michigan after law school. ABA-LSAC Guide 427. Thus, while a mere 27% of the Law School's 2002 entering class are from Michigan, see University of Michigan Law School Website, available at http:// www.law.umich.edu / prospectivestudents /Admissions/index.htm, only half of these, it appears, will stay in Michigan.

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


* What is the relevance of these facts to Justice Thomas' argument? If the majority of the University of Michigan's Law School graduates remained within the State, would racial preference in its admissions be permissible? Since Wayne State's Law School graduates overwhelmingly remain, would racial preference in their admission be permissible? His answer to both questions would presumably be No, so why make a point of whether the graduates leave or stay?

** If Michigan is truly one of the best law schools in the land, it should be a matter of rightful pride for the people of the State, as a cultural contribution to the nation and the world of which Michigan is a part.

Again, the fact that few States choose to maintain elite law schools raises a strong inference that there is nothing compelling about elite status. Arguably, only the public law schools of the University of Texas, the University of California, Berkeley (Boalt Hall), and the University of Virginia maintain the same reputation for excellence as the Law School.5 Two of these States, Texas and California, are so large that they could reasonably be expected to provide elite legal training at a separate law school to students who will, in fact, stay in the State and provide [-13-] legal services to its citizens. And these two schools far outshine the Law School in producing in-state lawyers. The University of Texas, for example, sends over three-fourths of its graduates on to work in the State of Texas, vindicating the State's interest (compelling or not) in training Texas' lawyers. Id., at 691.


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


I argue above (page 9) that there is no way of determining whether "student body diversity" is a "compelling interest," since it has not been adequately specified by the Court. Not knowing what something is, a Court may declare, but cannot rationally determine, that it is necessary or unnecessary.

Despite this obstacle, Justice Thomas purports to determine that the public interest under dispute is not "compelling." How does he proceed? First, as the interest, he substitutes "marginal educational benefits" for "diversity." Second, when he refers to "diversity" as the source of these "marginal benefits," he specifies it as "racial." Third, he draws three circles, representing three levels of public importance, from least to most. The "marginal educational benefits" (from student body racial diversity) are in the smallest circle; the "educational benefits" from an elite state law school are next; the "educational benefits" from a state law school are in the largest circle. Justice Thomas can then argue that providing the "educational benefits" of an elite state law school clearly, and providing those of a state law school probably, are not "compelling state interests." A fortiori, providing the least important of these benefits (the "marginal educational benefits" from student body racial diversity) is not a "compelling state interest."

Does the proof succeed? Its first two steps, by an altered description of the public interest in dispute, jeopardize the argument's relevance to the Court's conclusion. Nevertheless, at first the proof struck me as an ingenious way around the obstacle created by the Court's failure to specify the kind and amount of "diversity" it deems "compelling." No matter how great the educational benefits of "diversity" might be, the proof maintains, they surely do not match the educational benefits of a great state law school. If the latter is not a compelling state interest, then neither is the former.

However, the benefits asserted by the Court are not only educational but also social, e.g., the greater participation of underrepresented minorities in the legal profession, in the military officer corps, and in the political leadership of the nation. With such benefits thrown onto the scale, the resulting balance is less clear. Are these benefits public necessities? Are they, even, appropriate public goals? To such questions, Justice Thomas' argument is an insufficient answer.


The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions "standards" that, in turn, create the Law School's "need" to discriminate on the basis of race. The Court validates these admissions standards by concluding that alternatives that would require "a dramatic sacrifice of ... the academic quality of all admitted students," *ante, at 27,* need not be considered before racial discrimination can be employed.6 In the majority's view, such methods are not required by the "narrow tailoring" prong of strict scrutiny because that inquiry demands, in this context, that any race-neutral alternative work " 'about as well.' " *Ante, at 26-27* (quoting Wygant, 476 U. S., at 280, n. 6). The majority errs, however, because race-neutral alternatives must only be "workable," *ante, at 27,* and do "about as well" in vindicating [-14-] the compelling state interest. The Court never explicitly holds that the Law School's desire to retain the status quo in "academic selectivity" is itself a compelling state interest, and, as I have demonstrated, it is not. See Part III-B, supra. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system--it cannot have it both ways.

 * These references are to Section III-B of the Majority Opinion, which is here.

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

 * This "fact" would not survive careful examination.


The Court bases its unprecedented deference to the Law School--a deference antithetical to strict scrutiny--on an idea of "educational autonomy" grounded in the First Amendment. Ante, at 17. In my view, there is no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause. The constitutionalization of "academic freedom" began with the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire, 354 U. S. 234 (1957). Sweezy, [-15-] a Marxist economist, was investigated by the Attorney General of New Hampshire on suspicion of being a subversive. The prosecution sought, inter alia, the contents of a lecture Sweezy had given at the University of New Hampshire. The Court held that the investigation violated due process. Id., at 254.

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

In my view, "[i]t is the business" of this Court to explain itself when it cites provisions of the Constitution to invent new doctrines--including the idea that the First Amendment authorizes a public university to do what would otherwise violate the Equal Protection Clause. The majority fails in its summary effort to prove this point. The only source for the Court's conclusion that public universities are entitled to deference even within the confines of strict scrutiny is Justice Powell's opinion in Bakke. [-16-] Justice Powell, for his part, relied only on Justice Frankfurter's opinion in Sweezy and the Court's decision in Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967), to support his view that the First Amendment somehow protected a public university's use of race in admissions. Bakke, 438 U. S., at 312. Keyishian provides no answer to the question whether the Fourteenth Amendment's restrictions are relaxed when applied to public universities. In that case, the Court held that state statutes and regulations designed to prevent the "appointment or retention of 'subversive' persons in state employment," 385 U. S., at 592, violated the First Amendment for vagueness. The statutes covered all public employees and were not invalidated only as applied to university faculty members, although the Court appeared sympathetic to the notion of academic freedom, calling it a "special concern of the First Amendment." Id., at 603. Again, however, the Court did not relax any independent constitutional restrictions on public universities.

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

 Justice Thomas' arguments in this section challenge a crucial premise to Justice Powell's recognition of "student body diversity" as a "compelling interest." Although the Court borrows heavily from Justice Powell's rationale, this challenge to its foundation is ignored.



The Court's deference to the Law School's conclusion that its racial experimentation leads to educational benefits will, if adhered to, have serious collateral consequences. The Court relies heavily on social science evidence to justify its deference. See ante, at 18-20; but see also Rothman, Lipset, & Nevitte, Racial Diversity [-17-] Reconsidered, 151 Public Interest 25 (2003) (finding that the racial mix of a student body produced by racial discrimination of the type practiced by the Law School in fact hinders students' perception of academic quality). The Court never acknowledges, however, the growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students. See, e.g., Flowers & Pascarella, Cognitive Effects of College Racial Composition on African American Students After 3 Years of College, 40 J. of College Student Development 669, 674 (1999) (concluding that black students experience superior cognitive development at Historically Black Colleges (HBCs) and that, even among blacks, "a substantial diversity moderates the cognitive effects of attending an HBC"); Allen, The Color of Success: African-American College Student Outcomes at Predominantly White and Historically Black Public Colleges and Universities, 62 Harv. Educ. Rev. 26, 35 (1992) (finding that black students attending HBCs report higher academic achievement than those attending predominantly white colleges).

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

The majority grants deference to the Law School's "assessment that diversity will, in fact, yield educational [-18-] benefits," ante, at 16. It follows, therefore, that an HBC's assessment that racial homogeneity will yield educational benefits would similarly be given deference.7 An HBC's rejection of white applicants in order to maintain racial homogeneity seems permissible, therefore, under the majority's view of the Equal Protection Clause. But see United States v. Fordice, 505 U. S. 717, 748 (1992) (Thomas, J., concurring) ("Obviously, a State cannot maintain ... traditions by closing particular institutions, historically white or historically black, to particular racial groups"). Contained within today's majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected--racial segregation.

 The data and reasoning in this section are not addressed in the Majority Opinion.


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


Virginia is also notable for the fact that the Court relied on the "experience" of formerly single-sex institutions, such as the service academies, to conclude that admission of women to VMI would be "manageable." 518 U. S., at 544-545. Today, however, the majority ignores the "experience" of those institutions that have been forced to abandon explicit racial discrimination in admissions.

The sky has not fallen at Boalt Hall at the University of California, Berkeley, for example. Prior to Proposition 209's adoption of Cal. Const., Art. 1, §31(a), which bars the State from "grant[ing] preferential treatment ... on the basis of race ... in the operation of ... public education,"8 Boalt Hall enrolled 20 blacks and 28 Hispanics in its first-year class for 1996. In 2002, *without deploying express racial discrimination in admissions,* Boalt's entering class enrolled 14 blacks and 36 Hispanics.9 University of California Law and Medical School Enrollments, [-20-] available at http://www.ucop.edu/acadadv/ datamgmt/ lawmed/ law-enrolls-eth2.html. Total underrepresented minority student enrollment at Boalt Hall now exceeds 1996 levels. Apparently the Law School cannot be counted on to be as resourceful. The Court is willfully blind to the very real experience in California and elsewhere, which raises the inference that institutions with "reputation[s] for excellence," ante, at 16, 26, rivaling the Law School's have satisfied their sense of mission without resorting to prohibited racial discrimination.

 * No overt "racial discrimination" perhaps, but probably plenty of covert. Many California opponents of "preferential treatment" based on race believe that Boalt is doing it. The statistics are strongly suggestive. In Oral Argument on this case, Michigan's counsel noted that the same LSAT gap exists between whites and blacks admitted to Boalt under official nondiscrimination, as at Michigan under acknowledged special treatment. Go figure. The sarcasm in Footnote 9 indicates that Thomas did.

* * * * *


The absence of any articulated legal principle supporting the majority's principal holding suggests another rationale. I believe what lies beneath the Court's decision [-24-] today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, see Adarand, 515 U. S., at 239 (Scalia, J., concurring in part and concurring in judgment), and that racial discrimination is necessary to remedy general societal ills. This Court's precedents supposedly settled both issues, but clearly the majority still cannot commit to the principle that racial classifications are per se harmful and that almost no amount of benefit in the eye of the beholder can justify such classifications.

Putting aside what I take to be the Court's implicit rejection of Adarand's holding that beneficial and burdensome racial classifications are equally invalid, I must contest the notion that the Law School's discrimination benefits those admitted as a result of it. The Court spends considerable time discussing the impressive display of amicus support for the Law School in this case from all corners of society. Ante, at 18-19. But nowhere in any of the filings in this Court is any evidence that the purported "beneficiaries" of this racial discrimination prove themselves by performing at (or even near) the same level as those students who receive no preferences. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev. 1583, 1605-1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its "beneficiaries" are underperforming in the classroom).

The silence in this case is deafening to those of us who view higher education's purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, credentialing process. *The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law.* **The Law School seeks only a facade--it is sufficient that the class looks right, even if it does not perform right.** [-25-]


* Thomas offers no evidence for this charge, which is explicitly denied by the School.

** A very serious accusation, for which no evidence is provided.

The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. See T. Sowell, Race and Culture 176-177 (1994) ("Even if most minority students are able to meet the normal standards at the 'average' range of colleges and universities, *the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education"*). Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue--in selection for the Michigan Law Review, see University of Michigan Law School Student Handbook 2002-2003, pp. 39-40 (noting the presence of a "diversity plan" for admission to the review), and in hiring at law firms and for judicial clerkships--until the "beneficiaries" are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less "elite" law school for which they were better prepared. And the aestheticists will never address the real problems facing "underrepresented minorities,"11 instead continuing their social experiments [-26-] on other people's children.

 * This is one of the great harms from racial preference. Minority applicants equal in ability to whites at 2nd or 3rd tier schools are pulled into the 1st tier, where they are overmatched. Minority applicants equal to whites at 4th and 5th tier schools are pulled into 2nd or 3rd tier schools. And so on. As a result, both minority and white students are denied the advantage of interracial interaction with their intellectual peers, and minorities are thrown off stride by the pervasive ability disadvantage.

Beyond the harm the Law School's racial discrimination visits upon its test subjects, no social science has disproved the notion that this discrimination "engender[s] attitudes of superiority or, alternatively, provoke[s] resentment among those who believe that they have been wronged by the government's use of race." Adarand, 515 U. S., at 241 (Thomas, J., concurring in part and concurring in judgment). "These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences." Ibid.

It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. See Brief for Respondents Bollinger et al. 6. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the "beneficiaries" of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma--because either racial discrimination did play a role, in which case the person may be deemed "otherwise unqualified," or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by "visibly open"? Ante, at 20.

Finally, the Court's disturbing reference to the importance of the country's law schools as training grounds meant to cultivate "a set of leaders with legitimacy in the eyes of the citizenry," ibid., through the use of racial discrimination deserves discussion. As noted earlier, the [-27-] Court has soundly rejected the remedying of societal discrimination as a justification for governmental use of race. Wygant, 476 U. S., at 276 (plurality opinion); Croson, 488 U. S., at 497 (plurality opinion); id., at 520-521 (Scalia, J., concurring in judgment). For those who believe that every racial disproportionality in our society is caused by some kind of racial discrimination, there can be no distinction between remedying societal discrimination and erasing racial disproportionalities in the country's leadership caste. And if the lack of proportional racial repre- sentation among our leaders is not caused by societal discrimination, then "fixing" it is even less of a pressing public necessity.

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


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


First, I note that the issue of unconstitutional racial discrimination among the groups the Law School prefers is not presented in this case, because petitioner has never argued that the Law School engages in such a practice, and the Law School maintains that it does not. See Brief [-28-] for Respondents Bollinger et al. 32, n. 50, and 6-7, n. 7. I join the Court's opinion insofar as it confirms that this type of racial discrimination remains unlawful. Ante, at 13-15. Under today's decision, it is still the case that racial discrimination that does not help a university to enroll an unspecified number, or "critical mass," of underrepresented minority students is unconstitutional. Thus, the Law School may not discriminate in admissions between similarly situated blacks and Hispanics, or between whites and Asians. This is so because preferring black to Hispanic applicants, for instance, does nothing to further the interest recognized by the majority today.12 Indeed, the majority describes such racial balancing as "patently unconstitutional." Ante, at 17. Like the Court, ante, at 24, I express no opinion as to whether the Law School's current admissions program runs afoul of this prohibition.


The Court also holds that racial discrimination in admissions should be given another 25 years before it is deemed no longer narrowly tailored to the Law School's fabricated compelling state interest. Ante, at 30. While I agree that in 25 years the practices of the Law School will [-29-] be illegal, they are, for the reasons I have given, illegal now. The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white students is shrinking or will be gone in that timeframe.13 In recent years there has been virtually no change, for example, in the proportion of law school applicants with LSAT scores of 165 and higher who are black.14 In 1993 blacks constituted 1.1% of law school applicants in that score range, though they represented 11.1% of all applicants. Law School Admission Council, National Statistical Report (1994) (hereinafter LSAC Statistical Report). In 2000 the comparable numbers were 1.0% and 11.3%. LSAC Statistical Report (2001). No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is *the Court's holding that racial discrimination will be unconstitutional in 25 years* made contingent on the gap closing in that time.15 [-30-]


* Justice O'Connor was careful to avoid saying what Justice Thomas attributes to her. Her statement was not a judgment of illegality, but a prediction concerning need: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

The Law School Admissions Council data cited by Justice Thomas strongly suggest that the Court's expectation is unwarranted. These data are consistent with figures presented in The Black-White Test Score Gap, edited by Christopher Jencks and Meredith Phillips, Brookings Institution 1998, p 158. They show that between 1965 and 1992, while the racial test score gap became smaller for average and low scoring students, it remained quite large and steady for students in the top 10th percentile, the group from which most graduate students are drawn. If racial preference in college admissions continues as long as some racial or ethnic groups score below others on competent tests of verbal or mathematical skills, no person now living will see the end.

Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant's LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker's behavior is responsive to the Law School's admissions policies.16 Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance--just as it confirms the conspiracy theorist's belief that "institutional racism" [-31-] is at fault for every racial disparity in our society. I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School's educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to " 'eliminat[e] the [perceived] need for any racial or ethnic' " discrimination because the academic credentials gap will still be there. Ante, at 30 (quoting Nathanson & Bartnika, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May-June 1977)). The Court defines this time limit in terms of narrow tailoring, see ante, at 30, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court.


Footnote 1 Throughout I will use the two phrases interchangeably. [return to text]

Footnote 2 The Court's refusal to address Wygant's rejection of a state interest virtually indistinguishable from that presented by the Law School is perplexing. If the Court defers to the Law School's judgment that a racially mixed student body confers educational benefits to all, then why would the Wygant Court not defer to the school board's judgment with respect to the benefits a racially mixed faculty confers? [return to text]

Footnote 3 "[D]iversity," for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one's skin constitutionally irrelevant to the Law School's mission, I refer to the Law School's interest as an "aesthetic." That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them. I also use the term "aesthetic" because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. Cf. Orr v. Orr, 440 U. S. 268, 283 (1979) (noting that suspect classifications are especially impermissible when "the choice made by the State appears to redound ... to the benefit of those without need for special solicitude"). It must be remembered that the Law School's racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation. [return to text]

Footnote 4 The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of "diversity" are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School's reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all. [return to text]

Footnote 5 Cf. U. S. News & World Report, America's Best Graduate Schools 28 (2004 ed.) (placing these schools in the uppermost 15 in the Nation). [return to text]

Footnote 6 The Court refers to this component of the Law School's compelling state interest variously as "academic quality," avoiding "sacrifice [of] a vital component of its educational mission," and "academic selectivity." Ante, at 27-28. [return to text]

Footnote 7 For example, North Carolina A&T State University, which is currently 5.4% white, College Admissions Data Handbook 643, could seek to reduce the representation of whites in order to gain additional educational benefits. [return to text]

Footnote 8 Cal. Const., Art. 1, §31(a), states in full: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." See Coalition for Economic Equity v. Wilson, 122 F. 3d 692 (CA9 1997). [return to text]

Footnote 9 Given the incredible deference the Law School receives from the Court, I think it appropriate to indulge in the presumption that Boalt Hall operates without violating California law. [return to text]

Footnote 11 For example, there is no recognition by the Law School in this case that even with their racial discrimination in place, black men are "underrepresented" at the Law School. See ABA-LSAC Guide 426 (reporting that the Law School has 46 black women and 28 black men). Why does the Law School not also discriminate in favor of black men over black women, given this underrepresentation? The answer is, again, that all the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance. [return to text]

Footnote 12 That interest depends on enrolling a "critical mass" of underrepresented minority students, as the majority repeatedly states. Ante, at 3, 5, 7, 17, 20, 21, 23, 28; cf. ante, at 21 (referring to the unique experience of being a "racial minority," as opposed to being black, or Native American); ante, at 24 (rejecting argument that the Law School maintains a disguised quota by referring to the total number of enrolled underrepresented minority students, not specific races). As it relates to the Law School's racial discrimination, the Court clearly approves of only one use of race--the distinction between underrepresented minority applicants and those of all other races. A relative preference awarded to a black applicant over, for example, a similarly situated Native American applicant, does not lead to the enrollment of even one more underrepresented minority student, but only balances the races within the "critical mass." [return to text]

Footnote 13 I agree with Justice Ginsburg that the Court's holding that racial discrimination in admissions will be illegal in 25 years is not based upon a "forecast," post, at 3 (concurring opinion). I do not agree with Justice Ginsburg's characterization of the Court's holding as an expression of "hope." Ibid. [return to text]

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

Footnote 15 The majority's non sequitur observation that since 1978 the number of blacks that have scored in these upper ranges on the LSAT has grown, ante, at 30, says nothing about current trends. First, black participation in the LSAT until the early 1990's lagged behind black representation in the general population. For instance, in 1984 only 7.3% of law school applicants were black, whereas in 2000 11.3% of law school applicants were black. See LSAC Statistical Reports (1984 and 2000). Today, however, unless blacks were to begin applying to law school in proportions greater than their representation in the general population, the growth in absolute numbers of high scoring blacks should be expected to plateau, and it has. In 1992, 63 black applicants to law school had LSAT scores above 165. In 2000, that number was 65. See LSAC Statistical Reports (1992 and 2000). [return to text]

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