Regents Of The University Of California V Bakke Essay Writing

Regents of the University of California v. Bakke
Argued October 12, 1977
Decided June 28, 1978
Full case nameRegents of the University of California v. Allan Bakke
Citations438 U.S.265 (more)

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

Prior historyCertiorari to the Supreme Court of California. Bakke v. Regents of the University of California, 18 Cal. 3d 34, 132 Cal. Rptr. 680, 553 P.2d 1152, 1976 Cal. LEXIS 336 (1976)
Bakke was ordered admitted to UC Davis Medical School, and the school's practice of reserving 16 seats for minority students was struck down. Judgment of the Supreme Court of California reversed insofar as it forbade the university from taking race into account in admissions.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William J. Brennan Jr. ·Potter Stewart
Byron White ·Thurgood Marshall
Harry Blackmun ·Lewis F. Powell Jr.
William Rehnquist ·John P. Stevens
Case opinions
MajorityPowell (Parts I and V-C), joined by Brennan, White, Marshall, and Blackmun. Burger, Stewart, Rehnquist, and Stevens joined in the part of the judgment finding UC Davis's affirmative action program unconstitutional and ordering Bakke admitted.
PluralityPowell (Part III-A), joined by White
Concur/dissentStevens, joined by Burger, Stewart, Rehnquist
Laws applied

U.S. Const. amend. XIV

Title VI of the Civil Rights Act of 1964

Regents of the University of California v. Bakke, 438U.S.265 (1978), was a landmark decision by the Supreme Court of the United States. It upheld affirmative action, allowing race to be one of several factors in college admission policy. However, the court ruled that specific racial quotas, such as the 16 out of 100 seats set aside for minority students by the University of California, Davis School of Medicine, were impermissible.

Although the Supreme Court had outlawed segregation in schools, and had even ordered school districts to take steps to assure integration, the question of the legality of voluntary affirmative action programs initiated by universities was unresolved. Proponents deemed such programs necessary to make up for past discrimination, while opponents believed they were illegal and a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. An earlier case that the Supreme Court had taken in an attempt to address the issue, DeFunis v. Odegaard (1974), was dismissed on procedural grounds.

Allan P. Bakke (), an engineer and former United States Marine Corps officer, sought admission to medical school, but was rejected for admission by several due in part to his age. Bakke was in his early 30s while applying, and therefore considered too old by at least two institutions. After twice being rejected by the University of California, Davis, he brought suit in state court. The California Supreme Court struck down the program as violative of the rights of white applicants and ordered Bakke admitted. The U.S. Supreme Court accepted the case amid wide public attention.

The case fractured the court; the nine justices issued a total of six opinions. The judgment of the court was written by Justice Lewis F. Powell, Jr.; two different blocs of four justices joined various parts of Powell's opinion. Finding diversity in the classroom to be a compelling state interest, Powell opined that affirmative action in general was allowed under the Constitution and the Civil Rights Act of 1964. Nevertheless, UC Davis's program went too far for a majority of justices, and it was struck down and Bakke admitted. The practical effect of Bakke was that most affirmative action programs continued without change. Questions about whether the Bakke case was merely a plurality opinion or binding precedent were answered in 2003 when the court upheld Powell's position in a majority opinion in Grutter v. Bollinger.


State of the law[edit]

Main article: School integration in the United States

In Brown v. Board of Education (1954), the Supreme Court of the United States ruled segregation by race in public schools to be unconstitutional. In the following fifteen years, the court issued landmark rulings in cases involving race and civil liberties, but left supervision of the desegregation of Southern schools mostly to lower courts.[1] Among other progressive legislation, Congress passed the Civil Rights Act of 1964,[2] Title VI of which forbids racial discrimination in any program or activity receiving federal funding.[3] By 1968, integration of public schools was well advanced. In that year, the Supreme Court revisited the issue of school desegregation in Green v. County School Board, ruling that it was not enough to eliminate racially discriminatory practices; state governments were under an obligation to actively work to desegregate schools.[4][5] The school board in Green had allowed children to attend any school, but few chose to attend those dominated by another race.[6] In 1970, in Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court upheld an order for busing of students to desegregate a school system.[4][7]

Although public universities were integrated by court decree, selective colleges and graduate programs, and the professions which stemmed from them, remained almost all white. Many African-Americans had attended inferior schools and were ill-prepared to compete in the admissions process. This was unsatisfactory to many activists of the late 1960s, who protested that given the African-American's history of discrimination and poverty, some preference should be given to minorities. This became a commonly held liberal position, and large numbers of public and private universities began affirmative action programs.[8] Among these were the University of California, Davis School of Medicine (UC Davis or "the university"), which was founded in 1968 and had an all-white inaugural class. The faculty was concerned by this, and the school began a special admissions program "to compensate victims of unjust societal discrimination".[9][10] The application form contained a question asking if the student wished to be considered disadvantaged, and, if so, these candidates were screened by a special committee, on which more than half the members were from minority groups.[11] Initially, the entering class was 50 students, and eight seats were put aside for minorities; when the class size doubled in 1971, there were 16 seats which were to be filled by candidates recommended by the special committee.[12] While nominally open to whites, no one of that race was admitted under the program, which was unusual in that a specific number of seats were to be filled by candidates through this program.[9]

The first case taken by the Supreme Court on the subject of the constitutionality of affirmative action in higher education was DeFunis v. Odegaard (1974).[13][14] Marco DeFunis, a white man, had twice been denied admission to the University of Washington School of Law. The law school maintained an affirmative action program, and DeFunis had been given a higher rating by admissions office staff than some admitted minority candidates. The Washington state trial court ordered DeFunis admitted, and he attended law school while the case was pending. The Washington Supreme Court reversed the trial court, but the order was stayed, and DeFunis remained in school. The U.S. Supreme Court granted review and the case was briefed and argued, but by then, DeFunis was within months of graduation. The law school stated in its briefs that even if it won, it would not dismiss him.[13][15] After further briefing on the question of mootness, the Supreme Court dismissed the case, 5-4, holding that as DeFunis had almost completed his studies, there was no longer a case or controversy to decide.[13][16] Justice William Brennan, in an opinion joined by the other three members of the minority, accused the court of "sidestepping" the issues, which "must inevitably return to the federal courts and ultimately again to this court".[13][17]

Allan Bakke[edit]

Allan Paul Bakke (born 1940),[18] a 35-year-old white male, applied to twelve medical schools in 1973. He had been a National Merit Scholar at Coral Gables Senior High School, in Florida. He was accepted as an undergraduate at the University of Minnesota, deferring tuition costs by joining Naval ROTC. He graduated with a grade-point average (GPA) of 3.51. In order to fulfill his ROTC requirements, he joined the Marine Corps and served four years, including a seven-month tour of duty in Vietnam as a commanding officer of an anti-aircraft battery. In 1967, having achieved the rank of captain, he was granted an honorable discharge.[19] Bakke then worked as an engineer at NASA. He stated that his interest in medicine started in Vietnam, and increased at NASA, as he had to consider the problems of space flight and the human body there. But twelve medical schools rejected his application for admission.[20]

Bakke had applied first to the University of Southern California and Northwestern University, in 1972, and both rejected him, making a point of his age, with Northwestern writing that it was above their limit.[20] Medical schools at the time openly practiced age discrimination.[21]

Bakke applied late to UC Davis in 1973 because his mother-in-law was ill.[22][23] This delay may well have cost him admission: although his credentials were outstanding even among applicants not part of the special program, by the time his candidacy was considered under the school's rolling admissions process, there were few seats left.[24] His application reflected his anxiety about his age, referring to his years of sacrifice for his country as a cause of his interest in medicine.[20]

Bakke received 468 points out of a possible 500 on the admissions committee’s rating scale in 1973. Earlier in the year, a rating of 470 had won automatic admission with some promising applicants being admitted with lower scores. Bakke had a science GPA of 3.44 and an overall GPA of 3.46 after taking science courses at night to qualify for medical school. On the Medical College Admissions Test (MCAT), Bakke scored in the 97th percentile in scientific knowledge, the 96th percentile in verbal ability, the 94th percentile in quantitative analysis, and the 72nd percentile in general knowledge.[19][25] Bakke's MCAT score overall was 72; the average applicant to UC Davis scored a 69 and the average applicant under the special program a 33.[26] In March 1973, Bakke was invited to UC Davis for an interview. Dr. Theodore West, who met with him, described Bakke as “a well-qualified candidate for admission whose main hardship is the unavoidable fact that he is now 33. … On the grounds of motivation, academic records, potential promise, endorsement by persons capable of reasonable judgments, personal appearance and decorum, maturity, and probable contribution to balance in the class, I believe Mr. Bakke must be considered as a very desirable applicant and I shall so recommend him.”[25][27] About two months later in May 1973, Bakke received notice of his rejection.[19][20]

Bakke complained to Dr. George Lowrey, chairman of the admissions committee at the medical school, about the special admissions program. At Lowrey's request, Assistant Dean Peter Storandt told Bakke his candidacy had come close and encouraged him to reapply. If he was not accepted the second time, "he could then research the legal question. He had been a good candidate. I thought he'd be accepted and that would end the matter."[28] Storandt also gave Bakke the names of two lawyers interested in the issue of affirmative action.[19] The general counsel for the University of California said, "I don't think Storandt meant to injure the university. It's simply an example of a non-lawyer advising on legal matters."[28] Storandt stated, "I simply gave Allan the response you'd give an irate customer, to try and cool his anger. I realized the university might be vulnerable to legal attack because of its quota, and I had the feeling by then that somebody somewhere would sue the school, but I surely didn't know this would be the case."[28] Storandt was demoted and later left the university. According to Bernard Schwartz in his account of the Bakke case, Storandt was fired.[28][29]

Allan Bakke applied to UC Davis medical school again in 1974.[20] He was interviewed twice: once by a student interviewer, who recommended his admission, and once by Dr. Lowrey, who in his report stated that Bakke "had very definite opinions which were based more on his personal viewpoints than on a study of the whole problem … He was very unsympathetic to the concept of recruiting minority students."[30] Lowrey gave Bakke a poor evaluation, the only part of his application on which he did not have a high score.[31] He was rejected again, although minorities were admitted in both years with significantly lower academic scores through the special program. Not all minority applicants whose admission was recommended under the program gained entry—some were rejected by the admissions committee. This, however, did not affect the number of minority students to be admitted, sixteen.[20][32] Although 272 white people between 1971 and 1974 had applied under this program, none had been successful;[19] in 1974 the special admissions committee summarily rejected all white students who asked for admission under the program. Only one black student and six Latinos were admitted under the regular admissions program in that time period, though significant numbers of Asian students were given entry.[33]

According to a 1976 Los Angeles Times article, the dean of the medical school sometimes intervened on behalf of daughters and sons of the university's "special friends" in order to improve their chances.[34] Among those who benefitted by Dean C. John Tupper's interventions (about five per year) was the son of an influential state assemblyman, who had not even filed an application. The special picks were ended by order of University of California President David S. Saxon in 1976. Bakke's lawyer deemed it impossible to tell if these picks caused Bakke not to be admitted, but according to an attorney who filed an amicus curiae brief on behalf of the National Urban League in support of affirmative action, the practice of dean's picks made the university reluctant to go into detail about its admission practices at trial, affecting its case negatively.[35]

Lower court history[edit]

On June 20, 1974,[36] following his second rejection from UC Davis, Bakke brought suit against the university's governing board in the Superior Court of California,[32]Yolo County. He sought an order admitting him on the ground that the special admission programs for minorities violated the U.S. and California constitutions, and Title VI of the Civil Rights Act. UC Davis's counsel filed a request that the judge, F. Leslie Manker, find that the special program was constitutional and legal, and argued that Bakke would not have been admitted even if there had been no seats set aside for minorities. On November 20, 1974, Judge Manker found the program unconstitutional and in violation of Title VI, "no race or ethnic group should ever be granted privileges or immunities not given to every other race."[37] Manker ordered the medical school to disregard race as a factor, and to reconsider Bakke's application under a race-free system.[38] After Manker entered final judgment in the case on March 7, 1975,[36] both parties appealed, the university on March 20 because the program was struck down, and Bakke on April 17 because he was not ordered admitted.[36][38]

Because of the important issues presented, the Supreme Court of California on June 26, 1975 ordered the appeal transferred to it, bypassing the intermediate appeals court.[39][40] On March 19, 1976, the case was argued before the state supreme court.[41] Nine amicus curiae briefs were filed by various organizations, the majority in support of the university's position.[42] The California Supreme Court was considered one of the most liberal appellate courts, and it was widely expected that it would find the program to be legal. Nevertheless, on September 16, 1976, the court, in an opinion by Justice Stanley Mosk, upheld the lower-court ruling, 6–1.[36][42][43] Mosk wrote that "no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race".[44][45] Justice Matthew O. Tobriner dissented, stating that Mosk's suggestion that the state open more medical schools to accommodate both white and minority was unrealistic due to cost: "It is a cruel hoax to deny minorities participation in the medical profession on the basis of such fanciful speculation."[46][47] The court barred the university from using race in the admissions process and ordered it to provide evidence that Bakke would not have been admitted under a race-neutral program. When the university conceded its inability to do so in a petition for rehearing, the court on October 28, 1976 amended its ruling to order Bakke's admission and denied the petition.[36][48][49]


Acceptance and briefs[edit]

The university requested that the U.S. Supreme Court stay the order requiring Bakke's admission pending its filing a petition asking for review. U.S. Supreme Court Justice William Rehnquist, as circuit justice for the Ninth Circuit (which includes California) granted the stay for the court in November 1976.[50][51]

The university filed a petition for writ of certiorari in December 1976.[51] The papers of some of the justices who participated in the Bakke case reveal that the case was three times considered by the court in January and February 1977. Four votes were needed for the court to grant certiorari, and it had at least that number each time, but was twice put over for reconsideration at the request of one of the justices. A number of civil rights organizations filed a joint brief as amicus curiae, urging the court to deny review, on the grounds that the Bakke trial had failed to fully develop the issues—the university had not introduced evidence of past discrimination, or of bias in the MCAT. Nevertheless, on February 22, the court granted certiorari, with the case to be argued in its October 1977 term.[52][53]

The parties duly filed their briefs. The university's legal team was now headed by former U.S. Solicitor General and Watergate special prosecutor Archibald Cox, who had argued many cases before the Supreme Court. Cox wrote much of the brief, and contended in it that "the outcome of this controversy will decide for future generations whether blacks, Chicanos and other insular minorities are to have meaningful access to higher education and real opportunities to enter the learned professions".[54] The university also took the position that Bakke had been rejected because he was unqualified.[55] Reynold Colvin, for Bakke, argued that his client's rights under the Fourteenth Amendment to equal protection of the laws had been violated by the special admission program.[56] Fifty-eight amicus curiae briefs were filed, establishing a record for the Supreme Court that would stand until broken in the 1989 abortion case Webster v. Reproductive Health Services. Future justice Ruth Bader Ginsburg signed the ACLU's brief; Marco deFunis, the petitioner in the 1974 case dismissed for mootness, wrote the brief for Young Americans for Freedom.[57]

In addition to the various other amici, the United States filed a brief through the Solicitor General, as it may without leave of court under the Supreme Court's rules. When consideration of Bakke began in the new administration of President Jimmy Carter, early drafts of the brief both supported affirmative action and indicated that the program should be struck down and Bakke admitted. This stance reflected the mixed support of affirmative action at that time by the Democrats. Minorities and others in that party complained, and in late July 1977, Carter announced that the government's brief would firmly support affirmative action. That document, filed October 3, 1977 (nine days before oral argument), stated that the government supported programs tailored to make up for past discrimination, but opposed rigid set-asides.[58] The United States urged the court to remand the case to allow for further fact-finding (a position also taken by civil rights groups in their amicus briefs).[58]

While the case was awaiting argument, another white student, Rita Clancy, sued for admission to UC Davis Medical School on the same grounds as Bakke had. In September 1977, she was ordered admitted pending the outcome of the Bakke case. After Bakke was decided, the university dropped efforts to oust her, stating that as she had successfully completed one year of medical school, she should remain.[59]

Argument and deliberation[edit]

Oral argument in Bakke took place on October 12, 1977. There was intense public interest in the case; prospective attendees began to line up the afternoon before. The court session took two hours, with Cox arguing for the university, Colvin for Bakke, and Solicitor General Wade H. McCree for the United States.[60] Colvin was admonished by Justice Byron White for arguing the facts, rather than the Constitution.[61] Cox provided one of the few moments of levity during the argument when Justice Harry A. Blackmun wondered whether the set-aside seats could be compared to athletic scholarships. Cox was willing to agree, but noted that he was a Harvard graduate, and as for sporting success, "I don't know whether it's our aim, but we don't do very well."[62]

Beginning the day after the argument, the justices lobbied each other through written memorandum.[63] At a conference held among justices on October 15, 1977, they decided to request further briefing from the parties on the applicability of Title VI.[64] The supplemental brief for the university was filed on November 16, and argued that Title VI was a statutory version of the Equal Protection Clause of the Fourteenth Amendment and did not allow private plaintiffs, such as Bakke, to pursue a claim under it. Bakke's brief arrived the following day. Colvin submitted that Bakke did have a private right of action, and that his client did not want the university to suffer the remedy prescribed under Title VI for discriminatory institutions—loss of federal funding—but wanted to be admitted.[65] In November, Justice Blackmun left Washington to have prostate surgery at the Mayo Clinic.[66]

Blackmun's absence did not stem the flow of memos, notably one on November 22 from Justice Lewis Powell, analyzing the minority admissions program under the strict scrutiny standard often applied when government treats some citizens differently from others based on a suspect classification such as race. Concluding that the program did not meet the standard, and must be struck down, Powell's memorandum stated that affirmative action was permissible under some circumstances, and eventually formed much of his released opinion.[67]

At the justices' December 9 conference, with Blackmun still absent, they considered the case. Counting heads, four justices (Chief Justice Warren E. Burger and Justices Potter Stewart, Rehnquist, and John Paul Stevens) favored affirming the California Supreme Court's decision. Three (Justices Brennan, White, and Thurgood Marshall) wanted to uphold the program. Justice Blackmun had not yet weighed in. Powell stated his views, after which Brennan, hoping to cobble together a five-justice majority to support the program, or at least to support the general principle of affirmative action, suggested to Powell that applying Powell's standard meant that the lower court decision would be affirmed in part and reversed in part. Powell agreed.[68]

Even when Blackmun returned in early 1978, he was slow to make his position on Bakke known. It was not until May 1 that he circulated a memorandum to his colleagues's chambers, indicating that he would join Brennan's bloc, in support of affirmative action and the university's program. This meant that Powell was essential to either side being part of a majority. Over the following eight weeks, Powell fine-tuned his opinion to secure the willingness of each group to join part of it. The other justices began work on opinions that would set forth their views.[69]


The Supreme Court's decision in Bakke was announced on June 28, 1978. The justices penned six opinions; none of them, in full, had the support of a majority of the court. In a plurality opinion,[a] Justice Powell delivered the judgment of the court. Four justices (Burger, Stewart, Rehnquist, and Stevens) joined with him to strike down the minority admissions program and admit Bakke. The other four justices (Brennan, White, Marshall, and Blackmun) dissented from that portion of the decision, but joined with Powell to find affirmative action permissible under some circumstances, though subject to an intermediate scrutiny standard of analysis. They also joined with Powell to reverse that portion of the judgment of the California Supreme Court that forbade the university to consider race in the admissions process.[70]

Powell's opinion[edit]

Justice Powell, after setting forth the facts of the case, discussed and found it unnecessary to decide whether Bakke had a private right of action under Title VI, assuming that was so for purposes of the case.[71] He then discussed the scope of Title VI, opining that it barred only those racial classifications forbidden by the Constitution.[72]

Turning to the program itself, Powell determined that it was not simply a goal, as the university had contended, but a racial qualification—assuming that UC Davis could find sixteen minimally qualified minority students, there were only 84 seats in the freshman class open to white students, whereas minorities could compete for any spot in the 100-member class. He traced the history of the jurisprudence under the Equal Protection Clause, and concluded that it protected all, not merely African Americans or only minorities. Only if it served a compelling interest could the government treat members of different races differently.[73]

Powell noted that the university, in its briefs, had cited decisions where there had been race-conscious remedies, such as in the school desegregation cases, but found them inapposite as there was no history of racial discrimination at the University of California-Davis Medical School to remedy. He cited precedent that when an individual was entirely foreclosed from opportunities or benefits provided by the government and enjoyed by those of a different background or race, this was a suspect classification. Such discrimination was only justifiable when necessary to a compelling governmental interest. He rejected assertions by the university that government had a compelling interest in boosting the number of minority doctors, and deemed too nebulous the argument that the special admissions program would help bring doctors to underserved parts of California—after all, that purpose would also be served by admitting white applicants interested in practicing in minority communities. Nevertheless, Powell opined that government had a compelling interest in a racially diverse student body.[74]

In a part of the opinion concurred in by Chief Justice Burger and his allies, Powell found that the program, with its set-aside of a specific number of seats for minorities, did discriminate against Bakke, as less restrictive programs, such as making race one of several factors in admission, would serve the same purpose. Powell offered the example (set out in an appendix) of the admissions program at Harvard University as one he believed would pass constitutional muster—that institution did not set rigid quotas for minorities, but actively recruited them and sought to include them as more than a token part of a racially and culturally diverse student body. Although a white student might still lose out to a minority with lesser academic qualifications, both white and minority students might gain from non-objective factors such as the ability to play sports or a musical instrument. Accordingly, there was no constitutional violation in using race as one of several factors.[75][76]

Powell opined that because the university had admitted that it could not prove that Bakke would not have been admitted even had there been no special admissions program, the portion of the California Supreme Court's decision ordering Bakke's admission was proper, and was upheld. Nevertheless, the state was entitled to consider race as one of several factors, and the portion of the California court's judgment which had ordered the contrary was overruled.[77]

Other opinions[edit]

Brennan delivered the joint statement of four justices: Marshall, White, Blackmun and himself. In verbally introducing their opinion in the Supreme Court courtroom, Brennan stated that the "central meaning" of the Bakke decision was that there was a majority of the court in favor of the continuation of affirmative action.[78] In the joint opinion, those four justices wrote, "government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice".[79] They suggested that any admissions program with the intention of remedying past race discrimination would be constitutional, whether that involved adding bonus points for race, or setting aside a specific number of places for them.[80]

White issued an opinion expressing his view that there was not a private right of action under Title VI.[81][82] Thurgood Marshall also wrote separately, recounting at length the history of discrimination against African-Americans, and concluding, "I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible."[80][83] Blackmun subscribed to the idea of color consciousness, declaring that, "in order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial superiority."[81][84]

Justice Stevens, joined by Burger, Stewart and Rehnquist, concurring in part and dissenting in part in the judgment, found it unnecessary to determine whether a racial preference was ever allowed under the Constitution. A narrow finding that the university had discriminated against Bakke, violating Title VI, was sufficient, and the court was correct to admit him.[85] "It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate."[86] According to Stevens, "[t]he meaning of the Title VI ban on exclusion is crystal clear: Race cannot be the basis of excluding anyone from a federally funded program".[87][88] He concluded, "I concur in the Court's judgment insofar as it affirms the judgment of the Supreme Court of California. To the extent that it purports to do anything else, I respectfully dissent."[89]


Newspapers stressed different aspects of Bakke, often reflecting their political ideology. The conservative Chicago Sun-Times bannered Bakke's admission in its headline, while noting that the court had permitted affirmative action under some circumstances. The Washington Post, a liberal newspaper, began its headline in larger-than-normal type, "Affirmative Action Upheld" before going on to note that the court had admitted Bakke and curbed quotas.[90]The Wall Street Journal, in a headline, deemed Bakke "The Decision Everybody Won".[91] According to Oxford University Chair of Jurisprudence Ronald Dworkin, the court's decision "was received by the press and much of the public with great relief, as an act of judicial statesmanship that gave to each party in the national debate what it seemed to want most".[92]

Attorney General Griffin Bell, after speaking with President Jimmy Carter, stated, "my general view is that affirmative action has been enhanced", and that such programs in the federal government would continue as planned.[93]Equal Employment Opportunity Commission Chair Eleanor Holmes Norton told the media "that the Bakke case has not left me with any duty to instruct the EEOC staff to do anything different".[94]

Harvard Law School Professor Laurence Tribe wrote in 1979, "the Court thus upheld the kind of affirmative action plan used by most American colleges and universities, and disallowed only the unusually mechanical—some would say unusually candid, others would say unusually impolitic—approach taken by the Medical School" of UC Davis.[95]Robert M. O'Neil wrote in the California Law Review the same year that only rigid quotas were foreclosed to admissions officers and even "relatively subtle changes in the process by which applications were reviewed, or in the resulting minority representation, could well produce a different alignment [of justices]".[96] Law professor and future judge Robert Bork wrote in the pages of The Wall Street Journal that the justices who had voted to uphold affirmative action were "hard-core racists of reverse discrimination".[93]

Allan Bakke had given few interviews during the pendency of the case, and on the day it was decided, went to work as usual in Palo Alto.[55] He issued a statement through attorney Colvin expressing his pleasure in the result and that he planned to begin his medical studies that fall.[97] Most of the lawyers and university personnel who would have to deal with the aftermath of Bakke doubted the decision would change very much. The large majority of affirmative action programs at universities, unlike that of the UC Davis medical school, did not use rigid numerical quotas for minority admissions and could continue.[98] According to Bernard Schwartz in his account of Bakke, the Supreme Court's decision "permits admission officers to operate programs which grant racial preferences—provided that they do not do so as blatantly as was done under the sixteen-seat 'quota' provided at Davis".[99]


Allan Bakke, "America's best known freshman", enrolled at the UC Davis medical school on September 25, 1978.[100] Seemingly oblivious to the questions of the press and the shouts of protesters, he stated only "I am happy to be here" before entering to register.[100] When the university declined to pay his legal fees, Bakke went to court, and on January 15, 1980, was awarded $183,089.[97] Graduating from the UC Davis medical school in 1982 at age 42, he went on to a career as an anesthesiologist at the Mayo Clinic and at the Olmsted Medical Group in Rochester, Minnesota.[101][102]

In 1996, Californians by initiative banned the state's use of race as a factor to consider in public schools' admission policies.[103][b] The university's Board of Regents, led by Ward Connerly, voted to end race as a factor in admissions. The regents, to secure a diverse student body, implemented policies such as allowing the top 4% of students in California high schools guaranteed admission to the University of California System[105]—this, it was felt, would aid minority inner-city students.[106]

Dworkin warned in 1978 that "Powell's opinion suffers from fundamental weaknesses, and if the Court is to arrive at a coherent position, far more judicial work remains to be done than a relieved public yet realizes".[92] The Supreme Court has continued to grapple with the question of affirmative action in higher education. In the 2003 case of Grutter v. Bollinger, it reaffirmed Justice Powell's opinion in Bakke in a majority opinion, thus rendering moot concerns expressed by lower courts that Bakke might not be binding precedent due to the fractured lineup of justices in a plurality opinion.[107] The court's decision in the 2013 case of Fisher v. University of Texas made alterations to the standards by which courts must judge affirmative action programs, but continued to permit race to be taken into consideration in university admissions, while forbidding outright quotas.[108][109]

See also[edit]

Notes and references[edit]



  1. ^Wilkinson, p. 79.
  2. ^Wilkinson, p. 24.
  3. ^Ball, p. 6.
  4. ^ abSchwartz, pp. 28–29.
  5. ^Green v. County School Board, 391 U.S. 430 (1968).
  6. ^Green, 391 U.S. at 441.
  7. ^Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1970).
  8. ^Ball, pp. 3–10.
  9. ^ abSchwartz, p. 4.
  10. ^Regents of the University of California v. Bakke, 438 U.S. 265, 272–275 (1978) (U.S. Supreme Court).
  11. ^Bakke, 238 U.S. at 274.
  12. ^Bakke, 438 U.S. at 275.
  13. ^ abcdBall, pp. 22–45.
  14. ^DeFunis v. Odegaard, 416 U.S. 312 (1974).
  15. ^DeFunis, 416 U.S. at 314–317.
  16. ^DeFunis, 416 U.S. at 319–320.
  17. ^DeFunis, 416 U.S. at 350.
  18. ^Freedburg, Louis (June 27, 1998). "After 20 Years, Bakke Ruling Back in the Spotlight / Foes of college affirmative action want high court to overturn it". SF Gate. Archived from the original on March 7, 2016. Retrieved 21 May 2017. 
  19. ^ abcdeO’Neill, Timothy J. Bakke and the Politics of Equality: Friends and Foes in the Classroom of Litigation. Middletown, CT: Wesleyan University Press. pp. 21–27. ISBN 978-0819561992. 
  20. ^ abcdefDreyfuss, Joel (1979). The Bakke Case: the Politics of Inequality. New York: Harcourt Brace Jovanovich. pp. 13, 16. ISBN 978-0156167826. 
  21. ^Thernstrom, Stephan; Thernstrom, Abigail (2009) [1999]. America in Black and White. Simon & Schuster. ISBN 978-1439129098. 
  22. ^Lindsey, Robert (June 29, 1978). "Bakke: A man driven to become a doctor". The New York Times via Pittsburgh Post-Gazette. p. 8. 
  23. ^Santa Clara Law Review, p. 231.
  24. ^Schwartz, p. 5.
  25. ^ abBakke, 438 U.S. at 276.
  26. ^Ball, p. 52.
  27. ^Schulman, Bruce J. (2002). The Seventies: The Great Shift in American Culture, Society, and Politics. Cambridge, MA: Da Capo Press. p. 69. ISBN 978-0306811265. 
  28. ^ abcdBenfell, pp. 17, 52–54.
  29. ^Schwartz, pp. 6–7.
  30. ^Schwartz, pp. 7–8.
  31. ^Schwartz, p. 8.
  32. ^ abBakke, 438 U.S. at 277.
  33. ^Bakke, 438 U.S. at 275–276.
  34. ^Trombley, William (July 5, 1976). "Medical Dean Aids 'Special Interest' Applicants". Los Angeles Times. pp. C1, C4. Retrieved August 16, 2013. (subscription required)
  35. ^Nesbitt, Tim (October 1977). "Bakke passed over for white VIPs". The East Bay Voice. Berkeley, CA. pp. 1, 10. 
  36. ^ abcdeComplete Case Record, p. 7.
  37. ^Ball, pp. 56–57.
  38. ^ abBall, p. 58.
  39. ^Bakke, 438 U.S. at 279.
  40. ^Schwartz, pp. 18–19.
  41. ^Schwartz, p. 19.
  42. ^ abBall, pp. 58–60.
  43. ^Bakke v. Regents of the University of California, 18 Cal. 3d 34, 553 P.2d 1152, 132 Cal. Rptr. 680 (1976)
  44. ^Bakke, 438 U.S. at 279–280.
  45. ^Bakke, 18 Cal. 3d at 55.
  46. ^Stevens, p. 24.
  47. ^Bakke, 18 Cal. 3d at 90.
  48. ^Bakke, 438 U.S. at 280.
  49. ^Bakke, 18 Cal. 3d at 64.
  50. ^Regents of the University of California v. Bakke, 429 U.S. 953 (1976) (Rehnquist, J., as circuit justice, granting stay).
  51. ^ abBall, p. 61.
  52. ^Ball, pp. 64–67.
  53. ^Epstein & Knight, pp. 346–347.
  54. ^Ball, pp. 68–69.
  55. ^ abRobert C. Barring, "Introduction to the Bakke case" in Complete Case Record at xxi–xxiv.
  56. ^Ball, pp. 69–70.
  57. ^Ball, pp. 76–83.
  58. ^ abBall, pp. 74–77.
  59. ^"School drops attempt to bar white student". The Bulletin. Bend, Oregon. July 5, 1978. Retrieved September 28, 2013.
The former Yolo County Courthouse in Woodland, California, where the initial hearings in the Bakke case took place
Students protest at a meeting of the Regents of the University of California, June 20, 1977
Protest against the California Supreme Court's decision in Bakke, Los Angeles, May 7, 1977
Poster for rally urging that affirmative action be upheld in Bakke, October 1977
Thurgood Marshall on Bakke
"Equal justice under law": the west facade of the U.S. Supreme Court building
  1. ^Under Supreme Court precedent, a plurality opinion, for purposes of precedent, is to be "viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977).
  2. ^California's Proposition 209 mandates that "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."[104]

United States Supreme Court


No. 76-811

Argued: October 12, 1977    Decided: June 28, 1978

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

    Held: The judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, [438 U.S. 265, 267]   but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.
18 Cal. 3d 34, 553 P.2d 1152, affirmed in part and reversed in part.
    MR. JUSTICE POWELL, concluded:
    1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 281-287.
    2. Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, petitioner's special admissions program, which forecloses consideration to persons like respondent, is unnecessary to the achievement of this compelling goal and therefore invalid under the Equal Protection Clause. Pp. 287-320.
    3. Since petitioner could not satisfy its burden of proving that respondent would not have been admitted even if there had been no special admissions program, he must be admitted. P. 320.
    1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 328-355.
    2. Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of overcoming substantial, chronic minority underrepresentation in the medical profession is sufficiently important to justify petitioner's remedial use of race. Thus, the judgment below must be reversed in that it prohibits race from being used as a factor in university admissions. Pp. 355-379.
    MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST, being of the view that whether race can ever be a factor in an admissions policy is not an issue here; that Title VI applies; and that respondent was excluded from Davis in violation of Title VI, concurs in the Court's judgment insofar as it affirms the judgment of the court below ordering respondent admitted to Davis. Pp. 408-421.
POWELL, J., announced the Court's judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which WHITE, J., joined; and in Parts I and V-C of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, WHITE, MARSHALL, and BLACKMUN, [438 U.S. 265, 268]   JJ., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 324. WHITE, J., post, p. 379, MARSHALL, J., post, p. 387, and BLACKMUN, J., post, p. 402, filed separate opinions. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BURGER, C. J., and STEWART and REHNQUIST, JJ., joined, post, p. 408.

Archibald Cox argued the cause for petitioner. With him on the briefs were Paul J. Mishkin, Jack B. Owens, and Donald L. Reidhaar.

Reynold H. Colvin argued the cause and filed briefs for respondent.

Solicitor General McCree argued the cause for the United States as amicus curiae. With him on the briefs were Attorney General Bell, Assistant Attorney General Days, Deputy Solicitor General Wallace, Brian K. Landsberg, Jessica Dunsay Silver, Miriam R. Eisenstein, and Vincent F. O'Rourke. *  

[ Footnote * ] Briefs of amici curiae urging reversal were filed by Slade Gorton, Attorney General, and James B. Wilson, Senior Assistant Attorney General, for the State of Washington et al.; by E. Richard Larson, Joel M. Gora, Charles C. Marson, Sanford Jay Rosen, Fred Okrand, Norman Dorsen, Ruth Bader Ginsburg, and Frank Askin for the American Civil Liberties Union et al.; by Edgar S. Cahn, Jean Camper Cahn, and Robert S. Catz for the Antioch School of Law; by William Jack Chow for the Asian American Bar Assn. of the Greater Bay Area; by A. Kenneth Pye, Robert B. McKay, David E. Feller, and Ernest Gellhorn for the Association of American Law Schools; by John Holt Myers for the Association of American Medical Colleges; by Jerome B. Falk and Peter Roos for the Bar Assn. of San Francisco et al.; by Ephraim Margolin for the Black Law Students Assn. at the University of California, Berkeley School of Law; by John T. Baker for the Black Law Students Union of Yale University Law School; by Annamay T. Sheppard and Jonathan M. Hyman for the Board of Governors of Rutgers, State University of New Jersey, et al.; by Robert J. Willey for the Cleveland State University Chapter of the Black American Law Students Assn.; by John Mason Harding, Albert J. Rosenthal, Daniel Steiner, Iris Brest, James V. Siena, Louis H. Pollak, and Michael I. Sovern for Columbia University et al.; by Herbert O. Reid for Howard University; by Harry B. Reese and L. Orin Slagle for the Law School Admission Council; by Albert E. Jenner, Jr., Stephen J. Pollak, Burke Marshall, [438 U.S. 265, 269]   Norman Redlich, Robert A. Murphy, and William E. Caldwell for the Lawyers' Committee for Civil Rights Under Law; by Alice Daniel and James E. Coleman, Jr., for the Legal Services Corp.; by Nathaniel R. Jones, Nathaniel S. Colley, and Stanley Goodman for the National Assn. for the Advancement of Colored People; by Jack Greenberg, James M. Nabrit III, Charles S. Ralston, Eric Schnapper, and David E. Kendall for the NAACP Legal Defense and Educational Fund, Inc.; by Stephen V. Bomse for the National Assn. of Minority Contractors et al.; by Richard B. Sobol, Marian Wright Edelman, Stephen P. Berzon, and Joseph L. Rauh, Jr., for the National Council of Churches of Christ in the United States et al.; by Barbara A. Morris, Joan Bertin Lowy, and Diana H. Greene for the National Employment Law Project, Inc.; by Herbert O. Reid and J. Clay Smith, Jr., for the National Medical Assn., Inc., et al.; by Robert Hermann for the Puerto Rican Legal Defense and Education Fund et al.; by Robert Allen Sedler, Howard Lesnick, and Arval A. Morris for the Society of American Law Teachers; for the American Medical Student Assn.; and for the Council on Legal Education Opportunity.

Briefs of amici curiae urging affirmance were filed by Lawrence A. Poltrock and Wayne B. Giampietro for the American Federation of Teachers; by Abraham S. Goldstein, Nathan Z. Dershowitz, Arthur J. Gajarsa, Thaddeus L. Kowalski, Anthony J. Fornelli, Howard L. Greenberger, Samuel Rabinove, Themis N. Anastos, Julian E. Kulas, and Alan M. Dershowitz for the American Jewish Committee et al.; by McNeill Stokes and Ira J. Smotherman, Jr., for the American Subcontractors Assn.; by Philip B. Kurland, Daniel D. Polsby, Larry M. Lavinsky, Arnold Forster, Dennis Rapps, Anthony J. Fornelli, Leonard Greenwald, and David I. Ashe for the Anti-Defamation League of B'nai B'rith et al.; by Charles G. Bakaly and Lawrence B. Kraus for the Chamber of Commerce of the United States; by Roger A. Clark, Jerome K. Tankel, and Glen R. Murphy for the Fraternal Order of Police et al.; by Judith R. Cohn for the Order Sons of Italy in America; by Ronald A. Zumbrun, John H. Findley, and William F. Harvey for the Pacific Legal Foundation; by Benjamin Vinar and David I. Caplan for the Queens Jewish Community Council et al.; and by Jennings P. Felix for Young Americans for Freedom.

Briefs of amici curiae were filed by Matthew W. Finkin for the American Assn. of University Professors; by John W. Finley, Jr., Michael [438 U.S. 265, 270]   Blinick, John Cannon, Leonard J. Theberge, and Edward H. Dowd for the Committee on Academic Nondiscrimination and Integrity et al.; by Kenneth C. McGuiness, Robert E. Williams, Douglas S. McDowell, and Ronald M. Green for the Equal Employment Advisory Council; by Charles E. Wilson for the Fair Employment Practice Comm'n of California; by Mario G. Obledo for Jerome A. Lackner, Director of the Department of Health of California, et al.; by Vilma S. Martinez, Peter D. Roos, and Ralph Santiago Abascal for the Mexican American Legal Defense and Educational Fund et al.; by Eva S. Goodwin for the National Assn. of Affirmative Action Officers; by Lennox S. Hinds for the National Conference of Black Lawyers; by David Ginsburg for the National Fund for Minority Engineering Students; by A. John Wabaunsee, Walter R. EchoHawk, and Thomas W. Fredericks for the Native American Law Students of the University of California at Davis et al.; by Joseph A. Broderick, Calvin Brown, LeMarquis DeJarmon, James E. Ferguson II, Harry E. Groves, John H. Harmon, William A. Marsh, Jr., and James W. Smith for the North Carolina Assn. of Black Lawyers; by Leonard F. Walentynowicz for the Polish American Congress et al.; by Daniel M. Luevano and John E. McDermott for the UCLA Black Law Students Assn. et al.; by Henry A. Waxman pro se; by Leo Branton, Jr., Ann Fagan Ginger, Sam Rosenwein, and Laurence R. Sperber for Price M. Cobbs, M.D., et al.; by John S. Nolan for Ralph J. Galliano; and by Daniel T. Spitler for Timothy J. Hoy. [438 U.S. 265, 269]  

MR. JUSTICE POWELL announced the judgment of the Court.

This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission [438 U.S. 265, 270]   of a specified number of students from certain minority groups. The Superior Court of California sustained respondent's challenge, holding that petitioner's program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent's race or the race of any other applicant in making admissions decisions. It refused, however, to order respondent's admission to the Medical School, holding that he had not carried his burden of proving that he would have been admitted but for the constitutional and statutory violations. The Supreme Court of California affirmed those portions of the trial court's judgment declaring the special admissions program unlawful and enjoining petitioner from considering the race of any applicant. 1   [438 U.S. 265, 271]   It modified that portion of the judgment denying respondent's requested injunction and directed the trial court to order his admission.

For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner's special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers THE CHIEF JUSTICE, MR. JUSTICE STEWART, MR. JUSTICE REHNQUIST, and MR. JUSTICE STEVENS concur in this judgment. [438 U.S. 265, 272]  

I also conclude for the reasons stated in the following opinion that the portion of the court's judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN concur in this judgment.

    Affirmed in part and reversed in part.
[ Footnote 1 ] [438 U.S. 265, 271]   MR. JUSTICE STEVENS views the judgment of the California court as limited to prohibiting the consideration of race only in passing upon Bakke's application. Post, at 408-411. It must be remembered, however, that petitioner here cross-complained in the trial court for a declaratory judgment that its special program was constitutional and it lost. The trial court's judgment that the special program was unlawful was affirmed by the California Supreme Court in an opinion which left no doubt that the reason for its holding was petitioner's use of race in consideration of any candidate's application. Moreover, in explaining the scope of its holding, the court quite clearly stated that petitioner was prohibited from taking race into account in any way in making admissions decisions:
    "In addition, the University may properly as it in fact does, consider other factors in evaluating an applicant, such as the personal interview, recommendations, character, and matters relating to the needs of the profession and society, such as an applicant's professional goals. In short, the standards for admission employed by the University are not constitutionally infirm except to the extent that they are utilized in a racially discriminatory manner. Disadvantaged applicants of all races must be eligible for sympathetic consideration, and no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race. We reiterate, in view of the dissent's misinterpretation, that we do not compel the University to utilize only `the highest objective academic credentials' as the criterion for admission." 18 Cal. 3d 34, 54-55, 553 P.2d 1152, 1166 (1976) (footnote omitted).
This explicit statement makes it unreasonable to assume that the reach of the California court's judgment can be limited in the manner suggested by MR. JUSTICE STEVENS. The Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains. No admissions program for disadvantaged or minority students existed when the school opened, and the first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of "disadvantaged" students in each Medical School class. 1 The special program consisted of [438 U.S. 265, 273]   a separate admissions system operating in coordination with the regular admissions process.

Under the regular admissions procedure, a candidate could submit his application to the Medical School beginning in July of the year preceding the academic year for which admission was sought. Record 149. Because of the large number of applications, 2 the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. Id., at 63. About [438 U.S. 265, 274]   one out of six applicants was invited for a personal interview. Ibid. Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The rating embraced the interviewers' summaries, the candidate's overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other biographical data. Id., at 62. The ratings were added together to arrive at each candidate's "benchmark" score. Since five committee members rated each candidate in 1973, a perfect score was 500; in 1974, six members rated each candidate, so that a perfect score was 600. The full committee then reviewed the file and scores of each applicant and made offers of admission on a "rolling" basis. 3 The chairman was responsible for placing names on the waiting list. They were not placed in strict numerical order; instead, the chairman had discretion to include persons with "special skills." Id., at 63-64.

The special admissions program operated with a separate committee, a majority of whom were members of minority groups. Id., at 163. On the 1973 application form, candidates were asked to indicate whether they wished to be considered as "economically and/or educationally disadvantaged" applicants; on the 1974 form the question was whether they wished to be considered as members of a "minority group," which the Medical School apparently viewed as "Blacks," "Chicanos," "Asians," and "American Indians." Id., at 65-66, 146, 197, 203-205, 216-218. If these questions were answered affirmatively, the application was forwarded to the special admissions committee. No formal definition of "disadvantaged" [438 U.S. 265, 275]   was ever produced, id., at 163-164, but the chairman of the special committee screened each application to see whether it reflected economic or educational deprivation. 4 Having passed this initial hurdle, the applications then were rated by the special committee in a fashion similar to that used by the general admissions committee, except that special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. About one-fifth of the total number of special applicants were invited for interviews in 1973 and 1974. 5 Following each interview, the special committee assigned each special applicant a benchmark score. The special committee then presented its top choices to the general admissions committee. The latter did not rate or compare the special candidates against the general applicants, id., at 388, but could reject recommended special candidates for failure to meet course requirements or other specific deficiencies. Id., at 171-172. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50, the prescribed number was 8; in 1973 and 1974, when the class size had doubled to 100, the prescribed number of special admissions also doubled, to 16. Id., at 164, 166.

From the year of the increase in class size - 1971 - through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, [438 U.S. 265, 276]   and 37 Asians, for a total of 44 minority students. 6 Although disadvantaged whites applied to the special program in large numbers, see n. 5, supra, none received an offer of admission through that process. Indeed, in 1974, at least, the special committee explicitly considered only "disadvantaged" special applicants who were members of one of the designated minority groups. Record 171.

Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1974. In both years Bakke's application was considered under the general admissions program, and he received an interview. His 1973 interview was with Dr. Theodore C. West, who considered Bakke "a very desirable applicant to [the] medical school." Id., at 225. Despite a strong benchmark score of 468 out of 500, Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke's application was completed. Id., at 69. There were four special admissions slots unfilled at that time, however, for which Bakke was not considered. Id., at 70. After his 1973 rejection, Bakke wrote to Dr. George H. Lowrey, Associate Dean and Chairman of the Admissions Committee, protesting that the special admissions program operated as a racial and ethnic quota. Id., at 259. [438 U.S. 265, 277]  

Bakke's 1974 application was completed early in the year. Id., at 70. His student interviewer gave him an overall rating of 94, finding him "friendly, well tempered, conscientious and delightful to speak with." Id., at 229. His faculty interviewer was, by coincidence, the same Dr. Lowrey to whom he had written in protest of the special admissions program. Dr. Lowrey found Bakke "rather limited in his approach" to the problems of the medical profession and found disturbing Bakke's "very definite opinions which were based more on his personal viewpoints than upon a study of the total problem." Id., at 226. Dr. Lowrey gave Bakke the lowest of his six ratings, an 86; his total was 549 out of 600. Id., at 230. Again, Bakke's application was rejected. In neither year did the chairman of the admissions committee, Dr. Lowrey, exercise his discretion to place Bakke on the waiting list. Id., at 64. In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke's. 7  

After the second rejection, Bakke filed the instant suit in the Superior Court of California. 8 He sought mandatory, injunctive, and declaratory relief compelling his admission to the Medical School. He alleged that the Medical School's special admissions program operated to exclude him from the [438 U.S. 265, 278]   school on the basis of his race, in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment, 9 Art. I, 21, of the California Constitution, 10 and 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d. 11 The University cross-complained for a declaration that its special admissions program was lawful. The trial [438 U.S. 265, 279]   court found that the special program operated as a racial quota, because minority applicants in the special program were rated only against one another, Record 388, and 16 places in the class of 100 were reserved for them. Id., at 295-296. Declaring that the University could not take race into account in making admissions decisions, the trial court held the challenged program violative of the Federal Constitution, the State Constitution, and Title VI. The court refused to order Bakke's admission, however, holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program.

Bakke appealed from the portion of the trial court judgment denying him admission, and the University appealed from the decision that its special admissions program was unlawful and the order enjoining it from considering race in the processing of applications. The Supreme Court of California transferred the case directly from the trial court, "because of the importance of the issues involved." 18 Cal. 3d 34, 39, 553 P.2d 1152, 1156 (1976). The California court accepted the findings of the trial court with respect to the University's program. 12 Because the special admissions program involved a racial classification, the Supreme Court held itself bound to apply strict scrutiny. Id., at 49, 553 P.2d, at 1162-1163. It then turned to the goals the University presented as justifying the special program. Although the court agreed that the goals of integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests, id., at 53, 553 P.2d, at 1165, it concluded that the special admissions program was not the least intrusive means of achieving those goals. Without passing on the state constitutional or the federal statutory grounds cited in the trial court's judgment, the California court held [438 U.S. 265, 280]   that the Equal Protection Clause of the Fourteenth Amendment required that "no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race." Id., at 55, 553 P.2d, at 1166.

Turning to Bakke's appeal, the court ruled that since Bakke had established that the University had discriminated against him on the basis of his race, the burden of proof shifted to the University to demonstrate that he would not have been admitted even in the absence of the special admissions program. 13 Id., at 63-64, 553 P.2d, at 1172. The court analogized Bakke's situation to that of a plaintiff under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-17 (1970 ed., Supp. V), see, e. g., Franks v. Bowman Transportation Co., 424 U.S. 747, 772 (1976). 18 Cal. 3d, at 63-64, 553 P.2d, at 1172. On this basis, the court initially ordered a remand for the purpose of determining whether, under the newly allocated burden of proof, Bakke would have been admitted to either the 1973 or the 1974 entering class in the absence of the special admissions program. App. A to Application for Stay 48. In its petition for rehearing below, however, the University conceded its inability to carry that burden. App. B to Application for Stay A19-A20. 14 The [438 U.S. 265, 281]   California court thereupon amended its opinion to direct that the trial court enter judgment ordering Bakke's admission to the Medical School. 18 Cal. 3d, at 64, 553 P.2d, at 1172. That order was stayed pending review in this Court. 429 U.S. 953 (1976). We granted certiorari to consider the important constitutional issue. 429 U.S. 1090 (1977).


In this Court the parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity of the special admissions program under the Equal Protection Clause. Because it was possible, however, that a decision on Title VI might obviate resort to constitutional interpretation, see Ashwander v. TVA, 297 U.S. 288, 346 -348 (1936) (concurring opinion), we requested supplementary briefing on the statutory issue. 434 U.S. 900 (1977).


At the outset we face the question whether a right of action for private parties exists under Title VI. Respondent argues that there is a private right of action, invoking the test set forth in Cort v. Ash, 422 U.S. 66, 78 (1975). He contends [438 U.S. 265, 282]   that the statute creates a federal right in his favor, that legislative history reveals an intent to permit private actions, 15 that such actions would further the remedial purposes of the statute, and that enforcement of federal rights under the Civil Rights Act generally is not relegated to the States. In addition, he cites several lower court decisions which have recognized or assumed the existence of a private right of action. 16 Petitioner denies the existence of a private right of action, arguing that the sole function of 601, see n. 11, supra, was to establish a predicate for administrative action under 602, 78 Stat. 252, 42 U.S.C. 2000d-1. 17 In its view, administrative curtailment of federal funds under that section was the only sanction to be imposed upon recipients that [438 U.S. 265, 283]   violated 601. Petitioner also points out that Title VI contains no explicit grant of a private right of action, in contrast to Titles II, III, IV, and VII, of the same statute, 42 U.S.C. 2000a-3 (a), 2000b-2, 2000c-8, and 2000e-5 (f) (1970 ed. and Supp. V). 18  

We find it unnecessary to resolve this question in the instant case. The question of respondent's right to bring an action under Title VI was neither argued nor decided in either of the courts below, and this Court has been hesitant to review questions not addressed below. McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434 -435 (1940). See also Massachusetts v. Westcott, 431 U.S. 322 (1977); Cardinale v. Louisiana, 394 U.S. 437, 439 (1969). Cf. Singleton v. Wulff, 428 U.S. 106, 121 (1976). We therefore do not address this difficult issue. Similarly, we need not pass [438 U.S. 265, 284]   upon petitioner's claim that private plaintiffs under Title VI must exhaust administrative remedies. We assume, only for the purposes of this case, that respondent has a right of action under Title VI. See Lau v. Nichols, 414 U.S. 563, 571 n. 2 (1974) (STEWART, J., concurring in result).


The language of 601, 78 Stat. 252, like that of the Equal Protection Clause, is majestic in its sweep:

    "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
The concept of "discrimination," like the phrase "equal protection of the laws," is susceptible of varying interpretations, for as Mr. Justice Holmes declared, "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425 (1918). We must, therefore, seek whatever aid is available in determining the precise meaning of the statute before us. Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10 (1976), quoting United States v. American Trucking Assns., 310 U.S. 534, 543 -544 (1940). Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators, taken out of context, can be marshaled in support of the proposition that 601 enacted a purely color-blind scheme, 19 without regard to the reach of the Equal Protection [438 U.S. 265, 285]   Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates.

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

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

    "The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food [438 U.S. 265, 286]   surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association." 110 Cong. Rec. 1519 (1964) (emphasis added).
Other sponsors shared Representative Celler's view that Title VI embodied constitutional principles. 21  

In the Senate, Senator Humphrey declared that the purpose of Title VI was "to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." Id., at 6544. Senator Ribicoff agreed that Title VI embraced the constitutional standard: "Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction." Id., at 13333. Other Senators expressed similar views. 22  

Further evidence of the incorporation of a constitutional standard into Title VI appears in the repeated refusals of the legislation's supporters precisely to define the term "discrimination." Opponents sharply criticized this failure, 23 but proponents of the bill merely replied that the meaning of [438 U.S. 265, 287]   "discrimination" would be made clear by reference to the Constitution or other existing law. For example, Senator Humphrey noted the relevance of the Constitution:

    "As I have said, the bill has a simple purpose. That purpose is to give fellow citizens - Negroes - the same rights and opportunities that white people take for granted. This is no more than what was preached by the prophets, and by Christ Himself. It is no more than what our Constitution guarantees." Id., at 6553. 24  
In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.



Petitioner does not deny that decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment. See, e. g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Board of Regents, 332 U.S. 631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). For his part, respondent does not argue that all racial or ethnic classifications are per se invalid. See, e. g., Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Lee v. Washington, 390 U.S. 333, 334 (1968) (Black, Harlan, and STEWART, JJ., concurring); United Jewish Organizations v. Carey, 430 U.S. 144 (1977). The parties do disagree as to the level of judicial scrutiny to be applied to the special admissions program. Petitioner argues that the court below erred in applying strict scrutiny, as this inexact term has been [438 U.S. 265, 288]   applied in our cases. That level of review, petitioner asserts, should be reserved for classifications that disadvantage "discrete and insular minorities." See United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938). Respondent, on the other hand, contends that the California court correctly rejected the notion that the degree of judicial scrutiny accorded a particular racial or ethnic classification hinges upon membership in a discrete and insular minority and duly recognized that the "rights established [by the Fourteenth Amendment] are personal rights." Shelley v. Kraemer, 334 U.S. 1, 22 (1948).

En route to this crucial battle over the scope of judicial review, 25 the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a "goal" of minority representation in the Medical School. Respondent, echoing the courts below, labels it a racial quota. 26   [438 U.S. 265, 289]  

This semantic distinction is beside the point: The special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status. 27  

The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." It is settled beyond question that the "rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights," Shelley v. Kraemer, supra, at 22. Accord, Missouri ex rel. Gaines v. Canada, supra, at 351; McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 161 -162 (1914). The guarantee of equal protection cannot mean one thing when applied to one individual and something else when [438 U.S. 265, 290]   applied to a person of another color. If both are not accorded the same protection, then it is not equal.

Nevertheless, petitioner argues that the court below erred in applying strict scrutiny to the special admissions program because white males, such as respondent, are not a "discrete and insular minority" requiring extraordinary protection from the majoritarian political process. Carolene Products Co., supra, at 152-153, n. 4. This rationale, however, has never been invoked in our decisions as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that discreteness and insularity constitute necessary preconditions to a holding that a particular classification is invidious. 28 See, e. g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); Carrington v. Rash, 380 U.S. 89, 94 -97 (1965). These characteristics may be relevant in deciding whether or not to add new types of classifications to the list of "suspect" categories or whether a particular classification survives close examination. See, e. g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976) (age); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (wealth); Graham v. Richardson, 403 U.S. 365, 372 (1971) (aliens). Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics. We declared as much in the first cases explicitly to recognize racial distinctions as suspect:

    "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people [438 U.S. 265, 291]   whose institutions are founded upon the doctrine of equality." Hirabayashi, 320 U.S., at 100 .
    "[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny." Korematsu, 323 U.S., at 216 .
The Court has never questioned the validity of those pronouncements. Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.


This perception of racial and ethnic distinctions is rooted in our Nation's constitutional and demographic history. The Court's initial view of the Fourteenth Amendment was that its "one pervading purpose" was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him." Slaughter-House Cases, 16 Wall. 36, 71 (1873). The Equal Protection Clause, however, was "[v]irtually strangled in infancy by post-civil-war judicial reactionism." 29 It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment, after a short germinal period, flourished as a cornerstone in the Court's defense of property and liberty of contract. See, e. g., Mugler v. Kansas, 123 U.S. 623, 661 (1887); Allgeyer v. Louisiana, 165 U.S. 578 (1897); Lochner v. New York, 198 U.S. 45 (1905). In that cause, the Fourteenth Amendment's "one pervading purpose" was displaced. See, e. g., Plessy v. Ferguson, 163 U.S. 537 (1896). It was only as the era of substantive due process came to a close, see, e. g., Nebbia v. New [438 U.S. 265, 292]   York, 291 U.S. 502 (1934); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), that the Equal Protection Clause began to attain a genuine measure of vitality, see, e. g., United States v. Carolene Products, 304 U.S. 144 (1938); Skinner v. Oklahoma ex rel. Williamson, supra.

By that time it was no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority. During the dormancy of the Equal Protection Clause, the United States had become a Nation of minorities. 30 Each had to struggle 31 - and to some extent struggles still 32 - to overcome the prejudices not of a monolithic majority, but of a "majority" composed of various minority groups of whom it was said - perhaps unfairly in many cases - that a shared characteristic was a willingness to disadvantage other groups. 33 As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination. See Strauder v. West Virginia, 100 U.S. 303, 308 (1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (Chinese); Truax v. Raich, 239 U.S. 33, 41 (1915) (Austrian resident aliens); Korematsu, supra (Japanese); Hernandez v. Texas, 347 U.S. 475 (1954) (Mexican-Americans). The guarantees of equal protection, said the Court in [438 U.S. 265, 293]   Yick Wo, "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." 118 U.S., at 369 .

Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white "majority," Slaughter-House Cases, supra, the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. As this Court recently remarked in interpreting the 1866 Civil Rights Act to extend to claims of racial discrimination against white persons, "the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves." McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 296 (1976). And that legislation was specifically broadened in 1870 to ensure that "all persons," not merely "citizens," would enjoy equal rights under the law. See Runyon v. McCrary, 427 U.S. 160, 192 -202 (1976) (WHITE, J., dissenting). Indeed, it is not unlikely that among the Framers were many who would have applauded a reading of the Equal Protection Clause that states a principle of universal application and is responsive to the racial, ethnic, and cultural diversity of the Nation. See, e. g., Cong. Globe, 39th Cong., 1st Sess., 1056 (1866) (remarks of Rep. Niblack); id., at 2891-2892 (remarks of Sen. Conness); id., 40th Cong., 2d Sess., 883 (1868) (remarks of Sen. Howe) (Fourteenth Amendment "protect[s] classes from class legislation"). See also Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 60-63 (1955).

Over the past 30 years, this Court has embarked upon the crucial mission of interpreting the Equal Protection Clause with the view of assuring to all persons "the protection of [438 U.S. 265, 294]   equal laws," Yick Wo, supra, at 369, in a Nation confronting a legacy of slavery and racial discrimination. See, e. g., Shelley v. Kraemer, 334 U.S. 1 (1948); Brown v. Board of Education, 347 U.S. 483 (1954); Hills v. Gautreaux, 425 U.S. 284 (1976). Because the landmark decisions in this area arose in response to the continued exclusion of Negroes from the mainstream of American society, they could be characterized as involving discrimination by the "majority" white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that "[o]ver the years, this Court has consistently repudiated `[d]istinctions between citizens solely because of their ancestry' as being `odious to a free people whose institutions are founded upon the doctrine of equality.'" Loving v. Virginia, 388 U.S. 1, 11 (1967), quoting Hirabayashi, 320 U.S., at 100 .

Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white "majority" cannot be suspect if its purpose can be characterized as "benign." 34   [438 U.S. 265, 295]   The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of Education, supra, at 492; accord, Loving v. Virginia, supra, at 9. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others. 35 "The Fourteenth Amendment is not directed solely against discrimination due to a `two-class theory' - that is, based upon differences between `white' and Negro." Hernandez, 347 U.S., at 478 .

Once the artificial line of a "two-class theory" of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived "preferred" status of a particular racial or ethnic minority are intractable. The concepts of "majority" and "minority" necessarily reflect temporary arrangements and political judgments. As observed above, the white "majority" itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance [438 U.S. 265, 296]   of distinctions drawn in terms of race and nationality, for then the only "majority" left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit "heightened judicial solicitude" and which would not. 36 Courts would be asked to evaluate the extent of the prejudice and consequent [438 U.S. 265, 297]   harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence - even if they otherwise were politically feasible and socially desirable. 37   [438 U.S. 265, 298]  

Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group's general interest. See United Jewish Organizations v. Carey, 430 U.S., at 172 -173 (BRENNAN, J., concurring in part). Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. See DeFunis v. Odegaard, 416 U.S. 312, 343 (1974) (Douglas, J., dissenting). Third, there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making.

By hitching the meaning of the Equal Protection Clause to these transitory considerations, we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces. Disparate constitutional tolerance of such classifications well may serve to exacerbate [438 U.S. 265, 299]   racial and ethnic antagonisms rather than alleviate them. United Jewish Organizations, supra, at 173-174 (BRENNAN, J., concurring in part). Also, the mutability of a constitutional principle, based upon shifting political and social judgments, undermines the chances for consistent application of the Constitution from one generation to the next, a critical feature of its coherent interpretation. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 650 -651 (1895) (White, J., dissenting). In expounding the Constitution, the Court's role is to discern "principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place." A. Cox, The Role of the Supreme Court in American Government 114 (1976).

If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, Korematsu v. United States, 323 U.S. 214 (1944), but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. 38 When they touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U.S., at 22 ; Missouri ex rel. Gaines v. Canada, 305 U.S., at 351 . [438 U.S. 265, 300]  


Petitioner contends that on several occasions this Court has approved preferential classifications without applying the most exacting scrutiny. Most of the cases upon which petitioner relies are drawn from three areas: school desegregation, employment discrimination, and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case.

The school desegregation cases are inapposite. Each involved remedies for clearly determined constitutional violations. E. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); McDaniel v. Barresi, 402 U.S. 39 (1971); Green v. County School Board, 391 U.S. 430 (1968). Racial classifications thus were designed as remedies for the vindication of constitutional entitlement. 39 Moreover, the scope of the remedies was not permitted to exceed the extent of the [438 U.S. 265, 301]   violations. E. g., Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977); Milliken v. Bradley, 418 U.S. 717 (1974); see Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976). See also Austin Independent School Dist. v. United States, 429 U.S. 990, 991 -995 (1976) (POWELL, J., concurring). Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification.

The employment discrimination cases also do not advance petitioner's cause. For example, in Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), we approved a retroactive award of seniority to a class of Negro truckdrivers who had been the victims of discrimination - not just by society at large, but by the respondent in that case. While this relief imposed some burdens on other employees, it was held necessary "`to make [the victims] whole for injuries suffered on account of unlawful employment discrimination.'" Id., at 763, quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). The Courts of Appeals have fashioned various types of racial preferences as remedies for constitutional or statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. E. g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (CA2 1973); Carter v. Gallagher, 452 F.2d 315 (CA8 1972), modified on rehearing en banc, id., at 327. Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. E. g., Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971); 40 Associated General [438 U.S. 265, 302]   Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (CA1 1973), cert. denied, 416 U.S. 957 (1974); cf. Katzenbach v. Morgan, 384 U.S. 641 (1966). But we have never approved preferential classifications in the absence of proved constitutional or statutory violations. 41  

Nor is petitioner's view as to the applicable standard supported by the fact that gender-based classifications are not subjected to this level of scrutiny. E. g., Califano v. Webster, 430 U.S. 313, 316 -317 (1977); Craig v. Boren, 429 U.S. 190, 211 n. (1976) (POWELL, J., concurring). Gender-based distinctions are less likely to create the analytical and practical [438 U.S. 265, 303]   problems present in preferential programs premised on racial or ethnic criteria. With respect to gender there are only two possible classifications. The incidence of the burdens imposed by preferential classifications is clear. There are no rival groups which can claim that they, too, are entitled to preferential treatment. Classwide questions as to the group suffering previous injury and groups which fairly can be burdened are relatively manageable for reviewing courts. See, e. g., Califano v. Goldfarb, 430 U.S. 199, 212 -217 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975). The resolution of these same questions in the context of racial and ethnic preferences presents far more complex and intractable problems than gender-based classifications. More importantly, the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share. In sum, the Court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis.

Petitioner also cites Lau v. Nichols, 414 U.S. 563 (1974), in support of the proposition that discrimination favoring racial or ethnic minorities has received judicial approval without the exacting inquiry ordinarily accorded "suspect" classifications. In Lau, we held that the failure of the San Francisco school system to provide remedial English instruction for some 1,800 students of oriental ancestry who spoke no English amounted to a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and the regulations promulgated thereunder. Those regulations required remedial instruction where inability to understand English excluded children of foreign ancestry from participation in educational programs. 414 U.S., at 568 . Because we found that the students in Lau were denied "a meaningful opportunity to participate in the educational program," ibid., we remanded for the fashioning of a remedial order. [438 U.S. 265, 304]  

Lau provides little support for petitioner's argument. The decision rested solely on the statute, which had been construed by the responsible administrative agency to reach educational practices "which have the effect of subjecting individuals to discrimination," ibid. We stated: "Under these state-imposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." Id., at 566. Moreover, the "preference" approved did not result in the denial of the relevant benefit - "meaningful opportunity to participate in the educational program" - to anyone else. No other student was deprived by that preference of the ability to participate in San Francisco's school system, and the applicable regulations required similar assistance for all students who suffered similar linguistic deficiencies. Id., at 570-571 (STEWART, J., concurring in result).

In a similar vein, 42 petitioner contends that our recent decision in United Jewish Organizations v. Carey, 430 U.S. 144 (1977), indicates a willingness to approve racial classifications designed to benefit certain minorities, without denominating the classifications as "suspect." The State of New York had redrawn its reapportionment plan to meet objections of the Department of Justice under 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c (1970 ed., Supp. V). Specifically, voting districts were redrawn to enhance the electoral power [438 U.S. 265, 305]   of certain "nonwhite" voters found to have been the victims of unlawful "dilution" under the original reapportionment plan. United Jewish Organizations, like Lau, properly is viewed as a case in which the remedy for an administrative finding of discrimination encompassed measures to improve the previously disadvantaged group's ability to participate, without excluding individuals belonging to any other group from enjoyment of the relevant opportunity - meaningful participation in the electoral process.

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


We have held that in "order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is `necessary . . . to the accomplishment' of its purpose or the safeguarding of its interest." In re Griffiths, 413 U.S. 717, 721 -722 (1973) (footnotes omitted); Loving v. Virginia, 388 U.S., at 11 ; McLaughlin v. Florida, 379 U.S. 184, 196 (1964). The special admissions [438 U.S. 265, 306]   program purports to serve the purposes of: (i) "reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession," Brief for Petitioner 32; (ii) countering the effects of societal discrimination; 43 (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which, if any, of these purposes is substantial enough to support the use of a suspect classification. [438 U.S. 265, 307]  


If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. E. g., Loving v. Virginia, supra, at 11; McLaughlin v. Florida, supra, at 196; Brown v. Board of Education, 347 U.S. 483 (1954).


The State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The line of school desegregation cases, commencing with Brown, attests to the importance of this state goal and the commitment of the judiciary to affirm all lawful means toward its attainment. In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of "societal discrimination," an amorphous concept of injury that may be ageless in its reach into the past.

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. See, e. g., Teamsters v. United States, 431 U.S. 324, 367 -376 (1977); United Jewish Organizations, 430 U.S., at 155 -156; South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the [438 U.S. 265, 308]   extent of the injury and the consequent remedy will have been judicially, legislatively, or administrative defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations, 44 it cannot be [438 U.S. 265, 309]   said that the government has any greater interest in helping one individual than in refraining from harming another. Thus, the government has no compelling justification for inflicting such harm.

Petitioner does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality. For reasons similar to those stated in Part III of this opinion, isolated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria. 45 Cf. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976); n. 41, supra. Before relying upon these sorts of findings in establishing a racial classification, a governmental body must have the authority and capability to establish, in the record, that the classification is responsive to identified discrimination. See, e. g., Califano v. Webster, 430 U.S., at 316 -321; Califano [438 U.S. 265, 310]   v. Goldfarb, 430 U.S., at 212 -217. Lacking this capability, petitioner has not carried its burden of justification on this issue.

Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of "societal discrimination" does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination. That is a step we have never approved. Cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976).


Petitioner identifies, as another purpose of its program, improving the delivery of health-care services to communities currently underserved. It may be assumed that in some situations a State's interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal. 46 The court below addressed this failure of proof:

    "The University concedes it cannot assure that minority doctors who entered under the program, all of whom expressed an `interest' in practicing in a disadvantaged community, will actually do so. It may be correct to assume that some of them will carry out this intention, and that it is more likely they will practice in minority [438 U.S. 265, 311]   communities than the average white doctor. (See Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U. Chi. L. Rev. 653, 688.) Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive." 18 Cal. 3d, at 56, 553 P.2d, at 1167.
Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. Indeed, petitioner has not shown that its preferential classification is likely to have any significant effect on the problem. 47  


The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible [438 U.S. 265, 312]   goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. Mr. Justice Frankfurter summarized the "four essential freedoms" that constitute academic freedom:

    "`It is the business of a university to provide that atmosphere which is most conductive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university - to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (concurring in result).
Our national commitment to the safeguarding of these freedoms within university communities was emphasized in Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967):
    "Our Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment . . . . The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection.' United States v. Associated Press, 52 F. Supp. 362, 372."
The atmosphere of "speculation, experiment and creation" - so essential to the quality of higher education - is widely believed to be promoted by a diverse student body. 48 As the Court [438 U.S. 265, 313]   noted in Keyishian, it is not too much to say that the "nation's future depends upon leaders trained through wide exposure" to the ideas and mores of students as diverse as this Nation of many peoples.

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

It may be argued that there is greater force to these views at the undergraduate level than in a medical school where the training is centered primarily on professional competency. But even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial. In Sweatt v. Painter, 339 U.S., at 634 , the [438 U.S. 265, 314]   Court made a similar point with specific reference to legal education:

    "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned."
Physicians serve a heterogeneous population. An otherwise qualified medical student with a particular background - whether it be ethnic, geographic, culturally advantaged or disadvantaged - may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity. 49  

Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded. Respondent urges - and the courts below have held - that petitioner's dual admissions program is a racial classification that impermissibly infringes his rights under the Fourteenth Amendment. As the interest of diversity is compelling in the context of a university's admissions program, the question remains whether the [438 U.S. 265, 315]   program's racial classification is necessary to promote this interest. In re Griffiths, 413 U.S., at 721 -722.



It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner's argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity. 50  

Nor would the state interest in genuine diversity be served by expanding petitioner's two-track system into a multitrack program with a prescribed number of seats set aside for each identifiable category of applicants. Indeed, it is inconceivable that a university would thus pursue the logic of petitioner's two-track program to the illogical end of insulating each category of applicants with certain desired qualifications from competition with all other applicants. [438 U.S. 265, 316]  

The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program:

    "In recent years Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. . . .
    "In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are `admissible' and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. . . . [See Appendix hereto.]
    "In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. . . . But that awareness [of the necessity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that in choosing among thousands of applicants who are not only `admissible' academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many [438 U.S. 265, 317]   types and categories of students." App. to Brief for Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae 2-3.
In such an admissions program, 51 race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a [438 U.S. 265, 318]   particular quality may vary from year to year depending upon the "mix" both of the student body and the applicants for the incoming class.

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

It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated - but no less effective - means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner's preference program and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element - to be weighed fairly against other elements - in the selection process. "A boundary line," as Mr. Justice Frankfurter remarked in another connection, "is none the worse for being narrow." McLeod v. Dilworth, 322 U.S. 327, 329 (1944). And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith [438 U.S. 265, 319]   would be presumed in the absence of a showing to the contrary in the manner permitted by our cases. See, e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976); Swain v. Alabama, 380 U.S. 202 (1965). 53  


In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred [438 U.S. 265, 320]   applicants have the opportunity to compete for every seat in the class.

The fatal flaw in petitioner's preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S., at 22

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