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(Slip Opinion) OCTOBER TERM, 2002 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GRATZ ET AL. v. BOLLINGER ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT

No. 02-516. Argued April 1, 2003—Decided June 23, 2003

Petitioners Gratz and Hamacher, both of whom are Michigan residents
and Caucasian, applied for admission to the University of Michigan’s
(University) College of Literature, Science, and the Arts (LSA) in
1995 and 1997, respectively. Although the LSA considered Gratz to
be well qualified and Hamacher to be within the qualified range, both
were denied early admission and were ultimately denied admission.
In order to promote consistency in the review of the many applica-
tions received, the University’s Office of Undergraduate Admissions
(OUA) uses written guidelines for each academic year. The guide-
lines have changed a number of times during the period relevant to
this litigation. The OUA considers a number of factors in making
admissions decisions, including high school grades, standardized test
scores, high school quality, curriculum strength, geography, alumni
relationships, leadership, and race. During all relevant periods, the
University has considered African-Americans, Hispanics, and Native
Americans to be “underrepresented minorities,” and it is undisputed
that the University admits virtually every qualified applicant from
these groups. The current guidelines use a selection method under
which every applicant from an underrepresented racial or ethnic mi-
nority group is automatically awarded 20 points of the 100 needed to
guarantee admission.

Petitioners filed this class action alleging that the University’s use
of racial preferences in undergraduate admissions violated the Equal
Protection Clause of the Fourteenth Amendment, Title VI of the Civil
Rights Act of 1964, and 42 U. S. C. §1981. They sought compensatory
and punitive damages for past violations, declaratory relief finding
that respondents violated their rights to nondiscriminatory treat-
ment, an injunction prohibiting respondents from continuing to dis-


2

GRATZ v. BOLLINGER
Syllabus

criminate on the basis of race, and an order requiring the LSA to of-
fer Hamacher admission as a transfer student. The District Court
granted petitioners’ motion to certify a class consisting of individuals
who applied for and were denied admission to the LSA for academic
year 1995 and forward and who are members of racial or ethnic
groups that respondents treated less favorably on the basis of race.
Hamacher, whose claim was found to challenge racial discrimination
on a classwide basis, was designated as the class representative. On
cross-motions for summary judgment, respondents relied on Justice
Powell’s principal opinion in Regents of Univ. of Cal. v. Bakke, 438
U. S. 265, 317, which expressed the view that the consideration of
race as a factor in admissions might in some cases serve a compelling
government interest. Respondents contended that the LSA has just
such an interest in the educational benefits that result from having a
racially and ethnically diverse student body and that its program is
narrowly tailored to serve that interest. The court agreed with respondents
as to the LSA’s current admissions guidelines and granted
them summary judgment in that respect. However, the court also
found that the LSA’s admissions guidelines for 1995 through 1998
operated as the functional equivalent of a quota running afoul of Jus-
tice Powell’s Bakke opinion, and thus granted petitioners summary
judgment with respect to respondents’ admissions programs for those
years. While interlocutory appeals were pending in the Sixth Circuit,
that court issued an opinion in Grutter v. Bollinger, post, p. ___, up-
holding the admissions program used by the University’s Law School.
This Court granted certiorari in both cases, even though the Sixth
Circuit had not yet rendered judgment in this one.

Held:
1. Petitioners have standing to seek declaratory and injunctive re-
lief. The Court rejects JUSTICE STEVENS’ contention that, because
Hamacher did not actually apply for admission as a transfer student,
his future injury claim is at best conjectural or hypothetical rather
than real and immediate. The “injury in fact” necessary to establish
standing in this type of case is the denial of equal treatment resulting
from the imposition of the barrier, not the ultimate inability to obtain
the benefit. Northeastern Fla. Chapter, Associated Gen. Contractors
of America v. Jacksonville,
508 U. S. 656, 666. In the face of such a
barrier, to establish standing, a party need only demonstrate that it
is able and ready to perform and that a discriminatory policy pre-
vents it from doing so on an equal basis. Ibid. In bringing his equal
protection challenge against the University’s use of race in under-
graduate admissions, Hamacher alleged that the University had de-
nied him the opportunity to compete for admission on an equal basis.
Hamacher was denied admission to the University as a freshman ap-


3

Cite as: 539 U. S. ____ (2003)
Syllabus

plicant even though an underrepresented minority applicant with his
qualifications would have been admitted. After being denied admis-
sion, Hamacher demonstrated that he was “able and ready” to apply
as a transfer student should the University cease to use race in undergradu-
ate admissions. He therefore has standing to seek prospec-
tive relief with respect to the University’s continued use of race. Also
rejected is JUSTICE STEVENS’ contention that such use in under-
graduate transfer admissions differs from the University’s use of race in
undergraduate freshman admissions, so that Hamacher lacks
standing to represent absent class members challenging the latter.
Each year the OUA produces a document setting forth guidelines for
those seeking admission to the LSA, including freshman and transfer
applicants. The transfer applicant guidelines specifically cross-
reference factors and qualifications considered in assessing freshman
applicants. In fact, the criteria used to determine whether a transfer
applicant will contribute to diversity are identical to those used to
evaluate freshman applicants. The only difference is that all under-
represented minority freshman applicants receive 20 points and “vir-
tually” all who are minimally qualified are admitted, while “generally”
all minimally qualified minority transfer applicants are
admitted outright. While this difference might be relevant to a nar-
row tailoring analysis, it clearly has no effect on petitioners’ standing
to challenge the University’s use of race in undergraduate admissions
and its assertion that diversity is a compelling state interest justify-
ing its consideration of the race of its undergraduate applicants. See
General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 159;
Blum v. Yaretsky, 457 U. S. 991, distinguished. The District Court’s
carefully considered decision to certify this class action is correct. Cf.
Coopers &Lybrand v. Livesay, 437 U. S. 463, 469. Hamacher’s personal
stake, in view of both his past injury and the potential injury he faced at
the time of certification, demonstrates that he may maintain the action.
Pp. 11-20.

2. Because the University’s use of race in its current freshman ad-
missions policy is not narrowly tailored to achieve respondents’ as-
serted interest in diversity, the policy violates the Equal Protection
Clause. For the reasons set forth in Grutter v. Bollinger, post, at 15-
21, the Court has today rejected petitioners’ argument that diversity
cannot constitute a compelling state interest. However, the Court
finds that the University’s current policy, which automatically dis-
tributes 20 points, or one-fifth of the points needed to guarantee ad-
mission, to every single “underrepresented minority” applicant solely
because of race, is not narrowly tailored to achieve educational diver-
sity. In Bakke, Justice Powell explained his view that it would be
permissible for a university to employ an admissions program in


4

GRATZ v. BOLLINGER
Syllabus

which “race or ethnic background may be deemed a ‘plus’ in a par-
ticular applicant’s file.” 438 U. S., at 317. He emphasized, however,
the importance of considering each particular applicant as an indi-
vidual, assessing all of the qualities that individual possesses, and in
turn, evaluating that individual’s ability to contribute to the unique
setting of higher education. The admissions program Justice Powell
described did not contemplate that any single characteristic auto-
matically ensured a specific and identifiable contribution to a univer-
sity’s diversity. See id., at 315. The current LSA policy does not provide
the individualized consideration Justice Powell contemplated.
The only consideration that accompanies the 20-point automatic dis-
tribution to all applicants from underrepresented minorities is a fac-
tual review to determine whether an individual is a member of one of
these minority groups. Moreover, unlike Justice Powell’s example,
where the race of a “particular black applicant” could be considered
without being decisive, see id., at 317, the LSA’s 20-point distribution
has the effect of making “the factor of race … decisive” for virtually
every minimally qualified underrepresented minority applicant, ibid.
The fact that the LSA has created the possibility of an applicant’s file
being flagged for individualized consideration only emphasizes the
flaws of the University’s system as a whole when compared to that
described by Justice Powell. The record does not reveal precisely how
many applications are flagged, but it is undisputed that such consid-
eration is the exception and not the rule in the LSA’s program. Also,
this individualized review is only provided after admissions counsel-
ors automatically distribute the University’s version of a “plus” that
makes race a decisive factor for virtually every minimally qualified
underrepresented minority applicant. The Court rejects respondents’
contention that the volume of applications and the presentation of
applicant information make it impractical for the LSA to use the ad-
missions system upheld today in Grutter. The fact that the imple-
mentation of a program capable of providing individualized consid-
eration might present administrative challenges does not render
constitutional an otherwise problematic system. See, e.g., Richmond
v. J. A. Croson Co.,
488 U. S. 469, 508. Nothing in Justice Powell’s
Bakke opinion signaled that a university may employ whatever
means it desires to achieve diversity without regard to the limits im-
posed by strict scrutiny. Pp. 20-27.

3. Because the University’s use of race in its current freshman ad-
missions policy violates the Equal Protection Clause, it also violates
Title VI and §1981. See, e.g., Alexander v. Sandoval, 532 U. S. 275,
281; General Building Contractors Assn. v. Pennsylvania, 458 U. S.
375, 389-390. Accordingly, the Court reverses that portion of the
District Court’s decision granting respondents summary judgment
with respect to liability. Pp. 27-28.


5

Cite as: 539 U. S. ____ (2003)
Syllabus

Reversed in part and remanded.

REHNQUIST, C. J. delivered the opinion of the Court, in which
O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O’CONNOR, J.,
filed a concurring opinion, in which BREYER, J., joined in part. THOMAS,
J.,
filed a concurring opinion. BREYER, J., filed an opinion concurring in
the judgment. STEVENS, J., filed a dissenting opinion, in which SOUTER,
J.,
joined. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J.,
joined as to Part II. GINSBURG, J., filed a dissenting opinion, in which
SOUTER, J., joined, and in which BREYER, J., joined as to Part I.


1

Cite as: 539 U. S. ____ (2003)
Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 02-516

_________________

JENNIFER GRATZ AND PATRICK HAMACHER,

PETITIONERS v. LEE BOLLINGER ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2003]

CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.

We granted certiorari in this case to decide whether “the
University of Michigan’s use of racial preferences in un-
dergraduate admissions violate[s] the Equal Protection
Clause of the Fourteenth Amendment, Title VI of the Civil
Rights Act of 1964 (42 U. S. C. § 2000d), or 42 U. S. C.
§1981.” Brief for Petitioners i. Because we find that the
manner in which the University considers the race of
applicants in its undergraduate admissions guidelines
violates these constitutional and statutory provisions, we
reverse that portion of the District Court’s decision up-
holding the guidelines.

I
A

Petitioners Jennifer Gratz and Patrick Hamacher both
applied for admission to the University of Michigan’s
(University) College of Literature, Science, and the Arts
(LSA) as residents of the State of Michigan. Both peti-
tioners are Caucasian. Gratz, who applied for admission
for the fall of 1995, was notified in January of that year


2

GRATZ v. BOLLINGER
Opinion of the Court

that a final decision regarding her admission had been
delayed until April. This delay was based upon the Uni-
versity’s determination that, although Gratz was “‘well
qualified,’ ” she was “ ‘less competitive than the students
who ha[d] been admitted on first review.’” App. to Pet. for
Cert. 109a. Gratz was notified in April that the LSA was
unable to offer her admission. She enrolled in the Univer-
sity of Michigan at Dearborn, from which she graduated in
the spring of 1999.

Hamacher applied for admission to the LSA for the fall
of 1997. A final decision as to his application was also
postponed because, though his “‘academic credentials
[were] in the qualified range, they [were] not at the level
needed for first review admission.’ ” Ibid. Hamacher’s
application was subsequently denied in April 1997, and he
enrolled at Michigan State University.1

In October 1997, Gratz and Hamacher filed a lawsuit in
the United States District Court for the Eastern District of
Michigan against the University of Michigan, the LSA,2
James Duderstadt, and Lee Bollinger.3 Petitioners’ com-
plaint was a class-action suit alleging “violations and
threatened violations of the rights of the plaintiffs and the
class they represent to equal protection of the laws under
the Fourteenth Amendment … , and for racial discrimi-

___________________
1/       Although Hamacher indicated that he “intend[ed] to apply to trans-
fer if the [LSA’s] discriminatory admissions system [is] eliminated,” he
has since graduated from Michigan State University. App. 34.

2/       The University of Michigan Board of Regents was subsequently
named as the proper defendant in place of the University and the LSA.
See id., at 17.

3/       Duderstadt was the president of the University during the time that
Gratz’s application was under consideration. He has been sued in his
individual capacity. Bollinger was the president of the University
when Hamacher applied for admission. He was originally sued in both
his individual and official capacities, but he is no longer the president
of the University. Id., at 35.


3

Cite as: 539 U. S. ____ (2003)
Opinion of the Court

nation in violation of 42 U. S. C. §§1981, 1983, and 2000d
et seq.” App. 33. Petitioners sought, inter alia, compensa-
tory and punitive damages for past violations, declaratory
relief finding that respondents violated petitioners’ “rights
to nondiscriminatory treatment,” an injunction prohibiting
respondents from “continuing to discriminate on the basis
of race in violation of the Fourteenth Amendment,” and an
order requiring the LSA to offer Hamacher admission as a
transfer student.4 Id., at 40.

The District Court granted petitioners’ motion for class
certification after determining that a class action was
appropriate pursuant to Federal Rule of Civil Procedure
23(b)(2). The certified class consisted of “those individuals
who applied for and were not granted admission to the
College of Literature, Science and the Arts of the Univer-
sity of Michigan for all academic years from 1995 forward
and who are members of those racial or ethnic groups,
including Caucasian, that defendants treated less favora-
bly on the basis of race in considering their application for
admission.” App. 70-71. And Hamacher, whose claim the
District Court found to challenge a “‘practice of racial
discrimination pervasively applied on a classwide basis,’ ”
was designated as the class representative. Id., at 67, 70.
The court also granted petitioners’ motion to bifurcate the
proceedings into a liability and damages phase. Id., at 71.
The liability phase was to determine “whether [respon-
dents’] use of race as a factor in admissions decisions
violates the Equal Protection Clause of the Fourteenth

___________________
4/       group of African-American and Latino students who applied for,
or intended to apply for, admission to the University, as well as the
Citizens for Affirmative Action’s Preservation, a nonprofit organization
in Michigan, sought to intervene pursuant to Federal Rule of Civil
Procedure 24. See App. 13-14. The District Court originally denied
this request, see id., at 14-15, but the Sixth Circuit reversed that
decision. See Gratz v. Bollinger, 188 F. 3d 394 (1999).


4

GRATZ v. BOLLINGER
Opinion of the Court

Amendment to the Constitution.” Id., at 70.5

B

The University has changed its admissions guidelines a
number of times during the period relevant to this litiga-
tion, and we summarize the most significant of these
changes briefly. The University’s Office of Undergraduate
Admissions (OUA) oversees the LSA admissions process.6
In order to promote consistency in the review of the large
number of applications received, the OUA uses written
guidelines for each academic year. Admissions counselors
make admissions decisions in accordance with these
guidelines.

OUA considers a number of factors in making admis-
sions decisions, including high school grades, standardized
test scores, high school quality, curriculum strength,
geography, alumni relationships, and leadership. OUA
also considers race. During all periods relevant to this
litigation, the University has considered African-
Americans, Hispanics, and Native Americans to be “un-
derrepresented minorities,” and it is undisputed that the
University admits “virtually every qualified … applicant”
from these groups. App. to Pet. for Cert. 111a.

During 1995 and 1996, OUA counselors evaluated appli-
cations according to grade point average combined with
what were referred to as the “SCUGA” factors. These
factors included the quality of an applicant’s high school
(S), the strength of an applicant’s high school curriculum
(C), an applicant’s unusual circumstances (U), an appli-

___________________
5/       The District Court decided also to consider petitioners’ request for
injunctive and declaratory relief during the liability phase of the
proceedings. App. 71.

6/       Our description is taken, in large part, from the “Joint Proposed
Summary of Undisputed Facts Regarding Admissions Process” filed by
the parties in the District Court. App. to Pet. for Cert. 108a-117a.


5

Cite as: 539 U. S. ____ (2003)
Opinion of the Court

cant’s geographical residence (G), and an applicant’s
alumni relationships (A). After these scores were com-
bined to produce an applicant’s “GPA 2” score, the re-
viewing admissions counselors referenced a set of “Guide-
lines” tables, which listed GPA 2 ranges on the vertical
axis, and American College Test/Scholastic Aptitude Test
(ACT/SAT) scores on the horizontal axis. Each table was
divided into cells that included one or more courses of
action to be taken, including admit, reject, delay for addi-
tional information, or postpone for reconsideration.

In both years, applicants with the same GPA 2 score
and ACT/SAT score were subject to different admissions
outcomes based upon their racial or ethnic status.7 For
example, as a Caucasian in-state applicant, Gratz’s GPA 2
score and ACT score placed her within a cell calling for a
postponed decision on her application. An in-state or out-
of-state minority applicant with Gratz’s scores would have
fallen within a cell calling for admission.

In 1997, the University modified its admissions proce-
dure. Specifically, the formula for calculating an appli-
cant’s GPA 2 score was restructured to include additional
point values under the “U” category in the SCUGA factors.
Under this new system, applicants could receive points for
underrepresented minority status, socioeconomic disad-
vantage, or attendance at a high school with a predomi-
nantly underrepresented minority population, or under-
representation in the unit to which the student was

___________________
7/       In 1995, counselors used four such tables for different groups of
applicants: (1) in-state, nonminority applicants; (2) out-of-state, non-
minority applicants; (3) in-state, minority applicants; and (4) out-of-
state, minority applicants. In 1996, only two tables were used, one for
in-state applicants and one for out-of-state applicants. But each cell on
these two tables contained separate courses of action for minority
applicants and nonminority applicants whose GPA 2 scores and
ACT/SAT scores placed them in that cell.


6

GRATZ v. BOLLINGER
Opinion of the Court

applying (for example, men who sought to pursue a career
in nursing). Under the 1997 procedures, Hamacher’s
GPA 2 score and ACT score placed him in a cell on the in-
state applicant table calling for postponement of a final
admissions decision. An underrepresented minority appli-
cant placed in the same cell would generally have been
admitted.

Beginning with the 1998 academic year, the OUA dis-
pensed with the Guidelines tables and the SCUGA point
system in favor of a “selection index,” on which an appli-
cant could score a maximum of 150 points. This index was
divided linearly into ranges generally calling for admis-
sions dispositions as follows: 100-150 (admit); 95-99
(admit or postpone); 90-94 (postpone or admit); 75-89
(delay or postpone); 74 and below (delay or reject).

Each application received points based on high school
grade point average, standardized test scores, academic
quality of an applicant’s high school, strength or weakness
of high school curriculum, in-state residency, alumni
relationship, personal essay, and personal achievement or
leadership. Of particular significance here, under a “mis-
cellaneous” category, an applicant was entitled to 20
points based upon his or her membership in an underrep-
resented racial or ethnic minority group. The University
explained that the “‘development of the selection index for
admissions in 1998 changed only the mechanics, not the
substance of how race and ethnicity were considered in
admissions.’ ” App. to Pet. for Cert. 116a.

In all application years from 1995 to 1998, the guide-
lines provided that qualified applicants from underrepre-
sented minority groups be admitted as soon as possible in
light of the University’s belief that such applicants were
more likely to enroll if promptly notified of their admis-
sion. Also from 1995 through 1998, the University care-
fully managed its rolling admissions system to permit
consideration of certain applications submitted later in the


7

Cite as: 539 U. S. ____ (2003)
Opinion of the Court

academic year through the use of “protected seats.” Spe-
cific groups—including athletes, foreign students, ROTC
candidates, and underrepresented minorities—were “pro-
tected categories” eligible for these seats. A committee
called the Enrollment Working Group (EWG) projected
how many applicants from each of these protected catego-
ries the University was likely to receive after a given date
and then paced admissions decisions to permit full consid-
eration of expected applications from these groups. If this
space was not filled by qualified candidates from the
designated groups toward the end of the admissions sea-
son, it was then used to admit qualified candidates re-
maining in the applicant pool, including those on the
waiting list.

During 1999 and 2000, the OUA used the selection
index, under which every applicant from an underrepre-
sented racial or ethnic minority group was awarded 20
points. Starting in 1999, however, the University estab-
lished an Admissions Review Committee (ARC), to provide
an additional level of consideration for some applications.
Under the new system, counselors may, in their discretion,
“flag” an application for the ARC to review after determining
that the applicant (1) is academically prepared to
succeed at the University,8 (2) has achieved a minimum
selection index score, and (3) possesses a quality or char-
acteristic important to the University’s composition of its
freshman class, such as high class rank, unique life expe-
riences, challenges, circumstances, interests or talents,
socioeconomic disadvantage, and underrepresented race,
ethnicity, or geography. After reviewing “flagged” applications,
the ARC determines whether to admit, defer, or

___________________
1/       LSA applicants who are Michigan residents must accumulate 80
points from the selection index criteria to be flagged, while out-of-state
applicants need to accumulate 75 points to be eligible for such consid-
eration. See App. 257.


8

GRATZ v. BOLLINGER
Opinion of the Court

deny each applicant.

C

The parties filed cross-motions for summary judgment
with respect to liability. Petitioners asserted that the
LSA’s use of race as a factor in admissions violates Title
VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C.
§2000d, and the Equal Protection Clause of the Four-
teenth Amendment. Respondents relied on Justice Pow-
ell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S.
265 (1978), to respond to petitioners’ arguments. As dis-
cussed in greater detail in the Court’s opinion in Grutter v.
Bollinger,
post, at 10-13, Justice Powell, in Bakke, ex-
pressed the view that the consideration of race as a factor
in admissions might in some cases serve a compelling
government interest. See 438 U. S., at 317. Respondents
contended that the LSA has just such an interest in the
educational benefits that result from having a racially and
ethnically diverse student body and that its program is
narrowly tailored to serve that interest. Respondent-
intervenors asserted that the LSA had a compelling inter-
est in remedying the University’s past and current dis-
crimination against minorities.9

The District Court began its analysis by reviewing this
Court’s decision in Bakke. See 122 F. Supp. 2d 811, 817
(ED Mich. 2001). Although the court acknowledged that

___________________
9/       The District Court considered and rejected respondent-intervenors’
arguments in a supplemental opinion and order. See 135 F. Supp. 2d
790 (ED Mich. 2001). The court explained that respondent-intervenors
“failed to present any evidence that the discrimination alleged by them,
or the continuing effects of such discrimination, was the real justifica-
tion for the LSA’s race-conscious admissions programs.” Id., at 795.
We agree, and to the extent respondent-intervenors reassert this
justification, a justification the University has never asserted through-
out the course of this litigation, we affirm the District Court’s disposi-
tion of the issue.


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Cite as: 539 U. S. ____ (2003)
Opinion of the Court

no decision from this Court since Bakke has explicitly
accepted the diversity rationale discussed by Justice Pow-
ell, see 122 F. Supp. 2d, at 820-821, it also concluded that
this Court had not, in the years since Bakke, ruled out
such a justification for the use of race. 122 F. Supp. 2d, at
820-821. The District Court concluded that respondents
and their amici curiae had presented “solid evidence” that
a racially and ethnically diverse student body produces
significant educational benefits such that achieving such a
student body constitutes a compelling governmental inter-
est. See id., at 822-824.

The court next considered whether the LSA’s admis-
sions guidelines were narrowly tailored to achieve that
interest. See id., at 824. Again relying on Justice Powell’s
opinion in Bakke, the District Court determined that the
admissions program the LSA began using in 1999 is a
narrowly tailored means of achieving the University’s
interest in the educational benefits that flow from a ra-
cially and ethnically diverse student body. See 122
F. Supp. 2d, at 827. The court emphasized that the LSA’s
current program does not utilize rigid quotas or seek to
admit a predetermined number of minority students. See
ibid. The award of 20 points for membership in an under-
represented minority group, in the District Court’s view,
was not the functional equivalent of a quota because
minority candidates were not insulated from review by
virtue of those points. See id., at 828. Likewise, the court
rejected the assertion that the LSA’s program operates
like the two-track system Justice Powell found objection-
able in Bakke on the grounds that LSA applicants are not
competing for different groups of seats. See 122 F. Supp.
2d, at 828-829. The court also dismissed petitioners’
assertion that the LSA’s current system is nothing more
than a means by which to achieve racial balancing. See
id., at 831. The court explained that the LSA does not
seek to achieve a certain proportion of minority students,


10

GRATZ v. BOLLINGER
Opinion of the Court

let alone a proportion that represents the community. See
ibid.

The District Court found the admissions guidelines the
LSA used from 1995 through 1998 to be more problematic.
In the court’s view, the University’s prior practice of “pro-
tecting” or “reserving” seats for underrepresented minority
applicants effectively kept nonprotected applicants from
competing for those slots. See id., at 832. This system,
the court concluded, operated as the functional equivalent
of a quota and ran afoul of Justice Powell’s opinion in
Bakke.10 See 122 F. Supp. 2d, at 832.

Based on these findings, the court granted petitioners’
motion for summary judgment with respect to the LSA’s
admissions programs in existence from 1995 through
1998, and respondents’ motion with respect to the LSA’s
admissions programs for 1999 and 2000. See id., at 833.
Accordingly, the District Court denied petitioners’ request
for injunctive relief. See id., at 814.

The District Court issued an order consistent with its
rulings and certified two questions for interlocutory appeal
to the Sixth Circuit pursuant to 28 U. S. C. §1292(b). Both
parties appealed aspects of the District Court’s rulings,
and the Court of Appeals heard the case en banc on the
same day as Grutter v. Bollinger. The Sixth Circuit later
issued an opinion in Grutter, upholding the admissions
program used by the University of Michigan Law School,

___________________
10/       The District Court determined that respondents Bollinger and
Duderstadt, who were sued in their individual capacities under Rev.
Stat. §1979, 42 U. S. C. §1983, were entitled to summary judgment
based on the doctrine of qualified immunity. See 122 F. Supp. 2d, at
833-834. Petitioners have not asked this Court to review this aspect of
the District Court’s decision. The District Court denied the Board of
Regents’ motion for summary judgment with respect to petitioners’
Title VI claim on Eleventh Amendment immunity grounds. See id., at
834-836. Respondents have not asked this Court to review this aspect
of the District Court’s decision.


11

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Opinion of the Court

and the petitioner in that case sought a writ of certiorari
from this Court. Petitioners asked this Court to grant
certiorari in this case as well, despite the fact that the
Court of Appeals had not yet rendered a judgment, so that
this Court could address the constitutionality of the con-
sideration of race in university admissions in a wider
range of circumstances. We did so. See 537 U. S. 1044
(2002).

II

As they have throughout the course of this litigation,
petitioners contend that the University’s consideration of
race in its undergraduate admissions decisions violates §1
of the Equal Protection Clause of the Fourteenth Amend-
ment, 11 Title VI,12 and 42 U. S. C. §1981.13 We consider
first whether petitioners have standing to seek declaratory
and injunctive relief, and, finding that they do, we next
consider the merits of their claims.

A

Although no party has raised the issue, JUSTICE
STEVENS argues that petitioners lack Article III standing
to seek injunctive relief with respect to the University’s
use of race in undergraduate admissions. He first con-

___________________
11/       The Equal Protection Clause of the Fourteenth Amendment ex-
plains that “[n]o State shall … deny to any person within its jurisdic-
tion the equal protection of the laws.”

12/       Title VI provides that “[n]o person in the United States shall, on
the ground of race, color, or national origin, be excluded from participa-
tion in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.”
42 U. S. C. §2000d.

13/       Section 1981(a) provides that:
“All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce con-
tracts, … and to the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by white citizens.”


12

GRATZ v. BOLLINGER
Opinion of the Court

tends that because Hamacher did not “actually appl[y] for
admission as a transfer student[,] [h]is claim of future
injury is at best ‘conjectural or hypothetical’ rather than
‘real and immediate.’ ” Post, at 5 (dissenting opinion). But
whether Hamacher “actually applied” for admission as a
transfer student is not determinative of his ability to seek
injunctive relief in this case. If Hamacher had submitted a
transfer application and been rejected, he would still need to
allege an intent to apply again in order to seek prospective
relief. If JUSTICE STEVENS means that because Hamacher
did not apply to transfer, he must never really have in-
tended to do so, that conclusion directly conflicts with the
finding of fact entered by the District Court that Hamacher
“intends to transfer to the University of Michigan when
defendants cease the use of race as an admission prefer-
ence.” App. 67.14

It is well established that intent may be relevant to
standing in an Equal Protection challenge. In Clements v.
Fashing,
457 U. S. 957 (1982), for example, we considered
a challenge to a provision of the Texas Constitution re-
quiring the immediate resignation of certain state office-
holders upon their announcement of candidacy for another
office. We concluded that the plaintiff officeholders had
Article III standing because they had alleged that they
would have announced their candidacy for other offices
were it not for the “automatic resignation” provision they
were challenging. Id., at 962; accord, Turner v. Fouche,
396 U. S. 346, 361-362, n. 23 (1970) (plaintiff who did not
own property had standing to challenge property owner-
ship requirement for membership on school board even
though there was no evidence that plaintiff had applied

___________________
14/       This finding is further corroborated by Hamacher’s request that the
District Court “[r]equir[e] the LSA College to offer [him] admission as a
transfer student.” App. 40.


13

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Opinion of the Court

and been rejected); Quinn v. Millsap, 491 U. S. 95, 103,
n. 8 (1989) (plaintiffs who did not own property had
standing to challenge property ownership requirement for
membership on government board even though they
lacked standing to challenge the requirement “as ap-
plied”). Likewise, in Northeastern Fla. Chapter, Associ-
ated Gen. Contractors of America v. Jacksonville,
508 U. S.
656 (1993), we considered whether an association chal-
lenging an ordinance that gave preferential treatment to
certain minority-owned businesses in the award of city
contracts needed to show that one of its members would
have received a contract absent the ordinance in order to
establish standing. In finding that no such showing was
necessary, we explained that “[t]he ‘injury in fact’ in an
equal protection case of this variety is the denial of equal
treatment resulting from the imposition of the barrier, not
the ultimate inability to obtain the benefit… And in the
context of a challenge to a set-aside program, the ‘injury in
fact’ is the inability to compete on an equal footing in the
bidding process, not the loss of contract.” Id., at 666. We
concluded that in the face of such a barrier, “[t]o establish
standing, a party challenging a set-aside program like
Jacksonville’s need only demonstrate that it is able and
ready to bid on contracts and that a discriminatory policy
prevents it from doing so on an equal basis.” Ibid.

In bringing his equal protection challenge against the
University’s use of race in undergraduate admissions,
Hamacher alleged that the University had denied him the
opportunity to compete for admission on an equal basis.
When Hamacher applied to the University as a freshman
applicant, he was denied admission even though an un-
derrepresented minority applicant with his qualifications
would have been admitted. See App. to Pet. for Cert.
115a. After being denied admission, Hamacher demon-
strated that he was “able and ready” to apply as a transfer
student should the University cease to use race in under-


14

GRATZ v. BOLLINGER
Opinion of the Court

graduate admissions. He therefore has standing to seek
prospective relief with respect to the University’s contin-
ued use of race in undergraduate admissions.

JUSTICE STEVENS raises a second argument as to
standing. He contends that the University’s use of race in
undergraduate transfer admissions differs from its use of
race in undergraduate freshman admissions, and that
therefore Hamacher lacks standing to represent absent
class members challenging the latter. Post, at 5 (dissent-
ing opinion). As an initial matter, there is a question
whether the relevance of this variation, if any, is a matter
of Article III standing at all or whether it goes to the
propriety of class certification pursuant to Federal Rule of
Civil Procedure 23(a). The parties have not briefed the
question of standing versus adequacy, however, and we
need not resolve the question today: Regardless of whether
the requirement is deemed one of adequacy or standing, it
is clearly satisfied in this case.15

From the time petitioners filed their original complaint
through their brief on the merits in this Court, they have
consistently challenged the University’s use of race in
undergraduate admissions and its asserted justification of
promoting “diversity.” See, e.g., App. 38; Brief for Peti-
tioners 13. Consistent with this challenge, petitioners

___________________
15/       Although we do not resolve here whether such an inquiry in this
case is appropriately addressed under the rubric of standing or ade-
quacy, we note that there is tension in our prior cases in this regard.
See, e.g., Burns, Standing and Mootness in Class Actions: A Search for
Consistency, 22 U. C. D. L. Rev. 1239, 1240-1241 (1989); General
Telephone Co. of Southwest v. Falcon,
457 U. S. 147, 149 (1982) (Mexi-
can-American plaintiff alleging that he was passed over for a promotion
because of race was not an adequate representative to “maintain a class
action on behalf of Mexican-American applicants” who were not hired
by the same employer); Blum v. Yaretsky, 457 U. S. 991 (1982) (class
representatives who had been transferred to lower levels of medical
care lacked standing to challenge transfers to higher levels of care).


15

Cite as: 539 U. S. ____ (2003)
Opinion of the Court

requested injunctive relief prohibiting respondent “from
continuing to discriminate on the basis of race.” App. 40.
They sought to certify a class consisting of all individuals
who were not members of an underrepresented minority
group who either had applied for admission to the LSA
and been rejected or who intended to apply for admission
to the LSA, for all academic years from 1995 forward. Id.,
at 35-36. The District Court determined that the pro-
posed class satisfied the requirements of the Federal Rules
of Civil Procedure, including the requirements of nu-
merosity, commonality, and typicality. See Fed. Rule Civ.
Proc. 23(a); App. 70. The court further concluded that
Hamacher was an adequate representative for the class in
the pursuit of compensatory and injunctive relief for pur-
poses of Rule 23(a)(4), see App. 61-69, and found “the
record utterly devoid of the presence of … antagonism
between the interests of … Hamacher, and the members
of the class which [he] seek[s] to represent,” id., at 61.
Finally, the District Court concluded that petitioners’
claim was appropriate for class treatment because the
University’s “ ‘practice of racial discrimination pervasively
applied on a classwide basis.’ ” Id., at 67. The court certi-
fied the class pursuant to Federal Rule of Civil Procedure
23(b)(2), and designated Hamacher as the class represen-
tative. App. 70.

JUSTICE STEVENS cites Blum v. Yaretsky, 457 U. S. 991
(1982), in arguing that the District Court erred. Post, at 8.
In Blum, we considered a class action suit brought by
Medicaid beneficiaries. The named representatives in
Blum challenged decisions by the State’s Medicaid Utiliza-
tion Review Committee (URC) to transfer them to lower
levels of care without, in their view, sufficient procedural
safeguards. After a class was certified, the plaintiffs
obtained an order expanding class certification to include
challenges to URC decisions to transfer patients to higher
levels of care as well. The defendants argued that the


16

GRATZ v. BOLLINGER
Opinion of the Court

named representatives could not represent absent class
members challenging transfers to higher levels of care
because they had not been threatened with such transfers.
We agreed. We noted that “[n]othing in the record …
suggests that any of the individual respondents have been
either transferred to more intensive care or threatened
with such transfers.” 457 U. S., at 1001. And we found
that transfers to lower levels of care involved a number of
fundamentally different concerns than did transfers to
higher ones. Id., at 1001-1002 (noting, for example, that
transfers to lower levels of care implicated beneficiaries’
property interests given the concomitant decrease in
Medicaid benefits, while transfers to higher levels of care
did not).

In the present case, the University’s use of race in un-
dergraduate transfer admissions does not implicate a
significantly different set of concerns than does its use of
race in undergraduate freshman admissions. Respondents
challenged Hamacher’s standing at the certification stage,
but never did so on the grounds that the University’s use
of race in undergraduate transfer admissions involves a
different set of concerns than does its use of race in fresh-
man admissions. Respondents’ failure to allege any such
difference is simply consistent with the fact that no such
difference exists. Each year the OUA produces a docu-
ment entitled “COLLEGE OF LITERATURE SCIENCE
AND THE ARTS GUIDELINES FOR ALL TERMS,”
which sets forth guidelines for all individuals seeking
admission to the LSA, including freshman applicants,
transfer applicants, international student applicants, and
the like. See, e.g., 2 App. in No. 01-1333 etc. (CA6),
pp. 507-542. The guidelines used to evaluate transfer
applicants specifically cross-reference factors and qualifi-
cations considered in assessing freshman applicants. In
fact, the criteria used to determine whether a transfer
applicant will contribute to the University’s stated goal of


17

Cite as: 539 U. S. ____ (2003)
Opinion of the Court

diversity are identical to that used to evaluate freshman
applicants. For example, in 1997, when the class was
certified and the District Court found that Hamacher had
standing to represent the class, the transfer guidelines
contained a separate section entitled “CONTRIBUTION
TO A DIVERSE STUDENT BODY.” 2 id., at 531. This
section explained that any transfer applicant who could
“contribut[e] to a diverse student body” should “generally
be admitted” even with substantially lower qualifications
than those required of other transfer applicants. Ibid.
(emphasis added). To determine whether a transfer appli-
cant was capable of “contribut[ing] to a diverse student
body,” admissions counselors were instructed to determine
whether that transfer applicant met the “criteria as de-
fined in Section IV of the ‘U’ category of [the] SCUGA”
factors used to assess freshman applicants. Ibid. Section
IV of the “U” category, entitled “Contribution to a Diverse
Class,” explained that “[t]he University is committed to a
rich educational experience for its students. A diverse, as
opposed to a homogenous, student population enhances
the educational experience for all students. To insure a
diverse class, significant weight will be given in the ad-
missions process to indicators of students contribution to a
diverse class.” 1 id., at 432. These indicators, used in
evaluating freshman and transfer applicants alike, list
being a member of an underrepresented minority group as
establishing an applicant’s contribution to diversity. See 3
id., at 1133-1134, 1153-1154. Indeed, the only difference
between the University’s use of race in considering fresh-
man and transfer applicants is that all underrepresented
minority freshman applicants receive 20 points and “vir-
tually” all who are minimally qualified are admitted, while
“generally” all minimally qualified minority transfer
applicants are admitted outright. While this difference
might be relevant to a narrow tailoring analysis, it clearly
has no effect on petitioners’ standing to challenge the


17

GRATZ v. BOLLINGER
Opinion of the Court

University’s use of race in undergraduate admissions and
its assertion that diversity is a compelling state interest
that justifies its consideration of the race of its under-
graduate applicants.16

Particularly instructive here is our statement in General
Telephone Co. of Southwest v. Falcon, 457 U. S. 147
(1982), that “[i]f [defendant-employer] used a biased test-
ing procedure to evaluate both applicants for employment
and incumbent employees, a class action on behalf of every
applicant or employee who might have been prejudiced by
the test clearly would satisfy the … requirements of Rule
23(a).” Id., at 159, n. 15 (emphasis added). Here, the
District Court found that the sole rationale the University
had provided for any of its race-based preferences in un-
dergraduate admissions was the interest in “the educa-
tional benefits that result from having a diverse student
body.” App. to Pet. for Cert. 8a. And petitioners argue
that an interest in “diversity” is not a compelling state
interest that is ever capable of justifying the use of race in

___________________
16/       Because the University’s guidelines concededly use race in evalu-
ating both freshman and transfer applications, and because petitioners
have challenged any use of race by the University in undergraduate
admissions, the transfer admissions policy is very much before this
Court. Although petitioners did not raise a narrow tailoring challenge
to the transfer policy, as counsel for petitioners repeatedly explained,
the transfer policy is before this Court in that petitioners challenged
any use of race by the University to promote diversity, including
through the transfer policy. See Tr. of Oral Arg. 4 (“[T]he [transfer]
policy is essentially the same with respect to the consideration of race”);
id., at 5 (“The transfer policy considers race”); id., at 6 (same); id., at 7
(“[T]he transfer policy and the [freshman] admissions policy are fun-
damentally the same in the respect that they both consider race in the
admissions process in a way that is discriminatory”); id., at 7-8 (“[T]he
University considers race for a purpose to achieve a diversity that we
believe is not compelling, and if that is struck down as a rationale, then
the [result] would be [the] same with respect to the transfer policy as
with respect to the [freshman] admissions policy, Your Honor”).


19

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Opinion of the Court

undergraduate admissions. See, e.g., Brief for Petitioners
11-13. In sum, the same set of concerns is implicated by
the University’s use of race in evaluating all undergradu-
ate admissions applications under the guidelines.17 We
therefore agree with the District Court’s carefully consid-
ered decision to certify this class-action challenge to the
University’s consideration of race in undergraduate ad-
missions. See App. 67 (“ ‘It is a singular policy … applied
on a classwide basis’ ”); cf. Coopers &Lybrand v. Livesay,
437 U. S. 463, 469 (1978) (“[T]he class determination gener-
ally involves considerations that are enmeshed in the fac-
tual and legal issues comprising the plaintiff’s cause of
action” (internal quotation marks omitted)). Indeed, class
action treatment was particularly important in this case
because “the claims of the individual students run the risk
of becoming moot” and the “[t]he class action vehicle …
provides a mechanism for ensuring that a justiciable claim
is before the Court.” App. 69. Thus, we think it clear that
Hamacher’s personal stake, in view of both his past injury
and the potential injury he faced at the time of certification,

___________________
17/       Indeed, as the litigation history of this case demonstrates, “the
class-action device save[d] the resources of both the courts and the
parties by permitting an issue potentially affecting every [class mem-
ber] to be litigated in an economical fashion.” Califano v. Yamasaki, 442
U. S. 682, 701 (1979). This case was therefore quite unlike General
Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), in which we
found that the named representative, who had been passed over for a
promotion, was not an adequate representative for absent class members
who were never hired in the first instance. As we explained, the plaintiff’s
“evidentiary approaches to the individual and class claims were entirely
different. He attempted to sustain his individual claim by proving inten-
tional discrimination. He tried to prove the class claims through statisti-
cal evidence of disparate impact… It is clear that the maintenance of
respondent’s action as a class action did not advance ‘the efficiency and
economy of litigation which is a principal purpose of the procedure.’ ” Id.,
at 159 (quoting American Pipe &Constr. Co. v. Utah, 414 U. S. 538, 553
(1974)).


20

GRATZ v. BOLLINGER
Opinion of the Court

demonstrates that he may maintain this class-action chal-
lenge to the University’s use of race in undergraduate
admissions.

B

Petitioners argue, first and foremost, that the Univer-
sity’s use of race in undergraduate admissions violates the
Fourteenth Amendment. Specifically, they contend that
this Court has only sanctioned the use of racial classifica-
tions to remedy identified discrimination, a justification on
which respondents have never relied. Brief for Petitioners
15-16. Petitioners further argue that “diversity as a basis
for employing racial preferences is simply too open-ended,
ill-defined, and indefinite to constitute a compelling inter-
est capable of supporting narrowly-tailored means.” Id.,
at 17-18, 40-41. But for the reasons set forth today in
Grutter v. Bollinger, post, at 15-21, the Court has rejected
these arguments of petitioners.

Petitioners alternatively argue that even if the Univer-
sity’s interest in diversity can constitute a compelling
state interest, the District Court erroneously concluded
that the University’s use of race in its current freshman
admissions policy is narrowly tailored to achieve such an
interest. Petitioners argue that the guidelines the Univer-
sity began using in 1999 do not “remotely resemble the
kind of consideration of race and ethnicity that Justice
Powell endorsed in Bakke.” Brief for Petitioners 18.
Respondents reply that the University’s current admis-
sions program is narrowly tailored and avoids the prob-
lems of the Medical School of the University of California
at Davis program (U. C. Davis) rejected by Justice Pow-
ell. 18 They claim that their program “hews closely” to both

___________________
18/       U. C. Davis set aside 16 of the 100 seats available in its first year
medical school program for “economically and/or educationally disad-
vantaged” applicants who were also members of designated “minority


21

Cite as: 539 U. S. ____ (2003)
Opinion of the Court

the admissions program described by Justice Powell as
well as the Harvard College admissions program that he
endorsed. Brief for Respondents 32. Specifically, respon-
dents contend that the LSA’s policy provides the individu-
alized consideration that “Justice Powell considered a
hallmark of a constitutionally appropriate admissions
program.” Id., at 35. For the reasons set out below, we do
not agree.

It is by now well established that “all racial classifica-
tions reviewable under the Equal Protection Clause must
be strictly scrutinized.” Adarand Constructors, Inc. v.
Peña,
515 U. S. 200, 224 (1995). This “‘standard of review
… is not dependent on the race of those burdened or bene-
fited by a particular classification.’” Ibid. (quoting Rich-
mond v. J. A. Croson Co.,
488 U. S. 469, 494 (1989) (plural-
ity opinion)). Thus, “any person, of whatever race, has the
right to demand that any governmental actor subject to the
Constitution justify any racial classification subjecting that
person to unequal treatment under the strictest of judicial
scrutiny.” Adarand, 515 U. S., at 224.

To withstand our strict scrutiny analysis, respondents
must demonstrate that the University’s use of race in its

___________________
      groups” as defined by the university. “To the extent that there existed
a pool of at least minimally qualified minority applicants to fill the 16
special admissions seats, white applicants could compete only for 84
seats in the entering class, rather than the 100 open to minority appli-
cants.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 274, 289 (1978)
(principal opinion). Justice Powell found that the program employed an
impermissible two-track system that “disregard[ed] … individual
rights as guaranteed by the Fourteenth Amendment.” Id., at 315. He
reached this conclusion even though the university argued that “the
reservation of a specified number of seats in each class for individuals
from the preferred ethnic groups” was “the only effective means of
serving the interest of diversity.” Ibid. Justice Powell concluded that
such arguments misunderstood the very nature of the diversity he
found to be compelling. See ibid.


22

GRATZ v. BOLLINGER
Opinion of the Court

current admission program employs “narrowly tailored
measures that further compelling governmental interests.”
Id., at 227. Because “[r]acial classifications are simply too
pernicious to permit any but the most exact connection
between justification and classification,” Fullilove v.
Klutznick,
448 U. S. 448, 537 (1980) (STEVENS, J., dis-
senting), our review of whether such requirements have
been met must entail “ ‘a most searching examination.’ ”
Adarand, supra, at 223 (quoting Wygant v. Jackson Bd. of
Ed.,
476 U. S. 267, 273 (1986) (plurality opinion of Powell,
J.)). We find that the University’s policy, which automati-
cally distributes 20 points, or one-fifth of the points
needed to guarantee admission, to every single “underrep-
resented minority” applicant solely because of race, is not
narrowly tailored to achieve the interest in educational
diversity that respondents claim justifies their program.

In Bakke, Justice Powell reiterated that “[p]referring
members of any one group for no reason other than race or
ethnic origin is discrimination for its own sake.” 438 U. S.,
at 307. He then explained, however, that in his view it
would be permissible for a university to employ an admis-
sions program in which “race or ethnic background may be
deemed a ‘plus’ in a particular applicant’s file.” Id., at
317. He explained that such a program might allow for
“[t]he file of a particular black applicant [to] be examined
for his potential contribution to diversity without the
factor of race being decisive when compared, for example,
with that of an applicant identified as an Italian-American
if the latter is thought to exhibit qualities more likely to
promote beneficial educational pluralism.” Ibid. Such a
system, in Justice Powell’s view, would be “flexible enough
to consider all pertinent elements of diversity in light of
the particular qualifications of each applicant.” Ibid.

Justice Powell’s opinion in Bakke emphasized the im-
portance of considering each particular applicant as an
individual, assessing all of the qualities that individual


23

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Opinion of the Court

possesses, and in turn, evaluating that individual’s ability
to contribute to the unique setting of higher education.
The admissions program Justice Powell described, how-
ever, did not contemplate that any single characteristic
automatically ensured a specific and identifiable contribu-
tion to a university’s diversity. See id., at 315. See also
Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 618 (1990)
(O’CONNOR, J., dissenting) (concluding that the FCC’s
policy, which “embodie[d] the related notions that a par-
ticular applicant, by virtue of race or ethnicity alone, is
more valued than other applicants because [the applicant
is] ‘likely to provide [a] distinct perspective,’ “impermissi-
bly value[d] individuals” based on a presumption that
“persons think in a manner associated with their race”).
Instead, under the approach Justice Powell described,
each characteristic of a particular applicant was to be
considered in assessing the applicant’s entire application.

The current LSA policy does not provide such individu-
alized consideration. The LSA’s policy automatically
distributes 20 points to every single applicant from an
“underrepresented minority” group, as defined by the
University. The only consideration that accompanies this
distribution of points is a factual review of an application
to determine whether an individual is a member of one of
these minority groups. Moreover, unlike Justice Powell’s
example, where the race of a “particular black applicant”
could be considered without being decisive, see Bakke, 438
U. S., at 317, the LSA’s automatic distribution of 20 points
has the effect of making “the factor of race … decisive” for
virtually every minimally qualified underrepresented
minority applicant. Ibid.19

___________________
19/       JUSTICE SOUTER recognizes that the LSA’s use of race is decisive in
practice, but he attempts to avoid that fact through unsupported
speculation about the self-selection of minorities in the applicant pool.
See Post, at 6 (dissenting opinion).


24

GRATZ v. BOLLINGER
Opinion of the Court

Also instructive in our consideration of the LSA’s system
is the example provided in the description of the Harvard
College Admissions Program, which Justice Powell both
discussed in, and attached to, his opinion in Bakke. The
example was included to “illustrate the kind of signifi-
cance attached to race” under the Harvard College pro-
gram. Id., at 324. It provided as follows:

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

This example further demonstrates the problematic na-
ture of the LSA’s admissions system. Even if student C’s
“extraordinary artistic talent” rivaled that of Monet or
Picasso, the applicant would receive, at most, five points
under the LSA’s system. See App. 234-235. At the same
time, every single underrepresented minority applicant,
including students A and B, would automatically receive
20 points for submitting an application. Clearly, the
LSA’s system does not offer applicants the individualized
selection process described in Harvard’s example. Instead


25

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Opinion of the Court

of considering how the differing backgrounds, experiences,
and characteristics of students A, B, and C might benefit
the University, admissions counselors reviewing LSA
applications would simply award both A and B 20 points
because their applications indicate that they are African-
American, and student C would receive up to 5 points for
his “extraordinary talent.”20

Respondents emphasize the fact that the LSA has cre-
ated the possibility of an applicant’s file being flagged for
individualized consideration by the ARC. We think that
the flagging program only emphasizes the flaws of the
University’s system as a whole when compared to that
described by Justice Powell. Again, students A, B, and C
illustrate the point. First, student A would never be
flagged. This is because, as the University has conceded,
the effect of automatically awarding 20 points is that
virtually every qualified underrepresented minority appli-
cant is admitted. Student A, an applicant “with promise of
superior academic performance,” would certainly fit this
description. Thus, the result of the automatic distribution
of 20 points is that the University would never consider
student A’s individual background, experiences, and char-
acteristics to assess his individual “potential contribution
to diversity,” Bakke, supra, at 317. Instead, every appli-
cant like student A would simply be admitted.

It is possible that students B and C would be flagged
and considered as individuals. This assumes that student
B was not already admitted because of the automatic 20-
point distribution, and that student C could muster at
least 70 additional points. But the fact that the “review

___________________
20/       JUSTICE SOUTER is therefore wrong when he contends that “appli-
cants to the undergraduate college are [not] denied individualized
consideration.” Post, at 6. As JUSTICE O’CONNOR explains in her
concurrence, the LSA’s program “ensures that the diversity contribu-
tions of applicants cannot be individually assessed.” Post, at 4.


26

GRATZ v. BOLLINGER
Opinion of the Court

committee can look at the applications individually and
ignore the points,” once an application is flagged, Tr. of
Oral Arg. 42, is of little comfort under our strict scrutiny
analysis. The record does not reveal precisely how many
applications are flagged for this individualized considera-
tion, but it is undisputed that such consideration is the
exception and not the rule in the operation of the LSA’s
admissions program. See App. to Pet. for Cert. 117a (“The
ARC reviews only a portion of all of the applications. The
bulk of admissions decisions are executed based on selec-
tion index score parameters set by the EWG”).21 Addition-
ally, this individualized review is only provided after
admissions counselors automatically distribute the Uni-
versity’s version of a “plus” that makes race a decisive
factor for virtually every minimally qualified underrepre-
sented minority applicant.

Respondents contend that “[t]he volume of applications
and the presentation of applicant information make it
impractical for [LSA] to use the … admissions system”
upheld by the Court today in Grutter. Brief for Respon-
dents 6, n. 8. But the fact that the implementation of a
program capable of providing individualized consideration

___________________
21/       JUSTICE SOUTER is mistaken in his assertion that the Court “take[s]
it upon itself to apply a newly formulated legal standard to an undevel-
oped record.” Post, at 7, n. 3. He ignores the fact that the respondents
have told us all that is necessary to decide this case. As explained
above, respondents concede that only a portion of the applications are
reviewed by the ARC and that the “bulk of admissions decisions” are
based on the point system. It should be readily apparent that the
availability of this review, which comes after the automatic distribution
of points, is far more limited than the individualized review given to the
“large middle group of applicants” discussed by Justice Powell and
described by the Harvard plan in Bakke. 438 U. S., at 316 (internal
quotation marks omitted).


27

Cite as: 539 U. S. ____ (2003)
Opinion of the Court

might present administrative challenges does not render
constitutional an otherwise problematic system. See J. A.
Croson Co.,
488 U. S., at 508 (citing Frontiero v.
Richardson,
411 U. S. 677, 690 (1973) (plurality opinion of
Brennan, J.) (rejecting “ ‘administrative convenience’ ” as a
determinant of constitutionality in the face of a suspect
classification)). Nothing in Justice Powell’s opinion in
Bakke signaled that a university may employ whatever
means it desires to achieve the stated goal of diversity
without regard to the limits imposed by our strict scrutiny
analysis.

We conclude, therefore, that because the University’s
use of race in its current freshman admissions policy is not
narrowly tailored to achieve respondents’ asserted com-
pelling interest in diversity, the admissions policy violates
the Equal Protection Clause of the Fourteenth Amend-
ment. 22 We further find that the admissions policy also
violates Title VI and 42 U. S. C. § 1981.23 Accordingly, we

___________________
22/       JUSTICE GINSBURG in her dissent observes that “[o]ne can reasona-
bly anticipate … that colleges and universities will seek to maintain
their minority enrollment … whether or not they can do so in full
candor through adoption of affirmative action plans of the kind here at
issue.” Post, at 7-8. She goes on to say that “[i]f honesty is the best
policy, surely Michigan’s accurately described, fully disclosed College
affirmative action program is preferable to achieving similar numbers
through winks, nods, and disguises.” Post, at 8. These observations are
remarkable for two reasons. First, they suggest that universities—to
whose academic judgment we are told in Grutter v. Bollinger, post, at
16, we should defer—will pursue their affirmative-action programs
whether or not they violate the United States Constitution. Second,
they recommend that these violations should be dealt with, not by
requiring the universities to obey the Constitution, but by changing the
Constitution so that it conforms to the conduct of the universities.

23/       We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by an
institution that accepts federal funds also constitutes a violation of
Title VI. See Alexander v. Sandoval, 532 U. S. 275, 281 (2001); United
States v. Fordice,
505 U. S. 717, 732, n. 7 (1992); Alexander v. Choate,


28

GRATZ v. BOLLINGER
Opinion of the Court

reverse that portion of the District Court’s decision
granting respondents summary judgment with respect to
liability and remand the case for proceedings consistent
with this opinion.

It is so ordered.

___________________
      U. S. 287, 293 (1985). Likewise, with respect to §1981, we have
explained that the provision was “meant, by its broad terms, to pro-
scribe discrimination in the making or enforcement of contracts
against, or in favor of, any race.” McDonald v. Santa Fe Trail Transp.
Co.,
427 U. S. 273, 295-296 (1976). Furthermore, we have explained
that a contract for educational services is a “contract” for purposes of
§1981. See Runyon v. McCrary, 427 U. S. 160, 172 (1976). Finally,
purposeful discrimination that violates the Equal Protection Clause of
the Fourteenth Amendment will also violate §1981. See General
Building Contractors Assn., Inc. v. Pennsylvania,
458 U. S. 375, 389-
390 (1982).


1

Cite as: 539 U. S. ____ (2003)

O’CONNOR, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 02-516

_________________

JENNIFER GRATZ AND PATRICK HAMACHER,
PETITIONERS v. LEE BOLLINGER ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2003]

JUSTICE O’CONNOR, concurring.*

I

Unlike the law school admissions policy the Court up-
holds today in Grutter v. Bollinger, post, p. 1, the proce-
dures employed by the University of Michigan’s (Univer-
sity) Office of Undergraduate Admissions do not provide
for a meaningful individualized review of applicants. Cf.
Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978) (prin-
cipal opinion of Powell, J.). The law school considers the
various diversity qualifications of each applicant, includ-
ing race, on a case-by-case basis. See Grutter v. Bollinger,
post, at 24. By contrast, the Office of Undergraduate
Admissions relies on the selection index to assign every
underrepresented minority applicant the same, automatic
20-point bonus without consideration of the particular
background, experiences, or qualities of each individual
applicant. Cf. ante, at 23, 25. And this mechanized selec-
tion index score, by and large, automatically determines
the admissions decision for each applicant. The selection
index thus precludes admissions counselors from con-
ducting the type of individualized consideration the
Court’s opinion in Grutter, supra, at 25, requires: consid-

___________________
      *JUSTICE BREYER joins this opinion, except for the last sentence.


2

GRATZ v. BOLLINGER
O’CONNOR, J., concurring

eration of each applicant’s individualized qualifications,
including the contribution each individual’s race or ethnic
identity will make to the diversity of the student body,
taking into account diversity within and among all racial
and ethnic groups. Cf. ante, at 24 (citing Bakke, supra, at
324)).

On cross-motions for summary judgment, the District
Court held that the admissions policy the University
instituted in 1999 and continues to use today passed
constitutional muster. See 122 F. Supp. 2d 811, 827 (ED
Mich. 2001). In their proposed summary of undisputed
facts, the parties jointly stipulated to the admission pol-
icy’s mechanics. App. to Pet. for Cert. 116a-118a. When
the university receives an application for admission to its
incoming class, an admissions counselor turns to a Selec-
tion Index Worksheet to calculate the applicant’s selection
index score out of 150 maximum possible points—a proce-
dure the University began using in 1998. App. 256. Ap-
plicants with a score of over 100 are automatically admit-
ted; applicants with scores of 95 to 99 are categorized as
“admit or postpone”; applicants with 90-94 points are
postponed or admitted; applicants with 75-89 points are
delayed or postponed; and applicants with 74 points or
fewer are delayed or rejected. The Office of Undergradu-
ate Admissions extends offers of admission on a rolling
basis and acts upon the applications it has received
through periodic “[m]ass [a]ction[s].” App. 256.

In calculating an applicant’s selection index score, coun-
selors assign numerical values to a broad range of aca-
demic factors, as well as to other variables the University
considers important to assembling a diverse student body,
including race. Up to 110 points can be assigned for aca-
demic performance, and up to 40 points can be assigned
for the other, nonacademic factors. Michigan residents,
for example, receive 10 points, and children of alumni
receive 4. Counselors may assign an outstanding essay up


3

Cite as: 539 U. S. ____ (2003)
O’CONNOR, J., concurring

to 3 points and may award up to 5 points for an applicant’s
personal achievement, leadership, or public service. Most
importantly for this case, an applicant automatically
receives a 20 point bonus if he or she possesses any one of
the following “miscellaneous” factors: membership in an
underrepresented minority group; attendance at a pre-
dominantly minority or disadvantaged high school; or
recruitment for athletics.

In 1999, the University added another layer of review to
its admissions process. After an admissions counselor has
tabulated an applicant’s selection index score, he or she
may “flag” an application for further consideration by an
Admissions Review Committee, which is composed of
members of the Office of Undergraduate Admissions and
the Office of the Provost. App. to Pet. for Cert. 117a. The
review committee meets periodically to discuss the files of
“flagged” applicants not already admitted based on the
selection index parameters. App. 275. After discussing
each flagged application, the committee decides whether
to admit, defer, or deny the applicant. Ibid.

Counselors may flag an applicant for review by the
committee if he or she is academically prepared, has a
selection index score of at least 75 (for non-Michigan
residents) or 80 (for Michigan residents), and possesses
one of several qualities valued by the University. These
qualities include “high class rank, unique life experiences,
challenges, circumstances, interests or talents, socioeco-
nomic disadvantage, and under-represented race, ethnic-
ity, or geography.” App. to Pet. for Cert. 117a. Counselors
also have the discretion to flag an application if, notwith-
standing a high selection index score, something in the
applicant’s file suggests that the applicant may not be
suitable for admission. App. 274. Finally, in “rare cir-
cumstances,” an admissions counselor may flag an appli-
cant with a selection index score below the designated
levels if the counselor has reason to believe from reading


4

GRATZ v. BOLLINGER
O’CONNOR, J., concurring

the entire file that the score does not reflect the appli-
cant’s true promise. Ibid.

II

Although the Office of Undergraduate Admissions does
assign 20 points to some “soft” variables other than race,
the points available for other diversity contributions, such
as leadership and service, personal achievement, and
geographic diversity, are capped at much lower levels.
Even the most outstanding national high school leader
could never receive more than five points for his or her
accomplishments—a mere quarter of the points automati-
cally assigned to an underrepresented minority solely
based on the fact of his or her race. Of course, as Justice
Powell made clear in Bakke, a university need not “neces-
sarily accor[d]” all diversity factors “the same weight,” 438
U. S., at 317, and the “weight attributed to a particular
quality may vary from year to year depending on the ‘mix’
both of the student body and the applicants for the in-
coming class,” id., at 317-318. But the selection index, by
setting up automatic, predetermined point allocations for
the soft variables, ensures that the diversity contributions
of applicants cannot be individually assessed. This policy
stands in sharp contrast to the law school’s admissions
plan, which enables admissions officers to make nuanced
judgments with respect to the contributions each applicant
is likely to make to the diversity of the incoming class.
See Grutter v. Bollinger, post, at 22 (“[T]he Law School’s
race-conscious admissions program adequately ensures
that all factors that may contribute to student body diver-
sity are meaningfully considered alongside race in admis-
sions decisions”).

The only potential source of individualized consideration
appears to be the Admissions Review Committee. The
evidence in the record, however, reveals very little about
how the review committee actually functions. And what


5

Cite as: 539 U. S. ____ (2003)
O’CONNOR, J., concurring

evidence there is indicates that the committee is a kind of
afterthought, rather than an integral component of a
system of individualized review. As the Court points out,
it is undisputed that the “ ‘[committee] reviews only a
portion of all the applications. The bulk of admissions
decisions are executed based on selection index score
parameters set by the [Enrollment Working Group].’ ”
Ante, at 26 (quoting App. to Pet for Cert. 117a). Review by
the committee thus represents a necessarily limited excep-
tion to the Office of Undergraduate Admissions’ general
reliance on the selection index. Indeed, the record does
not reveal how many applications admissions counselors
send to the review committee each year, and the Univer-
sity has not pointed to evidence demonstrating that a
meaningful percentage of applicants receives this level of
discretionary review. In addition, eligibility for considera-
tion by the committee is itself based on automatic cut-off
levels determined with reference to selection index scores.
And there is no evidence of how the decisions are actually
made—what type of individualized consideration is or is
not used. Given these circumstances, the addition of the
Admissions Review Committee to the admissions process
cannot offset the apparent absence of individualized con-
sideration from the Office of Undergraduate Admissions’
general practices.

For these reasons, the record before us does not support
the conclusion that the University of Michigan’s admis-
sions program for its College of Literature, Science, and
the Arts—to the extent that it considers race—provides
the necessary individualized consideration. The Univer-
sity, of course, remains free to modify its system so that it
does so. Cf. Grutter v. Bollinger, post, p. 1. But the cur-
rent system, as I understand it, is a nonindividualized,
mechanical one. As a result, I join the Court’s opinion
reversing the decision of the District Court.


1

Cite as: 539 U. S. ____ (2003)

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 02-516

_________________

JENNIFER GRATZ AND PATRICK HAMACHER,
PETITIONERS v. LEE BOLLINGER ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2003]

JUSTICE THOMAS, concurring.

I join the Court’s opinion because I believe it correctly
applies our precedents, including today’s decision in Grut-
ter v. Bollinger,
post, p. ___. For similar reasons to those
given in my separate opinion in that case, see post, p. ___
(opinion concurring in part and dissenting in part), how-
ever, I would hold that a State’s use of racial discrimina-
tion in higher education admissions is categorically pro-
hibited by the Equal Protection Clause.

I make only one further observation. The University of
Michigan’s College of Literature, Science, and the Arts
(LSA) admissions policy that the Court today invalidates
does not suffer from the additional constitutional defect of
allowing racial “discriminat[ion] among [the] groups”
included within its definition of underrepresented minori-
ties, Grutter, post, at 24 (opinion of the Court); post, at 27
(THOMAS, J., concurring in part and dissenting in part),
because it awards all underrepresented minorities the
same racial preference. The LSA policy falls, however,
because it does not sufficiently allow for the consideration
of nonracial distinctions among underrepresented minor-
ity applicants. Under today’s decisions, a university may
not racially discriminate between the groups constituting
the critical mass. See ibid.; Grutter, post, at 17 (opinion of
the Court) (stating that such “racial balancing … is pat-


2

GRATZ v. BOLLINGER
THOMAS, J., concurring

ently unconstitutional”). An admissions policy, however,
must allow for consideration of these nonracial distinc-
tions among applicants on both sides of the single permit-
ted racial classification. See ante, at 24 (opinion of the
Court); ante, at 1-2 (O’CONNOR, J., concurring).


1

Cite as: 539 U. S. ____ (2003)

BREYER, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 02-516

_________________

JENNIFER GRATZ AND PATRICK HAMACHER,
PETITIONERS v. LEE BOLLINGER ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2003]

JUSTICE BREYER, concurring in the judgment.

I concur in the judgment of the Court though I do not
join its opinion. I join JUSTICE O’CONNOR’S opinion except
insofar as it joins that of the Court. I join Part I of
JUSTICE GINSBURG’S dissenting opinion, but I do not dis-
sent from the Court’s reversal of the District Court’s
decision. I agree with JUSTICE GINSBURG that, in imple-
menting the Constitution’s equality instruction, govern-
ment decisionmakers may properly distinguish between
policies of inclusion and exclusion, post, at 4, for the for-
mer are more likely to prove consistent with the basic
constitutional obligation that the law respect each indi-
vidual equally, see U. S. Const., Amdt. 14.

1

Cite as: 539 U. S. ____ (2003)

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 02-516

_________________

JENNIFER GRATZ AND PATRICK HAMACHER,
PETITIONERS v. LEE BOLLINGER ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2003]

JUSTICE STEVENS, with whom JUSTICE SOUTER joins,
dissenting.

Petitioners seek forward-looking relief enjoining the
University of Michigan from continuing to use its current
race-conscious freshman admissions policy. Yet unlike the
plaintiff inGrutter v. Bollinger, post, p. 1,1 the petitioners
in this case had already enrolled at other schools before they
filed their class-action complaint in this case. Neither
petitioner was in the process of reapplying to Michigan
through the freshman admissions process at the time this
suit was filed, and neither has done so since. There is a
total absence of evidence that either petitioner would re-
ceive any benefit from the prospective relief sought by their
lawyer. While some unidentified members of the class may
very well have standing to seek prospective relief, it is clear
that neither petitioner does. Our precedents therefore
require dismissal of the action.

I

Petitioner Jennifer Gratz applied in 1994 for admission

___________________
1/       In challenging the use of race in admissions at Michigan’s law
school, Barbara Grutter alleged in her complaint that she “has not
attended any other law school” and that she “still desires to attend the
Law School and become a lawyer.” App. in No. 02-241, p. 30.


2

GRATZ v. BOLLINGER
STEVENS, J., dissenting

to the University of Michigan’s (University) College of
Literature, Science, and the Arts (LSA) as an undergradu-
ate for the 1995-1996 freshman class. After the Univer-
sity delayed action on her application and then placed her
name on an extended waiting list, Gratz decided to attend
the University of Michigan at Dearborn instead; she
graduated in 1999. Petitioner Patrick Hamacher applied
for admission to LSA as an undergraduate for the 1997-
1998 freshman class. After the University postponed deci-
sion on his application and then placed his name on an
extended waiting list, he attended Michigan State Univer-
sity, graduating in 2001. In the complaint that petitioners
filed on October 14, 1997, Hamacher alleged that “[h]e
intends to apply to transfer [to the University of Michigan]
if the discriminatory admissions system described herein
is eliminated.” App. 34.

At the class certification stage, petitioners sought to
have Hamacher represent a class pursuant to Federal
Rule Civil Procedure 23(b)(2).2 See App. 71, n. 3. In
response, Michigan contended that “Hamacher lacks
standing to represent a class seeking declaratory and
injunctive relief.” Id., at 63. Michigan submitted that
Hamacher suffered “‘no threat of imminent future injury’”
given that he had already enrolled at another under-
graduate institution.3 Id., at 64. The District Court re-
jected Michigan’s contention, concluding that Hamacher
had standing to seek injunctive relief because the com-
plaint alleged that he intended to apply to Michigan as a

___________________
2/       Petitioners did not seek to have Gratz represent the class pursuant
to Federal Rule Civil Procedure 23(b)(2). See App. 71, n. 3.

3/       In arguing that Hamacher lacked standing, Michigan also asserted
that Hamacher “would need to achieve a 3.0 grade point average to
attempt to transfer to the University of Michigan.” Id., at 64, n. 2. The
District Court rejected this argument, concluding that “Hamacher’s
present grades are not a factor to be considered at this time.” Id., at 67.


3

Cite as: 539 U. S. ____ (2003)
STEVENS, J., dissenting

transfer student. See id., at 67 (“To the extent that plain-
tiff Hamacher reapplies to the University of Michigan, he
will again face the same ‘harm’ in that race will continue
to be a factor in admissions”). The District Court, accord-
ingly, certified Hamacher as the sole class representative
and limited the claims of the class to injunctive and de-
claratory relief. See id., at 70-71.

In subsequent proceedings, the District Court held that
the 1995-1998 admissions system, which was in effect
when both petitioners’ applications were denied, was
unlawful but that Michigan’s new 1999-2000 admissions
system was lawful. When petitioners sought certiorari
from this Court, Michigan did not cross-petition for review
of the District Court’s judgment concerning the admissions
policies that Michigan had in place when Gratz and
Hamacher applied for admission in 1994 and 1996 respec-
tively. See Brief for Respondents 5, n. 7. Accordingly, we
have before us only that portion of the District Court’s
judgment that upheld Michigan’s new freshman admis-
sions policy.

II

Both Hamacher and Gratz, of course, have standing to
seek damages as compensation for the alleged wrongful
denial of their respective applications under Michigan’s
old freshman admissions system. However, like the plain-
tiff in Los Angeles v. Lyons, 461 U. S. 95 (1983), who had
standing to recover damages caused by “chokeholds” ad-
ministered by the police in the past but had no standing to
seek injunctive relief preventing future chokeholds, peti-
tioners’ past injuries do not give them standing to obtain
injunctive relief to protect third parties from similar
harms. See id., at 102 (“[P]ast exposure to illegal conduct
does not in itself show a present case or controversy re-
garding injunctive relief … if unaccompanied by any
continuing, present adverse effects” (quoting O’Shea v.


4

GRATZ v. BOLLINGER
STEVENS, J., dissenting

Littleton, 414 U. S. 488, 495-496 (1974))). To seek for-
ward-looking, injunctive relief, petitioners must show that
they face an imminent threat of future injury. See Adarand
Constructors, Inc. v. Peña,
515 U. S. 200, 210-211
(1995). This they cannot do given that when this suit was
filed, neither faced an impending threat of future injury
based on Michigan’s new freshman admissions policy.4

Even though there is not a scintilla of evidence that the
freshman admissions program now being administered by
respondents will ever have any impact on either
Hamacher or Gratz, petitioners nonetheless argue that
Hamacher has a personal stake in this suit because at the
time the complaint was filed, Hamacher intended to apply
to transfer to Michigan once certain admission policy
changes occurred.5 See App. 34; see also Tr. of Oral Arg.

___________________
4/       In responding to questions about petitioners’ standing at oral argu-
ment, petitioners’ counsel alluded to the fact that Michigan might
continually change the details of its admissions policy. See Tr. of Oral
Arg. 9. The change in Michigan’s freshman admissions policy, however,
is not the reason why petitioners cannot establish standing to seek
prospective relief. Rather, the reason they lack standing to seek
forward-looking relief is that when this suit was filed, neither faced a
“real and immediate threat” of future injury under Michigan’s fresh-
man admissions policy given that they had both already enrolled at
other institutions. Adarand Constructors, Inc. v. Peña, 515 U. S. 200,
210 (1995) (quoting Los Angeles v. Lyons, 461 U. S. 95, 105 (1983)).
Their decision to obtain a college education elsewhere distinguishes
this case from Allan Bakke’s single-minded pursuit of a medical educa-
tion from the University of California at Davis. See Regents of Univ. of
Cal. v. Bakke,
438 U. S. 265 (1978); cf. DeFunis v. Odegaard, 416 U. S.
312 (1974) (per curiam).

5/       Hamacher clearly can no longer claim an intent to transfer into
Michigan’s undergraduate program given that he graduated from
college in 2001. However, this fact alone is not necessarily fatal to the
instant class action because we have recognized that, if a named class
representative has standing at the time a suit is initiated, class actions
may proceed in some instances following mootness of the named class
representative’s claim. See, e.g., Sosna v. Iowa, 419 U. S. 393, 402


5

Cite as: 539 U. S. ____ (2003)
STEVENS, J., dissenting

4—5. Petitioners’ attempt to base Hamacher’s standing in
this suit on a hypothetical transfer application fails for
several reasons. First, there is no evidence that
Hamacher ever actually applied for admission as a trans-
fer student at Michigan. His claim of future injury is at
best “conjectural or hypothetical” rather than “real and
immediate.” O’Shea v. Littleton, 414 U. S., at 494 (inter-
nal quotation marks omitted); see also Lujan v. Defenders
of Wildlife,
504 U. S. 555, 560 (1992).

Second, as petitioners’ counsel conceded at oral argu-
ment, the transfer policy is not before this Court and was
not addressed by the District Court. See Tr. of Oral Arg.
4—5 (admitting that “[t]he transfer admissions policy itself
is not before you—the Court”). Unlike the University’s
freshman policy, which is detailed at great length in the
Joint Appendix filed with this Court, the specifics of the
transfer policy are conspicuously missing from the Joint
Appendix filed with this Court. Furthermore, the transfer
policy is not discussed anywhere in the parties’ briefs. Nor
is it ever even referenced in the District Court’s Dec. 13,
2000, opinion that upheld Michigan’s new freshman ad-
missions policy and struck down Michigan’s old policy.
Nonetheless, evidence filed with the District Court by
Michigan demonstrates that the criteria used to evaluate
transfer applications at Michigan differ significantly from
the criteria used to evaluate freshman undergraduate
applications. Of special significance, Michigan’s 2000
freshman admissions policy, for example, provides for 20

___________________
      (1975) (holding that the requisite Article III “case or controversy” may
exist “between a named defendant and a member of the class repre-
sented by the named plaintiff, even though the claim of the named
plaintiff has become moot”); Franks v. Bowman Transp. Co., 424 U. S.
747 (1976). The problem in this case is that neither Gratz nor
Hamacher had standing to assert a forward-looking, injunctive claim in
federal court at the time this suit was initiated.


6

GRATZ v. BOLLINGER
STEVENS, J., dissenting

points to be added to the selection index scores of minority
applicants. See ante, at 23. In contrast, Michigan does
not use points in its transfer policy; some applicants,
including minority and socioeconomically disadvantaged
applicants, “will generally be admitted” if they possess
certain qualifications, including a 2.5 undergraduate
grade point average (GPA), sophomore standing, and a 3.0
high school GPA. 10 Record 16 (Exh. C). Because of these
differences, Hamacher cannot base his right to complain
about the freshman admissions policy on his hypothetical
injury under a wholly separate transfer policy. For “[i]f
the right to complain of one administrative deficiency auto-
matically conferred the right to complain of all administra-
tive deficiencies, any citizen aggrieved in one respect could
bring the whole structure of state administration before the
courts for review.” Lewis v. Casey, 518 U. S. 343, 358-359,
n. 6 (1996) (emphasis in original); see also Blum v. Yaretsky,
457 U. S. 991, 999 (1982) (“[A] plaintiff who has been subject
to injurious conduct of one kind [does not] possess by virtue
of that injury the necessary stake in litigating conduct of
another kind, although similar”).6

Third, the differences between the freshman and the
transfer admissions policies make it extremely unlikely, at
best, that an injunction requiring respondents to modify
the freshman admissions program would have any impact
on Michigan’s transfer policy. See Allen v. Wright, 468
U. S. 737, 751 (1984) (“[R]elief from the injury must be
‘likely’ to follow from a favorable decision”); Schlesinger v.

___________________
6/       Under the majority’s view of standing, there would be no end to
Hamacher’s ability to challenge any use of race by the University in a
variety of programs. For if Hamacher’s right to complain about the
transfer policy gives him standing to challenge the freshman policy,
presumably his ability to complain about the transfer policy likewise
would enable him to challenge Michigan’s law school admissions policy,
as well as any other race-based admissions policy used by Michigan.


7

Cite as: 539 U. S. ____ (2003)
STEVENS, J., dissenting

Reservists Comm. to Stop the War, 418 U. S. 208, 222
(1974) (“[T]he discrete factual context within which the
concrete injury occurred or is threatened insures the
framing of relief no broader than required by the precise
facts to which the court’s ruling would be applied”). This
is especially true in light of petitioners’ unequivocal dis-
avowal of any request for equitable relief that would to-
tally preclude the use of race in the processing of all ad-
missions applications. See Tr. of Oral Arg. 14—15.

The majority asserts that petitioners “have challenged
any use of race by the University in undergraduate admis-
sions”—freshman and transfer alike. Ante, at 18, n. 16
(emphasis in original). Yet when questioned at oral ar-
gument about whether petitioners’ challenge would impact
both private and public universities, petitioners’ counsel
stated: “Your Honor, I want to be clear about what it is
that we’re arguing for here today. We are not suggesting
an absolute rule forbidding any use of race under any
circumstances.
What we are arguing is that the interest
asserted here by the University, this amorphous, ill-
defined, unlimited interest in diversity is not a compelling
interest.” Tr. of Oral Arg. 14 (emphasis added). In addi-
tion, when asked whether petitioners took the position
that the only permissible use of race is as a remedy for
past discrimination, petitioners’ lawyer stated: “I would
not go that far… [T]here may be other reasons. I think
they would have to be extraordinary and rare…” Id., at
15. Consistent with these statements, petitioners’ briefs
filed with this Court attack the University’s asserted
interest in “diversity” but acknowledge that race could be
considered for remedial reasons. See, e.g., Brief for Peti-
tioners 16—17.

Because Michigan’s transfer policy was not challenged
by petitioners and is not before this Court, see supra, at 5,
we do not know whether Michigan would defend its trans-
fer policy on diversity grounds, or whether it might try to


8

GRATZ v. BOLLINGER
STEVENS, J., dissenting

justify its transfer policy on other grounds, such as a
remedial interest. Petitioners’ counsel was therefore
incorrect in asserting at oral argument that if the Univer-
sity’s asserted interest in “diversity” were to be “struck
down as a rationale, then the law would be [the] same
with respect to the transfer policy as with respect to the
original [freshman admissions] policy.” Tr. of Oral Arg. 7—
8. And the majority is likewise mistaken in assuming that
“the University’s use of race in undergraduate transfer
admissions does not implicate a significantly different set
of concerns than does its use of race in undergraduate
freshman admissions.” Ante, at 16. Because the transfer
policy has never been the subject of this suit, we simply do
not know (1) whether Michigan would defend its transfer
policy on “diversity” grounds or some other grounds, or (2)
how the absence of a point system in the transfer policy
might impact a narrow tailoring analysis of that policy.

At bottom, petitioners’ interest in obtaining an injunc-
tion for the benefit of younger third parties is comparable
to that of the unemancipated minor who had no standing
to litigate on behalf of older women in H. L. v. Matheson,
450 U. S. 398, 406—407 (1981), or that of the Medicaid
patients transferred to less intensive care who had no
standing to litigate on behalf of patients objecting to trans-
fers to more intensive care facilities in Blum v. Yaretsky,
457 U. S., at 1001. To have standing, it is elementary that
the petitioners’ own interests must be implicated. Be-
cause neither petitioner has a personal stake in this suit
for prospective relief, neither has standing.

III

It is true that the petitioners’ complaint was filed as a
class action and that Hamacher has been certified as the
representative of a class, some of whose members may
well have standing to challenge the LSA freshman admis-
sions program that is presently in effect. But the fact that


9

Cite as: 539 U. S. ____ (2003)
STEVENS, J., dissenting

“a suit may be a class action … adds nothing to the ques-
tion of standing, for even named plaintiffs who represent a
class ‘must allege and show that they personally have
been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong
and which they purport to represent.’ ” Simon v. Eastern
Ky. Welfare Rights Organization,
426 U. S. 26, 40, n. 20
(1976) (quoting Warth v. Seldin, 422 U. S. 490, 502
(1975)); see also 1 A. Conte &H. Newberg, Class Actions
§2:5 (4th ed. 2002) (“[O]ne cannot acquire individual
standing by virtue of bringing a class action”).7 Thus, in
Blum, we squarely held that the interests of members of
the class could not satisfy the requirement that the class
representatives have a personal interest in obtaining the
particular equitable relief being sought. The class in
Blum included patients who wanted a hearing before
being transferred to facilities where they would receive
more intensive care. The class representatives, however,
were in the category of patients threatened with a transfer
to less intensive care facilities. In explaining why the
named class representatives could not base their standing
to sue on the injury suffered by other members of the
class, we stated:

“Respondents suggest that members of the class they
represent have been transferred to higher levels of
care as a result of [utilization review committee] deci-
sions. Respondents, however, ‘must allege and show
that they personally have been injured, not that in-
jury has been suffered by other, unidentified members
of the class to which they belong and which they pur-

___________________
7/       Of course, the injury to Hamacher would give him standing to claim
damages for past harm on behalf of class members, but he was certified
as the class representative for the limited purpose of seeking injunctive
and declaratory relief.


10

GRATZ v. BOLLINGER
STEVENS, J., dissenting

port to represent.’ Warth v. Seldin, 422 U. S. 490, 502
(1975). Unless these individuals ‘can thus demon-
strate the requisite case or controversy between
themselves personally and [petitioners], “none may
seek relief on behalf of himself or any other member of
the class.” O’Shea v. Littleton, 414 U. S. 488, 494
(1974).’ Ibid.” 457 U. S., at 1001, n. 13.

Much like the class representatives in Blum,
Hamacher—the sole class representative in this case—
cannot meet Article III’s threshold personal-stake require-
ment. While unidentified members of the class he repre-
sents may well have standing to challenge Michigan’s cur-
rent freshman admissions policy, Hamacher cannot base his
standing to sue on injuries suffered by other members of the
class.

IV

As this case comes to us, our precedents leave us no
alternative but to dismiss the writ for lack of jurisdiction.
Neither petitioner has a personal stake in the outcome of
the case, and neither has standing to seek prospective
relief on behalf of unidentified class members who may or
may not have standing to litigate on behalf of themselves.
Accordingly, I respectfully dissent.


1

Cite as: 539 U. S. ____ (2003)

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 02-516

_________________

JENNIFER GRATZ AND PATRICK HAMACHER,
PETITIONERS v. LEE BOLLINGER ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2003]

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins
as to Part II, dissenting.

I agree with JUSTICE STEVENS that Patrick Hamacher
has no standing to seek declaratory or injunctive relief
against a freshman admissions policy that will never
cause him any harm. I write separately to note that even
the Court’s new gloss on the law of standing should not
permit it to reach the issue it decides today. And because
a majority of the Court has chosen to address the merits, I
also add a word to say that even if the merits were reach-
able, I would dissent from the Court’s judgment.

I

The Court’s finding of Article III standing rests on two
propositions: first, that both the University of Michigan’s
undergraduate college’s transfer policy and its freshman
admissions policy seek to achieve student body diversity
through the “use of race,” ante, at 12-20, and second, that
Hamacher has standing to challenge the transfer policy on
the grounds that diversity can never be a “compelling
state interest” justifying the use of race in any admissions
decision, freshman or transfer, ante, at 18. The Court
concludes that, because Hamacher’s argument, if success-
ful, would seal the fate of both policies, his standing to
challenge the transfer policy also allows him to attack the


2

GRATZ v. BOLLINGER
SOUTER, J., dissenting

freshman admissions policy. Ante, at 18, n. 16
(“[P]etitioners challenged any use of race by the Univer-
sity to promote diversity, including through the transfer
policy”); ibid. (“ ‘[T]he University considers race for a
purpose to achieve a diversity that we believe is not com-
pelling, and if that is struck down as a rationale, then the
[result] would be [the] same with respect to the transfer
policy as with respect to the [freshman] admissions policy,
Your Honor’” (quoting Tr. of Oral Arg. 7-8)). I agree with
JUSTICE STEVENS’s critique that the Court thus ignores
the basic principle of Article III standing that a plain-
tiff cannot challenge a government program that does
not apply to him. See ante, at 6, and n. 6 (dissenting
opinion).1

But even on the Court’s indulgent standing theory, the
decision should not go beyond a recognition that diversity
can serve as a compelling state interest justifying race-
conscious decisions in education. Ante, at 20 (citing Grut-
ter v. Bollinger,
post, at 15-21). Since, as the Court says,
“petitioners did not raise a narrow tailoring challenge to
the transfer policy,” ante, at 18, n. 16, our decision in
Grutter is fatal to Hamacher’s sole attack upon the trans-
fer policy, which is the only policy before this Court that
he claims aggrieved him. Hamacher’s challenge to that
policy having failed, his standing is presumably spent.
The further question whether the freshman admissions
plan is narrowly tailored to achieving student body diver-
sity remains legally irrelevant to Hamacher and should
await a plaintiff who is actually hurt by it.2

___________________
1/       The Court’s holding arguably exposes a weakness in the rule of
Blum v. Yaretsky, 457 U. S. 991 (1982), that Article III standing may not
be satisfied by the unnamed members of a duly certified class. But no
party has invited us to reconsider Blum, and I follow JUSTICE STEVENS
in approaching the case on the assumption that Blum is settled law.

___________________
1/       For that matter, as the Court suggests, narrow tailoring challenges


3

Cite as: 539 U. S. ____ (2003)
SOUTER, J., dissenting

II

The cases now contain two pointers toward the line
between the valid and the unconstitutional in race-
conscious admissions schemes. Grutter reaffirms the
permissibility of individualized consideration of race to
achieve a diversity of students, at least where race is not
assigned a preordained value in all cases. On the other
hand, Justice Powell’s opinion in Regents of Univ. of Cal. v.
Bakke,
438 U. S. 265 (1978), rules out a racial quota or set-
aside, in which race is the sole fact of eligibility for certain
places in a class. Although the freshman admissions
system here is subject to argument on the merits, I think
it is closer to what Grutter approves than to what Bakke
condemns, and should not be held unconstitutional on the
current record.

The record does not describe a system with a quota like
the one struck down in Bakke, which “insulate[d]” all
nonminority candidates from competition from certain
seats. Bakke, supra, at 317 (opinion of Powell, J.); see also
Richmond v. J. A. Croson Co., 488 U. S. 469, 496 (1989)
(plurality opinion) (stating that Bakke invalidated “a plan
that completely eliminated nonminorities from considera-
tion for a specified percentage of opportunities”). The Bakke

___________________
      against the two policies could well have different outcomes. Ante, at 18.
The record on the decisionmaking process for transfer applicants is
understandably thin, given that petitioners never raised a narrow
tailoring challenge against it. Most importantly, however, the transfer
policy does not use a points-based “selection index” to evaluate transfer
applicants, but rather considers race as one of many factors in making
the general determination whether the applicant would make a
“ ‘contribution to a diverse student body.’ ” Ante, at 17 (quoting 2 App.
in No. 01-1333 etc. (CA6), p. 531 (capitalization omitted)). This limited
glimpse into the transfer policy at least permits the inference that the
University engages in a “holistic review” of transfer applications
consistent with the program upheld today in Grutter v. Bollinger, post,
at 25.


4

GRATZ v. BOLLINGER
SOUTER, J., dissenting

plan “focused solely on ethnic diversity” and effectively
told nonminority applicants that “[n]o matter how strong
their qualifications, quantitative and extracurricular,
including their own potential for contribution to educa-
tional diversity, they are never afforded the chance to
compete with applicants from the preferred groups for the
[set-aside] special admissions seats.” Bakke, supra, at
315, 319 (opinion of Powell, J.) (emphasis in original).

The plan here, in contrast, lets all applicants compete
for all places and values an applicant’s offering for any
place not only on grounds of race, but on grades, test
scores, strength of high school, quality of course of study,
residence, alumni relationships, leadership, personal
character, socioeconomic disadvantage, athletic ability,
and quality of a personal essay. Ante, at 6. A nonminority
applicant who scores highly in these other categories can
readily garner a selection index exceeding that of a mi-
nority applicant who gets the 20-point bonus. Cf. Johnson
v. Transportation Agency, Santa Clara Cty.,
480 U. S. 616,
638 (1987) (upholding a program in which gender “was but
one of numerous factors [taken] into account in arriving at
[a] decision” because “[n]o persons are automatically ex-
cluded from consideration; all are able to have their quali-
fications weighed against those of other applicants” (em-
phasis deleted)).

Subject to one qualification to be taken up below, this
scheme of considering, through the selection index system,
all of the characteristics that the college thinks relevant to
student diversity for every one of the student places to be
filled fits Justice Powell’s description of a constitutionally
acceptable program: one that considers “all pertinent
elements of diversity in light of the particular qualifica-
tions of each applicant” and places each element “on the
same footing for consideration, although not necessarily
according them the same weight.” Bakke, supra, at 317.
In the Court’s own words, “each characteristic of a par-


5

Cite as: 539 U. S. ____ (2003)
SOUTER, J., dissenting

ticular applicant [is] considered in assessing the appli-
cant’s entire application.” Ante, at 23. An unsuccessful
nonminority applicant cannot complain that he was re-
jected “simply because he was not the right color”; an
applicant who is rejected because “his combined qualifica-
tions … did not outweigh those of the other applicant”
has been given an opportunity to compete with all other
applicants. Bakke, supra, at 318 (opinion of Powell, J.).

The one qualification to this description of the admis-
sions process is that membership in an underrepresented
minority is given a weight of 20 points on the 150-point
scale. On the face of things, however, this assignment of
specific points does not set race apart from all other
weighted considerations. Nonminority students may
receive 20 points for athletic ability, socioeconomic disad-
vantage, attendance at a socioeconomically disadvantaged
or predominantly minority high school, or at the Provost’s
discretion; they may also receive 10 points for being resi-
dents of Michigan, 6 for residence in an underrepresented
Michigan county, 5 for leadership and service, and so on.

The Court nonetheless finds fault with a scheme that
“automatically” distributes 20 points to minority appli-
cants because “[t]he only consideration that accompanies
this distribution of points is a factual review of an applica-
tion to determine whether an individual is a member of
one of these minority groups.” Ante, at 23. The objection
goes to the use of points to quantify and compare charac-
teristics, or to the number of points awarded due to race,
but on either reading the objection is mistaken.

The very nature of a college’s permissible practice of
awarding value to racial diversity means that race must
be considered in a way that increases some applicants’
chances for admission. Since college admission is not left
entirely to inarticulate intuition, it is hard to see what is
inappropriate in assigning some stated value to a relevant
characteristic, whether it be reasoning ability, writing


6

GRATZ v. BOLLINGER
SOUTER, J., dissenting

style, running speed, or minority race. Justice Powell’s
plus factors necessarily are assigned some values. The
college simply does by a numbered scale what the law
school accomplishes in its “holistic review,” Grutter, post,
at 25; the distinction does not imply that applicants to the
undergraduate college are denied individualized consid-
eration or a fair chance to compete on the basis of all the
various merits their applications may disclose.

Nor is it possible to say that the 20 points convert race
into a decisive factor comparable to reserving minority
places as in Bakke. Of course we can conceive of a point
system in which the “plus” factor given to minority appli-
cants would be so extreme as to guarantee every minority
applicant a higher rank than every nonminority applicant
in the university’s admissions system, see 438 U. S., at
319, n. 53 (opinion of Powell, J.). But petitioners do not
have a convincing argument that the freshman admissions
system operates this way. The present record obviously
shows that nonminority applicants may achieve higher
selection point totals than minority applicants owing to
characteristics other than race, and the fact that the
university admits “virtually every qualified under-
represented minority applicant,” App. to Pet. for Cert.
111a, may reflect nothing more than the likelihood that
very few qualified minority applicants apply, Brief for
Respondents Bollinger et al. 39, as well as the possibility
that self-selection results in a strong minority applicant
pool. It suffices for me, as it did for the District Court,
that there are no Bakke-like set-asides and that considera-
tion of an applicant’s whole spectrum of ability is no
more ruled out by giving 20 points for race than by giving
the same points for athletic ability or socioeconomic
disadvantage.

Any argument that the “tailoring” amounts to a set-
aside, then, boils down to the claim that a plus factor of 20
points makes some observers suspicious, where a factor of


7

Cite as: 539 U. S. ____ (2003)
SOUTER, J., dissenting

10 points might not. But suspicion does not carry peti-
tioners’ ultimate burden of persuasion in this constitu-
tional challenge, Wygant v. Jackson Bd. of Ed., 476 U. S.
267, 287-288 (1986) (plurality opinion of Powell, J.), and it
surely does not warrant condemning the college’s admis-
sions scheme on this record. Because the District Court
(correctly, in my view) did not believe that the specific
point assignment was constitutionally troubling, it made
only limited and general findings on other characteristics
of the university’s admissions practice, such as the con-
duct of individualized review by the Admissions Review
Committee. 122 F. Supp. 2d 811, 829-830 (ED Mich.
2000). As the Court indicates, we know very little about
the actual role of the review committee. Ante, at 26 (“The
record does not reveal precisely how many applications are
flagged for this individualized consideration [by the com-
mittee]”); see also ante, at 4 (O’CONNOR, J., concurring)
(“The evidence in the record … reveals very little about
how the review committee actually functions”). The point
system cannot operate as a de facto set-aside if the greater
admissions process, including review by the committee,
results in individualized review sufficient to meet the
Court’s standards. Since the record is quiet, if not silent,
on the case-by-case work of the committee, the Court
would be on more defensible ground by vacating and
remanding for evidence about the committee’s specific
determinations.3

___________________
3/       The Court surmises that the committee does not contribute mean-
ingfully to the University’s individualized review of applications. Ante,
at 25-26. The Court should not take it upon itself to apply a newly-
formulated legal standard to an undeveloped record. Given the District
Court’s statement that the committee may examine “any number of
applicants, including applicants other than under-represented minority
applicants,” 122 F. Supp. 2d 811, 830 (ED Mich. 2000), it is quite
possible that further factual development would reveal the committee
to be a “source of individualized consideration” sufficient to satisfy the


8

GRATZ v. BOLLINGER
SOUTER, J., dissenting

Without knowing more about how the Admissions Re-
view Committee actually functions, it seems especially
unfair to treat the candor of the admissions plan as an
Achilles’ heel. In contrast to the college’s forthrightness in
saying just what plus factor it gives for membership in an
underrepresented minority, it is worth considering the
character of one alternative thrown up as preferable,
because supposedly not based on race. Drawing on admis-
sions systems used at public universities in California,
Florida, and Texas, the United States contends that
Michigan could get student diversity in satisfaction of its
compelling interest by guaranteeing admission to a fixed
percentage of the top students from each high school in
Michigan. Brief for United States as Amicus Curiae 18;
Brief for United States as Amicus Curiae in Grutter v.
Bollinger, O. T. 2002, No. 02-241, pp. 13-17.

While there is nothing unconstitutional about such a
practice, it nonetheless suffers from a serious disadvan-
tage. 4 It is the disadvantage of deliberate obfuscation.
The “percentage plans” are just as race conscious as the
point scheme (and fairly so), but they get their racially
diverse results without saying directly what they are
doing or why they are doing it. In contrast, Michigan
states its purpose directly and, if this were a doubtful case
for me, I would be tempted to give Michigan an extra point
of its own for its frankness. Equal protection cannot be-
come an exercise in which the winners are the ones who
hide the ball.

___________________
      Court’s rule, ante, at 4 (O’CONNOR, J., concurring). Determination of
that issue in the first instance is a job for the District Court, not for this
Court on a record that is admittedly lacking.
4Of course it might be pointless in the State of Michigan, where mi-
norities are a much smaller fraction of the population than in Califor-
nia, Florida, or Texas. Brief for Respondents Bollinger et al. 48-49.


9

Cite as: 539 U. S. ____ (2003)
SOUTER, J., dissenting

III

If this plan were challenged by a plaintiff with proper
standing under Article III, I would affirm the judgment of
the District Court granting summary judgment to the
college. As it is, I would vacate the judgment for lack of
jurisdiction, and I respectfully dissent.


1

Cite as: 539 U. S. ____ (2003)

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 02-516

_________________

JENNIFER GRATZ AND PATRICK HAMACHER,
PETITIONERS v. LEE BOLLINGER ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2003]

JUSTICE GINSBURG, with whom JUSTICE SOUTER joins,
dissenting.*

I

Educational institutions, the Court acknowledges, are
not barred from any and all consideration of race when
making admissions decisions. Ante, at 20; see Grutter v.
Bollinger,
post, at 13-21. But the Court once again main-
tains that the same standard of review controls judicial
inspection of all official race classifications. Ante, at 21
(quoting Adarand Constructors, Inc. v. Peña, 515 U. S.
200, 224 (1995); Richmond v. J. A. Croson Co., 488 U. S.
469, 494 (1989) (plurality opinion)). This insistence on
“consistency,” Adarand, 515 U. S., at 224, would be fitting
were our Nation free of the vestiges of rank discrimination
long reinforced by law, see id., at 274-276, and n. 8
(GINSBURG, J., dissenting). But we are not far distant
from an overtly discriminatory past, and the effects of
centuries of law-sanctioned inequality remain painfully
evident in our communities and schools.

In the wake “of a system of racial caste only recently
ended,” id., at 273 (GINSBURG, J., dissenting), large dis-

___________________
*JUSTICE BREYER joins Part I of this opinion.


8

GRATZ v. BOLLINGER
GINSBURG, J., dissenting

parities endure. Unemployment,1 poverty,2 and access to
health care3 vary disproportionately by race. Neighbor-
hoods and schools remain racially divided.4 African-

___________________
1/       See, e.g., U. S. Dept. of Commerce, Bureau of Census, Statistical
Abstract of the United States: 2002, p. 368 (2002) (Table 562) (hereinaf-
ter Statistical Abstract) (unemployment rate among whites was 3.7% in
1999, 3.5% in 2000, and 4.2% in 2001; during those years, the unem-
ployment rate among African-Americans was 8.0%, 7.6%, and 8.7%,
respectively; among Hispanics, 6.4%, 5.7%, and 6.6%).

2/       See, e.g., U. S. Dept of Commerce, Bureau of Census, Poverty in the
United States: 2000, p. 291 (2001) (Table A) (In 2000, 7.5% of non-
Hispanic whites, 22.1% of African-Americans, 10.8% of Asian-
Americans, and 21.2% of Hispanics were living in poverty); S. Staveteig
& A. Wigton, Racial and Ethnic Disparities: Key Findings from the
National Survey of America’s Families 1 (Urban Institute Report B-5,
2000) (“Blacks, Hispanics, and Native Americans … each have poverty
rates almost twice as high as Asians and almost three times as high as
whites.”).

3/       See, e.g., U. S. Dept. of Commerce, Bureau of Census, Health Insur-
ance Coverage: 2000, p. 391 (2001) (Table A) (In 2000, 9.7% of non-
Hispanic whites were without health insurance, as compared to 18.5%
of African-Americans, 18.0% of Asian-Americans, and 32.0% of His-
panics.); Waidmann &Rajan, Race and Ethnic Disparities in Health
Care Access and Utilization: An Examination of State Variation, 57
Med. Care Res. and Rev. 55, 56 (2000) (“On average, Latinos and
African Americans have both worse health and worse access to effective
health care than do non-Hispanic whites …”).

4/       See, e.g., U. S. Dept. of Commerce, Bureau of Census, Racial and
Ethnic Residential Segregation in the United States: 1980-2000 (2002)
(documenting residential segregation); E. Frankenberg, C. Lee, &G.
Orfield, A Multiracial Society with Segregated Schools: Are We Losing
the Dream? 4 (Jan. 2003), http://www.civilrightsproject.harvard.edu/
research/reseg03/AreWeLosingtheDream.pdf (all Internet materials as
visited June 2, 2003, and available in Clerk of Court’s case file),
(“[W]hites are the most segregated group in the nation’s public schools;
they attend schools, on average, where eighty percent of the student
body is white.”); id., at 28 (“[A]lmost three-fourths of black and Latino
students attend schools that are predominantly minority … More
than one in six black children attend a school that is 99-100% minority
… One in nine Latino students attend virtually all minority schools.”).


3

Cite as: 539 U. S. ____ (2003)
GINSBURG, J., dissenting

American and Hispanic children are all too often educated
in poverty-stricken and underperforming institutions.5
Adult African-Americans and Hispanics generally earn
less than whites with equivalent levels of education.6
Equally credentialed job applicants receive different re-
ceptions depending on their race.7 Irrational prejudice is
still encountered in real estate markets8 and consumer
transactions.9 “Bias both conscious and unconscious,

___________________
5/       See, e.g., Ryan, Schools, Race, and Money, 109 Yale L. J. 249, 273-
274 (1999) (“Urban public schools are attended primarily by African-
American and Hispanic students”; students who attend such schools
are disproportionately poor, score poorly on standardized tests, and are
far more likely to drop out than students who attend nonurban
schools.).

6/       See, e.g., Statistical Abstract 140 (Table 211).

7/       See, e.g., Holzer, Career Advancement Prospects and Strategies for
Low-Wage Minority Workers, in Low-Wage Workers in the New Econ-
omy 228 (R. Kazis &M. Miller eds. 2001) (“[I]n studies that have sent
matched pairs of minority and white applicants with apparently equal
credentials to apply for jobs, whites routinely get more interviews and
job offers than either black or Hispanic applicants.”); M. Bertrand &S.
Mullainathan, Are Emily and Brendan More Employable than Lakisha
and Jamal?: A Field Experiment on Labor Market Discrimination (Nov.
18, 2002), http://gsb.uchicago.edu/pdf/bertrand.pdf; Mincy, The Urban
Institute Audit Studies: Their Research and Policy Context, in Clear
and Convincing Evidence: Measurement of Discrimination in America
165-186 (M. Fix &R. Struyk eds. 1993).

8/       See, e.g., M. Turner et al., Discrimination in Metropolitan Housing
Markets: National Results from Phase I HDS 2000, pp. i, iii (Nov. 2002),
http://www.huduser.org/Publications/pdf/Phase1_Report.pdf (paired testing
in which “two individuals—one minority and the other white—pose as
otherwise identical homeseekers, and visit real estate or rental agents
to inquire about the availability of advertised housing units” revealed
that “discrimination still persists in both rental and sales markets of
large metropolitan areas nationwide”); M. Turner &F. Skidmore,
Mortgage Lending Discrimination: A Review of Existing Evidence 2
(1999) (existing research evidence shows that minority homebuyers in
the United States “face discrimination from mortgage lending institutions.”).
9 See, e.g., Ayres, Further Evidence of Discrimination in New Car


4

GRATZ v. BOLLINGER
GINSBURG, J., dissenting

reflecting traditional and unexamined habits of thought,
keeps up barriers that must come down if equal opportu-
nity and nondiscrimination are ever genuinely to become
this country’s law and practice.” Id., at 274 (GINSBURG, J.,
dissenting); see generally Krieger, Civil Rights Peres-
troika: Intergroup Relations After Affirmative Action, 86
Calif. L. Rev. 1251, 1276-1291 (1998).
The Constitution instructs all who act for the govern-
ment that they may not “deny to any person … the equal
protection of the laws.” Amdt. 14, §1. In implementing
this equality instruction, as I see it, government decision-
makers may properly distinguish between policies of
exclusion and inclusion. See Wygant v. Jackson Bd. of
Ed.,
476 U. S. 267, 316 (1986) (STEVENS, J., dissenting).
Actions designed to burden groups long denied full citizen-
ship stature are not sensibly ranked with measures taken
to hasten the day when entrenched discrimination and its
after effects have been extirpated. See Carter, When
Victims Happen To Be Black, 97 Yale L. J. 420, 433-434
(1988) (“[T]o say that two centuries of struggle for the
most basic of civil rights have been mostly about freedom
from racial categorization rather than freedom from racial
oppressio[n] is to trivialize the lives and deaths of those
who have suffered under racism. To pretend … that the
issue presented in [Regents of Univ. of Cal. v. Bakke, 438
U. S. 265 (1978)] was the same as the issue in [Brown v.
Board of Education,
347 U. S. 483 (1954)] is to pretend
that history never happened and that the present doesn’t
exist.”).

Our jurisprudence ranks race a “suspect” category, “not
because [race] is inevitably an impermissible classifica-

___________________
1/       Negotiations and Estimates of its Cause, 94 Mich. L. Rev. 109, 109-110
(1995) (study in which 38 testers negotiated the purchase of more than
400 automobiles confirmed earlier finding “that dealers systematically
offer lower prices to white males than to other tester types”).


5

Cite as: 539 U. S. ____ (2003)
GINSBURG, J., dissenting

tion, but because it is one which usually, to our national
shame, has been drawn for the purpose of maintaining
racial inequality.” Norwalk Core v. Norwalk Redevelop-
ment Agency,
395 F. 2d 920, 931-932 (CA2 1968) (footnote
omitted). But where race is considered “for the purpose of
achieving equality,” id., at 932, no automatic proscription
is in order. For, as insightfully explained, “[t]he Constitu-
tion is both color blind and color conscious. To avoid con-
flict with the equal protection clause, a classification that
denies a benefit, causes harm, or imposes a burden must
not be based on race. In that sense, the Constitution is
color blind. But the Constitution is color conscious to
prevent discrimination being perpetuated and to undo the
effects of past discrimination.” United States v. Jefferson
County Bd. of Ed.,
372 F. 2d 836, 876 (CA5 1966) (Wis-
dom, J.); see Wechsler, The Nationalization Of Civil Liber-
ties And Civil Rights, Supp. to 12 Tex. Q. 10, 23 (1968)
(Brown may be seen as disallowing racial classifications
that “impl[y] an invidious assessment” while allowing
such classifications when “not invidious in implication”
but advanced to “correct inequalities”). Contemporary
human rights documents draw just this line; they distin-
guish between policies of oppression and measures de-
signed to accelerate de facto equality. See Grutter, post, at
1 (GINSBURG, J., concurring) (citing the United Nations-
initiated Conventions on the Elimination of All Forms of
Racial Discrimination and on the Elimination of All Forms
of Discrimination against Women).

The mere assertion of a laudable governmental purpose,
of course, should not immunize a race-conscious measure
from careful judicial inspection. See Jefferson County, 372
F. 2d, at 876 (“The criterion is the relevancy of color to a
legitimate governmental purpose.”). Close review is
needed “to ferret out classifications in reality malign, but
masquerading as benign,” Adarand, 515 U. S., at 275
(GINSBURG, J., dissenting), and to “ensure that prefer-


6

GRATZ v. BOLLINGER
GINSBURG, J., dissenting

ences are not so large as to trammel unduly upon the
opportunities of others or interfere too harshly with le-
gitimate expectations of persons in once-preferred groups,”
id., at 276.

II

Examining in this light the admissions policy employed
by the University of Michigan’s College of Literature,
Science, and the Arts (College), and for the reasons well
stated by JUSTICE SOUTER, I see no constitutional infir-
mity. See ante, at 3-8 (dissenting opinion). Like other
top-ranking institutions, the College has many more
applicants for admission than it can accommodate in an
entering class. App. to Pet. for Cert. 108a. Every appli-
cant admitted under the current plan, petitioners do not
here dispute, is qualified to attend the College. Id., at
111a. The racial and ethnic groups to which the College
accords special consideration (African-Americans, His-
panics, and Native-Americans) historically have been
relegated to inferior status by law and social practice;
their members continue to experience class-based dis-
crimination to this day, see supra, at 1-4. There is no
suggestion that the College adopted its current policy in
order to limit or decrease enrollment by any particular
racial or ethnic group, and no seats are reserved on the
basis of race. See Brief for Respondents 10; Tr. of Oral
Arg. 41-42 (in the range between 75 and 100 points, the
review committee may look at applications individually
and ignore the points). Nor has there been any demon-
stration that the College’s program unduly constricts
admissions opportunities for students who do not receive
special consideration based on race. Cf. Liu, The Causa-
tion Fallacy: Bakke and the Basic Arithmetic of Selective
Admissions, 100 Mich. L. Rev. 1045, 1049 (2002) (“In any
admissions process where applicants greatly outnumber
admittees, and where white applicants greatly outnumber


7

Cite as: 539 U. S. ____ (2003)
GINSBURG, J., dissenting

minority applicants, substantial preferences for minority
applicants will not significantly diminish the odds of
admission facing white applicants.”).10

The stain of generations of racial oppression is still
visible in our society, see Krieger, 86 Calif. L. Rev., at
1253, and the determination to hasten its removal re-
mains vital. One can reasonably anticipate, therefore,
that colleges and universities will seek to maintain their
minority enrollment—and the networks and opportunities

___________________
10/       The United States points to the “percentage plans” used in Califor-
nia, Florida, and Texas as one example of a “race-neutral alternativ[e]”
that would permit the College to enroll meaningful numbers of minority
students. Brief for United States as Amicus Curiae 14; see Commission
on Civil Rights, Beyond Percentage Plans: The Challenge of Equal Opportu-
nity in Higher Education 1 (Nov. 2002), http://www.usccr.gov/pubs/
percent2/percent2.pdf (percentage plans guarantee admission to state
universities for a fixed percentage of the top students from high schools
in the State). Calling such 10 or 20% plans “race-neutral” seems to me
disingenuous, for they “unquestionably were adopted with the specific
purpose of increasing representation of African-Americans and His-
panics in the public higher education system.” Brief for Respondents
44; see C. Horn &S. Flores, Percent Plans in College Admissions: A
Comparative Analysis of Three States’ Experiences 14-19 (2003),
http://www.civilrightsproject.harvard.edu/research/affirmativeaction/tri
state.pdf. Percentage plans depend for their effectiveness on continued
racial segregation at the secondary school level: They can ensure
significant minority enrollment in universities only if the majority-
minority high school population is large enough to guarantee that, in
many schools, most of the students in the top 10 or 20% are minorities.
Moreover, because such plans link college admission to a single crite-
rion —high school class rank—they create perverse incentives. They
encourage parents to keep their children in low-performing segregated
schools, and discourage students from taking challenging classes that
might lower their grade point averages. See Selingo, What States
Aren’t Saying About the ‘X-Percent Solution,’ Chronicle of Higher
Education, June 2, 2000, p. A31. And even if percentage plans could
boost the sheer numbers of minority enrollees at the undergraduate
level, they do not touch enrollment in graduate and professional
schools.


8

GRATZ v. BOLLINGER
GINSBURG, J., dissenting

thereby opened to minority graduates—whether or not
they can do so in full candor through adoption of affirma-
tive action plans of the kind here at issue. Without re-
course to such plans, institutions of higher education may
resort to camouflage. For example, schools may encourage
applicants to write of their cultural traditions in the es-
says they submit, or to indicate whether English is their
second language. Seeking to improve their chances for
admission, applicants may highlight the minority group
associations to which they belong, or the Hispanic sur-
names of their mothers or grandparents. In turn, teach-
ers’
recommendations may emphasize who a student is as
much as what he or she has accomplished. See, e.g.,
Steinberg, Using Synonyms for Race, College Strives for
Diversity, N. Y. Times, Dec. 8, 2002, section 1, p. 1, col. 3
(describing admissions process at Rice University); cf.
Brief for United States as Amicus Curiae 14-15 (suggest-
ing institutions could consider, inter alia, “a history of
overcoming disadvantage,” “reputation and location of
high school,” and “individual outlook as reflected by es-
says”). If honesty is the best policy, surely Michigan’s
accurately described, fully disclosed College affirmative
action program is preferable to achieving similar numbers
through winks, nods, and disguises.11

* * *

For the reasons stated, I would affirm the judgment of
the District Court.

___________________
11/       Contrary to the Court’s contention, I do not suggest “changing the
Constitution so that it conforms to the conduct of the universities.”
Ante, at 27, n. 22. In my view, the Constitution, properly interpreted,
permits government officials to respond openly to the continuing
importance of race. See supra, at 4-5. Among constitutionally permis-
sible options, those that candidly disclose their consideration of race
seem to me preferable to those that conceal it.

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