Syllabus

JUSTICE O’CONNOR delivered the opinion of the Court.

This case requires us to decide whether the use of race
as a factor in student admissions by the University of
Michigan Law School (Law School) is unlawful.

I
A

The Law School ranks among the Nation’s top law
schools. It receives more than 3,500 applications each
year for a class of around 350 students. Seeking to “admit
a group of students who individually and collectively are
among the most capable,” the Law School looks for indi-
viduals with “substantial promise for success in law
school” and “a strong likelihood of succeeding in the prac-
tice of law and contributing in diverse ways to the well-
being of others.” App. 110. More broadly, the Law School
seeks “a mix of students with varying backgrounds and
experiences who will respect and learn from each other.”
Ibid. In 1992, the dean of the Law School charged a
faculty committee with crafting a written admissions
policy to implement these goals. In particular, the Law
School sought to ensure that its efforts to achieve student

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body diversity complied with this Court’s most recent
ruling on the use of race in university admissions. See
Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).
Upon the unanimous adoption of the committee’s report by
the Law School faculty, it became the Law School’s official
admissions policy.

The hallmark of that policy is its focus on academic
ability coupled with a flexible assessment of applicants’
talents, experiences, and potential “to contribute to the
learning of those around them.” App. 111. The policy
requires admissions officials to evaluate each applicant
based on all the information available in the file, including
a personal statement, letters of recommendation, and an
essay describing the ways in which the applicant will
contribute to the life and diversity of the Law School. Id.,
at 83—84, 114—121. In reviewing an applicant’s file, ad-
missions officials must consider the applicant’s under-
graduate grade point average (GPA) and Law School
Admissions Test (LSAT) score because they are important
(if imperfect) predictors of academic success in law school.
Id., at 112. The policy stresses that “no applicant should
be admitted unless we expect that applicant to do well
enough to graduate with no serious academic problems.”
Id., at 111.

The policy makes clear, however, that even the highest
possible score does not guarantee admission to the Law
School. Id., at 113. Nor does a low score automatically
disqualify an applicant. Ibid. Rather, the policy requires
admissions officials to look beyond grades and test scores
to other criteria that are important to the Law School’s
educational objectives. Id., at 114. So-called “ ‘soft’ vari-
ables” such as “the enthusiasm of recommenders, the
quality of the undergraduate institution, the quality of the
applicant’s essay, and the areas and difficulty of undergraduate
course selection” are all brought to bear in assessing
an “applicant’s likely contributions to the intellec-

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tual and social life of the institution.” Ibid.

The policy aspires to “achieve that diversity which has
the potential to enrich everyone’s education and thus
make a law school class stronger than the sum of its
parts.” Id., at 118. The policy does not restrict the types
of diversity contributions eligible for “substantial weight”
in the admissions process, but instead recognizes “many
possible bases for diversity admissions.” Id., at 118, 120.
The policy does, however, reaffirm the Law School’s long-
standing commitment to “one particular type of diversity,”
that is, “racial and ethnic diversity with special reference
to the inclusion of students from groups which have been
historically discriminated against, like African-Americans,
Hispanics and Native Americans, who without this com-
mitment might not be represented in our student body in
meaningful numbers.” Id., at 120. By enrolling a “ ‘critical
mass’ of [underrepresented] minority students,” the Law
School seeks to “ensur[e] their ability to make unique
contributions to the character of the Law School.” Id., at
120—121.

The policy does not define diversity “solely in terms of
racial and ethnic status.” Id., at 121. Nor is the policy
“insensitive to the competition among all students for
admission to the [L]aw [S]chool.” Ibid. Rather, the policy
seeks to guide admissions officers in “producing classes
both diverse and academically outstanding, classes made
up of students who promise to continue the tradition of
outstanding contribution by Michigan Graduates to the
legal profession.” Ibid.

B

Petitioner Barbara Grutter is a white Michigan resident
who applied to the Law School in 1996 with a 3.8 grade
point average and 161 LSAT score. The Law School ini-
tially placed petitioner on a waiting list, but subsequently
rejected her application. In December 1997, petitioner

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filed suit in the United States District Court for the East-
ern District of Michigan against the Law School, the Re-
gents of the University of Michigan, Lee Bollinger (Dean
of the Law School from 1987 to 1994, and President of the
University of Michigan from 1996 to 2002), Jeffrey Leh-
man (Dean of the Law School), and Dennis Shields (Direc-
tor of Admissions at the Law School from 1991 until 1998).
Petitioner alleged that respondents discriminated against
her on the basis of race in violation of the Fourteenth
Amendment; Title VI of the Civil Rights Act of 1964, 78
Stat. 252, 42 U. S. C. §2000d; and Rev. Stat. §1977, as
amended, 42 U. S. C. §1981.

Petitioner further alleged that her application was
rejected because the Law School uses race as a “predomi-
nant” factor, giving applicants who belong to certain mi-
nority groups “a significantly greater chance of admission
than students with similar credentials from disfavored
racial groups.” App. 33—34. Petitioner also alleged that
respondents “had no compelling interest to justify their
use of race in the admissions process.” Id., at 34. Peti-
tioner requested compensatory and punitive damages, an
order requiring the Law School to offer her admission, and
an injunction prohibiting the Law School from continuing
to discriminate on the basis of race. Id., at 36. Petitioner
clearly has standing to bring this lawsuit. Northeastern
Fla. Chapter, Associated Gen. Contractors of America v.
Jacksonville, 508 U. S. 656, 666 (1993).

The District Court granted petitioner’s motion for class
certification and for bifurcation of the trial into liability
and damages phases. The class was defined as “ ‘all per-
sons who (A) applied for and were not granted admission
to the University of Michigan Law School for the academic
years since (and including) 1995 until the time that judg-
ment is entered herein; and (B) were members of those
racial or ethnic groups, including Caucasian, that Defen-
dants treated less favorably in considering their applica-

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tions for admission to the Law School.’ ” App. to Pet. for
Cert. 191a—192a.

The District Court heard oral argument on the parties’
cross-motions for summary judgment on December 22,
2000. Taking the motions under advisement, the District
Court indicated that it would decide as a matter of law
whether the Law School’s asserted interest in obtaining
the educational benefits that flow from a diverse student
body was compelling. The District Court also indicated
that it would conduct a bench trial on the extent to which
race was a factor in the Law School’s admissions decisions,
and whether the Law School’s consideration of race in
admissions decisions constituted a race-based double
standard.

During the 15-day bench trial, the parties introduced
extensive evidence concerning the Law School’s use of race
in the admissions process. Dennis Shields, Director of
Admissions when petitioner applied to the Law School,
testified that he did not direct his staff to admit a par-
ticular percentage or number of minority students, but
rather to consider an applicant’s race along with all other
factors. Id., at 206a. Shields testified that at the height of
the admissions season, he would frequently consult the so-
called “daily reports” that kept track of the racial and
ethnic composition of the class (along with other informa-
tion such as residency status and gender). Id., at 207a.
This was done, Shields testified, to ensure that a critical
mass of underrepresented minority students would be
reached so as to realize the educational benefits of a di-
verse student body. Ibid. Shields stressed, however, that
he did not seek to admit any particular number or per-
centage of underrepresented minority students. Ibid.

Erica Munzel, who succeeded Shields as Director of
Admissions, testified that “ ‘critical mass’” means
“‘meaningful numbers’” or “‘meaningful representation,’ ”
which she understood to mean a number that encourages

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underrepresented minority students to participate in the
classroom and not feel isolated. Id., at 208a—209a. Mun-
zel stated there is no number, percentage, or range of
numbers or percentages that constitute critical mass. Id.,
at 209a. Munzel also asserted that she must consider the
race of applicants because a critical mass of underrepre-
sented minority students could not be enrolled if admis-
sions decisions were based primarily on undergraduate
GPAs and LSAT scores. Ibid.

The current Dean of the Law School, Jeffrey Lehman,
also testified. Like the other Law School witnesses, Leh-
man did not quantify critical mass in terms of numbers or
percentages. Id., at 211a. He indicated that critical mass
means numbers such that underrepresented minority
students do not feel isolated or like spokespersons for their
race. Ibid. When asked about the extent to which race is
considered in admissions, Lehman testified that it varies
from one applicant to another. Ibid. In some cases, ac-
cording to Lehman’s testimony, an applicant’s race may
play no role, while in others it may be a “ ‘determinative’”
factor. Ibid.

The District Court heard extensive testimony from
Professor Richard Lempert, who chaired the faculty com-
mittee that drafted the 1992 policy. Lempert emphasized
that the Law School seeks students with diverse interests
and backgrounds to enhance classroom discussion and the
educational experience both inside and outside the class-
room. Id., at 213a. When asked about the policy’s
“‘commitment to racial and ethnic diversity with special
reference to the inclusion of students from groups which
have been historically discriminated against,’ ” Lempert
explained that this language did not purport to remedy
past discrimination, but rather to include students who
may bring to the Law School a perspective different from
that of members of groups which have not been the vic-
tims of such discrimination. Ibid. Lempert acknowledged

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that other groups, such as Asians and Jews, have experi-
enced discrimination, but explained they were not men-
tioned in the policy because individuals who are members
of those groups were already being admitted to the Law
School in significant numbers. Ibid.

Kent Syverud was the final witness to testify about the
Law School’s use of race in admissions decisions. Syverud
was a professor at the Law School when the 1992 admis-
sions policy was adopted and is now Dean of Vanderbilt
Law School. In addition to his testimony at trial, Syverud
submitted several expert reports on the educational bene-
fits of diversity. Syverud’s testimony indicated that when
a critical mass of underrepresented minority students is
present, racial stereotypes lose their force because nonmi-
nority students learn there is no “‘minority viewpoint’ ”
but rather a variety of viewpoints among minority stu-
dents. Id., at 215a.

In an attempt to quantify the extent to which the Law
School actually considers race in making admissions
decisions, the parties introduced voluminous evidence at
trial. Relying on data obtained from the Law School,
petitioner’s expert, Dr. Kinley Larntz, generated and
analyzed “admissions grids” for the years in question
(1995—2000). These grids show the number of applicants
and the number of admittees for all combinations of GPAs
and LSAT scores. Dr. Larntz made “‘cell-by-cell’” com-
parisons between applicants of different races to deter-
mine whether a statistically significant relationship ex-
isted between race and admission rates. He concluded
that membership in certain minority groups “‘is an ex-
tremely strong factor in the decision for acceptance,’” and
that applicants from these minority groups “‘are given an
extremely large allowance for admission’” as compared to
applicants who are members of nonfavored groups. Id., at
218a—220a. Dr. Larntz conceded, however, that race is not
the predominant factor in the Law School’s admissions

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calculus. 12 Tr. 11—13 (Feb. 10, 2001).

Dr. Stephen Raudenbush, the Law School’s expert,
focused on the predicted effect of eliminating race as a
factor in the Law School’s admission process. In Dr.
Raudenbush’s view, a race-blind admissions system would
have a “‘very dramatic,’” negative effect on underrepre-
sented minority admissions. App. to Pet. for Cert. 223a.
He testified that in 2000, 35 percent of underrepresented
minority applicants were admitted. Ibid. Dr. Raudenbush
predicted that if race were not considered, only 10 percent
of those applicants would have been admitted. Ibid.
Under this scenario, underrepresented minority students
would have comprised 4 percent of the entering class in
2000 instead of the actual figure of 14.5 percent. Ibid.

In the end, the District Court concluded that the Law
School’s use of race as a factor in admissions decisions was
unlawful. Applying strict scrutiny, the District Court
determined that the Law School’s asserted interest in
assembling a diverse student body was not compelling
because “the attainment of a racially diverse class … was
not recognized as such by Bakke and is not a remedy for
past discrimination.” Id., at 246a. The District Court
went on to hold that even if diversity were compelling, the
Law School had not narrowly tailored its use of race to
further that interest. The District Court granted peti-
tioner’s request for declaratory relief and enjoined the Law
School from using race as a factor in its admissions deci-
sions. The Court of Appeals entered a stay of the injunc-
tion pending appeal.

Sitting en banc, the Court of Appeals reversed the Dis-
trict Court’s judgment and vacated the injunction. The
Court of Appeals first held that Justice Powell’s opinion in
Bakke was binding precedent establishing diversity as a
compelling state interest. According to the Court of Ap-
peals, Justice Powell’s opinion with respect to diversity
comprised the controlling rationale for the judgment of this

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Court under the analysis set forth in Marks v. United
States, 430 U. S. 188 (1977). The Court of Appeals also held
that the Law School’s use of race was narrowly tailored
because race was merely a “potential ‘plus’ factor” and
because the Law School’s program was “virtually identical”
to the Harvard admissions program described approvingly
by Justice Powell and appended to his Bakke opinion. 288
F. 3d 732, 746, 749 (CA6 2002).

Four dissenting judges would have held the Law
School’s use of race unconstitutional. Three of the dis-
senters, rejecting the majority’s Marks analysis, examined
the Law School’s interest in student body diversity on the
merits and concluded it was not compelling. The fourth
dissenter, writing separately, found it unnecessary to
decide whether diversity was a compelling interest be-
cause, like the other dissenters, he believed that the Law
School’s use of race was not narrowly tailored to further
that interest.

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

II
A

We last addressed the use of race in public higher edu-
cation over 25 years ago. In the landmark Bakke case, we
reviewed a racial set-aside program that reserved 16 out of
100 seats in a medical school class for members of certain
minority groups. 438 U. S. 265 (1978). The decision pro-

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duced six separate opinions, none of which commanded a
majority of the Court. Four Justices would have upheld
the program against all attack on the ground that the
government can use race to “remedy disadvantages cast on
minorities by past racial prejudice.” Id., at 325 (joint
opinion of Brennan, White, Marshall, and Blackmun, JJ.,
concurring in judgment in part and dissenting in part).
Four other Justices avoided the constitutional question
altogether and struck down the program on statutory
grounds. Id., at 408 (opinion of STEVENS, J., joined by
Burger, C. J., and Stewart and REHNQUIST, JJ., concur-
ring in judgment in part and dissenting in part). Justice
Powell provided a fifth vote not only for invalidating the
set-aside program, but also for reversing the state court’s
injunction against any use of race whatsoever. The only
holding for the Court in Bakke was that a “State has a
substantial interest that legitimately may be served by a
properly devised admissions program involving the com-
petitive consideration of race and ethnic origin.” Id., at
320. Thus, we reversed that part of the lower court’s
judgment that enjoined the university “from any consid-
eration of the race of any applicant.” Ibid.

Since this Court’s splintered decision in Bakke, Justice
Powell’s opinion announcing the judgment of the Court
has served as the touchstone for constitutional analysis of
race-conscious admissions policies. Public and private
universities across the Nation have modeled their own
admissions programs on Justice Powell’s views on permis-
sible race-conscious policies. See, e.g., Brief for Judith
Areen et al. as Amici Curiae 12—13 (law school admissions
programs employ “methods designed from and based on
Justice Powell’s opinion in Bakke”); Brief for Amherst
College et al. as Amici Curiae 27 (“After Bakke, each of the
amici (and undoubtedly other selective colleges and uni-
versities as well) reviewed their admissions procedures in
light of Justice Powell’s opinion … and set sail accord-

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ingly”). We therefore discuss Justice Powell’s opinion in
some detail.

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

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

Justice Powell approved the university’s use of race to
further only one interest: “the attainment of a diverse
student body.” Id., at 311. With the important proviso
that “constitutional limitations protecting individual
rights may not be disregarded,” Justice Powell grounded
his analysis in the academic freedom that “long has been

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viewed as a special concern of the First Amendment.” Id.,
at 312, 314. Justice Powell emphasized that nothing less
than the “‘nation’s future depends upon leaders trained
through wide exposure’ to the ideas and mores of students
as diverse as this Nation of many peoples.” Id., at 313
(quoting Keyishian v. Board of Regents of Univ. of State of
N. Y., 385 U. S. 589, 603 (1967)). In seeking the “right to
select those students who will contribute the most to the
‘robust exchange of ideas,’ ” a university seeks “to achieve
a goal that is of paramount importance in the fulfillment
of its mission.” 438 U. S., at 313. Both “tradition and
experience lend support to the view that the contribution
of diversity is substantial.” Ibid.

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

In the wake of our fractured decision in Bakke, courts
have struggled to discern whether Justice Powell’s diver-
sity rationale, set forth in part of the opinion joined by no
other Justice, is nonetheless binding precedent under
Marks. In that case, we explained that “[w]hen a frag-
mented Court decides a case and no single rationale ex-
plaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the
narrowest grounds.” 430 U. S., at 193 (internal quotation
marks and citation omitted). As the divergent opinions of

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the lower courts demonstrate, however, “[t]his test is more
easily stated than applied to the various opinions sup-
porting the result in [Bakke].” Nichols v. United States,
511 U. S. 738, 745—746 (1994). Compare, e.g., Johnson v.
Board of Regents of Univ. of Ga., 263 F. 3d 1234 (CA11
2001) (Justice Powell’s diversity rationale was not the
holding of the Court); Hopwood v. Texas, 236 F. 3d 256,
274—275 (CA5 2000) (Hopwood II) (same); Hopwood I, 78
F. 3d 932 (same), with Smith v. University of Wash. Law
School, 233 F. 3d 1199 (Justice Powell’s opinion, including
the diversity rationale, is controlling under Marks).

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

B

The Equal Protection Clause provides that no State
shall “deny to any person within its jurisdiction the equal
protection of the laws.” U. S. Const., Amdt. 14, §2. Be-
cause the Fourteenth Amendment “protect[s] persons, not
groups,” all “governmental action based on race—a group
classification long recognized as in most circumstances
irrelevant and therefore prohibited—should be subjected
to detailed judicial inquiry to ensure that the personal
right to equal protection of the laws has not been in-
fringed.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200,
227 (1995) (emphasis in original; internal quotation marks
and citation omitted). We are a “free people whose institu-
tions are founded upon the doctrine of equality.” Loving v.
Virginia, 388 U. S. 1, 11 (1967) (internal quotation marks

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and citation omitted). It follows from that principle that
“government may treat people differently because of their
race only for the most compelling reasons.” Adarand Con-
structors, Inc. v. Peña, 515 U. S., at 227.

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

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

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Context matters when reviewing race-based governmen-
tal action under the Equal Protection Clause. See Gomil-
lion v. Lightfoot, 364 U. S. 339, 343—344 (1960) (admon-
ishing that, “in dealing with claims under broad provisions
of the Constitution, which derive content by an interpre-
tive process of inclusion and exclusion, it is imperative
that generalizations, based on and qualified by the con-
crete situations that gave rise to them, must not be ap-
plied out of context in disregard of variant controlling
facts”). In Adarand Constructors, Inc. v. Peña, we made
clear that strict scrutiny must take “ ‘relevant differences’
into account.” 515 U. S., at 228. Indeed, as we explained,
that is its “fundamental purpose.” Ibid. Not every deci-
sion influenced by race is equally objectionable and strict
scrutiny is designed to provide a framework for carefully
examining the importance and the sincerity of the reasons
advanced by the governmental decisionmaker for the use
of race in that particular context.

III
A

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

We first wish to dispel the notion that the Law School’s
argument has been foreclosed, either expressly or implic-
itly, by our affirmative-action cases decided since Bakke.
It is true that some language in those opinions might be
read to suggest that remedying past discrimination is the

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only permissible justification for race-based governmental
action. See, e.g., Richmond v. J. A. Croson Co., supra, at
493 (plurality opinion) (stating that unless classifications
based on race are “strictly reserved for remedial settings,
they may in fact promote notions of racial inferiority and
lead to a politics of racial hostility”). But we have never
held that the only governmental use of race that can sur-
vive strict scrutiny is remedying past discrimination. Nor,
since Bakke, have we directly addressed the use of race in
the context of public higher education. Today, we hold
that the Law School has a compelling interest in attaining
a diverse student body.

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

We have long recognized that, given the important
purpose of public education and the expansive freedoms of
speech and thought associated with the university envi-
ronment, universities occupy a special niche in our consti-
tutional tradition. See, e.g., Wieman v. Updegraff, 344
U. S. 183, 195 (1952) (Frankfurter, J., concurring); Sweezy
v. New Hampshire, 354 U. S. 234, 250 (1957); Shelton v.
Tucker, 364 U. S. 479, 487 (1960); Keyishian v. Board of
Regents of Univ. of State of N. Y., 385 U. S., at 603. In

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announcing the principle of student body diversity as a
compelling state interest, Justice Powell invoked our cases
recognizing a constitutional dimension, grounded in the
First Amendment, of educational autonomy: “The freedom
of a university to make its own judgments as to education
includes the selection of its student body.” Bakke, supra,
at 312. From this premise, Justice Powell reasoned that
by claiming “the right to select those students who will
contribute the most to the ‘robust exchange of ideas,’ ” a
university “seek[s] to achieve a goal that is of paramount
importance in the fulfillment of its mission.” 438 U. S., at
313 (quoting Keyishian v. Board of Regents of Univ. of State
of N. Y., supra, at 603). Our conclusion that the Law
School has a compelling interest in a diverse student body
is informed by our view that attaining a diverse student
body is at the heart of the Law School’s proper institu-
tional mission, and that “good faith” on the part of a uni-
versity is “presumed” absent “a showing to the contrary.”
438 U. S., at 318—319.

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

These benefits are substantial. As the District Court
emphasized, the Law School’s admissions policy promotes

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GRUTTER v. BOLLINGER
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“cross-racial understanding,” helps to break down racial
stereotypes, and “enables [students] to better understand
persons of different races.” App. to Pet. for Cert. 246a.
These benefits are “important and laudable,” because
“classroom discussion is livelier, more spirited, and simply
more enlightening and interesting” when the students
have “the greatest possible variety of backgrounds.” Id.,
at 246a, 244a.

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

These benefits are not theoretical but real, as major
American businesses have made clear that the skills
needed in today’s increasingly global marketplace can only
be developed through exposure to widely diverse people,
cultures, ideas, and viewpoints. Brief for 3M et al. as
Amici Curiae 5; Brief for General Motors Corp. as Amicus
Curiae 3—4. What is more, high-ranking retired officers
and civilian leaders of the United States military assert
that, “[b]ased on [their] decades of experience,” a “highly
qualified, racially diverse officer corps … is essential to
the military’s ability to fulfill its principle mission to
provide national security.” Brief for Julius W. Becton, Jr.
et al. as Amici Curiae 27. The primary sources for the

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Nation’s officer corps are the service academies and the
Reserve Officers Training Corps (ROTC), the latter com-
prising students already admitted to participating colleges
and universities. Id., at 5. At present, “the military can-
not achieve an officer corps that is both highly qualified
and racially diverse unless the service academies and the
ROTC used limited race-conscious recruiting and admis-
sions policies.” Ibid. (emphasis in original). To fulfill its
mission, the military “must be selective in admissions for
training and education for the officer corps, and it must
train and educate a highly qualified, racially diverse
officer corps in a racially diverse setting.” Id., at 29 (em-
phasis in original). We agree that “[i]t requires only a
small step from this analysis to conclude that our coun-
try’s other most selective institutions must remain both
diverse and selective.” Ibid.

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

20

GRUTTER v. BOLLINGER
Opinion of the Court

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

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

The Law School does not premise its need for critical
mass on “any belief that minority students always (or even
consistently) express some characteristic minority view-
point on any issue.” Brief for Respondent Bollinger et al.
30. To the contrary, diminishing the force of such stereo-

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types is both a crucial part of the Law School’s mission,
and one that it cannot accomplish with only token num-
bers of minority students. Just as growing up in a par-
ticular region or having particular professional experi-
ences is likely to affect an individual’s views, so too is one’s
own, unique experience of being a racial minority in a
society, like our own, in which race unfortunately still
matters. The Law School has determined, based on its
experience and expertise, that a “critical mass” of under-
represented minorities is necessary to further its compel-
ling interest in securing the educational benefits of a
diverse student body.

B

Even in the limited circumstance when drawing racial
distinctions is permissible to further a compelling state
interest, government is still “constrained in how it may
pursue that end: [T]he means chosen to accomplish the
[government’s] asserted purpose must be specifically and
narrowly framed to accomplish that purpose.” Shaw v.
Hunt, 517 U. S. 899, 908 (1996) (internal quotation marks
and citation omitted). The purpose of the narrow tailoring
requirement is to ensure that “the means chosen ‘fit’ …
th[e] compelling goal so closely that there is little or no
possibility that the motive for the classification was ille-
gitimate racial prejudice or stereotype.” Richmond v. J. A.
Croson Co., 488 U. S., at 493 (plurality opinion).

Since Bakke, we have had no occasion to define the
contours of the narrow-tailoring inquiry with respect to
race-conscious university admissions programs. That
inquiry must be calibrated to fit the distinct issues raised
by the use of race to achieve student body diversity in public
higher education. Contrary to JUSTICE KENNEDY’s assertions,
we do not “abandon[ ] strict scrutiny,” see post, at 8
(dissenting opinion). Rather, as we have already explained,
ante, at 15, we adhere to Adarand’s teaching that the very

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Opinion of the Court

purpose of strict scrutiny is to take such “ relevant differ-
ences into account.” 515 U. S., at 228 (internal quotation
marks omitted).

To be narrowly tailored, a race-conscious admissions
program cannot use a quota system—it cannot “insulat[e]
each category of applicants with certain desired qualifica-
tions from competition with all other applicants.” Bakke,
supra, at 315 (opinion of Powell, J.). Instead, a university
may consider race or ethnicity only as a “‘plus’ in a particu-
lar applicant’s file,” without “insulat[ing] the individual
from comparison with all other candidates for the available
seats.” Id., at 317. In other words, an admissions program
must be “flexible enough to consider all pertinent elements
of diversity in light of the particular qualifications of each
applicant, and to place them on the same footing for consid-
eration, although not necessarily according them the same
weight.” Ibid.

We find that the Law School’s admissions program
bears the hallmarks of a narrowly tailored plan. As Jus-
tice Powell made clear in Bakke, truly individualized
consideration demands that race be used in a flexible,
nonmechanical way. It follows from this mandate that
universities cannot establish quotas for members of cer-
tain racial groups or put members of those groups on
separate admissions tracks. See id., at 315—316. Nor can
universities insulate applicants who belong to certain
racial or ethnic groups from the competition for admission.
Ibid. Universities can, however, consider race or ethnicity
more flexibly as a “plus” factor in the context of individu-
alized consideration of each and every applicant. Ibid.

We are satisfied that the Law School’s admissions pro-
gram, like the Harvard plan described by Justice Powell,
does not operate as a quota. Properly understood, a
“quota” is a program in which a certain fixed number or
proportion of opportunities are “reserved exclusively for
certain minority groups.” Richmond v. J. A. Croson Co.,

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supra, at 496 (plurality opinion). Quotas “‘impose a fixed
number or percentage which must be attained, or which
cannot be exceeded,’ ” Sheet Metal Workers v. EEOC, 478
U. S. 421, 495 (1986) (O’CONNOR, J., concurring in part
and dissenting in part), and “insulate the individual from
comparison with all other candidates for the available
seats.” Bakke, supra, at 317 (opinion of Powell, J.). In
contrast, “a permissible goal … require[s] only a good-
faith effort … to come within a range demarcated by the
goal itself,” Sheet Metal Workers v. EEOC, supra, at 495,
and permits consideration of race as a “plus” factor in any
given case while still ensuring that each candidate “com-
pete[s] with all other qualified applicants,” Johnson v.
Transportation Agency, Santa Clara Cty., 480 U. S. 616,
638 (1987).

Justice Powell’s distinction between the medical school’s
rigid 16-seat quota and Harvard’s flexible use of race as a
“plus” factor is instructive. Harvard certainly had mini-
mum goals for minority enrollment, even if it had no
specific number firmly in mind. See Bakke, supra, at 323
(opinion of Powell, J.) (“10 or 20 black students could not
begin to bring to their classmates and to each other the
variety of points of view, backgrounds and experiences of
blacks in the United States”). What is more, Justice Pow-
ell flatly rejected the argument that Harvard’s program
was “the functional equivalent of a quota” merely because
it had some “ ‘plus’ ” for race, or gave greater “weight” to
race than to some other factors, in order to achieve stu-
dent body diversity. 438 U. S., at 317—318.

The Law School’s goal of attaining a critical mass of
underrepresented minority students does not transform
its program into a quota. As the Harvard plan described
by Justice Powell recognized, there is of course “some
relationship between numbers and achieving the benefits
to be derived from a diverse student body, and between
numbers and providing a reasonable environment for

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GRUTTER v. BOLLINGER
Opinion of the Court

those students admitted.” Id., at 323. “[S]ome attention
to numbers,” without more, does not transform a flexible
admissions system into a rigid quota. Ibid. Nor, as
JUSTICE KENNEDY posits, does the Law School’s consulta-
tion of the “daily reports,” which keep track of the racial
and ethnic composition of the class (as well as of residency
and gender), “suggest[ ] there was no further attempt at
individual review save for race itself” during the final
stages of the admissions process. See post, at 6 (dissenting
opinion). To the contrary, the Law School’s admissions
officers testified without contradiction that they never
gave race any more or less weight based on the informa-
tion contained in these reports. Brief for Respondents
Bollinger et al. 43, n. 70 (citing App. in Nos. 01—1447 and
01—1516 (CA6), p. 7336). Moreover, as JUSTICE KENNEDY
concedes, see post, at 4, between 1993 and 2000, the num-
ber of African-American, Latino, and Native-American
students in each class at the Law School varied from 13.5
to 20.1 percent, a range inconsistent with a quota.

THE CHIEF JUSTICE believes that the Law School’s
policy conceals an attempt to achieve racial balancing, and
cites admissions data to contend that the Law School
discriminates among different groups within the critical
mass. Post, at 3—9 (dissenting opinion). But, as THE
CHIEF JUSTICE concedes, the number of underrepresented
minority students who ultimately enroll in the Law School
differs substantially from their representation in the appli-
cant pool and varies considerably for each group from year
to year. See post, at 8 (dissenting opinion).

That a race-conscious admissions program does not
operate as a quota does not, by itself, satisfy the require-
ment of individualized consideration. When using race as
a “plus” factor in university admissions, a university’s
admissions program must remain flexible enough to en-
sure that each applicant is evaluated as an individual and
not in a way that makes an applicant’s race or ethnicity

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the defining feature of his or her application. The importance
of this individualized consideration in the context of
a race-conscious admissions program is paramount. See
Bakke, supra, at 318, n. 52 (opinion of Powell, J.) (identi-
fying the “denial … of th[e] right to individualized consid-
eration” as the “principal evil” of the medical school’s
admissions program).

Here, the Law School engages in a highly individual-
ized, holistic review of each applicant’s file, giving serious
consideration to all the ways an applicant might contrib-
ute to a diverse educational environment. The Law School
affords this individualized consideration to applicants of
all races. There is no policy, either de jure or de facto, of
automatic acceptance or rejection based on any single
“soft” variable. Unlike the program at issue in Gratz v.
Bollinger, ante, the Law School awards no mechanical,
predetermined diversity “bonuses” based on race or eth-
nicity. See ante, at 23 (distinguishing a race-conscious
admissions program that automatically awards 20 points
based on race from the Harvard plan, which considered
race but “did not contemplate that any single characteris-
tic automatically ensured a specific and identifiable con-
tribution to a university’s diversity”). Like the Harvard
plan, the Law School’s admissions policy “is flexible
enough to consider all pertinent elements of diversity in
light of the particular qualifications of each applicant, and
to place them on the same footing for consideration, al-
though not necessarily according them the same weight.”
Bakke, supra, at 317 (opinion of Powell, J.).

We also find that, like the Harvard plan Justice Powell
referenced in Bakke, the Law School’s race-conscious
admissions program adequately ensures that all factors
that may contribute to student body diversity are meaning-
fully considered alongside race in admissions decisions.
With respect to the use of race itself, all underrepresented
minority students admitted by the Law School have been

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Opinion of the Court

deemed qualified. By virtue of our Nation’s struggle with
racial inequality, such students are both likely to have
experiences of particular importance to the Law School’s
mission, and less likely to be admitted in meaningful
numbers on criteria that ignore those experiences. See
App. 120.

The Law School does not, however, limit in any way the
broad range of qualities and experiences that may be
considered valuable contributions to student body diver-
sity. To the contrary, the 1992 policy makes clear “[t]here
are many possible bases for diversity admissions,” and
provides examples of admittees who have lived or traveled
widely abroad, are fluent in several languages, have over-
come personal adversity and family hardship, have excep-
tional records of extensive community service, and have
had successful careers in other fields. Id., at 118—119.
The Law School seriously considers each “applicant’s
promise of making a notable contribution to the class by
way of a particular strength, attainment, or characteris-
tic —e.g., an unusual intellectual achievement, employ-
ment experience, nonacademic performance, or personal
background.” Id., at 83—84. All applicants have the op-
portunity to highlight their own potential diversity contri-
butions through the submission of a personal statement,
letters of recommendation, and an essay describing the
ways in which the applicant will contribute to the life and
diversity of the Law School.

What is more, the Law School actually gives substantial
weight to diversity factors besides race. The Law School
frequently accepts nonminority applicants with grades
and test scores lower than underrepresented minority
applicants (and other nonminority applicants) who are
rejected. See Brief for Respondents Bollinger et al. 10;
App. 121—122. This shows that the Law School seriously
weighs many other diversity factors besides race that can
make a real and dispositive difference for nonminority

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applicants as well. By this flexible approach, the Law
School sufficiently takes into account, in practice as well
as in theory, a wide variety of characteristics besides race
and ethnicity that contribute to a diverse student body.
JUSTICE KENNEDY speculates that “race is likely outcome
determinative for many members of minority groups” who
do not fall within the upper range of LSAT scores and
grades. Post, at 3 (dissenting opinion). But the same
could be said of the Harvard plan discussed approvingly
by Justice Powell in Bakke, and indeed of any plan that
uses race as one of many factors. See 438 U. S., at 316
(“ ‘When the Committee on Admissions reviews the large
middle group of applicants who are “admissible” and
deemed capable of doing good work in their courses, the
race of an applicant may tip the balance in his favor’ ”).

Petitioner and the United States argue that the Law
School’s plan is not narrowly tailored because race-neutral
means exist to obtain the educational benefits of student
body diversity that the Law School seeks. We disagree.
Narrow tailoring does not require exhaustion of every
conceivable race-neutral alternative. Nor does it require a
university to choose between maintaining a reputation for
excellence or fulfilling a commitment to provide educa-
tional opportunities to members of all racial groups. See
Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6
(1986) (alternatives must serve the interest “ ‘about as
well’ ”); Richmond v. J. A. Croson Co., 488 U. S., at 509—
510 (plurality opinion) (city had a “whole array of race-
neutral” alternatives because changing requirements
“would have [had] little detrimental effect on the city’s
interests”). Narrow tailoring does, however, require seri-
ous, good faith consideration of workable race-neutral
alternatives that will achieve the diversity the university
seeks. See id., at 507 (set-aside plan not narrowly tailored
where “there does not appear to have been any considera-
tion of the use of race-neutral means”); Wygant v. Jackson

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GRUTTER v. BOLLINGER
Opinion of the Court

Bd. of Ed., supra, at 280, n. 6 (narrow tailoring “require[s]
consideration” of “lawful alternative and less restrictive
means”).

We agree with the Court of Appeals that the Law School
sufficiently considered workable race-neutral alternatives.
The District Court took the Law School to task for failing
to consider race-neutral alternatives such as “using a
lottery system” or “decreasing the emphasis for all appli-
cants on undergraduate GPA and LSAT scores.” App. to
Pet. for Cert. 251a. But these alternatives would require a
dramatic sacrifice of diversity, the academic quality of all
admitted students, or both.

The Law School’s current admissions program considers
race as one factor among many, in an effort to assemble a
student body that is diverse in ways broader than race.
Because a lottery would make that kind of nuanced judg-
ment impossible, it would effectively sacrifice all other
educational values, not to mention every other kind of
diversity. So too with the suggestion that the Law School
simply lower admissions standards for all students, a
drastic remedy that would require the Law School to
become a much different institution and sacrifice a vital
component of its educational mission. The United States
advocates “percentage plans,” recently adopted by public
undergraduate institutions in Texas, Florida, and Califor-
nia to guarantee admission to all students above a certain
class-rank threshold in every high school in the State.
Brief for United States as Amicus Curiae 14—18. The
United States does not, however, explain how such plans
could work for graduate and professional schools. More-
over, even assuming such plans are race-neutral, they may
preclude the university from conducting the individualized
assessments necessary to assemble a student body that is
not just racially diverse, but diverse along all the qualities
valued by the university. We are satisfied that the Law
School adequately considered race-neutral alternatives

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Opinion of the Court

currently capable of producing a critical mass without
forcing the Law School to abandon the academic selectiv-
ity that is the cornerstone of its educational mission.

We acknowledge that “there are serious problems of
justice connected with the idea of preference itself.”
Bakke, 438 U. S., at 298 (opinion of Powell, J.). Narrow
tailoring, therefore, requires that a race-conscious admis-
sions program not unduly harm members of any racial
group. Even remedial race-based governmental action
generally “remains subject to continuing oversight to
assure that it will work the least harm possible to other
innocent persons competing for the benefit.” Id., at 308.
To be narrowly tailored, a race-conscious admissions
program must not “unduly burden individuals who are not
members of the favored racial and ethnic groups.” Metro
Broadcasting, Inc. v. FCC, 497 U. S. 547, 630 (1990)
(O’CONNOR, J., dissenting).

We are satisfied that the Law School’s admissions pro-
gram does not. Because the Law School considers “all
pertinent elements of diversity,” it can (and does) select
nonminority applicants who have greater potential to
enhance student body diversity over underrepresented
minority applicants. See Bakke, supra, at 317 (opinion of
Powell, J.). As Justice Powell recognized in Bakke, so long
as a race-conscious admissions program uses race as a
“plus” factor in the context of individualized consideration,
a rejected applicant

“will not have been foreclosed from all consideration
for that seat simply because he was not the right color
or had the wrong surname… His qualifications
would have been weighed fairly and competitively,
and he would have no basis to complain of unequal
treatment under the Fourteenth Amendment.” 438
U. S., at 318.

We agree that, in the context of its individualized inquiry

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GRUTTER v. BOLLINGER
Opinion of the Court

into the possible diversity contributions of all applicants,
the Law School’s race-conscious admissions program does
not unduly harm nonminority applicants.

We are mindful, however, that “[a] core purpose of the
Fourteenth Amendment was to do away with all govern-
mentally imposed discrimination based on race.” Palmore
v. Sidoti, 466 U. S. 429, 432 (1984). Accordingly, race-
conscious admissions policies must be limited in time.
This requirement reflects that racial classifications, how-
ever compelling their goals, are potentially so dangerous
that they may be employed no more broadly than the
interest demands. Enshrining a permanent justification
for racial preferences would offend this fundamental equal
protection principle. We see no reason to exempt race-
conscious admissions programs from the requirement that
all governmental use of race must have a logical end point.
The Law School, too, concedes that all “race-conscious
programs must have reasonable durational limits.” Brief
for Respondents Bollinger et al. 32.

In the context of higher education, the durational re-
quirement can be met by sunset provisions in race-
conscious admissions policies and periodic reviews to
determine whether racial preferences are still necessary to
achieve student body diversity. Universities in California,
Florida, and Washington State, where racial preferences
in admissions are prohibited by state law, are currently
engaged in experimenting with a wide variety of alterna-
tive approaches. Universities in other States can and
should draw on the most promising aspects of these race-
neutral alternatives as they develop. Cf. United States v.
Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring)
(“[T]he States may perform their role as laboratories for
experimentation to devise various solutions where the best
solution is far from clear”).

The requirement that all race-conscious admissions
programs have a termination point “assure[s] all citizens

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that the deviation from the norm of equal treatment of all
racial and ethnic groups is a temporary matter, a measure
taken in the service of the goal of equality itself.” Rich-
mond v. J. A. Croson Co., 488 U. S., at 510 (plurality
opinion); see also Nathanson & Bartnik, The Constitu-
tionality of Preferential Treatment for Minority Appli-
cants to Professional Schools, 58 Chicago Bar Rec. 282,
293 (May—June 1977) (“It would be a sad day indeed, were
America to become a quota-ridden society, with each
identifiable minority assigned proportional representation
in every desirable walk of life. But that is not the ration-
ale for programs of preferential treatment; the acid test of
their justification will be their efficacy in eliminating the
need for any racial or ethnic preferences at all”).

We take the Law School at its word that it would “like
nothing better than to find a race-neutral admissions
formula” and will terminate its race-conscious admissions
program as soon as practicable. See Brief for Respondents
Bollinger et al. 34; Bakke, supra, at 317—318 (opinion of
Powell, J.) (presuming good faith of university officials in
the absence of a showing to the contrary). It has been 25
years since Justice Powell first approved the use of race to
further an interest in student body diversity in the context
of public higher education. Since that time, the number
of minority applicants with high grades and test scores
has indeed increased. See Tr. of Oral Arg. 43. We expect
that 25 years from now, the use of racial preferences will
no longer be necessary to further the interest approved
today.

In summary, the Equal Protection Clause does not
prohibit the Law School’s narrowly tailored use of race in
admissions decisions to further a compelling interest in
obtaining the educational benefits that flow from a diverse
student body. Consequently, petitioner’s statutory claims

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GRUTTER v. BOLLINGER
Opinion of the Court

based on Title VI and 42 U. S. C. §1981 also fail. See
Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI …
proscribe[s] only those racial classifications that would
violate the Equal Protection Clause or the Fifth Amend-
ment”); General Building Contractors Assn., Inc. v. Pennsyl-
vania, 458 U. S. 375, 389—391 (1982) (the prohibition
against discrimination in §1981 is co-extensive with the
Equal Protection Clause). The judgment of the Court of
Appeals for the Sixth Circuit, accordingly, is affirmed.

It is so ordered.

JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
concurring.

The Court’s observation that race-conscious programs
“must have a logical end point,” ante, at 29, accords with
the international understanding of the office of affirmative
action. The International Convention on the Elimination
of All Forms of Racial Discrimination, ratified by the
United States in 1994, see State Dept., Treaties in Force
422—423 (June 1996), endorses “special and concrete
measures to ensure the adequate development and protec-
tion of certain racial groups or individuals belonging to
them, for the purpose of guaranteeing them the full and
equal enjoyment of human rights and fundamental free-
doms.” Annex to G. A. Res. 2106, 20 U. N. GAOR Res.
Supp. (No. 14) 47, U. N. Doc. A/6014, Art. 2(2) (1965). But
such measures, the Convention instructs, “shall in no case
entail as a consequence the maintenance of unequal or
separate rights for different racial groups after the objec-
tives for which they were taken have been achieved.” Ibid;
see also Art. 1(4) (similarly providing for temporally lim-
ited affirmative action); Convention on the Elimination of
All Forms of Discrimination against Women, Annex to
G. A. Res. 34/180, 34 U. N. GAOR Res. Supp. (No. 46) 194,
U. N. Doc. A/34/46, Art. 4(1) (1979) (authorizing “tempo-
rary special measures aimed at accelerating de facto

2

GRUTTER v. BOLLINGER
GINSBURG, J., concurring

equality” that “shall be discontinued when the objectives
of equality of opportunity and treatment have been
achieved”).

The Court further observes that “[i]t has been 25 years
since Justice Powell [in Regents of Univ. of Cal. v. Bakke,
438 U. S. 265 (1978)] first approved the use of race to
further an interest in student body diversity in the context
of public higher education.” Ante, at 31. For at least part
of that time, however, the law could not fairly be described
as “settled,” and in some regions of the Nation, overtly
race-conscious admissions policies have been proscribed.
See Hopwood v. Texas, 78 F. 3d 932 (CA5 1996); cf. Wess-
mann v. Gittens, 160 F. 3d 790 (CA1 1998); Tuttle v. Ar-
lington Cty. School Bd., 195 F. 3d 698 (CA4 1999); John-
son v. Board of Regents of Univ. of Ga., 263 F. 3d 1234
(CA11 2001). Moreover, it was only 25 years before Bakke
that this Court declared public school segregation unconsti-
tutional, a declaration that, after prolonged resistance,
yielded an end to a law-enforced racial caste system, itself
the legacy of centuries of slavery. See Brown v. Board of
Education, 347 U. S. 483 (1954); cf. Cooper v. Aaron, 358
U. S. 1 (1958).

It is well documented that conscious and unconscious
race bias, even rank discrimination based on race, remain
alive in our land, impeding realization of our highest
values and ideals. See, e.g., Gratz v. Bollinger, ante, at 1—4
(GINSBURG, J., dissenting); Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 272—274 (1995) (GINSBURG, J., dis-
senting); Krieger, Civil Rights Perestroika: Intergroup
Relations after Affirmative Action, 86 Calif. L. Rev. 1251,
1276—1291, 1303 (1998). As to public education, data for
the years 2000—2001 show that 71.6% of African-American
children and 76.3% of Hispanic children attended a school
in which minorities made up a majority of the student
body. See E. Frankenberg, C. Lee, & G. Orfield, A Multi-
racial Society with Segregated Schools: Are We Losing the

3

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

Dream? p. 4 (Jan. 2003), http://www.civilrightsproject.
harvard.edu/research/reseg03/AreWeLosingtheDream.pdf
(as visited June 16, 2003, and available in Clerk of Court’s
case file). And schools in predominantly minority commu-
nities lag far behind others measured by the educational
resources available to them. See id., at 11; Brief for Na-
tional Urban League et al. as Amici Curiae 11—12 (citing
General Accounting Office, Per-Pupil Spending Differ-
ences Between Selected Inner City and Suburban Schools
Varied by Metropolitan Area, 17 (2002)).

However strong the public’s desire for improved educa-
tion systems may be, see P. Hart & R. Teeter, A National
Priority: Americans Speak on Teacher Quality 2, 11 (2002)
(public opinion research conducted for Educational Testing
Service); The No Child Left Behind Act of 2001, Pub. L.
107—110, 115 Stat. 1425 , 20 U. S. C. A. §7231 (2003 Supp.
Pamphlet), it remains the current reality that many mi-
nority students encounter markedly inadequate and une-
qual educational opportunities. Despite these inequali-
ties, some minority students are able to meet the high
threshold requirements set for admission to the country’s
finest undergraduate and graduate educational institu-
tions. As lower school education in minority communities
improves, an increase in the number of such students may
be anticipated. From today’s vantage point, one may hope,
but not firmly forecast, that over the next generation’s
span, progress toward nondiscrimination and genuinely
equal opportunity will make it safe to sunset affirmative
action.*

___________________
*As the Court explains, the admissions policy challenged here survives
review under the standards stated in Adarand Constructors, Inc .
v. Peña, 515 U. S. 200 (1995), Richmond v. J. A. Croson Co., 488 U. S. 469
(1989), and Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke,
438 U. S. 265 (1978). This case therefore does not require the Court to
revisit whether all governmental classifications by race, whether

4

GRUTTER v. BOLLINGER
GINSBURG, J., concurring

___________________
designed to benefit or to burden a historically disadvantaged group,
should be subject to the same standard of judicial review. Cf. Gratz,
ante, at 4—5 (GINSBURG, J., dissenting); Adarand, 515 U. S., at 274, n. 8
(GINSBURG, J., dissenting). Nor does this case necessitate reconsidera-
tion whether interests other than “student body diversity,” ante, at 13,
rank as sufficiently important to justify a race-conscious government
program. Cf. Gratz, ante, at 5 (GINSBURG, J., dissenting); Adarand, 515
U. S., at 273—274 (GINSBURG, J., dissenting).

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in part and dissenting in part.

I join the opinion of THE CHIEF JUSTICE. As he demon-
strates, the University of Michigan Law School’s mystical
“critical mass” justification for its discrimination by race
challenges even the most gullible mind. The admissions
statistics show it to be a sham to cover a scheme of racially
proportionate admissions.

I also join Parts I through VII of JUSTICE THOMAS’s
opinion.* I find particularly unanswerable his central
point: that the allegedly “compelling state interest” at
issue here is not the incremental “educational benefit”
that emanates from the fabled “critical mass” of minority
students, but rather Michigan’s interest in maintaining a
“prestige” law school whose normal admissions standards
disproportionately exclude blacks and other minorities. If
that is a compelling state interest, everything is.

I add the following: The “educational benefit” that the
University of Michigan seeks to achieve by racial dis-
crimination consists, according to the Court, of “‘cross-
racial
understanding,’” ante, at 18, and “ ‘better pre-

___________________
*Part VII of JUSTICE THOMAS’s opinion describes those portions of the
Court’s opinion in which I concur. See post, at 27—31.

2

GRUTTER v. BOLLINGER
Opinion of SCALIA, J.

par[ation of] students for an increasingly diverse
workforce and society,’ ” ibid., all of which is necessary not
only for work, but also for good “citizenship,” ante, at 19.
This is not, of course, an “educational benefit” on which
students will be graded on their Law School transcript
(Works and Plays Well with Others: B+) or tested by the
bar examiners (Q: Describe in 500 words or less your
cross-racial understanding). For it is a lesson of life rather
than law—essentially the same lesson taught to (or rather
learned by, for it cannot be “taught” in the usual sense)
people three feet shorter and twenty years younger than
the full-grown adults at the University of Michigan Law
School, in institutions ranging from Boy Scout troops to
public-school kindergartens. If properly considered an
“educational benefit” at all, it is surely not one that is
either uniquely relevant to law school or uniquely “teach-
able” in a formal educational setting. And therefore: If it is
appropriate for the University of Michigan Law School to
use racial discrimination for the purpose of putting to-
gether a “critical mass” that will convey generic lessons in
socialization and good citizenship, surely it is no less
appropriate—indeed, particularly appropriate—for the
civil service system of the State of Michigan to do so.
There, also, those exposed to “critical masses” of certain
races will presumably become better Americans, better
Michiganders, better civil servants. And surely private
employers cannot be criticized—indeed, should be
praised—if they also “teach” good citizenship to their adult
employees through a patriotic, all-American system of
racial discrimination in hiring. The nonminority indiv-
iduals who are deprived of a legal education, a civil serv-
ice job, or any job at all by reason of their skin color will
surely understand.

Unlike a clear constitutional holding that racial prefer-
ences in state educational institutions are impermissible,
or even a clear anticonstitutional holding that racial pref-

3

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Opinion of SCALIA, J.

erences in state educational institutions are OK, today’s
Grutter-Gratz split double header seems perversely de-
signed to prolong the controversy and the litigation. Some
future lawsuits will presumably focus on whether the
discriminatory scheme in question contains enough
evaluation of the applicant “as an individual,” ante, at 24,
and sufficiently avoids “separate admissions tracks” ante,
at 22, to fall under Grutter rather than Gratz. Some will
focus on whether a university has gone beyond the bounds
of a “ ‘good faith effort’ ” and has so zealously pursued its
“critical mass” as to make it an unconstitutional de facto
quota system, rather than merely “‘a permissible goal.’ ”
Ante, at 23 (quoting Sheet Metal Workers v. EEOC, 478
U. S 421, 495 (1986) (O’CONNOR, J., concurring in part and
dissenting in part)). Other lawsuits may focus on
whether, in the particular setting at issue, any educa-
tional benefits flow from racial diversity. (That issue was
not contested in Grutter; and while the opinion accords “a
degree of deference to a university’s academic decisions,”
ante, at 16, “deference does not imply abandonment or
abdication of judicial review,” Miller-El v. Cockrell, 537
U. S. 322, 340 (2003).) Still other suits may challenge the
bona fides of the institution’s expressed commitment to
the educational benefits of diversity that immunize the
discriminatory scheme in Grutter. (Tempting targets, one
would suppose, will be those universities that talk the talk
of multiculturalism and racial diversity in the courts but
walk the walk of tribalism and racial segregation on their
campuses—through minority-only student organizations,
separate minority housing opportunities, separate minor-
ity student centers, even separate minority-only gradua-
tion ceremonies.) And still other suits may claim that the
institution’s racial preferences have gone below or above
the mystical Grutter-approved “critical mass.” Finally,
litigation can be expected on behalf of minority groups
intentionally short changed in the institution’s composi-

4

GRUTTER v. BOLLINGER
Opinion of SCALIA, J.

tion of its generic minority “critical mass.” I do not look
forward to any of these cases. The Constitution proscribes
government discrimination on the basis of race, and state-
provided education is no exception.

JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to
Parts I—VII, concurring in part and dissenting in part.

Frederick Douglass, speaking to a group of abolitionists
almost 140 years ago, delivered a message lost on today’s
majority:

“[I]n regard to the colored people, there is always
more that is benevolent, I perceive, than just, mani-
fested towards us. What I ask for the negro is not be-
nevolence, not pity, not sympathy, but simply justice.
The American people have always been anxious to
know what they shall do with us… . I have had but
one answer from the beginning. Do nothing with us!
Your doing with us has already played the mischief
with us. Do nothing with us! If the apples will not
remain on the tree of their own strength, if they are
worm-eaten at the core, if they are early ripe and disposed
to fall, let them fall! … And if the negro can-
not stand on his own legs, let him fall also. All I ask
is, give him a chance to stand on his own legs! Let
him alone! … [Y]our interference is doing him posi-
tive injury.” What the Black Man Wants: An Address
Delivered in Boston, Massachusetts, on 26 January
1865, reprinted in 4 The Frederick Douglass Papers
59, 68 (J. Blassingame & J. McKivigan eds. 1991)
(emphasis in original).

2

GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

Like Douglass, I believe blacks can achieve in every ave-
nue of American life without the meddling of university
administrators. Because I wish to see all students suc-
ceed whatever their color, I share, in some respect, the
sympathies of those who sponsor the type of discrimina-
tion advanced by the University of Michigan Law School
(Law School). The Constitution does not, however, tolerate
institutional devotion to the status quo in admissions
policies when such devotion ripens into racial discrimination.
Nor does the Constitution countenance the unprece-
dented deference the Court gives to the Law School, an
approach inconsistent with the very concept of “strict
scrutiny.”

No one would argue that a university could set up a
lower general admission standard and then impose
heightened requirements only on black applicants. Simi-
larly, a university may not maintain a high admission
standard and grant exemptions to favored races. The Law
School, of its own choosing, and for its own purposes,
maintains an exclusionary admissions system that it
knows produces racially disproportionate results. Racial
discrimination is not a permissible solution to the self-
inflicted wounds of this elitist admissions policy.

The majority upholds the Law School’s racial discrimi-
nation not by interpreting the people’s Constitution, but
by responding to a faddish slogan of the cognoscenti.
Nevertheless, I concur in part in the Court’s opinion.
First, I agree with the Court insofar as its decision, which
approves of only one racial classification, confirms that
further use of race in admissions remains unlawful. Sec-
ond, I agree with the Court’s holding that racial discrimi-
nation in higher education admissions will be illegal in 25
years. See ante, at 31 (stating that racial discrimination
will no longer be narrowly tailored, or “necessary to fur-
ther” a compelling state interest, in 25 years). I respect-
fully dissent from the remainder of the Court’s opinion

3

Cite as: 539 U. S. ____ (2003)
Opinion of THOMAS, J.

and the judgment, however, because I believe that the
Law School’s current use of race violates the Equal Protec-
tion Clause and that the Constitution means the same
thing today as it will in 300 months.

I

The majority agrees that the Law School’s racial dis-
crimination at 14. Before applying that standard to this case, I
will briefly revisit the Court’s treatment of racial
classifications.

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

The contours of “pressing public necessity” can be fur-
ther discerned from those interests the Court has rejected

___________________
^1/       Throughout I will use the two phrases interchangeably.

4

GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

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

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

Finally, the Court has rejected an interest in remedying

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

5

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Opinion of THOMAS, J.

general societal discrimination as a justification for race
discrimination. See Wygant, supra, at 276 (plurality
opinion); Croson, 488 U. S., at 496—498 (plurality opinion);
id., at 520—521 (SCALIA, J., concurring in judgment).
“Societal discrimination, without more, is too amorphous a
basis for imposing a racially classified remedy” because a
“court could uphold remedies that are ageless in their
reach into the past, and timeless in their ability to affect
the future.” Wygant, supra, at 276 (plurality opinion).
But see Gratz v. Bollinger, ante, p. ___ (GINSBURG, J.,
dissenting).

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

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

6

GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

II

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

Undoubtedly there are other ways to “better” the educa-
tion of law students aside from ensuring that the student
body contains a “critical mass” of underrepresented minority
students. Attaining “diversity,” whatever it
means,³ is the mechanism by which the Law School ob-

___________________
^3/       “[D]iversity,” for all of its devotees, is more a fashionable catch-
phrase than it is a useful term, especially when something as serious as
racial discrimination is at issue. Because the Equal Protection Clause
renders the color of one’s skin constitutionally irrelevant to the Law
School’s mission, I refer to the Law School’s interest as an “aesthetic.”
That is, the Law School wants to have a certain appearance, from the
shape of the desks and tables in its classrooms to the color of the
students sitting at them.

I also use the term “aesthetic” because I believe it underlines the
ineffectiveness of racially discriminatory admissions in actually helping
those who are truly underprivileged. Cf. Orr v. Orr, 440 U. S. 268, 283
(1979) (noting that suspect classifications are especially impermissible
when “the choice made by the State appears to redound … to the benefit
of those without need for special solicitude”). It must be remembered
that the Law School’s racial discrimination does nothing for those too
poor or uneducated to participate in elite higher education and therefore
presents only an illusory solution to the challenges facing our

7

Cite as: 539 U. S. ____ (2003)
Opinion of THOMAS, J.

tains educational benefits, not an end of itself. The Law
School, however, apparently believes that only a racially
mixed student body can lead to the educational benefits it
seeks. How, then, is the Law School’s interest in these
allegedly unique educational “benefits” not simply the
forbidden interest in “racial balancing,” ante, at 17, that
the majority expressly rejects?

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

One must also consider the Law School’s refusal to
entertain changes to its current admissions system that
might produce the same educational benefits. The Law
School adamantly disclaims any race-neutral alternative
that would reduce “academic selectivity,” which would in
turn “require the Law School to become a very different
institution, and to sacrifice a core part of its educational

___________________
      Nation.

8

GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

mission.” Brief for Respondents Bollinger et al. 33—36. In
other words, the Law School seeks to improve marginally
the education it offers without sacrificing too much of its
exclusivity and elite status.⁴

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

III
A

A close reading of the Court’s opinion reveals that all of
its legal work is done through one conclusory statement:
The Law School has a “compelling interest in securing the
educational benefits of a diverse student body.” Ante, at
21. No serious effort is made to explain how these benefits
fit with the state interests the Court has recognized (or
rejected) as compelling, see Part I, supra, or to place any
theoretical constraints on an enterprising court’s desire to
discover still more justifications for racial discrimination.
In the absence of any explanation, one might expect the
Court to fall back on the judicial policy of stare decisis.
But the Court eschews even this weak defense of its hold-

___________________
^4/       The Law School believes both that the educational benefits of a ra-
cially engineered student body are large and that adjusting its overall
admissions standards to achieve the same racial mix would require it to
sacrifice its elite status. If the Law School is correct that the educa-
tional benefits of “diversity” are so great, then achieving them by
altering admissions standards should not compromise its elite status.
The Law School’s reluctance to do this suggests that the educational
benefits it alleges are not significant or do not exist at all.

9

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Opinion of THOMAS, J.

ing, shunning an analysis of the extent to which Justice
Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438
U. S. 265 (1978), is binding, ante, at 13, in favor of an
unfounded wholesale adoption of it.

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

B

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

1

While legal education at a public university may be good
policy or otherwise laudable, it is obviously not a pressing
public necessity when the correct legal standard is ap-
plied. Additionally, circumstantial evidence as to whether
a state activity is of pressing public necessity can be ob-
tained by asking whether all States feel compelled to
engage in that activity. Evidence that States, in general,
engage in a certain activity by no means demonstrates
that the activity constitutes a pressing public necessity,
given the expansive role of government in today’s society.

10

GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

The fact that some fraction of the States reject a particular
enterprise, however, creates a presumption that the enterprise
itself is not a compelling state interest. In this
sense, the absence of a public, American Bar Association
(ABA) accredited, law school in Alaska, Delaware, Massa-
chusetts, New Hampshire, and Rhode Island, see ABA—
LSAC Official Guide to ABA-Approved Law Schools (W.
Margolis, B. Gordon, J. Puskarz, & D. Rosenlieb, eds.
2004) (hereinafter ABA—LSAC Guide), provides further
evidence that Michigan’s maintenance of the Law School
does not constitute a compelling state interest.

2

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

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

“obligation is imposed by the Constitution upon the
States severally as governmental entities—each respon-
sible for its own laws establishing the rights and du-
ties of persons within its borders. It is an obligation
the burden of which cannot be cast by one State upon
another, and no State can be excused from perform-
ance by what another State may do or fail to do. That
separate responsibility of each State within its own
sphere is of the essence of statehood maintained un-

11

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Opinion of THOMAS, J.

der our dual system.” Id., at 350 (emphasis added).

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

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

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

The Law School today, however, does precious little
training of those attorneys who will serve the citizens of
Michigan. In 2002, graduates of the University of Michi-
gan Law School made up less than 6% of applicants to the
Michigan bar, Michigan Lawyers Weekly, available at
http://www.michiganlawyersweekly.com/barpassers0202.cfm,
barpassers0702.cfm (all Internet materials as visited June
13, 2003, and available in Clerk of Court’s case file), even

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GRUTTER v. BOLLINGER
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though the Law School’s graduates constitute nearly
30% of all law students graduating in Michigan.
Ibid. Less than 16% of the Law School’s graduating class
elects to stay in Michigan after law school. ABA—
LSAC Guide 427. Thus, while a mere 27% of the Law
School’s 2002 entering class are from Michigan, see
University of Michigan Law School Website, available at
http://www.law.umich.edu/prospectivestudents/Admissions/
index.htm, only half of these, it appears, will stay in Michigan.

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

The Law School’s decision to be an elite institution does
little to advance the welfare of the people of Michigan or
any cognizable interest of the State of Michigan.
Again, the fact that few States choose to maintain elite
law schools raises a strong inference that there is nothing
compelling about elite status. Arguably, only the public
law schools of the University of Texas, the University of
California, Berkeley (Boalt Hall), and the University of
Virginia maintain the same reputation for excellence as
the Law School.⁵ Two of these States, Texas and Califor-
nia, are so large that they could reasonably be expected to
provide elite legal training at a separate law school to
students who will, in fact, stay in the State and provide

___________________
^5/       Cf. U. S. News & World Report, America’s Best Graduate Schools 28
(2004 ed.) (placing these schools in the uppermost 15 in the Nation).

13

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Opinion of THOMAS, J.

legal services to its citizens. And these two schools far
outshine the Law School in producing in-state lawyers.
The University of Texas, for example, sends over three-
fourths of its graduates on to work in the State of Texas,
vindicating the State’s interest (compelling or not) in
training Texas’ lawyers. Id., at 691.

3

Finally, even if the Law School’s racial tinkering pro-
duces tangible educational benefits, a marginal improvement
in legal education cannot justify racial discrimination
where the Law School has no compelling interest in
either its existence or in its current educational and ad-
missions policies.

IV

The interest in remaining elite and exclusive that the
majority thinks so obviously critical requires the use of
admissions “standards” that, in turn, create the Law
School’s “need” to discriminate on the basis of race. The
Court validates these admissions standards by concluding
that alternatives that would require “a dramatic sacrifice
of … the academic quality of all admitted students,” ante,
at 27, need not be considered before racial discrimination
can be employed.⁶ In the majority’s view, such methods are
not required by the “narrow tailoring” prong of strict scrutiny
because that inquiry demands, in this context, that any
race-neutral alternative work “‘about as well.’” Ante, at 26—
27 (quoting Wygant, 476 U. S., at 280, n. 6). The majority
errs, however, because race-neutral alternatives must only
be “workable,” ante, at 27, and do “about as well” in vindi-

___________________
^6/       The Court refers to this component of the Law School’s compelling
state interest variously as “academic quality,” avoiding “sacrifice [of] a
vital component of its educational mission,” and “academic selectivity.”
Ante, at 27—28.

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GRUTTER v. BOLLINGER
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cating the compelling state interest. The Court never explic-
itly holds that the Law School’s desire to retain the status
quo in “academic selectivity” is itself a compelling state
interest, and, as I have demonstrated, it is not. See Part
III—B, supra. Therefore, the Law School should be forced to
choose between its classroom aesthetic and its exclusionary
admissions system—it cannot have it both ways.

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

A

The Court bases its unprecedented deference to the Law
School—a deference antithetical to strict scrutiny—on an
idea of “educational autonomy” grounded in the First
Amendment. Ante, at 17. In my view, there is no basis for
a right of public universities to do what would otherwise
violate the Equal Protection Clause.

The constitutionalization of “academic freedom” began
with the concurring opinion of Justice Frankfurter in
Sweezy v. New Hampshire, 354 U. S. 234 (1957). Sweezy,

15

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Opinion of THOMAS, J.

a Marxist economist, was investigated by the Attorney
General of New Hampshire on suspicion of being a subver-
sive. The prosecution sought, inter alia, the contents of a
lecture Sweezy had given at the University of New Hamp-
shire. The Court held that the investigation violated due
process. Id., at 254.

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

In my view, “[i]t is the business” of this Court to explain
itself when it cites provisions of the Constitution to invent
new doctrines—including the idea that the First Amend-
ment authorizes a public university to do what would
otherwise violate the Equal Protection Clause. The ma-
jority fails in its summary effort to prove this point. The
only source for the Court’s conclusion that public universi-
ties are entitled to deference even within the confines of
strict scrutiny is Justice Powell’s opinion in Bakke. Jus-

16

GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

tice Powell, for his part, relied only on Justice Frank-
furter’s opinion in Sweezy and the Court’s decision in
Keyishian v. Board of Regents of Univ. of State of N. Y.,
385 U. S. 589 (1967), to support his view that the First
Amendment somehow protected a public university’s use
of race in admissions. Bakke, 438 U. S., at 312. Keyishian
provides no answer to the question whether the Four-
teenth Amendment’s restrictions are relaxed when applied
to public universities. In that case, the Court held that
state statutes and regulations designed to prevent the
“appointment or retention of ‘subversive’ persons in state
employment,” 385 U. S., at 592, violated the First
Amendment for vagueness. The statutes covered all pub-
lic employees and were not invalidated only as applied to
university faculty members, although the Court appeared
sympathetic to the notion of academic freedom, calling it a
“special concern of the First Amendment.” Id., at 603.
Again, however, the Court did not relax any independent
constitutional restrictions on public universities.

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

B
1

The Court’s deference to the Law School’s conclusion
that its racial experimentation leads to educational bene-
fits will, if adhered to, have serious collateral conse-
quences. The Court relies heavily on social science evi-
dence to justify its deference. See ante, at 18—20; but see
also Rothman, Lipset, & Nevitte, Racial Diversity Recon-

17

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Opinion of THOMAS, J.

sidered, 151 Public Interest 25 (2003) (finding that the
racial mix of a student body produced by racial discrimina-
tion of the type practiced by the Law School in fact hinders
students’ perception of academic quality). The Court
never acknowledges, however, the growing evidence that
racial (and other sorts) of heterogeneity actually impairs
learning among black students. See, e.g., Flowers & Pas-
carella, Cognitive Effects of College Racial Composition on
African American Students After 3 Years of College, 40 J.
of College Student Development 669, 674 (1999) (conclud-
ing that black students experience superior cognitive
development at Historically Black Colleges (HBCs) and
that, even among blacks, “a substantial diversity moder-
ates the cognitive effects of attending an HBC”); Allen,
The Color of Success: African-American College Student
Outcomes at Predominantly White and Historically Black
Public Colleges and Universities, 62 Harv. Educ. Rev. 26,
35 (1992) (finding that black students attending HBCs
report higher academic achievement than those attending
predominantly white colleges).

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

The majority grants deference to the Law School’s “ass-
essment that diversity will, in fact, yield educational

18

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

2

Moreover one would think, in light of the Court’s deci-
sion in United States v. Virginia, 518 U. S. 515 (1996),
that before being given license to use racial discrimina-
tion, the Law School would be required to radically re-
shape its admissions process, even to the point of sacrific-
ing some elements of its character. In Virginia, a majority
of the Court, without a word about academic freedom,
accepted the all-male Virginia Military Institute’s (VMI)
representation that some changes in its “adversative”
method of education would be required with the admission
of women, id., at 540, but did not defer to VMI’s judgment
that these changes would be too great. Instead, the Court
concluded that they were “manageable.” Id., at 551, n. 19.
That case involved sex discrimination, which is subjected
to intermediate, not strict, scrutiny. Id., at 533; Craig v.
Boren, 429 U. S 190, 197 (1976). So in Virginia, where the

___________________
^7/       For example, North Carolina A&T State University, which is cur-
rently 5.4% white, College Admissions Data Handbook 643, could seek
to reduce the representation of whites in order to gain additional
educational benefits.

19

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Opinion of THOMAS, J.

standard of review dictated that greater flexibility be
granted to VMI’s educational policies than the Law School
deserves here, this Court gave no deference. Apparently
where the status quo being defended is that of the elite
establishment—here the Law School—rather than a less
fashionable Southern military institution, the Court will
defer without serious inquiry and without regard to the
applicable legal standard.

C

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

The sky has not fallen at Boalt Hall at the University of
California, Berkeley, for example. Prior to Proposition
209’s adoption of Cal. Const., Art. 1, §31(a), which bars the
State from “grant[ing] preferential treatment … on the
basis of race … in the operation of … public education,”⁸
Boalt Hall enrolled 20 blacks and 28 Hispanics in its first-
year class for 1996. In 2002, without deploying express
racial discrimination in admissions, Boalt’s entering class
enrolled 14 blacks and 36 Hispanics.⁹ University of
California Law and Medical School Enrollments, avail-

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

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

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GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

able at http://www.ucop.edu/acadadv/datamgmt/lawmed/law-
enrolls- eth2.html. Total underrepresented minority stu-
dent enrollment at Boalt Hall now exceeds 1996 levels.
Apparently the Law School cannot be counted on to be as
resourceful. The Court is willfully blind to the very real
experience in California and elsewhere, which raises the
inference that institutions with “reputation[s] for excel-
lence,” ante, at 16, 26, rivaling the Law School’s have
satisfied their sense of mission without resorting to pro-
hibited racial discrimination.

V

Putting aside the absence of any legal support for the
majority’s reflexive deference, there is much to be said for
the view that the use of tests and other measures to “pre-
dict” academic performance is a poor substitute for a
system that gives every applicant a chance to prove he can
succeed in the study of law. The rallying cry that in the
absence of racial discrimination in admissions there would
be a true meritocracy ignores the fact that the entire
process is poisoned by numerous exceptions to “merit.”
For example, in the national debate on racial discrimina-
tion in higher education admissions, much has been made
of the fact that elite institutions utilize a so-called “legacy”
preference to give the children of alumni an advantage in
admissions. This, and other, exceptions to a “true” meri-
tocracy give the lie to protestations that merit admissions
are in fact the order of the day at the Nation’s universities.
The Equal Protection Clause does not, however, prohibit
the use of unseemly legacy preferences or many other
kinds of arbitrary admissions procedures. What the Equal
Protection Clause does prohibit are classifications made on
the basis of race. So while legacy preferences can stand

21

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Opinion of THOMAS, J.

under the Constitution, racial discrimination cannot.¹⁰ I
will not twist the Constitution to invalidate legacy prefer-
ences or otherwise impose my vision of higher education
admissions on the Nation. The majority should similarly
stay its impulse to validate faddish racial discrimination
the Constitution clearly forbids.

In any event, there is nothing ancient, honorable, or
constitutionally protected about “selective” admissions.
The University of Michigan should be well aware that
alternative methods have historically been used for the
admission of students, for it brought to this country the
German certificate system in the late-19th century. See
H. Wechsler, The Qualified Student 16—39 (1977) (herein-
after Qualified Student). Under this system, a secondary
school was certified by a university so that any graduate
who completed the course offered by the school was offered
admission to the university. The certification regime
supplemented, and later virtually replaced (at least in the
Midwest), the prior regime of rigorous subject-matter
entrance examinations. Id., at 57—58. The facially race-
neutral “percent plans” now used in Texas, California, and
Florida, see ante, at 28, are in many ways the descendents
of the certificate system.

Certification was replaced by selective admissions in the
beginning of the 20th century, as universities sought to
exercise more control over the composition of their student
bodies. Since its inception, selective admissions has been
the vehicle for racial, ethnic, and religious tinkering and
experimentation by university administrators. The initial
driving force for the relocation of the selective function

___________________
^10/       Were this Court to have the courage to forbid the use of racial dis-
crimination in admissions, legacy preferences (and similar practices)
might quickly become less popular—a possibility not lost, I am certain,
on the elites (both individual and institutional) supporting the Law
School in this case.

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GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

from the high school to the universities was the same
desire to select racial winners and losers that the Law
School exhibits today. Columbia, Harvard, and others
infamously determined that they had “too many” Jews,
just as today the Law School argues it would have “too
many” whites if it could not discriminate in its admissions
process. See Qualified Student 155—168 (Columbia); H.
Broun & G. Britt, Christians Only: A Study in Prejudice
53—54 (1931) (Harvard).

Columbia employed intelligence tests precisely because
Jewish applicants, who were predominantly immigrants,
scored worse on such tests. Thus, Columbia could claim
(falsely) that “ ‘[w]e have not eliminated boys because they
were Jews and do not propose to do so. We have honestly
attempted to eliminate the lowest grade of applicant
[through the use of intelligence testing] and it turns out
that a good many of the low grade men are New York City
Jews.’ ” Letter from Herbert E. Hawkes, dean of Columbia
College, to E. B. Wilson, June 16, 1922 (reprinted in Quali-
fied Student 160—161). In other words, the tests were
adopted with full knowledge of their disparate impact. Cf.
DeFunis v. Odegaard, 416 U. S. 312, 335 (1974) (per curiam)
(Douglas, J., dissenting).

Similarly no modern law school can claim ignorance of
the poor performance of blacks, relatively speaking, on the
Law School Admissions Test (LSAT). Nevertheless, law
schools continue to use the test and then attempt to “cor-
rect” for black underperformance by using racial discrimination
in admissions so as to obtain their aesthetic student
body. The Law School’s continued adherence to
measures it knows produce racially skewed results is not
entitled to deference by this Court. See Part IV, supra.
The Law School itself admits that the test is imperfect, as
it must, given that it regularly admits students who score
at or below 150 (the national median) on the test. See
App. 156—203 (showing that, between 1995 and 2000, the

23

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Opinion of THOMAS, J.

Law School admitted 37 students—27 of whom were black;
31 of whom were “underrepresented minorities”—with
LSAT scores of 150 or lower). And the Law School’s amici
cannot seem to agree on the fundamental question
whether the test itself is useful. Compare Brief for Law
School Admission Council as Amicus Curiae 12 (“LSAT
scores … are an effective predictor of students’ perform-
ance in law school”) with Brief for Harvard Black Law
Students Association et al. as Amici Curiae 27 (“Whether
[the LSAT] measure[s] objective merit … is certainly
questionable”).

Having decided to use the LSAT, the Law School must
accept the constitutional burdens that come with this
decision. The Law School may freely continue to employ
the LSAT and other allegedly merit-based standards in
whatever fashion it likes. What the Equal Protection
Clause forbids, but the Court today allows, is the use of
these standards hand-in-hand with racial discrimination.
An infinite variety of admissions methods are available to
the Law School. Considering all of the radical thinking
that has historically occurred at this country’s universi-
ties, the Law School’s intractable approach toward admis-
sions is striking.

The Court will not even deign to make the Law School
try other methods, however, preferring instead to grant a
25-year license to violate the Constitution. And the same
Court that had the courage to order the desegregation of
all public schools in the South now fears, on the basis of
platitudes rather than principle, to force the Law School to
abandon a decidedly imperfect admissions regime that
provides the basis for racial discrimination.

VI

The absence of any articulated legal principle support-
ing the majority’s principal holding suggests another
rationale. I believe what lies beneath the Court’s decision

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GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

today are the benighted notions that one can tell when
racial discrimination benefits (rather than hurts) minority
groups, see Adarand, 515 U. S., at 239 (SCALIA, J., concur-
ring in part and concurring in judgment), and that racial
discrimination is necessary to remedy general societal ills.
This Court’s precedents supposedly settled both issues,
but clearly the majority still cannot commit to the princi-
ple that racial classifications are per se harmful and that
almost no amount of benefit in the eye of the beholder can
justify such classifications.

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

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

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Opinion of THOMAS, J.

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

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

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GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

on other people’s children.

Beyond the harm the Law School’s racial discrimination
visits upon its test subjects, no social science has dis-
proved the notion that this discrimination “engender[s]
attitudes of superiority or, alternatively, provoke[s] re-
sentment among those who believe that they have been
wronged by the government’s use of race.” Adarand, 515
U. S., at 241 (THOMAS, J., concurring in part and concur-
ring in judgment). “These programs stamp minorities
with a badge of inferiority and may cause them to develop
dependencies or to adopt an attitude that they are ‘enti-
tled’ to preferences.” Ibid.

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

Finally, the Court’s disturbing reference to the impor-
tance of the country’s law schools as training grounds
meant to cultivate “a set of leaders with legitimacy in the
eyes of the citizenry,” ibid., through the use of racial dis-
crimination deserves discussion. As noted earlier, the

27

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Opinion of THOMAS, J.

Court has soundly rejected the remedying of societal dis-
crimination as a justification for governmental use of race.
Wygant, 476 U. S., at 276 (plurality opinion); Croson, 488
U. S., at 497 (plurality opinion); id., at 520—521 (SCALIA,
J., concurring in judgment). For those who believe that
every racial disproportionality in our society is caused
by some kind of racial discrimination, there can be no
distinction between remedying societal discrimination and
erasing racial disproportionalities in the country’s leader-
ship caste. And if the lack of proportional racial repre-
sentation among our leaders is not caused by societal
discrimination, then “fixing” it is even less of a pressing
public necessity.

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

VII

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

A

First, I note that the issue of unconstitutional racial
discrimination among the groups the Law School prefers is
not presented in this case, because petitioner has never
argued that the Law School engages in such a practice,
and the Law School maintains that it does not. See Brief

28

GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

for Respondents Bollinger et al. 32, n. 50, and 6—7, n. 7. I
join the Court’s opinion insofar as it confirms that this
type of racial discrimination remains unlawful. Ante, at
13—15. Under today’s decision, it is still the case that
racial discrimination that does not help a university to
enroll an unspecified number, or “critical mass,” of under-
represented minority students is unconstitutional. Thus,
the Law School may not discriminate in admissions be-
tween similarly situated blacks and Hispanics, or between
whites and Asians. This is so because preferring black to
Hispanic applicants, for instance, does nothing to further
the interest recognized by the majority today.¹² Indeed,
the majority describes such racial balancing as “patently
unconstitutional.” Ante, at 17. Like the Court, ante, at 24,
I express no opinion as to whether the Law School’s cur-
rent admissions program runs afoul of this prohibition.

B

The Court also holds that racial discrimination in ad-
missions should be given another 25 years before it is
deemed no longer narrowly tailored to the Law School’s
fabricated compelling state interest. Ante, at 30. While I
agree that in 25 years the practices of the Law School will

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

29

Cite as: 539 U. S. ____ (2003)
Opinion of THOMAS, J.

be illegal, they are, for the reasons I have given, illegal
now. The majority does not and cannot rest its time limi-
tation on any evidence that the gap in credentials between
black and white students is shrinking or will be gone in
that timeframe.¹³ In recent years there has been virtually
no change, for example, in the proportion of law school
applicants with LSAT scores of 165 and higher who are
black.¹⁴ In 1993 blacks constituted 1.1% of law school
applicants in that score range, though they represented
11.1% of all applicants. Law School Admission Council,
National Statistical Report (1994) (hereinafter LSAC
Statistical Report). In 2000 the comparable numbers were
1.0% and 11.3%. LSAC Statistical Report (2001). No one
can seriously contend, and the Court does not, that the
racial gap in academic credentials will disappear in 25
years. Nor is the Court’s holding that racial discrimina-
tion will be unconstitutional in 25 years made contingent
on the gap closing in that time.¹⁵

___________________
^13/       I agree with JUSTICE GINSBURG that the Court’s holding that racial
discrimination in admissions will be illegal in 25 years is not based
upon a “forecast,” post, at 3 (concurring opinion). I do not agree with
JUSTICE GINSBURG’s characterization of the Court’s holding as an
expression of “hope.” Ibid.

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

^15/       The majority’s non sequitur observation that since 1978 the num-
ber of blacks that have scored in these upper ranges on the LSAT has
grown, ante, at 30, says nothing about current trends. First, black
participation in the LSAT until the early 1990’s lagged behind black
representation in the general population. For instance, in 1984 only

30

GRUTTER v. BOLLINGER
Opinion of THOMAS, J.

Indeed, the very existence of racial discrimination of the
type practiced by the Law School may impede the nar-
rowing of the LSAT testing gap. An applicant’s LSAT
score can improve dramatically with preparation, but such
preparation is a cost, and there must be sufficient benefits
attached to an improved score to justify additional study.
Whites scoring between 163 and 167 on the LSAT are
routinely rejected by the Law School, and thus whites
aspiring to admission at the Law School have every incen-
tive to improve their score to levels above that range. See
App. 199 (showing that in 2000, 209 out of 422 white
applicants were rejected in this scoring range). Blacks, on
the other hand, are nearly guaranteed admission if they
score above 155. Id., at 198 (showing that 63 out of 77
black applicants are accepted with LSAT scores above
155). As admission prospects approach certainty, there is
no incentive for the black applicant to continue to prepare
for the LSAT once he is reasonably assured of achieving
the requisite score. It is far from certain that the LSAT
test-taker’s behavior is responsive to the Law School’s
admissions policies.¹⁶ Nevertheless, the possibility re-
mains that this racial discrimination will help fulfill the
bigot’s prophecy about black underperformance—just as it
confirms the conspiracy theorist’s belief that “institutional

___________________
      7.3% of law school applicants were black, whereas in 2000 11.3% of law
school applicants were black. See LSAC Statistical Reports (1984 and
2000). Today, however, unless blacks were to begin applying to law
school in proportions greater than their representation in the general
population, the growth in absolute numbers of high scoring blacks
should be expected to plateau, and it has. In 1992, 63 black applicants
to law school had LSAT scores above 165. In 2000, that number was
65. See LSAC Statistical Reports (1992 and 2000).

^16/       I use the LSAT as an example, but the same incentive structure is
in place for any admissions criteria, including undergraduate grades,
on which minorities are consistently admitted at thresholds signifi-
cantly lower than whites.

31

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Opinion of THOMAS, J.

racism” is at fault for every racial disparity in our society.
I therefore can understand the imposition of a 25-year
time limit only as a holding that the deference the Court
pays to the Law School’s educational judgments and re-
fusal to change its admissions policies will itself expire.
At that point these policies will clearly have failed to
“ ‘eliminat[e] the [perceived] need for any racial or ethnic’ ”
discrimination because the academic credentials gap will
still be there. Ante, at 30 (quoting Nathanson & Bartnika,
The Constitutionality of Preferential Treatment for Mi-
nority Applicants to Professional Schools, 58 Chicago Bar
Rec. 282, 293 (May—June 1977)). The Court defines this
time limit in terms of narrow tailoring, see ante, at 30, but
I believe this arises from its refusal to define rigorously
the broad state interest vindicated today. Cf. Part II,
supra. With these observations, I join the last sentence of
Part III of the opinion of the Court.

* * *

For the immediate future, however, the majority has
placed its imprimatur on a practice that can only weaken
the principle of equality embodied in the Declaration of
Independence and the Equal Protection Clause. “Our
Constitution is color-blind, and neither knows nor toler-
ates classes among citizens.” Plessy v. Ferguson, 163 U. S.
537, 559 (1896) (Harlan, J., dissenting). It has been nearly
140 years since Frederick Douglass asked the intellectual
ancestors of the Law School to “[d]o nothing with us!” and
the Nation adopted the Fourteenth Amendment. Now we
must wait another 25 years to see this principle of equality
vindicated. I therefore respectfully dissent from the re-
mainder of the Court’s opinion and the judgment.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA,
JUSTICE KENNEDY, and JUSTICE THOMAS join, dissenting.

I agree with the Court that, “in the limited circumstance
when drawing racial distinctions is permissible,” the
government must ensure that its means are narrowly
tailored to achieve a compelling state interest. Ante, at 21;
see also Fullilove v. Klutznick, 448 U. S. 448, 498 (1980)
(Powell, J., concurring) (“[E]ven if the government proffers
a compelling interest to support reliance upon a suspect
classification, the means selected must be narrowly drawn
to fulfill the governmental purpose”). I do not believe,
however, that the University of Michigan Law School’s
(Law School) means are narrowly tailored to the interest it
asserts. The Law School claims it must take the steps it
does to achieve a “ ‘critical mass’ ” of underrepresented
minority students. Brief for Respondents Bollinger et al.
13. But its actual program bears no relation to this as-
serted goal. Stripped of its “critical mass” veil, the Law
School’s program is revealed as a naked effort to achieve
racial balancing.

As we have explained many times, “‘ “[a]ny preference
based on racial or ethnic criteria must necessarily receive
a most searching examination.” ’ ” Adarand Constructors,
Inc. v. Peña, 515 U. S. 200, 223 (1995) (quoting Wygant v.
Jackson Bd. of Ed., 476 U. S. 267, 273 (1986) (plurality

2

GRUTTER v. BOLLINGER
REHNQUIST, C. J., dissenting

opinion of Powell, J.)). Our cases establish that, in order
to withstand this demanding inquiry, respondents must
demonstrate that their methods of using race “ ‘fit’” a
compelling state interest “with greater precision than any
alternative means.” Id., at 280, n. 6; Regents of Univ. of
Cal. v. Bakke, 438 U. S. 265, 299 (1978) (opinion of Powell,
J.) (“When [political judgments] touch upon an individual’s
race or ethnic background, he is entitled to a judicial
determination that the burden he is asked to bear on that
basis is precisely tailored to serve a compelling govern-
mental interest”).

Before the Court’s decision today, we consistently ap-
plied the same strict scrutiny analysis regardless of the
government’s purported reason for using race and regard-
less of the setting in which race was being used. We rejected
calls to use more lenient review in the face of claims
that race was being used in “good faith” because “ ‘[m]ore
than good motives should be required when government
seeks to allocate its resources by way of an explicit racial
classification system.’ ” Adarand, supra, at 226; Fullilove,
supra, at 537 (STEVENS, J., dissenting) (“Racial classifica-
tions are simply too pernicious to permit any but the most
exact connection between justification and classification”).
We likewise rejected calls to apply more lenient review
based on the particular setting in which race is being
used. Indeed, even in the specific context of higher educa-
tion, we emphasized that “constitutional limitations pro-
tecting individual rights may not be disregarded.” Bakke,
supra, at 314.

Although the Court recites the language of our strict
scrutiny analysis, its application of that review is un-
precedented in its deference.

Respondents’ asserted justification for the Law School’s
use of race in the admissions process is “obtaining ‘the
educational benefits that flow from a diverse student
body.’ ” Ante, at 15 (quoting Brief for Respondents Bollin-

3

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

ger et al. i). They contend that a “critical mass” of under-
represented minorities is necessary to further that inter-
est. Ante, at 17. Respondents and school administrators
explain generally that “critical mass” means a sufficient
number of underrepresented minority students to achieve
several objectives: To ensure that these minority students
do not feel isolated or like spokespersons for their race; to
provide adequate opportunities for the type of interaction
upon which the educational benefits of diversity depend;
and to challenge all students to think critically and reex-
amine stereotypes. See App. to Pet. for Cert. 211a; Brief
for Respondents Bollinger et al. 26. These objectives
indicate that “critical mass” relates to the size of the stu-
dent body. Id., at 5 (claiming that the Law School has
enrolled “critical mass,” or “enough minority students to
provide meaningful integration of its classrooms and
residence halls”). Respondents further claim that the Law
School is achieving “critical mass.” Id., at 4 (noting that
the Law School’s goals have been “greatly furthered by the
presence of … a ‘critical mass’ of ” minority students in
the student body).

In practice, the Law School’s program bears little or no
relation to its asserted goal of achieving “critical mass.”
Respondents explain that the Law School seeks to accu-
mulate a “critical mass” of each underrepresented minor-
ity group. See, e.g., id., at 49, n. 79 (“The Law School’s …
current policy … provide[s] a special commitment to
enrolling a ‘critical mass’ of ‘Hispanics’ ”). But the record
demonstrates that the Law School’s admissions practices
with respect to these groups differ dramatically and can-
not be defended under any consistent use of the term
“critical mass.”

From 1995 through 2000, the Law School admitted
between 1,130 and 1,310 students. Of those, between 13
and 19 were Native American, between 91 and 108 were
African-Americans, and between 47 and 56 were Hispanic.

4

GRUTTER v. BOLLINGER
REHNQUIST, C. J., dissenting

If the Law School is admitting between 91 and 108
African-Americans in order to achieve “critical mass,”
thereby preventing African-American students from feel-
ing “isolated or like spokespersons for their race,” one
would think that a number of the same order of magnitude
would be necessary to accomplish the same purpose for
Hispanics and Native Americans. Similarly, even if all of
the Native American applicants admitted in a given year
matriculate, which the record demonstrates is not at all
the case,* how can this possibly constitute a “critical
mass” of Native Americans in a class of over 350 students?
In order for this pattern of admission to be consistent with
the Law School’s explanation of “critical mass,” one would
have to believe that the objectives of “critical mass” offered
by respondents are achieved with only half the number of
Hispanics and one-sixth the number of Native Americans
as compared to African-Americans. But respondents offer
no race-specific reasons for such disparities. Instead, they
simply emphasize the importance of achieving “critical
mass,” without any explanation of why that concept is
applied differently among the three underrepresented
minority groups.

These different numbers, moreover, come only as a
result of substantially different treatment among the
three underrepresented minority groups, as is apparent in
an example offered by the Law School and highlighted by
the Court: The school asserts that it “frequently accepts
nonminority applicants with grades and test scores lower
than underrepresented minority applicants (and other
nonminority applicants) who are rejected.” Ante, at 26

___________________
      *Indeed, during this 5-year time period, enrollment of Native Ameri-
can students dropped to as low as three such students. Any assertion
that such a small group constituted a “critical mass” of Native Ameri-
cans is simply absurd.

5

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

(citing Brief for Respondents Bollinger et al. 10). Specifi-
cally, the Law School states that “[s]ixty-nine minority
applicants were rejected between 1995 and 2000 with at
least a 3.5 [Grade Point Average (GPA)] and a [score of]
159 or higher on the [Law School Admissions Test (LSAT)]”
while a number of Caucasian and Asian-American appli-
cants with similar or lower scores were admitted. Brief for
Respondents Bollinger et al. 10.

Review of the record reveals only 67 such individuals.
Of these 67 individuals, 56 were Hispanic, while only 6
were African-American, and only 5 were Native American.
This discrepancy reflects a consistent practice. For exam-
ple, in 2000, 12 Hispanics who scored between a 159—160
on the LSAT and earned a GPA of 3.00 or higher applied
for admission and only 2 were admitted. App. 200—201.
Meanwhile, 12 African-Americans in the same range of
qualifications applied for admission and all 12 were ad-
mitted. Id., at 198. Likewise, that same year, 16 Hispan-
ics who scored between a 151—153 on the LSAT and
earned a 3.00 or higher applied for admission and only 1 of
those applicants was admitted. Id., at 200—201. Twenty-
three similarly qualified African-Americans applied for
admission and 14 were admitted. Id., at 198.

These statistics have a significant bearing on peti-
tioner’s case. Respondents have never offered any race-
specific arguments explaining why significantly more
individuals from one underrepresented minority group are
needed in order to achieve “critical mass” or further stu-
dent body diversity. They certainly have not explained
why Hispanics, who they have said are among “the groups
most isolated by racial barriers in our country,” should
have their admission capped out in this manner. Brief for
Respondents Bollinger et al. 50. True, petitioner is nei-
ther Hispanic nor Native American. But the Law School’s
disparate admissions practices with respect to these mi-
nority groups demonstrate that its alleged goal of “critical

6

GRUTTER v. BOLLINGER
REHNQUIST, C. J., dissenting

mass” is simply a sham. Petitioner may use these statistics
to expose this sham, which is the basis for the Law
School’s admission of less qualified underrepresented
minorities in preference to her. Surely strict scrutiny
cannot permit these sort of disparities without at least
some explanation.

Only when the “critical mass” label is discarded does a
likely explanation for these numbers emerge. The Court
states that the Law School’s goal of attaining a “critical
mass” of underrepresented minority students is not an
interest in merely “ ‘assur[ing] within its student body
some specified percentage of a particular group merely
because of its race or ethnic origin.’ ” Ante, at 17 (quoting
Bakke, 438 U. S., at 307 (opinion of Powell, J.)). The Court
recognizes that such an interest “would amount to out-
right racial balancing, which is patently unconstitutional.”
Ante, at 17. The Court concludes, however, that the Law
School’s use of race in admissions, consistent with Justice
Powell’s opinion in Bakke, only pays “ ‘[s]ome attention to
numbers.’” Ante, at 23 (quoting Bakke, supra, at 323).

But the correlation between the percentage of the Law
School’s pool of applicants who are members of the three
minority groups and the percentage of the admitted appli-
cants who are members of these same groups is far too
precise to be dismissed as merely the result of the school
paying “some attention to [the] numbers.” As the tables
below show, from 1995 through 2000 the percentage of
admitted applicants who were members of these minority
groups closely tracked the percentage of individuals in the
school’s applicant pool who were from the same groups.

8

GRUTTER v. BOLLINGER
REHNQUIST, C. J., dissenting

For example, in 1995, when 9.7% of the applicant pool
was African-American, 9.4% of the admitted class was
African-American. By 2000, only 7.5% of the applicant
pool was African-American, and 7.3% of the admitted class
was African-American. This correlation is striking. Re-
spondents themselves emphasize that the number of
underrepresented minority students admitted to the Law
School would be significantly smaller if the race of each
applicant were not considered. See App. to Pet. for Cert.
223a; Brief for Respondents Bollinger et al. 6 (quoting
App. to Pet. for Cert. of Bollinger et al. 299a). But, as the
examples above illustrate, the measure of the decrease
would differ dramatically among the groups. The tight
correlation between the percentage of applicants and
admittees of a given race, therefore, must result from
careful race based planning by the Law School. It sug-
gests a formula for admission based on the aspirational
assumption that all applicants are equally qualified aca-
demically, and therefore that the proportion of each group
admitted should be the same as the proportion of that
group in the applicant pool. See Brief for Respondents
Bollinger et al. 43, n. 70 (discussing admissions officers’
use of “periodic reports” to track “the racial composition of
the developing class”).

Not only do respondents fail to explain this phenome-
non, they attempt to obscure it. See id., at 32, n. 50 (“The
Law School’s minority enrollment percentages … di-
verged from the percentages in the applicant pool by as
much as 17.7% from 1995—2000”). But the divergence
between the percentages of underrepresented minorities
in the applicant pool and in the enrolled classes is not the
only relevant comparison. In fact, it may not be the most
relevant comparison. The Law School cannot precisely
control which of its admitted applicants decide to attend
the university. But it can and, as the numbers demon-

9

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

strate, clearly does employ racial preferences in extending
offers of admission. Indeed, the ostensibly flexible nature
of the Law School’s admissions program that the Court
finds appealing, see ante, at 24—26, appears to be, in prac-
tice, a carefully managed program designed to ensure
proportionate representation of applicants from selected
minority groups.

I do not believe that the Constitution gives the Law
School such free rein in the use of race. The Law School
has offered no explanation for its actual admissions prac-
tices and, unexplained, we are bound to conclude that the
Law School has managed its admissions program, not to
achieve a “critical mass,” but to extend offers of admission
to members of selected minority groups in proportion to
their statistical representation in the applicant pool. But
this is precisely the type of racial balancing that the Court
itself calls “patently unconstitutional.” Ante, at 17.

Finally, I believe that the Law School’s program fails
strict scrutiny because it is devoid of any reasonably pre-
cise time limit on the Law School’s use of race in admis-
sions. We have emphasized that we will consider “the
planned duration of the remedy” in determining whether a
race-conscious program is constitutional. Fullilove, 448
U. S., at 510 (Powell, J. concurring); see also United States
v. Paradise, 480 U. S. 149, 171 (1987) (“In determining
whether race-conscious remedies are appropriate, we look
to several factors, including the … duration of the relief ”).
Our previous cases have required some limit on the dura-
tion of programs such as this because discrimination on
the basis of race is invidious.

The Court suggests a possible 25-year limitation on the
Law School’s current program. See ante, at 30. Respon-
dents, on the other hand, remain more ambiguous, ex-
plaining that “the Law School of course recognizes that
race-conscious programs must have reasonable durational
limits, and the Sixth Circuit properly found such a limit in

10

GRUTTER v. BOLLINGER
REHNQUIST, C. J., dissenting

the Law School’s resolve to cease considering race when
genuine race-neutral alternatives become available.” Brief
for Respondents Bollinger et al. 32. These discussions of a
time limit are the vaguest of assurances. In truth, they
permit the Law School’s use of racial preferences on a
seemingly permanent basis. Thus, an important compo-
nent of strict scrutiny—that a program be limited in
time—is casually subverted.

The Court, in an unprecedented display of deference
under our strict scrutiny analysis, upholds the Law
School’s program despite its obvious flaws. We have said
that when it comes to the use of race, the connection be-
tween the ends and the means used to attain them must
be precise. But here the flaw is deeper than that; it is not
merely a question of “fit” between ends and means. Here
the means actually used are forbidden by the Equal Pro-
tection Clause of the Constitution.

JUSTICE KENNEDY, dissenting.

The separate opinion by Justice Powell in Regents of
Univ. of Cal. v. Bakke is based on the principle that a
university admissions program may take account of race
as one, nonpredominant factor in a system designed to
consider each applicant as an individual, provided the
program can meet the test of strict scrutiny by the judici-
ary. 438 U. S. 265, 289—291, 315—318 (1978). This is a
unitary formulation. If strict scrutiny is abandoned or
manipulated to distort its real and accepted meaning, the
Court lacks authority to approve the use of race even in
this modest, limited way. The opinion by Justice Powell,
in my view, states the correct rule for resolving this case.
The Court, however, does not apply strict scrutiny. By
trying to say otherwise, it undermines both the test and
its own controlling precedents.

Justice Powell’s approval of the use of race in university
admissions reflected a tradition, grounded in the First
Amendment, of acknowledging a university’s conception of
its educational mission. Bakke, supra, at 312—314; ante, at
16—17. Our precedents provide a basis for the Court’s
acceptance of a university’s considered judgment that racial
diversity among students can further its educational task,
when supported by empirical evidence. Ante, at 17—19.

It is unfortunate, however, that the Court takes the first

2

GRUTTER v. BOLLINGER
KENNEDY, J., dissenting

part of Justice Powell’s rule but abandons the second.
Having approved the use of race as a factor in the admis-
sions process, the majority proceeds to nullify the essential
safeguard Justice Powell insisted upon as the precondition
of the approval. The safeguard was rigorous judicial
review, with strict scrutiny as the controlling standard.
Bakke, supra, at 291 (“Racial and ethnic distinctions of
any sort are inherently suspect and thus call for the most
exacting judicial examination”). This Court has reaf-
firmed, subsequent to Bakke, the absolute necessity of
strict scrutiny when the state uses race as an operative
category. Adarand Constructors, Inc. v. Peña, 515 U. S.
200, 224 (1995) (“[A]ny 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
judicial scrutiny”); Richmond v. J. A. Croson Co., 488 U. S.
469, 493—494 (1989); see id., at 519 (KENNEDY, J., concur-
ring in part and concurring in judgment) (“[A]ny racial
preference must face the most rigorous scrutiny by the
courts”). The Court confuses deference to a university’s
definition of its educational objective with deference to the
implementation of this goal. In the context of university
admissions the objective of racial diversity can be accepted
based on empirical data known to us, but deference is not
to be given with respect to the methods by which it is
pursued. Preferment by race, when resorted to by the
State, can be the most divisive of all policies, containing
within it the potential to destroy confidence in the Consti-
tution and in the idea of equality. The majority today
refuses to be faithful to the settled principle of strict review
designed to reflect these concerns.

The Court, in a review that is nothing short of perfunc-
tory, accepts the University of Michigan Law School’s
assurances that its admissions process meets with constitu-
tional requirements. The majority fails to confront the

3

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

reality of how the Law School’s admissions policy is imple-
mented. The dissenting opinion by THE CHIEF JUSTICE,
which I join in full, demonstrates beyond question why the
concept of critical mass is a delusion used by the Law
School to mask its attempt to make race an automatic
factor in most instances and to achieve numerical goals
indistinguishable from quotas. An effort to achieve racial
balance among the minorities the school seeks to attract is,
by the Court’s own admission, “patently unconstitutional.”
Ante, at 17; see also Bakke, 438 U. S, at 307 (opinion of
Powell, J.). It remains to point out how critical mass be-
comes inconsistent with individual consideration in some
more specific aspects of the admissions process.

About 80 to 85 percent of the places in the entering class
are given to applicants in the upper range of Law School
Admissions Test scores and grades. An applicant with
these credentials likely will be admitted without consid-
eration of race or ethnicity. With respect to the remaining
15 to 20 percent of the seats, race is likely outcome deter-
minative for many members of minority groups. That is
where the competition becomes tight and where any given
applicant’s chance of admission is far smaller if he or she
lacks minority status. At this point the numerical concept
of critical mass has the real potential to compromise indi-
vidual review.

The Law School has not demonstrated how individual
consideration is, or can be, preserved at this stage of the
application process given the instruction to attain what it
calls critical mass. In fact the evidence shows otherwise.
There was little deviation among admitted minority stu-
dents during the years from 1995 to 1998. The percentage
of enrolled minorities fluctuated only by 0.3%, from 13.5%
to 13.8%. The number of minority students to whom offers
were extended varied by just a slightly greater magnitude
of 2.2%, from the high of 15.6% in 1995 to the low of 13.4%
in 1998.

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GRUTTER v. BOLLINGER
KENNEDY, J., dissenting

The District Court relied on this uncontested fact to
draw an inference that the Law School’s pursuit of critical
mass mutated into the equivalent of a quota. 137 F. Supp.
2d 821, 851 (ED Mich. 2001). Admittedly, there were
greater fluctuations among enrolled minorities in the
preceding years, 1987—1994, by as much as 5 or 6%. The
percentage of minority offers, however, at no point fell
below 12%, historically defined by the Law School as the
bottom of its critical mass range. The greater variance
during the earlier years, in any event, does not dispel
suspicion that the school engaged in racial balancing. The
data would be consistent with an inference that the Law
School modified its target only twice, in 1991 (from 13% to
19%), and then again in 1995 (back from 20% to 13%).
The intervening year, 1993, when the percentage dropped
to 14.5%, could be an aberration, caused by the school’s
miscalculation as to how many applicants with offers
would accept or by its redefinition, made in April 1992, of
which minority groups were entitled to race-based prefer-
ence. See Brief for Respondents Bollinger et al. 49, n. 79.

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KENNEDY, J., dissenting

The narrow fluctuation band raises an inference that
the Law School subverted individual determination, and
strict scrutiny requires the Law School to overcome the
inference. Whether the objective of critical mass “is de-
scribed as a quota or a goal, it is a line drawn on the basis
of race and ethnic status,” and so risks compromising
individual assessment. Bakke, 438 U. S., at 289 (opinion
of Powell, J.). In this respect the Law School program
compares unfavorably with the experience of Little Ivy
League colleges. Amicus Amherst College, for example,
informs us that the offers it extended to students of Afri-
can- American background during the period from 1993 to
2002 ranged between 81 and 125 out of 950 offers total,
resulting in a fluctuation from 24 to 49 matriculated
students in a class of about 425. See Brief for Amherst
College et al. as Amici Curiae 10—11. The Law School
insisted upon a much smaller fluctuation, both in the
offers extended and in the students who eventually en-
rolled, despite having a comparable class size.

The Law School has the burden of proving, in confor-
mance with the standard of strict scrutiny, that it did not
utilize race in an unconstitutional way. Adarand Construc-
tors, 515 U. S., at 224. At the very least, the constancy of
admitted minority students and the close correlation be-
tween the racial breakdown of admitted minorities and the
composition of the applicant pool, discussed by THE CHIEF
JUSTICE, ante, at 3—9, require the Law School either to
produce a convincing explanation or to show it has taken
adequate steps to ensure individual assessment. The Law
School does neither.

The obvious tension between the pursuit of critical mass
and the requirement of individual review increased by the
end of the admissions season. Most of the decisions where
race may decide the outcome are made during this period.
See supra, at 3. The admissions officers consulted the

6

GRUTTER v. BOLLINGER
KENNEDY, J., dissenting

daily reports which indicated the composition of the in-
coming class along racial lines. As Dennis Shields, Direc-
tor of Admissions from 1991 to 1996, stated, “the further
[he] went into the [admissions] season the more frequently
[he] would want to look at these [reports] and see the
change from day-to-day.” These reports would “track
exactly where [the Law School] st[ood] at any given time
in assembling the class,” and so would tell the admissions
personnel whether they were short of assembling a critical
mass of minority students. Shields generated these reports
because the Law School’s admissions policy told him
the racial make-up of the entering class was “something
[he] need[ed] to be concerned about,” and so he had “to
find a way of tracking what’s going on.”

The consultation of daily reports during the last stages
in the admissions process suggests there was no further
attempt at individual review save for race itself. The
admissions officers could use the reports to recalibrate the
plus factor given to race depending on how close they were
to achieving the Law School’s goal of critical mass. The
bonus factor of race would then become divorced from
individual review; it would be premised instead on the
numerical objective set by the Law School.

The Law School made no effort to guard against this
danger. It provided no guidelines to its admissions per-
sonnel on how to reconcile individual assessment with the
directive to admit a critical mass of minority students.
The admissions program could have been structured to
eliminate at least some of the risk that the promise of
individual evaluation was not being kept. The daily con-
sideration of racial breakdown of admitted students is not
a feature of affirmative-action programs used by other
institutions of higher learning. The Little Ivy League
colleges, for instance, do not keep ongoing tallies of racial
or ethnic composition of their entering students. See Brief
for Amherst College et al. as Amici Curiae 10.

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

To be constitutional, a university’s compelling interest
in a diverse student body must be achieved by a system
where individual assessment is safeguarded through the
entire process. There is no constitutional objection to the
goal of considering race as one modest factor among many
others to achieve diversity, but an educational institution
must ensure, through sufficient procedures, that each
applicant receives individual consideration and that race
does not become a predominant factor in the admissions
decisionmaking. The Law School failed to comply with
this requirement, and by no means has it carried its bur-
den to show otherwise by the test of strict scrutiny.

The Court’s refusal to apply meaningful strict scrutiny
will lead to serious consequences. By deferring to the law
schools’ choice of minority admissions programs, the
courts will lose the talents and resources of the faculties
and administrators in devising new and fairer ways to
ensure individual consideration. Constant and rigorous
judicial review forces the law school faculties to undertake
their responsibilities as state employees in this most
sensitive of areas with utmost fidelity to the mandate of
the Constitution. Dean Allan Stillwagon, who directed the
Law School’s Office of Admissions from 1979 to 1990,
explained the difficulties he encountered in defining racial
groups entitled to benefit under the School’s affirmative
action policy. He testified that faculty members were
“breathtakingly cynical” in deciding who would qualify as
a member of underrepresented minorities. An example he
offered was faculty debate as to whether Cubans should be
counted as Hispanics: One professor objected on the
grounds that Cubans were Republicans. Many academics
at other law schools who are “affirmative action’s more
forthright defenders readily concede that diversity is
merely the current rationale of convenience for a policy
that they prefer to justify on other grounds.” Schuck,
Affirmative Action: Past, Present, and Future, 20 Yale L.

8

GRUTTER v. BOLLINGER
KENNEDY, J., dissenting

& Pol’y Rev. 1, 34 (2002) (citing Levinson, Diversity, 2
U. Pa. J. Const. L. 573, 577—578 (2000); Rubenfeld, Af-
firmative Action, 107 Yale L. J. 427, 471 (1997)). This is
not to suggest the faculty at Michigan or other law schools
do not pursue aspirations they consider laudable and
consistent with our constitutional traditions. It is but
further evidence of the necessity for scrutiny that is real,
not feigned, where the corrosive category of race is a factor
in decisionmaking. Prospective students, the courts, and
the public can demand that the State and its law schools
prove their process is fair and constitutional in every
phase of implementation.

It is difficult to assess the Court’s pronouncement that
race-conscious admissions programs will be unnecessary
25 years from now. Ante, at 30—31. If it is intended to
mitigate the damage the Court does to the concept of strict
scrutiny, neither petitioners nor other rejected law school
applicants will find solace in knowing the basic protection
put in place by Justice Powell will be suspended for a full
quarter of a century. Deference is antithetical to strict
scrutiny, not consistent with it.

As to the interpretation that the opinion contains its
own self-destruct mechanism, the majority’s abandonment
of strict scrutiny undermines this objective. Were the
courts to apply a searching standard to race-based admis-
sions schemes, that would force educational institutions to
seriously explore race-neutral alternatives. The Court, by
contrast, is willing to be satisfied by the Law School’s
profession of its own good faith. The majority admits as
much: “We take the Law School at its word that it would
‘like nothing better than to find a race-neutral admissions
formula’ and will terminate its race-conscious admissions
program as soon as practicable.” Ante, at 30 (quoting Brief
for Respondent Bollinger et al. 34).

If universities are given the latitude to administer
programs that are tantamount to quotas, they will have

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

few incentives to make the existing minority admissions
schemes transparent and protective of individual review.
The unhappy consequence will be to perpetuate the hos-
tilities that proper consideration of race is designed to
avoid. The perpetuation, of course, would be the worst of
all outcomes. Other programs do exist which will be more
effective in bringing about the harmony and mutual re-
spect among all citizens that our constitutional tradition
has always sought. They, and not the program under
review here, should be the model, even if the Court defaults
by not demanding it.

It is regrettable the Court’s important holding allowing
racial minorities to have their special circumstances considered
in order to improve their educational opportunities
is accompanied by a suspension of the strict scrutiny
which was the predicate of allowing race to be considered
in the first place. If the Court abdicates its constitutional
duty to give strict scrutiny to the use of race in university
admissions, it negates my authority to approve the use of
race in pursuit of student diversity. The Constitution
cannot confer the right to classify on the basis of race even
in this special context absent searching judicial review.
For these reasons, though I reiterate my approval of giving
appropriate consideration to race in this one context, I
must dissent in the present case.

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