ADMISSIONS ON TRIAL

The Michigan Daily - Tuesday, June 24, 2003-10


Justice Powell found objectionable in Bakke
on the grounds that LSA applicants are not
competing for different groups of seats. See
122 F. Supp. 2d, at 828-829. The court also
dismissed petitioners' assertion that the
LSA's current system is nothing more than
a means by which to achieve racial balanc-
ing. See id., at 831. The court explained
that the LSA does not seek to achieve a
certain proportion of minority students, let
alone a proportion that represents the com-
munity. See ibid.
The District Court found the admissions
guidelines the LSA used from 1995
through 1998 to be more problematic. In
the court's view, the University's prior prac-
tice of "protecting" or "reserving" seats for
underrepresented minority applicants effec-
:ively kept nonprotected applicants from
competing for those slots. See id., at 832.
his system, the court concluded, operated
s the functional equivalent of a quota and
Ran afoul of Justice Powell's opinion in
Bakke.0 See 122 F. Supp. 2d, at 832.
Based on these findings, the court grant-
,ed petitioners' motion for summary judg-
tment with respect to the LSA's admissions
programs in existence from 1995 through
1998, and respondents' motion with respect
,to the LSA's admissions programs for 1999
and 2000. See id., at 833.
" Accordingly, the District Court denied
petitioners' request for injunctive relief.
.See id., at 814.
, The District Court issued an order con-
:sistent with its rulings and certified two
'questions for interlocutory appeal to the
'Sixth Circuit pursuant to 28 U. S. C.
§1292(b). Both parties appealed aspects of
the District Court's rulings, and the Court
of Appeals heard the case en banc on the
4ame day as Grutter v. Bollinger. The Sixth
;circuit later issued an opinion in Grutter,
'pholding the admissions program used by
1e University of Michigan Law Sciool,
'end the petitioner in that case sought a writ
7f certiorari from this Court. Petitioners
ksked this Court to grant certiorari in this
'fase as well, despite the fact that the Court
«Qf Appeals had not yet rendered a judg-
mnent, so that this Court could address the
'onstitutionality of the consideration of
ace in university admissions in a wider
! nge of circumstances. We did so. See 537
1. S. 1044 (2002).
:II
As they have throughout the course of
is litigation, petitioners contend that the
lIniversity's consideration of race in its
tndergraduate admissions decisions vio-
:4tes §1 of the Equal Protection Clause of
,pe Fourteenth Amend- ment," Title VI,"
*a'nd 42 U. S. C. §1981.' We consider first
whether petitioners have standing to seek
declaratory and injunctive relief, and, find-
ig that they do, we next consider the mer-
its of their claims.
A
Although no party has raised the issue,
JUSTICE STEVENS argues that petitioners
lack Article III standing to seek injunctive
relief with respect to the University's use of
ace in undergraduate admissions. He first
.contends that because Hamacher did not
"actually appl[y] for admission as a trans-
fer student[,] [h]is claim of future injury is
at best 'conjectural or hypothetical' rather
than 'real and immediate."' Post, at 5 (dis-
'senting opinion). But whether Hamacher
"actually applied" for admission as a trans-
fer student is not determinative of his abili-
ty to seek injunctive relief in this case. If
-Hamacher had submitted a transfer applica-
tion and been rejected, he would still need
to allege an intent to apply again in order to
seek prospective relief. If JUSTICE
STEVENS means that because Hamacher
did not apply to transfer, he must never
.really have intended to do so, that conclu-
sion directly conflicts with the finding of
fact entered by the District Court that
'Hamacher "intends to transfer to the Uni-
:versity of Michigan when defendants cease
the use of race as an admission preference."
!App. 67."
N It is well established that intent may be
-relevant to standing in an Equal Protection
.challenge. In Clements v. Fashing, 457 U.

'S. 957 (1982), for example, we considered
a challenge to a provision of the Texas Con-
.stitution requiring the immediate resigna-
tion of certain state office-holders upon
ltheir announcement of candidacy for anoth-
Mer office. We concluded that the plaintiff
.officeholders had Article III standing
,because they had alleged that they would
+have announced their candidacy for other
offices were it not for the "automatic resig-
nation" provision they were challenging.
'd., at 962; accord, Turner v. Fouche, 396
U. S. 346, 361-362, n. 23 (1970) (plaintiff
twho did not own property had standing to
-challenge property ownership requirement
for membership on school board even
Athough there was no evidence that plaintiff
;had applied and been rejected); Quinn v.
'Millsap, 491 U. S. 95, 103, n. 8 (1989)
(plaintiffs who did not own property had
istanding to challenge property ownership
-requirement for membership on govern-
-nent board even though they lacked stand-
ing to challenge the requirement "as
'applied"). Likewise, in Northeastern Fla.
;Chapter, Associated Gen. Contractors of
:America v. Jacksonville, 508 U. S. 656
(1993), we considered whether an associa-
J.tion challenging an ordinance that gave
'preferential treatment to certain minority-
.wned businesses in the award of city con-
,tacts needed to show that one of its
members would have received a contract
{absent the ordinance in order to establish
'standing. In finding that no such showing

policy prevents it from doing so on an
equal basis." Ibid.
In bringing his equal protection chal-
lenge against the University's use of race in
undergraduate admissions, Hamacher
alleged that the University had denied him
the opportunity to compete for admission
on an equal basis. When Hamacher applied
to the University as a freshman applicant,
he was denied admission even though an
underrepresented minority applicant with
his qualifications would have been admit-
ted. See App. to Pet. for Cert. 115a. After
being denied admission, Hamacher demon-
strated that he was "able and ready" to
apply as a transfer student should the Uni-
versity cease to use race in undergraduate
admissions. He therefore has standing to
seek prospective relief with respect to the
University's continued use of race in under-
graduate admissions.
JUSTICE STEVENS raises a second
argument as to standing. He contends that
the University's use of race in undergradu-
ate transfer admissions differs from its use
of race in undergraduate freshman admis-
sions, and that therefore Hamacher lacks
standing to represent absent class members
challenging the latter. Post, at 5 (dissenting
opinion). As an initial matter, there is a
question whether the relevance of this vari-
ation, if any, is a matter of Article III stand-
ing at all or whether it goes to the propriety
of class certification pursuant to Federal
Rule of Civil Procedure 23(a). The parties
have not briefed the question of standing
versus adequacy, however, and we need not
resolve the question today: Regardless of
whether the requirement is deemed one of
adequacy or standing, it is clearly satisfied
in this case."
From the time petitioners filed their orig-
inal complaint through their brief on the
merits in this Court, they have consistently
challenged the University's use of race in
undergraduate admissions and its asserted
justification of promoting "diversity." See,
e.g., App. 38; Brief for Petitioners 13. Con-
sistent with this challenge, petitioners
requested injunctive relief prohibiting
respondent "from continuing to discrimi-
nate on the basis of race." App. 40. They
sought to certify a class consisting of all
individuals who were not members of an
underrepresented minority group who
either had applied for admission to the LSA
and been rejected or who intended to apply
for admission to the LSA, for all academic
years from 1995 forward. Id., at 35-36. The
District Court determined that the proposed
class satisfied the requirements of the Fed-
eral Rules of Civil Procedure, including the
requirements of numerosity, commonality,
and typicality. See Fed. Rule Civ. Proc.
23(a); App. 70. The court further concluded
that Hamacher was an adequate representa-
tive for the class in the pursuit of compen-
satory and injunctive relief for purposes of
Rule 23(a)(4), see App. 61-69, and found
"the record utterly devoid of the presence
of ... antagonism between the interests of .
.. Hamacher, and the members of the class
which [he] seek[s] to'represent," id., at 61.
Finally, theDistrict Court concluded that
petitioners' claim was appropriate for class
treatment because the University's "'prac-
tice of racial discrimination pervasively
applied on a classwide basis."' Id., at 67.
The court certified the class pursuant to
Federal Rule of Civil Procedure 23(b)(2),
and designated Hamacher as the class rep-
resentative. App. 70.
JUSTICE STEVENS cites Blum v. Yaret-
sky, 457 U. S. 991 (1982), in arguing that
the District Court erred. Post, at 8. In Blum,
we considered a class action suit brought
by Medicaid beneficiaries. The named rep-
resentatives in Blum challenged decisions
by the State's Medicaid Utilization Review
Committee (URC) to transfer them to lower
levels of care without, in their view, suffi-
cient procedural safeguards. After a class
was certified, the plaintiffs obtained an
order expanding class certification to
include challenges to URC decisions to
transfer patients to higher levels of care as
well. The defendants argued that the named

representatives could not represent absent
class members challenging transfers to
higher levels of care because they had not
been threatened with such transfers. We
agreed. We noted that "[niothing in the
record. . . suggests that any of the individ-
ual respondents have been either trans-
ferred to more intensive care or threatened
with such transfers." 457 U. S., at 1001.
And we found that transfers to lower levels
of care involved a number of fundamentally
different concerns than did transfers to
higher ones. Id., at 1001-1002 (noting, for
example, that transfers to lower levels of
care implicated beneficiaries' property
interests given the concomitant decrease in
Medicaid benefits, while transfers to higher
levels of care did not).
In the present case, the University's use
of race in undergraduate transfer admis-
sions does not implicate a significantly dif-
ferent set of concerns than does its use of
race in undergraduate freshman admissions.
Respondents challenged Hamacher's stand-
ing at the certification stage, but never did
so on the grounds that the University's use
of race in undergraduate transfer admis-
sions involves a different set of concerns
than does its use of race in freshman
admissions. Respondents' failure to allege
any such difference is simply consistent
with the fact that no such difference exists.
Each year the OUA produces a document
entitled "COLLEGE OF LITERATURE
SCIENCE AND THE ARTS GUIDELINES
FOR ALL TERMS," which sets forth

found that Hamacher had standing to repre-
sent the class, the transfer guidelines con-
tained a separate section entitled
"CONTRIBUTION TO A DIVERSE STU-
DENT BODY." 2 id., at 531. This section
explained that any transfer applicant who
could "contribut[e] to a diverse student
body" should "generally be admitted" even
with substantially lower qualifications than
those required of other transfer applicants.
Ibid. (emphasis added). To determine
whether a transfer applicant was capable of
"contribut[ing] to a diverse student body,"
admissions counselors were instructed to
determine whether that transfer applicant
met the "criteria as defined in Section IV
of the 'U' category of [the] SCUGA" fac-
tors used to assess freshman applicants.
Ibid. Section IV of the "U" category, enti-
tled "Contribution to a Diverse Class,"
explained that "[t]he University is commit-
ted to a rich educational experience for its
students. A diverse, as opposed to a homog-
enous, student population enhances the
educational experience for all students. To
insure a diverse class, significant weight
will be given in the admissions process to
indicators of students contribution to a
diverse class." 1 id., at 432. These indica-
tors, used in evaluating freshman and trans-
fer applicants alike, list being a member of
an underrepresented minority group as
establishing an applicant's contribution to
diversity. See 3 id., at 1133-1134,
1153-1154. Indeed, the only difference
between the University's use of race in con-
sidering freshman and transfer applicants is
that all underrepresented minority fresh-
man applicants receive 20 points and "vir-
tually" all who are minimally qualified are
admitted, while "generally" all minimally
qualified minority transfer applicants are
admitted outright. While this difference
might be relevant to a narrow tailoring
analysis, it clearly has no effect on petition-
ers' standing to challenge the University's
use of race in undergraduate admissions
and its assertion that diversity is a com-
pelling state interest that justifies its con-
sideration of the race of its undergraduate
applicants.'"
Particularly instructive here is our state-
ment in General Telephone Co. of South-
west v. Falcon, 457 U. S. 147 (1982), that
"[i]f [defendantemployer] used a biased
testing procedure to evaluate both appli-
cants for employment and incumbent
employees, a class action on behalf of
every applicant or employee who might
have been prejudiced by the test clearly
would satisfy the . . . requirements of Rule
23(a)." Id., at 159, n. 15 (emphasis added).
Here, the District Court found that the sole
rationale the University had provided for
any of its race-based preferences in under-
graduate admissions was the interest in
"the educational benefits that result from
having a diverse student body." App. to Pet.
for Cert. 8a. And petitioners argue that an
interest in "diversity" is not a compelling
state interest that is ever capable of justify-
ing the use of race in undergraduate admis-
sions. See, e.g., Brief forPetitioners 11-13.
In sumtheasame setsof concerns is impli-
cated by the University's use of race in
evaluating all undergraduate admissions
applications under the guidelines." We
therefore agree with the District Court's
carefully considered decision to certify this
classaction challenge to the University's
consideration of race in undergraduate
admissions. See App. 67 ("'It is a singular
policy . . . applied on a classwide basis"');
cf. Coopers & Lybrand v. Livesay, 437 U.
S. 463, 469 (1978) ("[T]he class determina-
tion generally involves considerations that
are enmeshed in the factual and legal issues
comprising the plaintiff's cause of action"
(internal quotation marks omitted)). Indeed,
class-action treatment was particularly
important in this case because "the claims
of the individual students run the risk of
becoming moot" and the "[t]he class action
vehicle . . . provides a mechanism for
ensuring that a justiciable claim is before
the Court." App. 69. Thus, we think it clear
that Hamacher's personal stake, in view of
both his past injury and the potential injury

he faced at the time of certification,
demonstrates that he may maintain this
class-action challenge to the University's
use of race in undergraduate admissions.
B
Petitioners argue, first and foremost, that
the University's use of race in undergradu-
ate admissions violates the Fourteenth
Amendment. Specifically, they contend that
this Court has only sanctioned the use of
racial classifications to remedy identified
discrimination, a justification on which
respondents have never relied. Brief for
Petitioners 15-16. Petitioners further argue
that "diversity as a basis for employing
racial preferences is simply too open-
ended, ill-defined, and indefinite to consti-
tute a compelling interest capable of
supporting narrowly-tailored means." Id., at
17-18, 40-41. But for the reasons set forth
today in Grutter v. Bollinger, post, at
15-21, the Court has rejected these argu-
ments of petitioners.
Petitioners alternatively argue that even
if the University's interest in diversity can
constitute a compelling state interest, the
District Court erroneously concluded that
the University's use of race in its current
freshman admissions policy is narrowly tai-
lored to achieve such an interest. Petition-
ers argue that the guidelines the University
began using in 1999 do not "remotely
resemble the kind of consideration of race
and ethnicity that Justice Powell endorsed
in Bakke." Brief for Petitioners 18. Respon-

Id., at 35. For the reasons set out below, we
do not agree.
It is by now well established that "all
racial classifications reviewable under the
Equal Protection Clause must be strictly
scrutinized." Adarand Constructors, Inc. v.
Pena, 515 U. S. 200, 224 (1995). This
"'standard of review . . . is not dependent
on the race of those burdened or benefited
by a particular classification."' Ibid. (quot-
ing Richmond v. J A. Croson Co., 488 U. S.
469, 494 (1989) (plurality opinion)). Thus,
"any person, of whatever race, has the right
to demand that any governmental actor sub-
ject to the Constitution justify any racial
classification subjecting that person to
unequal treatment under the strictest of
judicial scrutiny." Adarand, 515 U. S., at
224.
To withstand our strict scrutiny analysis,
respondents must demonstrate that the Uni-
versity's use of race in its current admis-
sion program employs "narrowly tailored
measures that further compelling govern-
mental interests." Id., at 227. Because
"[r]acial classifications are simply too per-
nicious to permit any but the most exact
connection between justification and classi-
fication," Fullilove v. Klutznick, 448 U. S.
448, 537 (1980) (STEVENS, J., dissent-
ing), our review of whether such require-
ments have been met must entail "'a most
searching examination."' Adarand, supra,
at 223 (quoting Wygant v. Jackson Bd. of
Ed., 476 U. S. 267, 273 (1986) (plurality
opinion of Powell, J.)). We find that the
University's policy, which automatically
distributes 20 points, or one-fifth of the
points needed to guarantee admission, to
every single "underrepresented minority"
applicant solely because of race, is not nar-
rowly tailored to achieve the interest in
educational diversity that respondents
claim justifies their program.
In Bakke, Justice Powell reiterated that
"[p]referring members of any one group for
no reason other than race or ethnic origin is
discrimination for its own sake." 438 U. S.,
at 307. He then explained, however, that in
his view it would be permissible for a uni-
versity to employ an admissions program in
which "race or ethnic background may be
deemed a 'plus' in a particular applicant's
file." Id., at 317. He explained that such a
program might allow for "[t]he file of a
particular black applicant [to] be examined
for his potential contribution to diversity
without the factor of race being decisive
when compared, for example, with that of
an applicant identified as an Italian-Ameri-
can if the latter is thought to exhibit quali-
ties more likely to promote beneficial
educational pluralism." Ibid. Such a sys-
tem, in Justice Powell's view, would be
"flexible enough to consider all pertinent
elements of diversity in light of the particu-
lar qualifications of each applicant." Ibid.
Justice Powell's opinion in Bakke empha-
sized the importance of considering each
particular applicant as an individual,
assessing all of the qualities that individual
possesses, and in turn, evaluating that indi-
vidual's ability to contribute to the unique
setting of higher education.
The admissions program Justice Powell
described, however, did not contemplate
that any single characteristic automatically
ensured a specific and identifiable contri-
bution to a university's diversity. See id., at
315. See also Metro Broadcasting, Inc. v.
FCC, 497 U. S. 547, 618 (1990) (O'CON-
NOR, J., dissenting) (concluding that the
FCC's policy, which "embodie[d] the relat-
ed notions that a particular applicant, by
virtue of race or ethnicity alone, is more
valued than other applicants because [the
applicant is] 'likely to provide [a] distinct
perspective,' "impermissibly value[d] indi-
viduals" based on a presumption that "per-
sons think in a manner associated with their
race"). Instead, under the approach Justice
Powell described, each characteristic of a
particular applicant was to be considered in
assessing the applicant's entire application.
The current LSA policy does not provide
such individualized consideration. The
LSA's policy automatically distributes 20
points to every single applicant from an

"underrepresented minority" group, as
defined by the University. The only consid-
eration that accompanies this distribution
of points is a factual review of an applica-
tion to determine whether an individual is a
member of one of these minority groups.
Moreover, unlike Justice Powell's example,
where the race of a "particular black appli-
cant" could be considered without being
decisive, see Bakke, 438 U. S., at 317, the
LSA's automatic distribution of 20 points
has the effect of making "the factor of race
... decisive" for virtually every minimally
qualified underrepresented minority appli-
cant. Ibid.'"
Also instructive in our consideration of
the LSA's system is the example provided
in the description of the Harvard College
Admissions Program, which Justice Powell
both discussed in, and attached to, his opin-
ion in Bakke. The example was included to
"illustrate the kind of significance attached
to race" under the Harvard College pro-
gram. Id., at 324. It provided as follows:
"The Admissions Committee, with only a
few places left to fill, might find itself
forced to choose between A, the child of a
successful black physician in an academic
community with promise of superior aca-
demic performance, and B, a black who
grew up in an inner-city ghetto of semi-lit-
erate parents whose academic achievement
was lower but who had demonstrated ener-
gy and leadership as well as an apparently
abiding interest in black power. If a good
mimh. fc k l.,rl *Auta ,v~u,,iker, A but

Picasso, the applicant would receive, at
most, five points under the LSA's system.
See App. 234-235. At the same time, every
single underrepresented minority applicant,
including students A and B, would automat-
ically receive 20 points for submitting an
application. Clearly, the LSA's system does
not offer applicants the individualized
selection process described in Harvard's
example. Instead of considering how the
differing backgrounds, experiences, and
characteristics of students A, B, and C
might benefit the University, admissions
counselors reviewing LSA applications
would simply award both A and B 20 points
because their applications indicate that they
are African-American, and student C would
receive up to 5 points for his "extraordinary
talent.""
Respondents emphasize the fact that the
LSA has created the possibility of an appli-
cant's file being flagged for individualized
consideration by the ARC. We think that
the flagging program only emphasizes the
flaws of the University's system as a whole
when compared to that described by Justice
Powell. Again, students A, B, and C illus-
trate the point. First, student A would never
be flagged. This is because, as the Univer-
sity has conceded, the effect of automati-
cally awarding 20 points is that virtually
every qualified underrepresented minority
applicant is admitted. Student A, an appli-
cant "with promise of superior academic
performance," would certainly fit this
description. Thus, the result of the automat-
ic distribution of 20 points is that the Uni-
versity would never consider student A's
individual background, experiences, and
characteristics to assess his individual
"potential contribution to diversity," Bakke,
supra, at 317. Instead, every applicant like
student A would simply be admitted.
It is possible that students B and C would
be flagged and considered as individuals.
This assumes that student B was not
already admitted because of the automatic
20-point distribution, and that student C
could muster at least 70 additional points.
But the fact that the "review committee can
look at the applications individually and
ignore the points," once an application is
flagged, Tr. of Oral Arg. 42, is of little
comfort under our strict scrutiny analysis.
The record does not reveal precisely how
many applications are flagged for this indi-
vidualized consideration, but it is undisput-
ed that such consideration is the exception
and not the rule in the operation of the
LSA's admissions program. See App. to Pet.
for Cert. 117a ("The ARC reviews only a
portion of all of the applications. The bulk
of admissions decisions are executed based
on selection index score parameters set by
the EWG").21 Additionally, this individual-
ized review is only provided after admis-
sions counselors automatically distribute
the University's version of a "plus" that
makes race a decisive factor for virtually
every minimally qualified underrepresented
minority applicant.
Respondents contend that "[t]he volume
of applications and the presentationof
applicant information make it impractical
for [LSA] to use the . . . admissions sys-
tem" upheld by the Court today in Grutter.
Brief for Respondents 6, n. 8. But the fact
that the implementation of a program capa-
ble of providing individualized considera-
tion might present administrative
challenges does not render constitutional an
otherwise problematic system. See J. A.
Croson Co., 488 U. S., at 508 (citing Fron-
tiero v. Richardson, 411 U. S. 677, 690
(1973) (plurality opinion of Brennan, J.)
(rejecting "'administrative convenience'"
as a determinant of constitutionality in the
face of a suspect classification)). Nothing
in Justice Powell's opinion in Bakke sig-
naled that a university may employ whatev-
er means it desires to achieve the stated
goal of diversity without regard to the lim-
its imposed by our strict scrutiny analysis.
We conclude, therefore, that because the
University's use of race in its current fresh-
man admissions policy is not narrowly tai-
lored to achieve respondents' asserted
compelling interest in diversity, the admis-

sions policy violates the Equal Protection
Clause of the Fourteenth Amendment.22 We
further find that the admissions policy also
violates Title VI and 42 U. S. C. § 1981.23
Accordingly, we reverse that portion of the
District Court's decision granting respon-
dents summary judgment with respect to
liability and remand the case for proceed-
ings consistent with this opinion.
It is so ordered.
1. Although Hamacher indicated that he
"intend[ed] to apply to transfer if the
[LSA's] discriminatory admissions system
[is] eliminated," he has since graduated
from Michigan State University. App. 34.
2. The University of.Michigan Board of
Regents was subsequently named as the
proper defendant in place of the University
and the LSA. See id., at 17.
3. Duderstadt was the president of the
University during the time that Gratz's
application was under consideration. He
has been sued in his individual capacity.
Bollinger was the president of the Universi-
ty when Hamacher applied for admission.
He was originally sued in both his individ-
ual and official capacities, but he is no
longer the president of the University. Id.,
at 35.
4. A group of African-American and
Latino students who applied for, or intend-
ed to apply for, admission to the University,
as well as the Citizens for Affirmative
Action's Prese~rvation.annprofit nrniza-

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