ADMISSIONS ON TRIAL

The Michigan Daily - Tuesday, June 24, 2003- 15


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 noth-
ing about the/ultimate validity of any par-
ticular law that determination is the job of
the court tpplying strict scrutiny." Id., at
230. W4n race-based action is necessary
to furher a compelling governmental inter-
est, uch action does not violate the consti-
tu onal guarantee of equal protection so
ng as the narrow-tailoring requirement is
also satisfied.
Context matters when reviewing race-
based governmental action under the Equal
Protection Clause. See Gomillion v. Light-
foot, 364 U. S. 339, 343-344 (1960)
(admonishing that, "in dealing with claims
under broad provisions of the Constitution,
which derive content by an interpretive
process of inclusion and exclusion, it is
imperative that generalizations, based on
and qualified by the concrete situations that
gave rise to them, must not be applied out
of context in disregard of variant control-
ling facts"). In Adarand Constructors, Inc.
v. Pea, 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 pur-
pose." Ibid. Not every decision influenced
by race is equally objectionable and strict
scrutiny is designed to provide a framework
} for carefully examining the importance and
the sincerity of the reasons advanced by the
governmental decisionmaker for the use of
race in that particular context.
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
diverse student body." Brief for Respon-
dents Bollinger et al.
i. In other words, the Law School asks us
to recognize, in the context of higher edu-
cation, a compelling state interest in stu-
dent body diversity.
We first wish to dispel the notion that the
Law School's argument has been fore-
closed, either expressly or implicitly, by our
affirmative-action cases decided since
Bakke. It is true that some language in
those opinions might be read to suggest that
remedying past discrimination is the only
permissible justification for race-based
governmental action. See, e.g., Richmond v.
J A. Croson Co., supra, at 493 (plurality
opinion) (stating that unless classifications
based on race are "strictly reserved for
remedial settings, they may in fact promote
notions of racial inferiority and lead to a
politics of racial hostility"). But we have
never held that the only governmental use
of race that can survive strict scrutiny is
remedying past discrimination. Nor, since
Bakke, have we directly addressed the use
of race in the context of public higher edu-
cation. 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 diversity is essential to its educa-
tional mission is one to which we defer. The
Law School's assessment that diversity will,
in fact, yield educational benefits is sub-
stantiated 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 expert-
ise of the university. Our holding today is in
keeping with our tradition of giving a
degree of deference to a university's aca-
demic 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 constitutional tradition. See,
e.g., Wieman v. Updegraff, 344 U. S. 183,
195 (1952) (Frankfurter, J., concurring);
Sweezy v. New Hampshire, 354 U. S. 234,
250 (1957); Shelton v. Tucker, 364 U. S.
479, 487 (1960); Keyishian v. Board of
Regents of Univ. of State of N. Y, 385 U. S.,
at 603. In announcing the principle of stu-
dent body diversity as a compelling state
interest, Justice Powell invoked our cases
recognizing a constitutional dimension,
grounded in the First Amendment, of edu-
cational autonomy: "The freedom of a uni-
versity to make its own judgments as to
education includes the selection of its stu-
dent 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 impor-
tance 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 stu-
dent 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 university is "presumed" absent "a
showing to the contrary." 438 U. S., at
318-319.
---------

sake"); Richmond v. J. A. Croson Co., 488
U. S., at 507. Rather, the Law School's con-
cept 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
"cross-racial understanding," helps to break
down racial stereotypes, and "enables [stu-
dents] to better understand persons of dif-
ferent races." App. to Pet. for Cert. 246a.
These benefits are "important and laud-
able," because "classroom discussion is
livelier, more spirited, and simply more
enlightening and interesting" when the stu-
dents have "the greatest possible variety of
backgrounds." Id., at 246a, 244a.
The Law School's claim of a compelling
interest is further bolstered by its amici,
who point to the educational benefits that
flow from student body diversity. In addi-
tion to the expert studies and reports
entered into evidence at trial, numerous
studies show that student body diversity
promotes learning outcomes, and "better
prepares students for an increasingly
diverse workforce and society, and better
prepares them as professionals." Brief for
American Educational Research Associa-
tion 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); Com-
pelling Interest: Examining the Evidence on
Racial Dynamics in Colleges and Universi-
ties (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 view-
points. Brief for 3M et al. as Amici Curiae
5; Brief for General Motors Corp. as Ami-
cus 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 Nation's officer corps are the serv-
ice academies and the Reserve Officers
Training Corps (ROTC), the latter compris-
ing students already admitted to participat-
ing colleges and universities. Id., at 5. At
present, "the military cannot achieve an
officer corps that is both highly qualified
and racially diverse unless the service acad-
emies and the ROTC used limited race-con-
scious recruiting and admissions policies."
Ibid. (emphasis in original). To fulfill its
mission, the military "must be selective in
admissions for training and education for
the officer corps, and it must train and edu-
cate a highly qualified, racially diverse offi-
cer corps in a racially diverse setting." 'Id.
at 29 (emphasis in original). We agree that
"[i]t requires only a small step from this
analysis'to conlude that our country's
other most selective institutions must
remain both diverse and selective." Ibid.
We have repeatedly acknowledged the
overriding importance of preparing students
for work and citizenship, describing educa-
tion as pivotal to "sustaining our political
and cultural heritage" with a fundamental
role in maintaining the fabric of society.
Plyler v. Doe, 457 U. S. 202, 221 (1982).
This Court has long recognized that "edu-
cation. . . 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 educa-
tion 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 govern-
ment 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 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 rough-
ly half the state governorships, more than
half the seats in the United States Senate,
and more than a third of the seats in the
United States House of Representatives.
See Brief for Association of American Law
Schools as Amicus Curiae 5-6. The pattern
is even more striking when it comes to
highly selective law schools. A handful of
these schools accounts for 25 of the 100
United States Senators, 74 United States
Courts of Appeals judges, and nearly 200 of
the more than 600 United States District
Court judges. Id., at 6.
In order to cultivate a set of leaders with
legitimacy in the eyes of the citizenry, it is
necessary that the path to leadership be vis-
ibly open to talented and qualified individ-
uals of every race and ethnicity. All
members of our heterogeneous society must
have confidence in the openness and
integrity of the educational institutions that
.:Y[1P h-c r-nnn: c a - - ra-na

minority students always (or even consis-
tently) express some characteristic minority
viewpoint on any issue." Brief for Respon-
dent Bollinger et al.
30. To the contrary, diminishing the force
of such stereotypes is both a crucial part of
the Law School's mission, and one that it
cannot accomplish with only token numbers
of minority students. Just as growing up in
a particular region or having particular pro-
fessional experi-ences is likely to affect an
individual's views, so too is one's own,
unique experience of being a racial minori-
ty 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 fur-
ther its compelling 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, govern-
ment is still "constrained in how it may pur-
sue 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 illegitimate 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 uni-
versity 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 asser-
tions, we do not "abandon[ ] strict scruti-
ny," see post, at 8 (dissenting opinion).
Rather, as we have already explained, ante,
at 15, we adhere to Adarand's teaching that
the very purpose of strict scrutiny is to take
such "relevant differences into account."
515 U. S., at 228 (internal quotation marks
omitted).
To be narrowly tailored, a race-conscious
admissions program cannot use a quota sys-
tem-it cannot "insulat[e] each category of
applicants with certain desired qualifica-
tions from competition with all other appli-
cants." Bakke, supra, at 315 (opinion of
Powell, J.). Instead, a university may con-
sider race or ethnicity only as a "'plus' in a
particular applicant's file," without "insu-
lat[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 qualifica-
tions of each applicarit; and to plae6 them
on the same footing for consideration,
although not necessarily according them the
same weight."' id
We find that the Law School's admissions
program bears the hallmarks of a narrowly
tailored plan. As Justice 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 certain 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 individualized consideration
of each and every applicant. Ibid.
We are satisfied that the Law School's
admissions program, like the Harvard plan
described by Justice Powell, does not oper-
ate 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 minor-
ity groups." Richmond v. J A. Croson Co.,
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 compari-
son with all other candidates for the avail-
able 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
"compete[s] with all other qualified appli-
cants," 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.
minimum 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
T-Nar ad arr m nvm "the fun, rtional

those students admitted." Id., at 323.
"[S]ome attention to numbers," without
more, does not transform a flexible admis-
sions system into a rigid quota. Ibid. Nor,
as JUSTICE KENNEDY posits, does the
Law School's consultation 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
information 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 number 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 admis-
sions data to contend that the Law School
discriminates among different groups with-
in 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 applicant pool
and varies considerably for each group
from year to year. See post, at 8 (dissenting
opinion).
That a race-conscious admissions pro-
gram does not operate as a quota does not,
by itself, satisfy the requirement of individ-
ualized consideration. When using race as a
"plus" factor in university admissions, a
university's admissions program must
remain flexible enough to ensure that each
applicant is evaluated as an individual and
not in a way that makes an applicant's race
or ethnicity 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.) (identifying the
"denial . . of th[e] right to individualized
consideration" as the "principal evil" of the
medical school's admissions program).
Here, the Law School engages in a highly
individualized, holistic review of each
applicant's file, giving serious considera-
tion to all the ways an applicant might con-
tribute 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" vari-
able. Unlike the program at issue in Gratz v.
Bollinger, ante, the Law School awards no
mechanical, predetermined diversity
"bonuses" based on race or ethnicity. 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 char-
acteristic automatically ensured a specific
and identifiable contribution to a universi-
ty'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 qualifica-
tions of each applicant, and to place them
on the same footing for consideration,
although not necessarily according them the
same weight." Bakke, supra, at 317 (opin-
ion of Powell, J.).
We also find that, like the Harvard plan
Justice Powell referenced in Bakke, the Law
School's race-conscious admissions pro-
gram adequately ensures that all factors
that may contribute to student body diversi-
ty are mean-ingfully considered alongside
race in admissions decisions. With respect
to the use of race itself, all underrepresent-
ed minority students admitted by the Law
School have been 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 valu-
able contributions to student body diversity.
To the contrary, the 1992 policy makes
clear "[t]here are many possible bases for
diversity admissions," and provides exam-
ples of admittees who have lived or traveled
widely abroad, are fluent in several lan-
guages, have over-come personal adversity
and family hardship, have exceptional
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 prom-
ise of making a notable contribution to the
class by way of a particular strength, attain-
ment, or characteristic-e.g., an unusual
intellectual achievement, employment expe-
rience, nonacademic performance, or per-
sonal background." Id., at 83-84. All
applicants have the opportunity to highlight
their own potential diversity contributions
through the submission of a personal state-
ment, 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 Schoni actnallv

ry, 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 minori-
ty 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 approv-
ingly 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 appli-
cants who are "admissible" and deemed
capable of doing good work in their cours-
es, the race of an applicant may tip the bal-
ance 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 educational oppor-
tunities 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"'); Rich-
mond 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 serious, good faith consid-
eration of workable race-neutral alterna-
tives 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 Bd. of Ed., supra, at
280, n. 6 (narrow tailoring "require[s] con
sideration" 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 Dis-
trict 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 applicants,
on undergraduate GPA and LSAT scores."
App. to Pet. for Cert. 251a. But these alter-
natives 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 educa-
tional values, not to mention every other
kind of diversity. So too with the sugges-
tion 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 institu-
tion and sacrifice a vital component of its
educational mission. The United States
advocates "percentage plans," recently
adopted by public undergraduate institu-
tions 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. Moreover, even assuming such
plans are race-neutral, they may preclude
the university from conducting the individ-
ualized 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 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 tailor-
ing, therefore, requires that a race-con-
scious admissions program not unduly harm
members of any racial group. Even remedi-
al race-based governmental action generally
"remains subject to continuing oversight to
assure that it will work the least harm pos-
sible to other innocent persons competing
for the benefit." Id., at 308. To be narrowly
tailored, a race-conscious admissions pro-
gram 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 program does not. Because the
Law School considers "all pertinent ele-
ments 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 Pow-
ell, J.). As Justice Powell recognized in
Bakke, so long as a race-conscious admis-
sions program uses race as a "plus" factor
in the context of individualized considera-
tion, 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