ADMISSIONS ON TRIAL

The Michigan Daily - Tuesday, June 24, 2003 -16

Sidoti, 466 U. S. 429, 432 (1984). Accord-
ingly, race-conscious admissions policies
must be limited in time. This requirement
reflects that racial classifications, however
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 funda-
mental equal protection principle. We see
no reason to exempt race-conscious admis-
sions 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 requirement can be met by sun-
set provisions in race-conscious admissions
policies and periodic reviews to determine
whether racial preferences are still neces-
sary to achieve student body diversity. Uni-
versities 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 alternative approach-
es. 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., concur-
ring) ("[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 that the devia-
tion 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." Richmond v. J
2. Croson Co., 488 U. S., at 510 (plurality
opinion); see also Nathanson & Bartnik,
The Constitutionality of Preferential Treat-
ment foi Minority Applicants to Profession-
al 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 representa-
tion in every desirable walk of life. But that
i not the ration-ale for programs of prefer-
ential treatment; the acid test of their justi-
fication 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 offi-
cials in the absence of a showing to the
contrary). It has been 25 years since Justice
Powell first approved the use of race to fur-
ther 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.
4-3. We expect that 25 years from now, the
use of racial preferences will no longer be
necessary to further the interest approved
today.
IV
In summary, the Equal Protection Clause
does not prohibit the Law School's narrow-
ly tailored use of race in admissions deci-
sions to further a compelling interest in
obtaining the educational benefits that flow
from a diverse student body. Consequently,
petitioner's statutory claims 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. Pennsylvania, 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.

unequal or separate rights for different
racial groups after the objectives 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
"temporary special measures aimed at
accelerating de facto 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 diver-
sity in the context of public higher educa-
tion." 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. essmann v. Gittens, 160 F. 3d
790 (CAl 1998); Tuttle v. Arlington Cty.
School Bd., 195 E 3d 698 (CA4 1999);
Johnson v. Board of Regents of Univ. of
Ga., 263 F. 3d 1234 (CAl1 2001). More-
over, it was only 25 years before Bakke that
this Court declared public school segrega-
tion unconstitutional, 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 discrimi-
nation 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.
Pena, 515 U. S. 200, 272-274 (1995)
(GINSBURG, J., dissenting); Krieger, Civil
Rights Perestroika: Intergroup Relations
after Affirmative Action, 86 Calif. L. Rev.
1251, 1276-1291, 1303 (1998). As to pub-
lic education, data for the years 2000-2001
show that 71.6% of African-American chil-
dren 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 Mul-
tiracial Society with Segregated Schools:
Are We Losing the Dream? p. 4 (Jan.
2003), http://www.civilrightsproject. har-
vard.edu/research/reseg03/AreWeLos-
ingtheDream.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 meas-
ured by the educational resources available
to them. See id., at 11; Brief for National
Urban League et al. as Amici Curiae 11-12
(citing General Accounting Office, Per-
Pupil Spending Differ-ences Between I
Selected Inner City and Suburban Schools
Varied by Metropolitan Area, 17 (2002)).
However strong the public's desire for
improved education 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 minority stu-
dents encounter markedly inadequate and
unequal educational opportunities. Despite
these inequalities, some minority students
are able to meet the high threshold require-
ments set for admission to the country's
finest undergraduate and graduate educa-
tional institutions. As lower school educa-
tion 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 fore-
cast, that over the next generation's span,
progress toward nondiscrimination and gen-

uinely 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 Con-
structors, Inc. v. Pena, 515 U. S. 200
(1995), Richmond v. J A. Croson Co., 488
U. S. 469 (1989), and Justice Powell's opin-
ion 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 designed to benefit or to bur-
den 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., dissent-
ing). Nor does this case necessitate recon-
sideration 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 (GINS-
BURG, J., dissenting).

JUSTICE ANTONIN SCALIA, with
whom JUSTICE CLARENCE THOMAS
Joins, concurring In part and dis-
senting In part.
I join the opinion of THE CHIEF JUS-
TICE. As he demonstrates, 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 JUS-
TICE THOMAS's opinion.* I find particu-
larly unanswerable his central point: that
the allegedly "compelling state interest" at
issue here is not the incremental "educa-
tional benefit" that emanates from the
fabled "critical mass" of minority students,
but rather Michigan's interest in maintain-
ing 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 discrimination
consists, according to the Court, of "'cross-
racial understanding,"' ante, at 18, and
"'better pre-par[ation of] students for an
increasingly diverse workforce and socie-
ty,"' ibid., all of which is necessary not
only for work, but also for good "citizen-
ship," ante, at 19. This is not, of course, an
"educational benefit" on which students
will be graded on their Law School tran-
script (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) peo-
ple 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 Uni-
versity of Michigan Law School to use
racial discrimination for the purpose of put-
ting together a "critical mass" that will con-
vey generic lessons in socialization and
good citizenship, surely it is no less appro-
priate-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 Amer-
icans, better Michiganders, better civil ser-
vants. 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 discrimina-
tion in hiring. The nouminority indi-viduals
who are deprived of a legal education, a
civil service job, or any job at all by reason
oftheir skin color will surely understand.
Unlike a clear constitutional holding that
racial preferences in state educational insti-
tutions are impermissible, or even a clear
anticonstitutional holding that racial prefer-
ences in state educational institutions are
OK, today's Grutter-Gratz split double
header seems perversely designed to pro-
long 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 admis-
sions tracks" ante, at 22, to fall under Grut-
ter 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 educational benefits flow from
racial diversity. (That issue was not contest-
ed in Grutter; and while the opinion
accords "a degree of deference to a univer-
sity'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 sup-
pose, 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 organiza-
tions, separate minority housing
opportunities, separate minority student
centers, even separate minority-only gradu-
ation ceremonies.) And still other suits may
claim that the institution's racial prefer-
ences have gone below or above the mysti-
cal Grutter-approved "critical mass."
Finally, litigation can be expected on behalf
of minority groups intentionally short
changed in the institution's composition of
its generic minority "critical mass." I do
not look forward to any of these cases. The
Constitution proscribes government dis-
crimination on the basis of race, and state-
provided education is no exception.
*Part VII of JUSTICE THOMAS's opin-
ion describes those portions of the Court's
opinion in which I concur. See post, at
27-31.
JUSTICE CLARENCE THOMAS, with
whom JUSTICE ANTONIN 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, deliv-
ered a message lost on today's majority:
"[I]n regard to the colored people, there
is always more that is benevolent, I per-
cive, than just, manifested towards us.
What I ask for the negro is not benevo-
lence, 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 mis-
chief 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 positive 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 origi-
nal).
Like Douglass, I believe blacks can
achieve in every avenue of American life
without the meddling of university adminis-
trators. Because I wish to see all students
succeed whatever their color, I share, in
some respect, the sympathies of those who
sponsor the type of discrimination
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 Consti-
tution countenance the unprecedented def-
erence the Court gives to the Law School,
an approach inconsistent with the very con-
cept 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.
Similarly, a university may not maintain a
high admission standard and grant exemp-
tions to favored races. The Law School, of
its own choosing, and for its own purposes,
maintains an exclusionary admissions sys-
tem that it knows produces racially dispro-
portionate 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 discrimination not by interpreting the
people's Constitution, but by responding to
a faddish slogan of the cognoscenti. Never-
theless, I concur in part in the Court's opin-
ion. 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.
Second, I agree with the Court's holding
that racial discrimi-nation in higher educa-
tion admissions will be illegal in 25 years.
See ante, at 31 (stating that racial discrimi-
nation will no longer be narrowly tailored,
or "necessary to further" a compelling state
interest, in 25 years). I respectfully dissent
from the remainder of the Court's opinion
and the judgment, however, because I
believe that the Law School's current use of
race violates the Equal Protection 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 discrimination should be
subjected to strict scrutiny. Ante, 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 fre-

quently been termed "compelling govern-
mental interest,"' 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 circumstances
where "pressing public necessity" or a
"compelling state interest" can possibly
justify racial discrimination by state actors.
First, the lesson of Korematsu is that
national security constitutes a "pressing
public necessity," though the government's
use of race to advance that objective must
be narrowly tailored. Second, the Court has
recognized as a compelling state interest a
government's effort to remedy past discrim-
ination for which it is responsible. Rich-
mond v. J 4. Croson Co., 488 U. S. 469,
504 (1989).
The contours of "pressing public necessi-
ty" can be further discerned from those
interests the Court has rejected as bases for
racial discrimination. For example, Wygant
v. Jackson Bd. of Ed., 476 U. S. 267 (1986),
found unconstitutional a collective-bargain-
ing 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 minori-
ty students and that a racially "diverse" fac-

ulty would improve the education of all stu-
dents. See Brief for Respondents, O. T.
1984, No. 84-1340, pp. 2728; 476 U. S.,
at 315 (STEVENS, J., dissenting) ("[A]n
integrated faculty will be abl,to provide
benefits to the student body that could not
be provided by an all-white, or n ly all-
white faculty"). Nevertheless, the ourt
found that the use of race violated tlb
Equal Protection Clause, deeming bot
asserted state interests insufficiently co
pelling. Id., at 275-276 (plurality opinion),
id., at 295 (White, J., concurring in judg-
ment) ("None of the interests asserted by
the [school board] . . . justify this racially
discriminatory 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 cus-
tody to the father because the mother was
in a mixed-race marriage. Id., at 433 (find-
ing 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 general societal discrimina-
tion as a justification for race discrimina-
tion. 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 age-
less in their reach into the past, and time-
less 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 measures the State must take to pro-
vide a bulwark against anarchy, or to pre-
vent violence, will constitute a "pressing
public necessity." Cf. Lee v. Washington,
390 U. S. 333, 334 (1968) (per curiam)
(Black, J., concurring) (indicating that pro-
tecting prisoners from violence might justi-
fy narrowly tailored racial discrimination);
Croson, supra, at 521 (SCALIA, J., concur-
ring in judgment) ("At least where state or
local action is at issue, only a social emer-
gency rising to the level of imminent dan-
ger to life and limb. . . can justify [racial
discrimination]").
The Constitution abhors classifications
based on race, not only because those clas-
sifications can harm favored races or are
based on illegitimate motives, but also
because every time the government places
citizens on racial registers and makes race
relevant to the provision of burdens or ben-
efits, it demeans us all. "Purchased at the
price of immeasurable human suffering, the
equal protection principle reflects our
Nation's understanding that such classifica-
tions ultimately have a destructive impact
on the individual and our society." Adarand
Construction, Inc. v. Pea,, 515 U. S. 200,
240 (1995) (THOMAS, J., concurring in
part and concurring in judgment).
II
Unlike the majority, I seek to define with
precision the interest being asserted by the
Law School before determining whether
that interest is so compelling as to justify
racial discrimination. The Law School
maintains that it wishes to obtain "educa-
tional 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 com-
pelling state interest. Additionally, the Law
School's refusal to entertain certain
changes in its admissions process and sta-
tus indicates that the compelling state inter-
est it seeks to validate is actually broader
than might appear at first glance.
Undoubtedly there are other ways to

"better" the education of law students aside
from ensuring that the student body con-
tains a "critical mass" of underrepresented
minority students. Attaining "diversity,"
whatever it means,' is the mechanism by
which the Law School obtains 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 bal-
ancing," ante, at 17, that the majority
expressly rejects?
A distinction between these two ideas
(unique educational benefits based on
racial aesthetics and race for its own sake)
is purely sophistic-so much so that the
majority uses them interchangeably. Com-
pare ante, at16 ("[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 understood 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]
training" without reference to any conse-
quential 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 alter-
native that would reduce "academic selec-
tivity," which would in turn "require the
Law School to become a very different
institution, and to sacrifice a core part of
its educational mission." Brief for Respon-

JUSTICE RUTH BADER GINSBURG,
with whom JUSTICE STEPHEN BREY-
ER joins, concurring.
. The Court's observation that race-con-
scious programs "must have a logical end
point," ante, at 29, accords with the inter-
national understanding of the office of
affirmative action. The International Con-
vention on the Elimination of All Forms of
Racial Discrimination, ratified by the Unit-
ed States in 1994, see State Dept., Treaties
in Force 422-423 (June 1996), endorses
"special and concrete measures to ensure
the adequate development and protection of
certain racial groups or individuals belong-
ing to them, for the purpose of guarantee-
ing them the full and equal enjoyment of
human rights and fundamental freedoms."
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