UNITED STATES et al. v. AMERICAN LIBRARY ASSOCIATION, INC., et al.

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194 OCTOBER TERM, 2002
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UNITED STATES et al. v. AMERICAN LIBRARY
ASSOCIATION, INC., et al.
appeal from the united states district court for the
eastern district of pennsylvania
No. 02–361. Argued March 5, 2003—Decided June 23, 2003
Two forms of federal assistance help public libraries provide patrons with
Internet access: discounted rates under the E-rate program and grants
under the Library Services and Technology Act (LSTA). Upon dis-
covering that library patrons, including minors, regularly search the
Internet for pornography and expose others to pornographic images by
leaving them displayed on Internet terminals or printed at library print-
ers, Congress enacted the Children’s Internet Protection Act (CIPA),
which forbids public libraries to receive federal assistance for Internet
access unless they install software to block obscene or pornographic
images and to prevent minors from accessing material harmful to them.
Appellees, a group of libraries, patrons, Web site publishers, and related
parties, sued the Government, challenging the constitutionality of
CIPA’s filtering provisions. Ruling that CIPA is facially unconstitu-
tional and enjoining the Government from withholding federal assist-
ance for failure to comply with CIPA, the District Court held, inter alia,
that Congress had exceeded its authority under the Spending Clause
because any public library that complies with CIPA’s conditions will
necessarily violate the First Amendment; that the CIPA filtering soft-
ware constitutes a content-based restriction on access to a public forum
that is subject to strict scrutiny; and that, although the Government has
a compelling interest in preventing the dissemination of obscenity, child
pornography, or material harmful to minors, the use of software filters
is not narrowly tailored to further that interest.
Held: The judgment is reversed.
201 F. Supp. 2d 401, reversed.
Chief Justice Rehnquist, joined by Justice O’Connor, Justice
Scalia, and Justice Thomas, concluded:
1. Because public libraries’ use of Internet filtering software does not
violate their patrons’ First Amendment rights, CIPA does not induce
libraries to violate the Constitution, and is a valid exercise of Congress’
spending power. Congress has wide latitude to attach conditions to the
receipt of federal assistance to further its policy objectives, South Da-
kota v. Dole, 483 U. S. 203, 206, but may not “induce” the recipient “to
engage in activities that would themselves be unconstitutional,” id., at

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210. To determine whether libraries would violate the First Amend-
ment by employing the CIPA filtering software, the Court must first
examine their societal role. To fulfill their traditional missions of facili-
tating learning and cultural enrichment, public libraries must have
broad discretion to decide what material to provide to their patrons.
This Court has held in two analogous contexts that the Government
has broad discretion to make content-based judgments in deciding what
private speech to make available to the public. Arkansas Ed. Televi-
sion Comm’n v. Forbes, 523 U. S. 666, 672–674; National Endowment
for Arts v. Finley, 524 U. S. 569, 585–586. Just as forum analysis and
heightened judicial scrutiny were incompatible with the role of public
television stations in the former case and the role of the National En-
dowment for the Arts in the latter, so are they incompatible with the
broad discretion that public libraries must have to consider content in
making collection decisions. Thus, the public forum principles on which
the District Court relied are out of place in the context of this case.
Internet access in public libraries is neither a “traditional” nor a “desig-
nated” public forum. See, e. g., Cornelius v. NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788, 802–803. Unlike the “Student Activity
Fund” at issue in Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U. S. 819, 834, Internet terminals are not acquired by a library in
order to create a public forum for Web publishers to express themselves.
Rather, a library provides such access for the same reasons it offers
other library resources: to facilitate research, learning, and recreational
pursuits by furnishing materials of requisite and appropriate quality.
The fact that a library reviews and affirmatively chooses to acquire
every book in its collection, but does not review every Web site that
it makes available, is not a constitutionally relevant distinction. The
decisions by most libraries to exclude pornography from their print col-
lections are not subjected to heightened scrutiny; it would make little
sense to treat libraries’ judgments to block online pornography any dif-
ferently. Moreover, because of the vast quantity of material on the In-
ternet and the rapid pace at which it changes, libraries cannot possibly
segregate, item by item, all the Internet material that is appropriate for
inclusion from all that is not. While a library could limit its Internet
collection to just those sites it found worthwhile, it could do so only at
the cost of excluding an enormous amount of valuable information that
it lacks the capacity to review. Given that tradeoff, it is entirely reason-
able for public libraries to reject that approach and instead exclude cer-
tain categories of content, without making individualized judgments
that everything made available has requisite and appropriate quality.
Concerns over filtering software’s tendency to erroneously “overblock”
access to constitutionally protected speech that falls outside the catego-

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196 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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ries software users intend to block are dispelled by the ease with which
patrons may have the filtering software disabled. Pp. 203–209.
2. CIPA does not impose an unconstitutional condition on libraries
that receive E-rate and LSTA subsidies by requiring them, as a condi-
tion on that receipt, to surrender their First Amendment right to pro-
vide the public with access to constitutionally protected speech. As-
suming that appellees may assert an “unconstitutional conditions” claim,
that claim would fail on the merits. When the Government appro-
priates public funds to establish a program, it is entitled to broadly de-
fine that program’s limits. Rust v. Sullivan, 500 U. S. 173, 194. As in
Rust, the Government here is not denying a benefit to anyone, but is
instead simply insisting that public funds be spent for the purpose for
which they are authorized: helping public libraries fulfill their tradi-
tional role of obtaining material of requisite and appropriate quality
for educational and informational purposes. Especially because public
libraries have traditionally excluded pornographic material from their
other collections, Congress could reasonably impose a parallel limitation
on its Internet assistance programs. As the use of filtering software
helps to carry out these programs, it is a permissible condition under
Rust. Appellees mistakenly contend, in reliance on Legal Services Cor-
poration v. Velazquez, 531 U. S. 533, 542–543, that CIPA’s filtering condi-
tions distort the usual functioning of public libraries. In contrast to the
lawyers who furnished legal aid to the indigent under the program at
issue in Velazquez, public libraries have no role that pits them against
the Government, and there is no assumption, as there was in that case,
that they must be free of any conditions that their benefactors might
attach to the use of donated funds. Pp. 210–214.
Justice Kennedy concluded that if, as the Government represents,
a librarian will unblock filtered material or disable the Internet software
filter without significant delay on an adult user’s request, there is little
to this case. There are substantial Government interests at stake here:
The interest in protecting young library users from material inappropri-
ate for minors is legitimate, and even compelling, as all Members of the
Court appear to agree. Given this interest, and the failure to show that
adult library users’ access to the material is burdened in any significant
degree, the statute is not unconstitutional on its face. If some libraries
do not have the capacity to unblock specific Web sites or to disable the
filter or if it is shown that an adult user’s election to view constitution-
ally protected Internet material is burdened in some other substantial
way, that would be the subject for an as-applied challenge, not this facial
challenge. Pp. 214–215.
Justice Breyer agreed that the “public forum” doctrine is inapplica-
ble here and that the statute’s filtering software provisions do not vio-

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late the First Amendment, but would reach that ultimate conclusion
through a different approach. Because the statute raises special First
Amendment concerns, he would not require only a “rational basis” for
the statute’s restrictions. At the same time, “strict scrutiny” is not
warranted, for such a limiting and rigid test would unreasonably inter-
fere with the discretion inherent in the “selection” of a library’s collec-
tion. Rather, he would examine the constitutionality of the statute’s
restrictions as the Court has examined speech-related restrictions in
other contexts where circumstances call for heightened, but not “strict,”
scrutiny—where, for example, complex, competing constitutional inter-
ests are potentially at issue or speech-related harm is potentially justi-
fied by unusually strong governmental interests. The key question in
such instances is one of proper fit. The Court has asked whether the
harm to speech-related interests is disproportionate in light of both the
justifications and the potential alternatives. It has considered the legit-
imacy of the statute’s objective, the extent to which the statute will
tend to achieve that objective, whether there are other, less restrictive
ways of achieving that objective, and ultimately whether the statute
works speech-related harm that is out of proportion to that objective.
The statute’s restrictions satisfy these constitutional demands. Its ob-
jectives—of restricting access to obscenity, child pornography, and ma-
terial that is comparably harmful to minors—are “legitimate,” and
indeed often “compelling.” No clearly superior or better fitting al-
ternative to Internet software filters has been presented. Moreover,
the statute contains an important exception that limits the speech-
related harm: It allows libraries to permit any adult patron access to an
“overblocked” Web site or to disable the software filter entirely upon
request. Given the comparatively small burden imposed upon library
patrons seeking legitimate Internet materials, it cannot be said that any
speech-related harm that the statute may cause is disproportionate
when considered in relation to the statute’s legitimate objectives.
Pp. 215–220.
Rehnquist, C. J., announced the judgment of the Court and delivered
an opinion, in which O’Connor, Scalia, and Thomas, JJ., joined. Ken-
nedy, J., post, p. 214, and Breyer, J., post, p. 215, filed opinions concurring
in the judgment. Stevens, J., filed a dissenting opinion, post, p. 220.
Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined,
post, p. 231.
Solicitor General Olson argued the cause for appellants.
With him on the briefs were Assistant Attorney General

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198 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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McCallum, Deputy Solicitor General Kneedler, Irving L.
Gornstein, Barbara L. Herwig, and Jacob M. Lewis.
Paul M. Smith argued the cause for appellees. With him
on the brief for appellees American Library Association, Inc.,
et al. were Theresa A. Chmara, Daniel Mach, Elliot M.
Mincberg, and Lawrence S. Ottinger. Christopher A. Han-
sen, Ann Beeson, Steven R. Shapiro, Charles S. Sims, Stefan
Presser, and David L. Sobel filed a brief for appellees Mult-
nomah County Public Library et al.*
Chief Justice Rehnquist announced the judgment of
the Court and delivered an opinion, in which Justice O’Con-
nor, Justice Scalia, and Justice Thomas joined.
To address the problems associated with the availability of
Internet pornography in public libraries, Congress enacted
*Briefs of amici curiae urging reversal were filed for the State of Texas
by Greg Abbott, Attorney General, Barry R. McBee, First Assistant At-
torney General, Jeffrey S. Boyd, Deputy Attorney General, Philip A.
Lionberger, Solicitor General, and Amy Warr and Ryan D. Clinton, As-
sistant Solicitors General; for the American Center for Law and Justice
et al. by Jay Alan Sekulow, Colby M. May, Ben Bull, James M. Hender-
son, Joel H. Thornton, John P. Tuskey, and Laura B. Hernandez; for the
American Civil Rights Union by Peter Ferrara; for Cities, Mayors, and
County Commissioners by Kelly Shackelford; for the Greenville, South
Carolina, Public Library et al. by Kenneth C. Bass III; for the National
Law Center for Children and Families et al. by Kristina A. Bullock, Bruce
A. Taylor, and Janet M. LaRue; and for Sen. Trent Lott et al. by Brian
Fahling, Stephen M. Crampton, and Michael J. DePrimo.
Briefs of amici curiae urging affirmance were filed for the Association
of American Publishers, Inc., et al. by R. Bruce Rich, Jonathan Bloom,
and John B. Morris, Jr.; for the Brennan Center for Justice by Burt Neu-
borne, Laura K. Abel, and David S. Udell; for the Cleveland Public Li-
brary et al. by David W. Ogden; and for Partnership for Progress on the
Digital Divide et al. by Marjorie Heins.
Briefs of amici curiae were filed for the National School Boards Associ-
ation et al. by Julie Underwood, Naomi Gittins, and Stuart L. Knade; for
the Online Policy Group, Inc., et al. by Daniel H. Bromberg and Charles
R. A. Morse; and for Jonathan Wallace d/ b/a The Ethical Spectacle by
Michael B. Green and Jonathan D. Wallace.

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the Children’s Internet Protection Act (CIPA), 114 Stat.
2763A–335. Under CIPA, a public library may not receive
federal assistance to provide Internet access unless it installs
software to block images that constitute obscenity or child
pornography, and to prevent minors from obtaining access to
material that is harmful to them. The District Court held
these provisions facially invalid on the ground that they in-
duce public libraries to violate patrons’ First Amendment
rights. We now reverse.
To help public libraries provide their patrons with In-
ternet access, Congress offers two forms of federal assist-
ance. First, the E-rate program established by the Tele-
communications Act of 1996 entitles qualifying libraries to
buy Internet access at a discount. 110 Stat. 71, 47 U. S. C.
§ 254(h)(1)(B). In the year ending June 30, 2002, libraries
received $58.5 million in such discounts. Redacted Joint
Trial Stipulations of All Parties in Nos. 01–CV–1303, etc.
(ED Pa.), ¶ 128, p. 16 (hereinafter Jt. Tr. Stip.). Second, pur-
suant to the Library Services and Technology Act (LSTA),
110 Stat. 3009–295, as amended, 20 U. S. C. § 9101 et seq.,
the Institute of Museum and Library Services makes grants
to state library administrative agencies to “electronically
lin[k] libraries with educational, social, or information serv-
ices,” “assis[t] libraries in accessing information through
electronic networks,” and “pa[y] costs for libraries to acquire
or share computer systems and telecommunications technolo-
gies.” §§ 9141(a)(1)(B), (C), (E). In fiscal year 2002, Con-
gress appropriated more than $149 million in LSTA grants.
Jt. Tr. Stip. ¶ 185, p. 26. These programs have succeeded
greatly in bringing Internet access to public libraries: By
2000, 95% of the Nation’s libraries provided public Internet
access. J. Bertot & C. McClure, Public Libraries and the
Internet 2000: Summary Findings and Data Tables, p. 3
(Sept. 7, 2000), http://www.nclis.gov/statsurv/2000plo.pdf (all
Internet materials as visited Mar. 25, 2003, and available in
Clerk of Court’s case file).

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By connecting to the Internet, public libraries provide pa-
trons with a vast amount of valuable information. But there
is also an enormous amount of pornography on the Internet,
much of which is easily obtained. 201 F. Supp. 2d 401, 419
(ED Pa. 2002). The accessibility of this material has created
serious problems for libraries, which have found that patrons
of all ages, including minors, regularly search for online por-
nography. Id., at 406. Some patrons also expose others to
pornographic images by leaving them displayed on Internet
terminals or printed at library printers. Id., at 423.
Upon discovering these problems, Congress became con-
cerned that the E-rate and LSTA programs were facilitat-
ing access to illegal and harmful pornography. S. Rep.
No. 105–226, p. 5 (1998). Congress learned that adults “us[e]
library computers to access pornography that is then ex-
posed to staff, passersby, and children,” and that “minors
acces[s] child and adult pornography in libraries.” 1
But Congress also learned that filtering software that
blocks access to pornographic Web sites could provide a rea-
sonably effective way to prevent such uses of library re-
sources. Id., at 20–26. By 2000, before Congress enacted
CIPA, almost 17% of public libraries used such software on
at least some of their Internet terminals, and 7% had filters
on all of them. Library Research Center of U. Ill., Survey
of Internet Access Management in Public Libraries 8, http://
alexia.lis.uiuc.edu/gslis/research/internet.pdf. A library can
1 The Children’s Internet Protection Act: Hearing on S. 97 before the
Senate Committee on Commerce, Science, and Transportation, 106th
Cong., 1st Sess., 49 (1999) (prepared statement of Bruce Taylor, President
and Chief Counsel, National Law Center for Children and Families). See
also Obscene Material Available Via The Internet: Hearing before the Sub-
committee on Telecommunications, Trade, and Consumer Protection of the
House Committee on Commerce, 106th Cong., 2d Sess., 1, 27 (2000) (citing
D. Burt, Dangerous Access, 2000 Edition: Uncovering Internet Pornogra-
phy in America’s Libraries (2000)) (noting more than 2,000 incidents of
patrons, both adults and minors, using library computers to view online
pornography, including obscenity and child pornography).

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set such software to block categories of material, such as
“Pornography” or “Violence.” 201 F. Supp. 2d, at 428.
When a patron tries to view a site that falls within such a
category, a screen appears indicating that the site is blocked.
Id., at 429. But a filter set to block pornography may some-
times block other sites that present neither obscene nor por-
nographic material, but that nevertheless trigger the filter.
To minimize this problem, a library can set its software to
prevent the blocking of material that falls into categories
like “Education,” “History,” and “Medical.” Id., at 428–429.
A library may also add or delete specific sites from a blocking
category, id., at 429, and anyone can ask companies that fur-
nish filtering software to unblock particular sites, id., at 430.
Responding to this information, Congress enacted CIPA.
It provides that a library may not receive E-rate or LSTA
assistance unless it has “a policy of Internet safety for mi-
nors that includes the operation of a technology protection
measure . . . that protects against access” by all persons to
“visual depictions” that constitute “obscen[ity]” or “child por-
nography,” and that protects against access by minors to
“visual depictions” that are “harmful to minors.” 20 U. S. C.
§§ 9134(f)(1)(A)(i) and (B)(i); 47 U. S. C. §§ 254(h)(6)(B)(i) and
(C)(i). The statute defines a “[t]echnology protection meas-
ure” as “a specific technology that blocks or filters Internet
access to material covered by” CIPA. § 254(h)(7)(I). CIPA
also permits the library to “disable” the filter “to enable ac-
cess for bona fide research or other lawful purposes.” 20
U. S. C. § 9134(f)(3); 47 U. S. C. § 254(h)(6)(D). Under the E-
rate program, disabling is permitted “during use by an
adult.” § 254(h)(6)(D). Under the LSTA program, disa-
bling is permitted during use by any person. 20 U. S. C.
§ 9134(f)(3).
Appellees are a group of libraries, library associations, li-
brary patrons, and Web site publishers, including the Ameri-
can Library Association (ALA) and the Multnomah County
Public Library in Portland, Oregon (Multnomah). They

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sued the United States and the Government agencies and
officials responsible for administering the E-rate and LSTA
programs in District Court, challenging the constitutionality
of CIPA’s filtering provisions. A three-judge District Court
convened pursuant to § 1741(a) of CIPA, 114 Stat. 2763A–351,
note following 20 U. S. C. § 7001.
After a trial, the District Court ruled that CIPA was fa-
cially unconstitutional and enjoined the relevant agencies
and officials from withholding federal assistance for failure
to comply with CIPA. The District Court held that Con-
gress had exceeded its authority under the Spending Clause,
U. S. Const., Art. I, § 8, cl. 1, because, in the court’s view,
“any public library that complies with CIPA’s conditions will
necessarily violate the First Amendment.” 201 F. Supp. 2d,
at 453. The court acknowledged that “generally the First
Amendment subjects libraries’ content-based decisions about
which print materials to acquire for their collections to only
rational [basis] review.” Id., at 462. But it distinguished
libraries’ decisions to make certain Internet material inac-
cessible. “The central difference,” the court stated, “is that
by providing patrons with even filtered Internet access, the
library permits patrons to receive speech on a virtually un-
limited number of topics, from a virtually unlimited number
of speakers, without attempting to restrict patrons’ access to
speech that the library, in the exercise of its professional
judgment, determines to be particularly valuable.” Ibid.
Reasoning that “the provision of Internet access within a
public library . . . is for use by the public . . . for expressive
activity,” the court analyzed such access as a “designated
public forum.” Id., at 457 (citation and internal quotation
marks omitted). The District Court also likened Internet
access in libraries to “traditional public fora . . . such as side-
walks and parks” because it “promotes First Amendment
values in an analogous manner.” Id., at 466.
Based on both of these grounds, the court held that the
filtering software contemplated by CIPA was a content-

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based restriction on access to a public forum, and was there-
fore subject to strict scrutiny. Ibid. Applying this stand-
ard, the District Court held that, although the Government
has a compelling interest “in preventing the dissemination of
obscenity, child pornography, or, in the case of minors, mate-
rial harmful to minors,” id., at 471, the use of software filters
is not narrowly tailored to further those interests, id., at 479.
We noted probable jurisdiction, 537 U. S. 1017 (2002), and
now reverse.
Congress has wide latitude to attach conditions to the re-
ceipt of federal assistance in order to further its policy objec-
tives. South Dakota v. Dole, 483 U. S. 203, 206 (1987). But
Congress may not “induce” the recipient “to engage in activi-
ties that would themselves be unconstitutional.” Id., at 210.
To determine whether libraries would violate the First
Amendment by employing the filtering software that CIPA
requires,2 we must first examine the role of libraries in our
society.
Public libraries pursue the worthy missions of facilitating
learning and cultural enrichment. Appellee ALA’s Library
Bill of Rights states that libraries should provide “[b]ooks
and other . . . resources . . . for the interest, information,
and enlightenment of all people of the community the library
2 Justice Stevens misapprehends the analysis we must perform to de-
termine whether CIPA exceeds Congress’ authority under the Spending
Clause. He asks and answers whether it is constitutional for Congress
to “impose [CIPA’s filtering] requirement” on public libraries, instead of
“allowing local decisionmakers to tailor their responses to local problems.”
Post, at 220 (dissenting opinion). But under our well-established Spend-
ing Clause precedent, that is not the proper inquiry. Rather, as the Dis-
trict Court correctly recognized, 201 F. Supp. 2d 401, 453 (ED Pa. 2002),
we must ask whether the condition that Congress requires “would . . . be
unconstitutional” if performed by the library itself. Dole, 483 U. S.,
at 210.
CIPA does not directly regulate private conduct; rather, Congress has
exercised its Spending Power by specifying conditions on the receipt of
federal funds. Therefore, Dole provides the appropriate framework for
assessing CIPA’s constitutionality.

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serves.” 201 F. Supp. 2d, at 420 (internal quotation marks
omitted). To fulfill their traditional missions, public librar-
ies must have broad discretion to decide what material to
provide to their patrons. Although they seek to provide a
wide array of information, their goal has never been to pro-
vide “universal coverage.” Id., at 421. Instead, public li-
braries seek to provide materials “that would be of the
greatest direct benefit or interest to the community.” Ibid.
To this end, libraries collect only those materials deemed to
have “requisite and appropriate quality.” Ibid. See W.
Katz, Collection Development: The Selection of Materials for
Libraries 6 (1980) (“The librarian’s responsibility . . . is to
separate out the gold from the garbage, not to preserve ev-
erything”); F. Drury, Book Selection xi (1930) (“[I]t is the
aim of the selector to give the public, not everything it
wants, but the best that it will read or use to advantage”);
App. 636 (Rebuttal Expert Report of Donald G. Davis, Jr.)
(“A hypothetical collection of everything that has been pro-
duced is not only of dubious value, but actually detrimen-
tal to users trying to find what they want to find and really
need”).
We have held in two analogous contexts that the govern-
ment has broad discretion to make content-based judgments
in deciding what private speech to make available to the pub-
lic. In Arkansas Ed. Television Comm’n v. Forbes, 523 U. S.
666, 672–673 (1998), we held that public forum principles do
not generally apply to a public television station’s editorial
judgments regarding the private speech it presents to its
viewers. “[B]road rights of access for outside speakers
would be antithetical, as a general rule, to the discretion that
stations and their editorial staff must exercise to fulfill their
journalistic purpose and statutory obligations.” Id., at 673.
Recognizing a broad right of public access “would [also] risk
implicating the courts in judgments that should be left to
the exercise of journalistic discretion.” Id., at 674.

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Similarly, in National Endowment for Arts v. Finley, 524
U. S. 569 (1998), we upheld an art funding program that re-
quired the National Endowment for the Arts (NEA) to use
content-based criteria in making funding decisions. We ex-
plained that “[a]ny content-based considerations that may be
taken into account in the grant-making process are a conse-
quence of the nature of arts funding.” Id., at 585. In par-
ticular, “[t]he very assumption of the NEA is that grants
will be awarded according to the ‘artistic worth of competing
applicants,’ and absolute neutrality is simply inconceivable.”
Ibid. (some internal quotation marks omitted). We ex-
pressly declined to apply forum analysis, reasoning that it
would conflict with “NEA’s mandate . . . to make esthetic
judgments, and the inherently content-based ‘excellence’
threshold for NEA support.” Id., at 586.
The principles underlying Forbes and Finley also apply to
a public library’s exercise of judgment in selecting the mate-
rial it provides to its patrons. Just as forum analysis and
heightened judicial scrutiny are incompatible with the role
of public television stations and the role of the NEA, they
are also incompatible with the discretion that public libraries
must have to fulfill their traditional missions. Public library
staffs necessarily consider content in making collection deci-
sions and enjoy broad discretion in making them.
The public forum principles on which the District Court
relied, 201 F. Supp. 2d, at 457–470, are out of place in the
context of this case. Internet access in public libraries is
neither a “traditional” nor a “designated” public forum. See
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473
U. S. 788, 802 (1985) (describing types of forums). First, this
resource—which did not exist until quite recently—has not
“immemorially been held in trust for the use of the public
and, time out of mind, . . . been used for purposes of assembly,
communication of thoughts between citizens, and discussing
public questions.” International Soc. for Krishna Con-
sciousness, Inc. v. Lee, 505 U. S. 672, 679 (1992) (internal quo-

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tation marks omitted). We have “rejected the view that
traditional public forum status extends beyond its historic
confines.” Forbes, supra, at 678. The doctrines surround-
ing traditional public forums may not be extended to situa-
tions where such history is lacking.
Nor does Internet access in a public library satisfy our
definition of a “designated public forum.” To create such a
forum, the government must make an affirmative choice to
open up its property for use as a public forum. Cornelius,
supra, at 802–803; Perry Ed. Assn. v. Perry Local Educa-
tors’ Assn., 460 U. S. 37, 45 (1983). “The government does
not create a public forum by inaction or by permitting lim-
ited discourse, but only by intentionally opening a non-
traditional forum for public discourse.” Cornelius, supra,
at 802. The District Court likened public libraries’ Internet
terminals to the forum at issue in Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U. S. 819 (1995). 201 F. Supp.
2d, at 465. In Rosenberger, we considered the “Student Ac-
tivity Fund” established by the University of Virginia that
subsidized all manner of student publications except those
based on religion. We held that the fund had created a lim-
ited public forum by giving public money to student groups
who wished to publish, and therefore could not discriminate
on the basis of viewpoint.
The situation here is very different. A public library does
not acquire Internet terminals in order to create a public
forum for Web publishers to express themselves, any more
than it collects books in order to provide a public forum for
the authors of books to speak. It provides Internet access,
not to “encourage a diversity of views from private speak-
ers,” Rosenberger, supra, at 834, but for the same reasons it
offers other library resources: to facilitate research, learning,
and recreational pursuits by furnishing materials of requisite
and appropriate quality. See Cornelius, supra, at 805 (not-
ing, in upholding limits on participation in the Combined
Federal Campaign (CFC), that “[t]he Government did not

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create the CFC for purposes of providing a forum for expres-
sive activity”). As Congress recognized, “[t]he Internet is
simply another method for making information available in
a school or library.” S. Rep. No. 106–141, p. 7 (1999). It is
“no more than a technological extension of the book stack.”
Ibid.3
The District Court disagreed because, whereas a library
reviews and affirmatively chooses to acquire every book in
its collection, it does not review every Web site that it makes
available. 201 F. Supp. 2d, at 462–463. Based on this dis-
tinction, the court reasoned that a public library enjoys less
discretion in deciding which Internet materials to make
3 Even if appellees had proffered more persuasive evidence that public
libraries intended to create a forum for speech by connecting to the In-
ternet, we would hesitate to import “the public forum doctrine . . . whole-
sale into” the context of the Internet. Denver Area Ed. Telecommuni-
cations Consortium, Inc. v. FCC, 518 U. S. 727, 749 (1996) (opinion of
Breyer, J.). “[W]e are wary of the notion that a partial analogy in one
context, for which we have developed doctrines, can compel a full range
of decisions in such a new and changing area.” Ibid.
The dissents agree with the District Court that less restrictive alterna-
tives to filtering software would suffice to meet Congress’ goals. Post, at
223 (opinion of Stevens, J.) (quoting 201 F. Supp. 2d, at 410); post, at 234
(opinion of Souter, J.) (quoting 201 F. Supp. 2d, at 422–427). But we
require the Government to employ the least restrictive means only when
the forum is a public one and strict scrutiny applies. For the reasons
stated above, see supra, at 205–208, such is not the case here. In deciding
not to collect pornographic material from the Internet, a public library
need not satisfy a court that it has pursued the least restrictive means of
implementing that decision.
In any case, the suggested alternatives have their own drawbacks.
Close monitoring of computer users would be far more intrusive than the
use of filtering software, and would risk transforming the role of a librar-
ian from a professional to whom patrons turn for assistance into a compli-
ance officer whom many patrons might wish to avoid. Moving terminals
to places where their displays cannot easily be seen by other patrons, or
installing privacy screens or recessed monitors, would not address a li-
brary’s interest in preventing patrons from deliberately using its comput-
ers to view online pornography. To the contrary, these alternatives would
make it easier for patrons to do so.

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208 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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available than in making book selections. Ibid. We do not
find this distinction constitutionally relevant. A library’s
failure to make quality-based judgments about all the mate-
rial it furnishes from the Web does not somehow taint the
judgments it does make. A library’s need to exercise judg-
ment in making collection decisions depends on its tradi-
tional role in identifying suitable and worthwhile material;
it is no less entitled to play that role when it collects material
from the Internet than when it collects material from any
other source. Most libraries already exclude pornography
from their print collections because they deem it inappro-
priate for inclusion. We do not subject these decisions
to heightened scrutiny; it would make little sense to treat
libraries’ judgments to block online pornography any dif-
ferently, when these judgments are made for just the same
reason.
Moreover, because of the vast quantity of material on the
Internet and the rapid pace at which it changes, libraries
cannot possibly segregate, item by item, all the Internet ma-
terial that is appropriate for inclusion from all that is not.
While a library could limit its Internet collection to just
those sites it found worthwhile, it could do so only at the
cost of excluding an enormous amount of valuable informa-
tion that it lacks the capacity to review. Given that tradeoff,
it is entirely reasonable for public libraries to reject that
approach and instead exclude certain categories of content,
without making individualized judgments that everything
they do make available has requisite and appropriate quality.
Like the District Court, the dissents fault the tendency of
filtering software to “overblock”—that is, to erroneously
block access to constitutionally protected speech that falls
outside the categories that software users intend to block.
See post, at 221–222 (opinion of Stevens, J.); post, at 233–234
(opinion of Souter, J.). Due to the software’s limitations,
“[m]any erroneously blocked [Web] pages contain content

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that is completely innocuous for both adults and minors, and
that no rational person could conclude matches the filtering
companies’ category definitions, such as ‘pornography’ or
‘sex.’ ” 201 F. Supp. 2d, at 449. Assuming that such erro-
neous blocking presents constitutional difficulties, any such
concerns are dispelled by the ease with which patrons may
have the filtering software disabled. When a patron en-
counters a blocked site, he need only ask a librarian to un-
block it or (at least in the case of adults) disable the filter.
As the District Court found, libraries have the capacity to
permanently unblock any erroneously blocked site, id., at
429, and the Solicitor General stated at oral argument that
a “library may . . . eliminate the filtering with respect to
specific sites . . . at the request of a patron,” Tr. of Oral Arg.
4. With respect to adults, CIPA also expressly authorizes
library officials to “disable” a filter altogether “to enable ac-
cess for bona fide research or other lawful purposes.” 20
U. S. C. § 9134(f)(3) (disabling permitted for both adults and
minors); 47 U. S. C. § 254(h)(6)(D) (disabling permitted for
adults). The Solicitor General confirmed that a “librarian
can, in response to a request from a patron, unblock the fil-
tering mechanism altogether,” Tr. of Oral Arg. 11, and fur-
ther explained that a patron would not “have to explain . . .
why he was asking a site to be unblocked or the filtering
to be disabled,” id., at 4. The District Court viewed un-
blocking and disabling as inadequate because some patrons
may be too embarrassed to request them. 201 F. Supp. 2d,
at 411. But the Constitution does not guarantee the right
to acquire information at a public library without any risk
of embarrassment.4
4 The dissents argue that overblocking will “ ‘reduce the adult population
. . . to reading only what is fit for children.’ ” Post, at 222, n. 2 (opinion
of Stevens, J.) (quoting Butler v. Michigan, 352 U. S. 380, 383 (1957)).
See also post, at 222, and n. 2 (citing Ashcroft v. Free Speech Coalition,
535 U. S. 234, 252 (2002); United States v. Playboy Entertainment Group,

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Appellees urge us to affirm the District Court’s judgment
on the alternative ground that CIPA imposes an unconstitu-
tional condition on the receipt of federal assistance. Under
this doctrine, “the government ‘may not deny a benefit to a
person on a basis that infringes his constitutionally protected
. . . freedom of speech’ even if he has no entitlement to that
benefit.” Board of Comm’rs, Wabaunsee Cty. v. Umbehr,
518 U. S. 668, 674 (1996) (quoting Perry v. Sindermann, 408
U. S. 593, 597 (1972)). Appellees argue that CIPA imposes
an unconstitutional condition on libraries that receive E-rate
and LSTA subsidies by requiring them, as a condition on
their receipt of federal funds, to surrender their First
Amendment right to provide the public with access to consti-
tutionally protected speech. The Government counters that
this claim fails because Government entities do not have
First Amendment rights. See Columbia Broadcasting Sys-
tem, Inc. v. Democratic National Committee, 412 U. S. 94,
Inc., 529 U. S. 803, 814 (2000); and Reno v. American Civil Liberties
Union, 521 U. S. 844, 875 (1997)); see post, at 237–238 (opinion of Souter,
J.). But these cases are inapposite because they addressed Congress’ di-
rect regulation of private conduct, not exercises of its Spending Power.
The dissents also argue that because some library patrons would not
make specific unblocking requests, the interest of authors of blocked In-
ternet material “in reaching the widest possible audience would be
abridged.” Post, at 225 (opinion of Stevens, J.); see post, at 242–243, n. 8
(opinion of Souter, J.). But this mistakes a public library’s purpose for
acquiring Internet terminals: A library does so to provide its patrons with
materials of requisite and appropriate quality, not to create a public forum
for Web publishers to express themselves. See supra, at 206–208.
Justice Stevens further argues that, because some libraries’ proce-
dures will make it difficult for patrons to have blocked material unblocked,
CIPA “will create a significant prior restraint on adult access to protected
speech.” Post, at 225. But this argument, which the District Court did
not address, mistakenly extends prior restraint doctrine to the context of
public libraries’ collection decisions. A library’s decision to use filtering
software is a collection decision, not a restraint on private speech. Con-
trary to Justice Stevens’ belief, a public library does not have an obliga-
tion to add material to its collection simply because the material is consti-
tutionally protected.

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139 (1973) (Stewart, J., concurring) (“The First Amendment
protects the press from governmental interference; it con-
fers no analogous protection on the government”); id., at 139,
n. 7 (“ ‘The purpose of the First Amendment is to protect
private expression’ ” (quoting T. Emerson, The System of
Freedom of Expression 700 (1970))). See also Warner Cable
Communications, Inc., v. Niceville, 911 F. 2d 634, 638 (CA11
1990); Student Govt. Assn. v. Board of Trustees of the Univ.
of Mass., 868 F. 2d 473, 481 (CA1 1989); Estiverne v. Louisi-
ana State Bar Assn., 863 F. 2d 371, 379 (CA5 1989).
We need not decide this question because, even assuming
that appellees may assert an “unconstitutional conditions”
claim, this claim would fail on the merits. Within broad lim-
its, “when the Government appropriates public funds to es-
tablish a program it is entitled to define the limits of that
program.” Rust v. Sullivan, 500 U. S. 173, 194 (1991). In
Rust, Congress had appropriated federal funding for family
planning services and forbidden the use of such funds in pro-
grams that provided abortion counseling. Id., at 178. Re-
cipients of these funds challenged this restriction, arguing
that it impermissibly conditioned the receipt of a benefit on
the relinquishment of their constitutional right to engage in
abortion counseling. Id., at 196. We rejected that claim,
recognizing that “the Government [was] not denying a bene-
fit to anyone, but [was] instead simply insisting that public
funds be spent for the purposes for which they were author-
ized.” Ibid.
The same is true here. The E-rate and LSTA programs
were intended to help public libraries fulfill their traditional
role of obtaining material of requisite and appropriate qual-
ity for educational and informational purposes.5 Congress
5 See 20 U. S. C. § 9121 (“It is the purpose of [LSTA] (2) to stimulate
excellence and promote access to learning and information resources in all
types of libraries for individuals of all ages”); S. Conf. Rep. No. 104–230,
p. 132 (1996) (The E-rate program “will help open new worlds of knowl-
edge, learning and education to all Americans . . . . [It is] intended, for

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212 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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may certainly insist that these “public funds be spent for the
purposes for which they were authorized.” Ibid. Espe-
cially because public libraries have traditionally excluded
pornographic material from their other collections, Congress
could reasonably impose a parallel limitation on its Internet
assistance programs. As the use of filtering software helps
to carry out these programs, it is a permissible condition
under Rust.
Justice Stevens asserts the premise that “[a] federal
statute penalizing a library for failing to install filtering soft-
ware on every one of its Internet-accessible computers would
unquestionably violate [the First] Amendment.” Post, at
226. See also post, at 230–231. But—assuming again that
public libraries have First Amendment rights—CIPA does
not “penalize” libraries that choose not to install such soft-
ware, or deny them the right to provide their patrons with
unfiltered Internet access. Rather, CIPA simply reflects
Congress’ decision not to subsidize their doing so. To the
extent that libraries wish to offer unfiltered access, they are
free to do so without federal assistance. “ ‘A refusal to fund
protected activity, without more, cannot be equated with the
imposition of a “penalty” on that activity.’ ” Rust, supra, at
193 (quoting Harris v. McRae, 448 U. S. 297, 317, n. 19
(1980)). “ ‘[A] legislature’s decision not to subsidize the ex-
ercise of a fundamental right does not infringe the right.’ ”
Rust, supra, at 193 (quoting Regan v. Taxation With Repre-
sentation of Wash., 461 U. S. 540, 549 (1983)).6
example, to provide the ability to browse library collections, review the
collections of museums, or find new information on the treatment of an
illness, to Americans everywhere via . . . libraries”).
6 These holdings, which Justice Stevens ignores, also make clear that
his reliance on Rutan v. Republican Party of Ill., 497 U. S. 62 (1990),
Elrod v. Burns, 427 U. S. 347 (1976), and Wieman v. Updegraff, 344 U. S.
183 (1952), is misplaced. See post, at 227. The invalidated state action
in those cases involved true penalties, such as denial of a promotion or
outright discharge from employment, not nonsubsidies.

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Appellees mistakenly contend, in reliance on Legal Serv-
ices Corporation v. Velazquez, 531 U. S. 533 (2001), that
CIPA’s filtering conditions “[d]istor[t] the [u]sual [f]unction-
ing of [p]ublic [l]ibraries.” Brief for Appellees ALA et al.
40 (citing Velazquez, supra, at 543); Brief for Appellees Mult-
nomah et al. 47–48 (same). In Velazquez, the Court con-
cluded that a Government program of furnishing legal aid to
the indigent differed from the program in Rust “[i]n th[e]
vital respect” that the role of lawyers who represent clients
in welfare disputes is to advocate against the Government,
and there was thus an assumption that counsel would be free
of state control. 531 U. S., at 542–543. The Court con-
cluded that the restriction on advocacy in such welfare dis-
putes would distort the usual functioning of the legal pro-
fession and the federal and state courts before which the
lawyers appeared. Public libraries, by contrast, have no
comparable role that pits them against the Government, and
there is no comparable assumption that they must be free of
any conditions that their benefactors might attach to the use
of donated funds or other assistance.7
7 Relying on Velazquez, Justice Stevens argues mistakenly that Rust
is inapposite because that case “only involved, and only applies to, . . .
situations in which the government seeks to communicate a specific mes-
sage,” post, at 228, and unlike the Title X program in Rust, the E-rate and
LSTA programs “are not designed to foster or transmit any particular
governmental message.” Post, at 229. But he misreads our cases dis-
cussing Rust, and again misapprehends the purpose of providing Inter-
net terminals in public libraries. Velazquez held only that viewpoint-
based restrictions are improper “ ‘when the [government] does not itself
speak or subsidize transmittal of a message it favors but instead expends
funds to encourage a diversity of views from private speakers.’ ” 531
U. S., at 542 (quoting Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U. S. 819, 834 (1995) (emphasis added)). See also 531 U. S., at 542
(“[T]he salient point is that, like the program in Rosenberger, the LSC
[Legal Services Corporation] program was designed to facilitate private
speech . . .” (emphasis added)); Board of Regents of Univ. of Wis. System
v. Southworth, 529 U. S. 217, 229 (2000) (“The University of Wisconsin

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214 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Kennedy, J., concurring in judgment
Because public libraries’ use of Internet filtering software
does not violate their patrons’ First Amendment rights,
CIPA does not induce libraries to violate the Constitution,
and is a valid exercise of Congress’ spending power. Nor
does CIPA impose an unconstitutional condition on public
libraries. Therefore, the judgment of the District Court for
the Eastern District of Pennsylvania is
Reversed.
Justice Kennedy, concurring in the judgment.
If, on the request of an adult user, a librarian will unblock
filtered material or disable the Internet software filter with-
out significant delay, there is little to this case. The Govern-
ment represents this is indeed the fact. Tr. of Oral Arg. 11;
ante, at 209 (plurality opinion).
The District Court, in its “Preliminary Statement,” did say
that “the unblocking may take days, and may be unavailable,
especially in branch libraries, which are often less well
staffed than main libraries.” 201 F. Supp. 2d 401, 411 (ED
Pa. 2002). See also post, at 232–233 (Souter, J., dissenting).
That statement, however, does not appear to be a specific
finding. It was not the basis for the District Court’s deci-
sion in any event, as the court assumed that “the disabling
provisions permit public libraries to allow a patron access to
any speech that is constitutionally protected with respect to
that patron.” 201 F. Supp. 2d, at 485–486.
exacts the fee at issue for the sole purpose of facilitating the free and
open exchange of ideas”); Rosenberger, supra, at 830, 834 (“The [Student
Activities Fund] is a forum”; “[T]he University . . . expends funds to en-
courage a diversity of views from private speakers”). Indeed, this very
distinction led us to state in Southworth that that case did not implicate
our unconstitutional conditions jurisprudence. 529 U. S., at 229 (“The
case we decide here . . . does not raise the issue of the government’s right
. . . to use its own funds to advance a particular message”). As we have
stated above, supra, at 206–208, public libraries do not install Internet
terminals to provide a forum for Web publishers to express themselves,
but rather to provide patrons with online material of requisite and appro-
priate quality.

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215 Cite as: 539 U. S. 194 (2003)
Breyer, J., concurring in judgment
If some libraries do not have the capacity to unblock spe-
cific Web sites or to disable the filter or if it is shown that an
adult user’s election to view constitutionally protected In-
ternet material is burdened in some other substantial way,
that would be the subject for an as-applied challenge, not
the facial challenge made in this case. See post, at 219–220
(Breyer, J., concurring in judgment).
There are, of course, substantial Government interests at
stake here. The interest in protecting young library users
from material inappropriate for minors is legitimate, and
even compelling, as all Members of the Court appear to
agree. Given this interest, and the failure to show that the
ability of adult library users to have access to the material
is burdened in any significant degree, the statute is not un-
constitutional on its face. For these reasons, I concur in the
judgment of the Court.
Justice Breyer, concurring in the judgment.
The Children’s Internet Protection Act (Act) sets con-
ditions for the receipt of certain Government subsidies by
public libraries. Those conditions require the libraries to
install on their Internet-accessible computers technology,
say, filtering software, that will help prevent computer users
from gaining Internet access to child pornography, obscen-
ity, or material comparably harmful to minors. 20 U. S. C.
§§ 9134(f)(1)(A)(i) and (B)(i); 47 U. S. C. §§ 254(h)(6)(B)(i) and
(C)(i). The technology, in its current form, does not function
perfectly, for to some extent it also screens out constitution-
ally protected materials that fall outside the scope of the
statute (i. e., “overblocks”) and fails to prevent access to
some materials that the statute deems harmful (i. e., “under-
blocks”). See 201 F. Supp. 2d 401, 448–449 (ED Pa. 2002);
ante, at 208–209 (plurality opinion). In determining
whether the statute’s conditions consequently violate the
First Amendment, the plurality first finds the “public forum”
doctrine inapplicable, ante, at 205–208, and then holds that
the statutory provisions are constitutional. I agree with

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216 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Breyer, J., concurring in judgment
both determinations. But I reach the plurality’s ultimate
conclusion in a different way.
In ascertaining whether the statutory provisions are con-
stitutional, I would apply a form of heightened scrutiny, ex-
amining the statutory requirements in question with special
care. The Act directly restricts the public’s receipt of in-
formation. See Stanley v. Georgia, 394 U. S. 557, 564 (1969)
(“[T]he Constitution protects the right to receive informa-
tion and ideas”); Reno v. American Civil Liberties Union,
521 U. S. 844, 874 (1997). And it does so through limitations
imposed by outside bodies (here Congress) upon two criti-
cally important sources of information—the Internet as ac-
cessed via public libraries. See ante, at 200, 203–204 (plu-
rality opinion); post, at 225–226 (Stevens, J., dissenting);
Board of Ed., Island Trees Union Free School Dist. No. 26
v. Pico, 457 U. S. 853, 915 (1982) (Rehnquist, J., dissenting)
(describing public libraries as places “designed for freewheel-
ing inquiry”). See also Reno, supra, at 853, 868 (describing
the Internet as a “vast democratic” medium and the World
Wide Web, in part, as “comparable, from the readers’ view-
point, to . . . a vast library”); Ashcroft v. American Civil
Liberties Union, 535 U. S. 564, 566 (2002). For that reason,
we should not examine the statute’s constitutionality as if it
raised no special First Amendment concern—as if, like tax or
economic regulation, the First Amendment demanded only a
“rational basis” for imposing a restriction. Nor should we
accept the Government’s suggestion that a presumption in
favor of the statute’s constitutionality applies. See, e. g., 201
F. Supp. 2d, at 409; Brief for United States 21–24.
At the same time, in my view, the First Amendment does
not here demand application of the most limiting con-
stitutional approach—that of “strict scrutiny.” The statu-
tory restriction in question is, in essence, a kind of “selec-
tion” restriction (a kind of editing). It affects the kinds and
amount of materials that the library can present to its pa-

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Breyer, J., concurring in judgment
trons. See ante, at 204, 207–208 (plurality opinion). And
libraries often properly engage in the selection of materials,
either as a matter of necessity (i. e., due to the scarcity of
resources) or by design (i. e., in accordance with collection
development policies). See, e. g., 201 F. Supp. 2d, at 408–409,
421, 462; ante, at 204, 208 (plurality opinion). To apply
“strict scrutiny” to the “selection” of a library’s collection
(whether carried out by public libraries themselves or by
other community bodies with a traditional legal right to en-
gage in that function) would unreasonably interfere with the
discretion necessary to create, maintain, or select a library’s
“collection” (broadly defined to include all the information
the library makes available). Cf. Miami Herald Publishing
Co. v. Tornillo, 418 U. S. 241, 256–258 (1974) (protecting
newspaper’s exercise of editorial control and judgment).
That is to say, “strict scrutiny” implies too limiting and rigid
a test for me to believe that the First Amendment requires
it in this context.
Instead, I would examine the constitutionality of the Act’s
restrictions here as the Court has examined speech-related
restrictions in other contexts where circumstances call for
heightened, but not “strict,” scrutiny—where, for example,
complex, competing constitutional interests are potentially
at issue or speech-related harm is potentially justified by
unusually strong governmental interests. Typically the key
question in such instances is one of proper fit. See, e. g.,
Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S.
469 (1989); Denver Area Ed. Telecommunications Consor-
tium, Inc. v. FCC, 518 U. S. 727, 740–747 (1996) (plurality
opinion); Turner Broadcasting System, Inc. v. FCC, 520 U. S.
180, 227 (1997) (Breyer, J., concurring in part); Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367, 389–390 (1969).
In such cases the Court has asked whether the harm to
speech-related interests is disproportionate in light of both
the justifications and the potential alternatives. It has con-
sidered the legitimacy of the statute’s objective, the extent

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218 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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to which the statute will tend to achieve that objective,
whether there are other, less restrictive ways of achieving
that objective, and ultimately whether the statute works
speech-related harm that, in relation to that objective, is out
of proportion. In Fox, supra, at 480, for example, the
Court stated:
“What our decisions require is a ‘fit’ between the legisla-
ture’s ends and the means chosen to accomplish those
ends—a fit that is not necessarily perfect, but reason-
able; that represents not necessarily the single best dis-
position but one whose scope is in proportion to the in-
terest served; that employs not necessarily the least
restrictive means but, as we have put it in the other
contexts . . . , a means narrowly tailored to achieve the
desired objective.” (Internal quotation marks and cita-
tions omitted.)
Cf., e. g., Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n of N. Y., 447 U. S. 557, 564 (1980); United States v.
O’Brien, 391 U. S. 367, 377 (1968); Clark v. Community for
Creative Non-Violence, 468 U. S. 288, 293 (1984). This ap-
proach does not substitute a form of “balancing” for less
flexible, though more speech-protective, forms of “strict
scrutiny.” Rather, it supplements the latter with an ap-
proach that is more flexible but nonetheless provides the
legislature with less than ordinary leeway in light of the
fact that constitutionally protected expression is at issue.
Cf. Fox, supra, at 480–481; Virginia Bd. of Pharmacy v. Vir-
ginia Citizens Consumer Council, Inc., 425 U. S. 748, 769–
773 (1976).
The Act’s restrictions satisfy these constitutional demands.
The Act seeks to restrict access to obscenity, child pornog-
raphy, and, in respect to access by minors, material that
is comparably harmful. These objectives are “legitimate,”
and indeed often “compelling.” See, e. g., Miller v. Califor-
nia, 413 U. S. 15, 18 (1973) (interest in prohibiting access to

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219 Cite as: 539 U. S. 194 (2003)
Breyer, J., concurring in judgment
obscene material is “legitimate”); Reno, 521 U. S., at 869–870
(interest in “shielding” minors from exposure to indecent
material is “ ‘compelling’ ”); New York v. Ferber, 458 U. S.
747, 756–757 (1982) (same). As the District Court found,
software filters “provide a relatively cheap and effective”
means of furthering these goals. 201 F. Supp. 2d, at 448.
Due to present technological limitations, however, the soft-
ware filters both “overblock,” screening out some perfectly
legitimate material, and “underblock,” allowing some ob-
scene material to escape detection by the filter. Id., at 448–
449. See ante, at 208–209 (plurality opinion). But no one
has presented any clearly superior or better fitting alterna-
tives. See ante, at 207, n. 3 (plurality opinion).
At the same time, the Act contains an important exception
that limits the speech-related harm that “overblocking”
might cause. As the plurality points out, the Act allows
libraries to permit any adult patron access to an “over-
blocked” Web site; the adult patron need only ask a librarian
to unblock the specific Web site or, alternatively, ask the
librarian, “Please disable the entire filter.” See ante, at 209;
20 U. S. C. § 9134(f)(3) (permitting library officials to “disable
a technology protection measure . . . to enable access for
bona fide research or other lawful purposes”); 47 U. S. C.
§ 254(h)(6)(D) (same).
The Act does impose upon the patron the burden of mak-
ing this request. But it is difficult to see how that burden
(or any delay associated with compliance) could prove more
onerous than traditional library practices associated with
segregating library materials in, say, closed stacks, or with
interlibrary lending practices that require patrons to make
requests that are not anonymous and to wait while the li-
brarian obtains the desired materials from elsewhere. Per-
haps local library rules or practices could further restrict the
ability of patrons to obtain “overblocked” Internet material.
See, e. g., In re Federal-State Joint Board on Universal
Service: Children’s Internet Protection Act, 16 FCC Rcd.

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220 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Stevens, J., dissenting
8182, 8183, ¶ 2, 8204, ¶ 53 (2001) (leaving determinations re-
garding the appropriateness of compliant Internet safety pol-
icies and their disabling to local communities). But we are
not now considering any such local practices. We here con-
sider only a facial challenge to the Act itself.
Given the comparatively small burden that the Act im-
poses upon the library patron seeking legitimate Internet
materials, I cannot say that any speech-related harm that
the Act may cause is disproportionate when considered in
relation to the Act’s legitimate objectives. I therefore agree
with the plurality that the statute does not violate the First
Amendment, and I concur in the judgment.
Justice Stevens, dissenting.
“To fulfill their traditional missions, public libraries must
have broad discretion to decide what material to provide
their patrons.” Ante, at 204. Accordingly, I agree with the
plurality that it is neither inappropriate nor unconstitutional
for a local library to experiment with filtering software as a
means of curtailing children’s access to Internet Web sites
displaying sexually explicit images. I also agree with the
plurality that the 7% of public libraries that decided to use
such software on all of their Internet terminals in 2000 did
not act unlawfully. Ante, at 200. Whether it is constitu-
tional for the Congress of the United States to impose that
requirement on the other 93%, however, raises a vastly dif-
ferent question. Rather than allowing local decisionmakers
to tailor their responses to local problems, the Children’s In-
ternet Protection Act (CIPA) operates as a blunt nationwide
restraint on adult access to “an enormous amount of valua-
ble information” that individual librarians cannot possibly
review. Ante, at 208. Most of that information is constitu-
tionally protected speech. In my view, this restraint is
unconstitutional.

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221 Cite as: 539 U. S. 194 (2003)
Stevens, J., dissenting
I
The unchallenged findings of fact made by the District
Court reveal fundamental defects in the filtering software
that is now available or that will be available in the foresee-
able future. Because the software relies on key words or
phrases to block undesirable sites, it does not have the capac-
ity to exclude a precisely defined category of images. As
the District Court explained:
“[T]he search engines that software companies use for
harvesting are able to search text only, not images.
This is of critical importance, because CIPA, by its
own terms, covers only ‘visual depictions.’ 20 U. S. C.
§ 9134(f )(1)(A)(i); 47 U. S. C. § 254(h)(5)(B)(i). Image
recognition technology is immature, ineffective, and un-
likely to improve substantially in the near future. None
of the filtering software companies deposed in this case
employs image recognition technology when harvesting
or categorizing URLs. Due to the reliance on auto-
mated text analysis and the absence of image recogni-
tion technology, a Web page with sexually explicit im-
ages and no text cannot be harvested using a search
engine. This problem is complicated by the fact that
Web site publishers may use image files rather than text
to represent words, i. e., they may use a file that comput-
ers understand to be a picture, like a photograph of a
printed word, rather than regular text, making auto-
mated review of their textual content impossible. For
example, if the Playboy Web site displays its name using
a logo rather than regular text, a search engine would
not see or recognize the Playboy name in that logo.”
201 F. Supp. 2d 401, 431–432 (ED Pa. 2002).

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222 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Stevens, J., dissenting
Given the quantity and ever-changing character of Web sites
offering free sexually explicit material,1 it is inevitable that
a substantial amount of such material will never be blocked.
Because of this “underblocking,” the statute will provide
parents with a false sense of security without really solving
the problem that motivated its enactment. Conversely, the
software’s reliance on words to identify undesirable sites
necessarily results in the blocking of thousands of pages that
“contain content that is completely innocuous for both adults
and minors, and that no rational person could conclude
matches the filtering companies’ category definitions, such
as ‘pornography’ or ‘sex.’ ” Id., at 449. In my judgment,
a statutory blunderbuss that mandates this vast amount of
“overblocking” abridges the freedom of speech protected by
the First Amendment.
The effect of the overblocking is the functional equivalent
of a host of individual decisions excluding hundreds of thou-
sands of individual constitutionally protected messages from
Internet terminals located in public libraries throughout
the Nation. Neither the interest in suppressing unlawful
speech nor the interest in protecting children from access to
harmful materials justifies this overly broad restriction on
adult access to protected speech. “The Government may
not suppress lawful speech as the means to suppress unlaw-
ful speech.” Ashcroft v. Free Speech Coalition, 535 U. S.
234, 255 (2002).2
1 “The percentage of Web pages on the indexed Web containing sexually
explicit content is relatively small. Recent estimates indicate that no
more than 1–2% of the content on the Web is pornographic or sexually
explicit. However, the absolute number of Web sites offering free sex-
ually explicit material is extremely large, approximately 100,000 sites.”
201 F. Supp. 2d 401, 419 (ED Pa. 2002).
2 We have repeatedly reaffirmed the holding in Butler v. Michigan, 352
U. S. 380, 383 (1957), that the State may not “reduce the adult population
. . . to reading only what is fit for children.” See Ashcroft v. Free Speech
Coalition, 535 U. S., at 252; United States v. Playboy Entertainment
Group, Inc., 529 U. S. 803, 814 (2000) (“[T]he objective of shielding chil-

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223 Cite as: 539 U. S. 194 (2003)
Stevens, J., dissenting
Although CIPA does not permit any experimentation, the
District Court expressly found that a variety of alternatives
less restrictive are available at the local level:
“[L]ess restrictive alternatives exist that further the
government’s legitimate interest in preventing the dis-
semination of obscenity, child pornography, and material
harmful to minors, and in preventing patrons from being
unwillingly exposed to patently offensive, sexually ex-
plicit content. To prevent patrons from accessing vis-
ual depictions that are obscene and child pornography,
public libraries may enforce Internet use policies that
make clear to patrons that the library’s Internet termi-
nals may not be used to access illegal speech. Libraries
may then impose penalties on patrons who violate these
policies, ranging from a warning to notification of law
enforcement, in the appropriate case. Less restrictive
alternatives to filtering that further libraries’ interest in
preventing minors from exposure to visual depictions
that are harmful to minors include requiring parental
consent to or presence during unfiltered access, or re-
stricting minors’ unfiltered access to terminals within
view of library staff. Finally, optional filtering, privacy
screens, recessed monitors, and placement of unfiltered
Internet terminals outside of sight-lines provide less re-
strictive alternatives for libraries to prevent patrons
from being unwillingly exposed to sexually explicit con-
tent on the Internet.” 201 F. Supp. 2d, at 410.
Those findings are consistent with scholarly comment on the
issue arguing that local decisions tailored to local circum-
stances are more appropriate than a mandate from Con-
dren does not suffice to support a blanket ban if the protection can be
accomplished by a less restrictive alternative”); Reno v. American Civil
Liberties Union, 521 U. S. 844, 875 (1997) (“[T]he governmental interest
in protecting children from harmful materials . . . does not justify
an unnecessarily broad suppression of speech addressed to adults”).

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224 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Stevens, J., dissenting
gress.3 The plurality does not reject any of those findings.
Instead, “[a]ssuming that such erroneous blocking presents
constitutional difficulties,” it relies on the Solicitor General’s
assurance that the statute permits individual librarians to
disable filtering mechanisms whenever a patron so requests.
Ante, at 209. In my judgment, that assurance does not cure
the constitutional infirmity in the statute.
Until a blocked site or group of sites is unblocked, a patron
is unlikely to know what is being hidden and therefore
whether there is any point in asking for the filter to be re-
moved. It is as though the statute required a significant
part of every library’s reading materials to be kept in un-
marked, locked rooms or cabinets, which could be opened
only in response to specific requests. Some curious readers
would in time obtain access to the hidden materials, but
3 “Indeed, federal or state mandates in this area are unnecessary and
unwise. Locally designed solutions are likely to best meet local circum-
stances. Local decision makers and library boards, responding to local
concerns and the prevalence of the problem in their own libraries, should
decide if minors’ Internet access requires filters. They are the persons
in the best position to judge local community standards for what is and is
not obscene, as required by the Miller [v. California, 413 U. S. 15 (1973)]
test. Indeed, one nationwide solution is not needed, as the problems are
local and, to some extent, uniquely so. Libraries in rural communities,
for instance, have reported much less of a problem than libraries in urban
areas. A library in a rural community with only one or two computers
with Internet access may find that even the limited filtering advocated
here provides little or no additional benefit. Further, by allowing the
nation’s public libraries to develop their own approaches, they may be able
to develop a better understanding of what methods work well and what
methods add little or nothing, or are even counter-productive. Imposing
a mandatory nationwide solution may well impede developing truly effec-
tive approaches that do not violate the First Amendment. The federal
and state governments can best assist this effort by providing libraries
with sufficient funding to experiment with a variety of constitutionally
permissible approaches.” Laughlin, Sex, Lies, and Library Cards: The
First Amendment Implications of the Use of Software Filters to Control
Access to Internet Pornography in Public Libraries, 51 Drake L. Rev. 213,
279 (2003).

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225 Cite as: 539 U. S. 194 (2003)
Stevens, J., dissenting
many would not. Inevitably, the interest of the authors of
those works in reaching the widest possible audience would
be abridged. Moreover, because the procedures that differ-
ent libraries are likely to adopt to respond to unblocking re-
quests will no doubt vary, it is impossible to measure the
aggregate effect of the statute on patrons’ access to blocked
sites. Unless we assume that the statute is a mere symbolic
gesture, we must conclude that it will create a significant
prior restraint on adult access to protected speech. A law
that prohibits reading without official consent, like a law that
prohibits speaking without consent, “constitutes a dramatic
departure from our national heritage and constitutional tra-
dition.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Vil-
lage of Stratton, 536 U. S. 150, 166 (2002).
II
The plurality incorrectly argues that the statute does not
impose “an unconstitutional condition on public libraries.”
Ante, at 214. On the contrary, it impermissibly conditions
the receipt of Government funding on the restriction of sig-
nificant First Amendment rights.
The plurality explains the “worthy missions” of the public
library in facilitating “learning and cultural enrichment.”
Ante, at 203. It then asserts that in order to fulfill these
missions, “libraries must have broad discretion to decide
what material to provide to their patrons.” Ante, at 204.
Thus the selection decision is the province of the librarians,
a province into which we have hesitated to enter:
“A library’s need to exercise judgment in making collec-
tion decisions depends on its traditional role in identify-
ing suitable and worthwhile material; it is no less enti-
tled to play that role when it collects material from the
Internet than when it collects material from any other
source. Most libraries already exclude pornography
from their print collections because they deem it inap-
propriate for inclusion. We do not subject these deci-

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226 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Stevens, J., dissenting
sions to heightened scrutiny; it would make little sense
to treat libraries’ judgments to block online pornogra-
phy any differently, when these judgments are made for
just the same reason.” Ante, at 208.
As the plurality recognizes, we have always assumed that
libraries have discretion when making decisions regarding
what to include in, and exclude from, their collections. That
discretion is comparable to the “ ‘business 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.’ ” Sweezy v. New Hampshire, 354 U. S.
234, 263 (1957) (Frankfurter, J., concurring in result) (citation
omitted).4 As the District Court found, one of the central
purposes of a library is to provide information for educa-
tional purposes: “ ‘Books and other library resources should
be provided for the interest, information, and enlightenment
of all people of the community the library serves.’ ” 201
F. Supp. 2d, at 420 (quoting the American Library Associa-
tion’s Library Bill of Rights). Given our Nation’s deep com-
mitment “to safeguarding academic freedom” and to the “ro-
bust exchange of ideas,” Keyishian v. Board of Regents of
Univ. of State of N. Y., 385 U. S. 589, 603 (1967), a library’s
exercise of judgment with respect to its collection is entitled
to First Amendment protection.
A federal statute penalizing a library for failing to install
filtering software on every one of its Internet-accessible
computers would unquestionably violate that Amendment.
Cf. Reno v. American Civil Liberties Union, 521 U. S. 844
(1997). I think it equally clear that the First Amendment
protects libraries from being denied funds for refusing to
4 See also J. Boyer, Academic Freedom and the Modern University: The
Experience of the University of Chicago 95 (2002) (“The right to speak, to
write, and to teach freely is a precious right, one that the American re-
search universities over the course of the twentieth century have slowly
but surely made central to the very identity of the university in the mod-
ern world”).

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227 Cite as: 539 U. S. 194 (2003)
Stevens, J., dissenting
comply with an identical rule. An abridgment of speech by
means of a threatened denial of benefits can be just as perni-
cious as an abridgment by means of a threatened penalty.
Our cases holding that government employment may not
be conditioned on the surrender of rights protected by the
First Amendment illustrate the point. It has long been set-
tled that “Congress could not ‘enact a regulation providing
that no Republican, Jew or Negro shall be appointed to fed-
eral office, or that no federal employee shall attend Mass
or take any active part in missionary work.’ ” Wieman
v. Updegraff, 344 U. S. 183, 191–192 (1952). Neither dis-
charges, as in Elrod v. Burns, 427 U. S. 347, 350–351 (1976),
nor refusals to hire or promote, as in Rutan v. Republican
Party of Ill., 497 U. S. 62, 66–67 (1990), are immune from
First Amendment scrutiny. Our precedents firmly reject-
ing “Justice Holmes’ famous dictum, that a policeman ‘may
have a constitutional right to talk politics, but he has no con-
stitutional right to be a policeman,’ ” Board of Comm’rs, Wa-
baunsee Cty. v. Umbehr, 518 U. S. 668, 674 (1996), draw no
distinction between the penalty of discharge from one’s job
and the withholding of the benefit of a new job. The abridg-
ment of First Amendment rights is equally unconstitutional
in either context. See Sherbert v. Verner, 374 U. S. 398, 404
(1963) (“Governmental imposition of such a choice puts the
same kind of burden upon the free exercise of religion as
would a fine . . . . It is too late in the day to doubt that the
liberties of religion and expression may be infringed by the
denial of or placing of conditions upon a benefit or privilege”).
The issue in this case does not involve governmental at-
tempts to control the speech or views of its employees. It
involves the use of its treasury to impose controls on an im-
portant medium of expression. In an analogous situation,
we specifically held that when “the Government seeks to use
an existing medium of expression and to control it, in a class
of cases, in ways which distort its usual functioning,” the
distorting restriction must be struck down under the First

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228 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Stevens, J., dissenting
Amendment. Legal Services Corporation v. Velazquez, 531
U. S. 533, 543 (2001).5 The question, then, is whether requir-
ing the filtering software on all Internet-accessible comput-
ers distorts that medium. As I have discussed above, the
over- and underblocking of the software does just that.
The plurality argues that the controversial decision in
Rust v. Sullivan, 500 U. S. 173 (1991), requires rejection of
appellees’ unconstitutional conditions claim. See ante, at
211–212. But, as subsequent cases have explained, Rust
only involved, and only applies to, instances of governmental
speech—that is, situations in which the government seeks to
communicate a specific message.6 The discounts under the
E-rate program and funding under the Library Services and
Technology Act (LSTA) program involved in this case do not
subsidize any message favored by the Government. As
Congress made clear, these programs were designed “[t]o
help public libraries provide their patrons with Internet ac-
cess,” which in turn “provide[s] patrons with a vast amount
of valuable information.” Ante, at 199, 200. These pro-
grams thus are designed to provide access, particularly for
individuals in low-income communities, see 47 U. S. C.
§ 254(h)(1), to a vast amount and wide variety of private
5 Contrary to the plurality’s narrow reading, Velazquez is not limited to
instances in which the recipient of Government funds might be “pit[ted]”
against the Government. See ante, at 213. To the contrary, we assessed
the issue in Velazquez by turning to, and harmonizing it with, our prior
unconstitutional condition cases in the First Amendment context. See
531 U. S., at 543–544.
6 See id., at 541 (distinguishing Rust on the ground that “the counseling
activities of the doctors . . . amounted to governmental speech”); Board of
Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229 (2000)
(unlike Rust, “the issue of the government’s right . . . to use its own funds
to advance a particular message” was not presented); Rosenberger v. Rec-
tor and Visitors of Univ. of Va., 515 U. S. 819, 834 (1995) (Rust is inapplica-
ble where the government “does not itself speak or subsidize transmittal
of a message it favors but instead expends funds to encourage a diversity
of views from private speakers”).

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229 Cite as: 539 U. S. 194 (2003)
Stevens, J., dissenting
speech. They are not designed to foster or transmit any
particular governmental message.
Even if we were to construe the passage of CIPA as modi-
fying the E-rate and LSTA programs such that they now
convey a governmental message that no “ ‘visual depictions’
that are ‘obscene,’ ‘child pornography,’ or in the case of mi-
nors, ‘harmful to minors,’ ” 201 F. Supp. 2d, at 407, should be
expressed or viewed, the use of filtering software does not
promote that message. As described above, all filtering
software erroneously blocks access to a substantial number
of Web sites that contain constitutionally protected speech
on a wide variety of topics. See id., at 446–447 (describing
erroneous blocking of speech on churches and religious
groups, on politics and government, on health issues, on edu-
cation and careers, on sports, and on travel). Moreover,
there are “frequent instances of underblocking,” id., at 448,
that is, instances in which filtering software did not prevent
access to Web sites with depictions that fall within what
CIPA seeks to block access to. In short, the message con-
veyed by the use of filtering software is not that all speech
except that which is prohibited by CIPA is supported by the
Government, but rather that all speech that gets through the
software is supported by the Government. And the items
that get through the software include some visual depictions
that are obscene, some that are child pornography, and some
that are harmful to minors, while at the same time the soft-
ware blocks an enormous amount of speech that is not sexu-
ally explicit and certainly does not meet CIPA’s definitions
of prohibited content. As such, since the message conveyed
is far from the message the Government purports to pro-
mote—indeed, the material permitted past the filtering soft-
ware does not seem to have any coherent message—Rust
is inapposite.
The plurality’s reliance on National Endowment for Arts
v. Finley, 524 U. S. 569 (1998), is also misplaced. That case
involved a challenge to a statute setting forth the criteria

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230 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Stevens, J., dissenting
used by a federal panel of experts administering a federal
grant program. Unlike this case, the Federal Government
was not seeking to impose restrictions on the administration
of a nonfederal program. As explained supra, at 228, Rust
would appear to permit restrictions on a federal program
such as the National Endowment for the Arts (NEA) arts
grant program at issue in Finley.
Further, like a library, the NEA experts in Finley had a
great deal of discretion to make judgments as to what proj-
ects to fund. But unlike this case, Finley did not involve a
challenge by the NEA to a governmental restriction on its
ability to award grants. Instead, the respondents were per-
formance artists who had applied for NEA grants but were
denied funding. See 524 U. S., at 577. If this were a case
in which library patrons had challenged a library’s decision
to install and use filtering software, it would be in the same
posture as Finley. Because it is not, Finley does not control
this case.
Also unlike Finley, the Government does not merely seek
to control a library’s discretion with respect to computers
purchased with Government funds or those computers with
Government-discounted Internet access. CIPA requires li-
braries to install filtering software on every computer with
Internet access if the library receives any discount from the
E-rate program or any funds from the LSTA program.7 See
20 U. S. C. § 9134(f)(1); 47 U. S. C. §§ 254(h)(6)(B) and (C). If
a library has 10 computers paid for by nonfederal funds and
has Internet service for those computers also paid for by
nonfederal funds, the library may choose not to put filtering
software on any of those 10 computers. Or a library may
decide to put filtering software on the 5 computers in its
7 Thus, appellees are not merely challenging a “refusal to fund protected
activity, without more,” as in Harris v. McRae, 448 U. S. 297, 317, n. 19
(1980), or a “decision not to subsidize the exercise of a fundamental right,”
as in Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549
(1983). They are challenging a restriction that applies to property that
they acquired without federal assistance.

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231 Cite as: 539 U. S. 194 (2003)
Souter, J., dissenting
children’s section. Or a library in an elementary school
might choose to put filters on every single one of its 10 com-
puters. But under this statute, if a library attempts to pro-
vide Internet service for even one computer through an E-
rate discount, that library must put filtering software on all
of its computers with Internet access, not just the one com-
puter with E-rate discount.
This Court should not permit federal funds to be used to
enforce this kind of broad restriction of First Amendment
rights, particularly when such a restriction is unnecessary to
accomplish Congress’ stated goal. See supra, at 223 (dis-
cussing less restrictive alternatives). The abridgment of
speech is equally obnoxious whether a rule like this one is
enforced by a threat of penalties or by a threat to withhold
a benefit.
I would affirm the judgment of the District Court.
Justice Souter, with whom Justice Ginsburg joins,
dissenting.
I agree in the main with Justice Stevens, ante, at 225–
230 and this page (dissenting opinion), that the blocking re-
quirements of the Children’s Internet Protection Act, 20
U. S. C. §§ 9134(f)(1)(A)(i) and (B)(i); 47 U. S. C. §§ 254(h)
(6)(B)(i) and (C)(i), impose an unconstitutional condition on
the Government’s subsidies to local libraries for providing
access to the Internet. I also agree with the library appel-
lees on a further reason to hold the blocking rule invalid in
the exercise of the spending power under Article I, § 8: the
rule mandates action by recipient libraries that would violate
the First Amendment’s guarantee of free speech if the librar-
ies took that action entirely on their own. I respectfully
dissent on this further ground.
I
Like the other Members of the Court, I have no doubt
about the legitimacy of governmental efforts to put a barrier
between child patrons of public libraries and the raw offer-

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232 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Souter, J., dissenting
ings on the Internet otherwise available to them there, and
if the only First Amendment interests raised here were
those of children, I would uphold application of the Act. We
have said that the governmental interest in “shielding” chil-
dren from exposure to indecent material is “compelling,”
Reno v. American Civil Liberties Union, 521 U. S. 844, 869–
870 (1997), and I do not think that the awkwardness a child
might feel on asking for an unblocked terminal is any such
burden as to affect constitutionality.
Nor would I dissent if I agreed with the majority of my
colleagues, see ante, at 208–209 (plurality opinion); ante, at
219 (Breyer, J., concurring in judgment); ante, at 214 (Ken-
nedy, J., concurring in judgment), that an adult library pa-
tron could, consistently with the Act, obtain an unblocked
terminal simply for the asking. I realize the Solicitor Gen-
eral represented this to be the Government’s policy, see
Tr. of Oral Arg. 4–5, 11, and if that policy were communi-
cated to every affected library as unequivocally as it was
stated to us at argument, local librarians might be able to
indulge the unblocking requests of adult patrons to the point
of taking the curse off the statute for all practical purposes.
But the Federal Communications Commission, in its order
implementing the Act, pointedly declined to set a federal pol-
icy on when unblocking by local libraries would be appro-
priate under the statute. See In re Federal-State Joint
Board on Universal Service: Children’s Internet Protection
Act, 16 FCC Rcd. 8182, 8204, ¶ 53 (2001) (“Federally-imposed
rules directing school and library staff when to disable tech-
nology protection measures would likely be overbroad and
imprecise, potentially chilling speech, or otherwise confusing
schools and libraries about the requirements of the statute.
We leave such determinations to the local communities,
whom we believe to be most knowledgeable about the vary-
ing circumstances of schools or libraries within those commu-
nities”). Moreover, the District Court expressly found that
“unblocking may take days, and may be unavailable, espe-

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233 Cite as: 539 U. S. 194 (2003)
Souter, J., dissenting
cially in branch libraries, which are often less well staffed
than main libraries.” 201 F. Supp. 2d 401, 411 (ED Pa.
2002); see id., at 487–488 (same).
In any event, we are here to review a statute, and the
unblocking provisions simply cannot be construed, even for
constitutional avoidance purposes, to say that a library must
unblock upon adult request, no conditions imposed and no
questions asked. First, the statute says only that a library
“may” unblock, not that it must. 20 U. S. C. § 9134(f)(3); see
47 U. S. C. § 254(h)(6)(D). In addition, it allows unblocking
only for “bona fide research or other lawful purposes,” 20
U. S. C. § 9134(f)(3); see 47 U. S. C. § 254(h)(6)(D), and if the
“lawful purposes” criterion means anything that would not
subsume and render the “bona fide research” criterion
superfluous, it must impose some limit on eligibility for
unblocking, see, e. g., Connecticut Nat. Bank v. Germain,
503 U. S. 249, 253 (1992) (“[C]ourts should disfavor inter-
pretations of statutes that render language superfluous”).
There is therefore necessarily some restriction, which is
surely made more onerous by the uncertainty of its terms
and the generosity of its discretion to library staffs in decid-
ing who gets complete Internet access and who does not.
Cf. Forsyth County v. Nationalist Movement, 505 U. S. 123,
130 (1992) (noting that the First Amendment bars licensing
schemes that grant unduly broad discretion to licensing offi-
cials, given the potential for such discretion to “becom[e] a
means of suppressing a particular point of view” (internal
quotation marks omitted)).1
We therefore have to take the statute on the understand-
ing that adults will be denied access to a substantial amount
of nonobscene material harmful to children but lawful for
1 If the Solicitor General’s representation turns out to be honored in the
breach by local libraries, it goes without saying that our decision today
would not foreclose an as-applied challenge. See also ante, at 219–220
(Breyer, J., concurring in judgment); ante, at 215 (Kennedy, J., concur-
ring in judgment).

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234 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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adult examination, and a substantial quantity of text and pic-
tures harmful to no one. As the plurality concedes, see
ante, at 208–209, this is the inevitable consequence of the
indiscriminate behavior of current filtering mechanisms,
which screen out material to an extent known only by the
manufacturers of the blocking software, see 201 F. Supp. 2d,
at 408 (“The category lists maintained by the blocking pro-
grams are considered to be proprietary information, and
hence are unavailable to customers or the general public for
review, so that public libraries that select categories when
implementing filtering software do not really know what
they are blocking”).
We likewise have to examine the statute on the under-
standing that the restrictions on adult Internet access have
no justification in the object of protecting children. Chil-
dren could be restricted to blocked terminals, leaving other
unblocked terminals in areas restricted to adults and
screened from casual glances. And, of course, the statute
could simply have provided for unblocking at adult request,
with no questions asked. The statute could, in other words,
have protected children without blocking access for adults
or subjecting adults to anything more than minimal incon-
venience, just the way (the record shows) many librarians
had been dealing with obscenity and indecency before impo-
sition of the federal conditions. See id., at 422–427. In-
stead, the Government’s funding conditions engage in over-
kill to a degree illustrated by their refusal to trust even a
library’s staff with an unblocked terminal, one to which the
adult public itself has no access. See id., at 413 (quoting 16
FCC Rcd., at 8196, ¶ 30).
The question for me, then, is whether a local library could
itself constitutionally impose these restrictions on the con-
tent otherwise available to an adult patron through an In-
ternet connection, at a library terminal provided for public
use. The answer is no. A library that chose to block an
adult’s Internet access to material harmful to children (and

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235 Cite as: 539 U. S. 194 (2003)
Souter, J., dissenting
whatever else the undiscriminating filter might interrupt)
would be imposing a content-based restriction on communi-
cation of material in the library’s control that an adult could
otherwise lawfully see. This would simply be censorship.
True, the censorship would not necessarily extend to every
adult, for an intending Internet user might convince a librar-
ian that he was a true researcher or had a “lawful purpose”
to obtain everything the library’s terminal could provide.
But as to those who did not qualify for discretionary un-
blocking, the censorship would be complete and, like all cen-
sorship by an agency of the Government, presumptively in-
valid owing to strict scrutiny in implementing the Free
Speech Clause of the First Amendment. “The policy of the
First Amendment favors dissemination of information and
opinion, and the guarantees of freedom of speech and press
were not designed to prevent the censorship of the press
merely, but any action of the government by means of which
it might prevent such free and general discussion of public
matters as seems absolutely essential.” Bigelow v. Vir-
ginia, 421 U. S. 809, 829 (1975) (internal quotation marks and
brackets omitted).
II
The Court’s plurality does not treat blocking affecting
adults as censorship, but chooses to describe a library’s act
in filtering content as simply an instance of the kind of selec-
tion from available material that every library (save, per-
haps, the Library of Congress) must perform. Ante, at 208
(“A library’s need to exercise judgment in making collection
decisions depends on its traditional role in identifying suit-
able and worthwhile material; it is no less entitled to play
that role when it collects material from the Internet than
when it collects material from any other source”). But this
position does not hold up.2
2 Among other things, the plurality’s reasoning ignores the widespread
utilization of interlibrary loan systems. See 201 F. Supp. 2d 401, 421 (ED
Pa. 2002). With interlibrary loan, virtually any book, say, is effectively

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236 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
Souter, J., dissenting
A
Public libraries are indeed selective in what they acquire
to place in their stacks, as they must be. There is only so
much money and so much shelf space, and the necessity to
choose some material and reject the rest justifies the effort
to be selective with an eye to demand, quality, and the object
of maintaining the library as a place of civilized enquiry by
widely different sorts of people. Selectivity is thus neces-
sary and complex, and these two characteristics explain why
review of a library’s selection decisions must be limited: the
decisions are made all the time, and only in extreme cases
could one expect particular choices to reveal impermissible
reasons (reasons even the plurality would consider to be ille-
gitimate), like excluding books because their authors are
Democrats or their critiques of organized Christianity are
unsympathetic. See Board of Ed., Island Trees Union Free
School Dist. No. 26 v. Pico, 457 U. S. 853, 870–871 (1982)
(plurality opinion). Review for rational basis is probably
the most that any court could conduct, owing to the myriad
particular selections that might be attacked by someone, and
the difficulty of untangling the play of factors behind a par-
ticular decision.
At every significant point, however, the Internet block-
ing here defies comparison to the process of acquisition.
Whereas traditional scarcity of money and space require a
library to make choices about what to acquire, and the choice
to be made is whether or not to spend the money to acquire
something, blocking is the subject of a choice made after the
money for Internet access has been spent or committed.
made available to a library’s patrons. If, therefore, a librarian refused to
get a book from interlibrary loan for an adult patron on the ground that
the patron’s “purpose” in seeking the book was not acceptable, the librar-
ian could find no justification in the fact that libraries have traditionally
“collect[ed] only those materials deemed to have ‘requisite and appropriate
quality.’ ” Ante, at 204. In any event, in the ensuing analysis, I assume
for the sake of argument that we are in a world without interlibrary loan.

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237 Cite as: 539 U. S. 194 (2003)
Souter, J., dissenting
Since it makes no difference to the cost of Internet access
whether an adult calls up material harmful for children or
the Articles of Confederation, blocking (on facts like these)
is not necessitated by scarcity of either money or space.3 In
the instance of the Internet, what the library acquires is
electronic access, and the choice to block is a choice to limit
access that has already been acquired. Thus, deciding
against buying a book means there is no book (unless a loan
can be obtained), but blocking the Internet is merely block-
ing access purchased in its entirety and subject to unblocking
if the librarian agrees. The proper analogy therefore is not
to passing up a book that might have been bought; it is either
to buying a book and then keeping it from adults lacking an
acceptable “purpose,” or to buying an encyclopedia and then
cutting out pages with anything thought to be unsuitable for
all adults.
B
The plurality claims to find support for its conclusions in
the “traditional missio[n]” of the public library. Ante, at
205; see also ante, at 219 (Breyer, J., concurring in judg-
ment) (considering “traditional library practices”). The plu-
rality thus argues, in effect, that the traditional responsibil-
ity of public libraries has called for denying adult access to
certain books, or bowdlerizing the content of what the librar-
ies let adults see. But, in fact, the plurality’s conception of
a public library’s mission has been rejected by the libraries
themselves. And no library that chose to block adult access
in the way mandated by the Act could claim that the history
of public library practice in this country furnished an implicit
3 Of course, a library that allowed its patrons to use computers for any
purposes might feel the need to purchase more computers to satisfy what
would presumably be greater demand, see Brief for Appellants 23, but the
answer to that problem would be to limit the number of unblocked termi-
nals or the hours in which they could be used. In any event, the rationale
for blocking has no reference whatever to scarcity.

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238 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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gloss on First Amendment standards, allowing for blocking
out anything unsuitable for adults.
Institutional history of public libraries in America dis-
closes an evolution toward a general rule, now firmly rooted,
that any adult entitled to use the library has access to any
of its holdings.4 To be sure, this freedom of choice was ap-
parently not within the inspiration for the mid-19th-century
development of public libraries, see J. Shera, Foundations of
the Public Library: The Origins of the Public Library Move-
ment in New England, 1629–1855, p. 107 (1949), and in the
infancy of their development a “[m]oral censorship” of read-
ing material was assumed, E. Geller, Forbidden Books in
American Public Libraries, 1876–1939, p. 12 (1984). But
even in the early 20th century, the legitimacy of the librari-
an’s authority as moral arbiter was coming into question.
See, e. g., Belden, President’s Address: Looking Forward, 20
Bull. Am. Libr. Assn. 273, 274 (1926) (“The true public li-
brary must stand for the intellectual freedom of access to
the printed word”). And the practices of European fascism
fueled the reaction against library censorship. See M. Har-
ris, History of Libraries in the Western World 248 (4th ed.
1995). The upshot was a growing understanding that a li-
brarian’s job was to guarantee that “all people had access to
all ideas,” Geller, supra, at 156, and by the end of the 1930s,
librarians’ “basic position in opposition to censorship [had]
emerged,” Krug & Harvey, ALA and Intellectual Freedom:
A Historical Overview, in Intellectual Freedom Manual,
pp. xi, xv (American Library Association 1974) (hereinafter
Intellectual Freedom Manual); see also Darling, Access, In-
tellectual Freedom and Libraries, 27 Library Trends 315–
316 (1979).
4 That is, libraries do not refuse materials to adult patrons on account of
their content. Of course, libraries commonly limit access on content-
neutral grounds to, say, rare or especially valuable materials. Such prac-
tices raise no First Amendment concerns, because they have nothing to
do with suppressing ideas.

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239 Cite as: 539 U. S. 194 (2003)
Souter, J., dissenting
By the time McCarthyism began its assaults, appellee
American Library Association (ALA) had developed a Li-
brary Bill of Rights against censorship, Library Bill of
Rights, in Intellectual Freedom Manual, pt. 1, p. 7, and an
Intellectual Freedom Committee to maintain the position
that beyond enforcing existing laws against obscenity, “there
is no place in our society for extra-legal efforts to coerce the
taste of others, to confine adults to the reading matter
deemed suitable for adolescents, or to inhibit the efforts of
writers to achieve artistic expression.” Freedom to Read,
in id., pt. 2, at 8; see also Krug & Harvey, in id., at xv. So
far as I have been able to tell, this statement expressed the
prevailing ideal in public library administration after World
War II, and it seems fair to say as a general rule that librar-
ies by then had ceased to deny requesting adults access to
any materials in their collections. The adult might, indeed,
have had to make a specific request, for the literature and
published surveys from the period show a variety of restric-
tions on the circulation of library holdings, including place-
ment of materials apart from open stacks, and availability
only upon specific request.5 But aside from the isolated sug-
gestion, see, e. g., Born, Public Libraries and Intellectual
Freedom, in id., pt. 3, at 4, 9, I have not been able to find
from this period any record of a library barring access to
materials in its collection on a basis other than a reader’s
age. It seems to have been out of the question for a library
to refuse a book in its collection to a requesting adult patron,
or to presume to evaluate the basis for a particular request.
This take on the postwar years is confirmed by evidence
of the dog that did not bark. During the second half of the
5 See, e. g., M. Fiske, Book Selection and Censorship: A Study of School
and Public Libraries in California 69–73 (1959); Moon, “Problem” Fiction,
in Book Selection and Censorship in the Sixties 56–58 (E. Moon ed. 1969);
F. Jones, Defusing Censorship: The Librarian’s Guide to Handling Censor-
ship Conflicts 92–99 (1983); see also The Censorship of Books 173–182 (W.
Daniels ed. 1954).

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240 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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20th century, the ALA issued a series of policy statements,
since dubbed Interpretations of the Library Bill of Rights,
see id., pt. 1, at 13, commenting on library administration and
pointing to particular practices the ALA opposed. Thus, for
example, in response to pressure by the Sons of the Ameri-
can Revolution on New Jersey libraries to place labels on
materials “advocat[ing] or favor[ing] communism,” the ALA
in 1957 adopted a “Statement on Labeling,” opposing it as “a
censor’s tool.” Id., pt. 1, at 18–19. Again, 10 years later,
the ALA even adopted a statement against any restriction
on access to library materials by minors. It acknowledged
that age restrictions were common across the Nation in
“a variety of forms, including, among others, restricted read-
ing rooms for adult use only, library cards limiting circulation
of some materials to adults only, closed collections for adult
use only, and interlibrary loan for adult use only.” Id., pt. 1,
at 16. Nevertheless, the ALA opposed all such limitations,
saying that “only the parent . . . may restrict his children—
and only his children—from access to library materials and
services.” Id., pt. 1, at 17.
And in 1973, the ALA adopted a policy opposing the prac-
tice already mentioned, of keeping certain books off the open
shelves, available only on specific request. See id., pt. 1,
at 42. The statement conceded that “ ‘closed shelf,’ ‘locked
case,’ ‘adults only,’ or ‘restricted shelf ’ collections” were
“common to many libraries in the United States.” Id., pt. 1,
at 43. The ALA nonetheless came out against it, in these
terms: “While the limitation differs from direct censorship
activities, such as removal of library materials or refusal to
purchase certain publications, it nonetheless constitutes cen-
sorship, albeit a subtle form.” Ibid.6
Amidst these and other ALA statements from the latter
half of the 20th century, however, one subject is missing.
6 For a complete listing of the ALA’s Interpretations, see R. Peck, Li-
braries, the First Amendment and Cyberspace: What You Need to Know
148–175 (2000).

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241 Cite as: 539 U. S. 194 (2003)
Souter, J., dissenting
There is not a word about barring requesting adults from
any materials in a library’s collection, or about limiting an
adult’s access based on evaluation of his purposes in seeking
materials. If such a practice had survived into the latter
half of the 20th century, one would surely find a statement
about it from the ALA, which had become the nemesis of
anything sounding like censorship of library holdings, as
shown by the history just sampled.7 The silence bespeaks
an American public library that gives any adult patron any
material at hand, and a history without support for the plu-
rality’s reading of the First Amendment as tolerating a pub-
lic library’s censorship of its collection against adult enquiry.
C
Thus, there is no preacquisition scarcity rationale to save
library Internet blocking from treatment as censorship, and
no support for it in the historical development of library
practice. To these two reasons to treat blocking differently
from a decision declining to buy a book, a third must be
added. Quite simply, we can smell a rat when a library
blocks material already in its control, just as we do when a
library removes books from its shelves for reasons having
nothing to do with wear and tear, obsolescence, or lack of
demand. Content-based blocking and removal tell us some-
thing that mere absence from the shelves does not.
I have already spoken about two features of acquisition
decisions that make them poor candidates for effective judi-
cial review. The first is their complexity, the number of le-
gitimate considerations that may go into them, not all point-
ing one way, providing cover for any illegitimate reason that
managed to sneak in. A librarian should consider likely de-
mand, scholarly or esthetic quality, alternative purchases,
7 Thus, it is not surprising that, with the emergence of the circumstances
giving rise to this case, the ALA has adopted statements opposing restric-
tions on access to adult patrons, specific to electronic media like the In-
ternet. See id., at 150–153, 176–179, 180–187.

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242 UNITED STATES v. AMERICAN LIBRARY ASSN., INC.
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relative cost, and so on. The second reason the judiciary
must be shy about reviewing acquisition decisions is the
sheer volume of them, and thus the number that might draw
fire. Courts cannot review the administration of every li-
brary with a constituent disgruntled that the library fails to
buy exactly what he wants to read.
After a library has acquired material in the first place,
however, the variety of possible reasons that might legiti-
mately support an initial rejection are no longer in play.
Removal of books or selective blocking by controversial sub-
ject matter is not a function of limited resources and less
likely than a selection decision to reflect an assessment of
esthetic or scholarly merit. Removal (and blocking) deci-
sions being so often obviously correlated with content, they
tend to show up for just what they are, and because such
decisions tend to be few, courts can examine them without
facing a deluge. The difference between choices to keep out
and choices to throw out is thus enormous, a perception that
underlay the good sense of the plurality’s conclusion in
Board of Ed., Island Trees Union Free School Dist. No. 26
v. Pico, 457 U. S. 853 (1982), that removing classics from a
school library in response to pressure from parents and
school board members violates the Speech Clause.
III
There is no good reason, then, to treat blocking of adult
enquiry as anything different from the censorship it pre-
sumptively is. For this reason, I would hold in accordance
with conventional strict scrutiny that a library’s practice of
blocking would violate an adult patron’s First and Four-
teenth Amendment right to be free of Internet censorship,
when unjustified (as here) by any legitimate interest in
screening children from harmful material.8 On that ground,
8 I assume, although there is no occasion here to decide, that the origina-
tors of the material blocked by the Internet filters could object to the wall
between them and any adult audience they might attract, although they

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243 Cite as: 539 U. S. 194 (2003)
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the Act’s blocking requirement in its current breadth calls
for unconstitutional action by a library recipient, and is it-
self unconstitutional.
would be unlikely plaintiffs, given that their private audience would be
unaffected by the library’s action, and many of them might have no more
idea that a library is blocking their work than the library does. It is for
this reason that I rely on the First and Fourteenth Amendment rights of
adult library patrons, who would experience the more acute injury by
being denied a look at anything the software identified as apt to harm a
child (and whatever else got blocked along with it). In practical terms, if
libraries and the National Government are going to be kept from engaging
in unjustifiable adult censorship, there is no alternative to recognizing a
viewer’s or reader’s right to be free of paternalistic censorship as at least
an adjunct of the core right of the speaker. The plurality in Board of Ed.,
Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853 (1982),
saw this and recognized the right of students using a school library to
object to the removal of disfavored books from the shelves, id., at 865–868
(opinion of Brennan, J.). By the same token, we should recognize an anal-
ogous right on the part of a library’s adult Internet users, who may be
among the 10% of American Internet users whose access comes solely
through library terminals, see 201 F. Supp. 2d, at 422. There should
therefore be no question that censorship by blocking produces real injury
sufficient to support a suit for redress by patrons whose access is denied.

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244 OCTOBER TERM, 2002
Syllabus
GRATZ et al. v. BOLLINGER et al.
certiorari before judgment to the united states
court of appeals for the sixth circuit
No. 02–516. Argued April 1, 2003—Decided June 23, 2003
Petitioners Gratz and Hamacher, both of whom are Michigan residents
and Caucasian, applied for admission to the University of Michigan’s
(University) College of Literature, Science, and the Arts (LSA) in 1995
and 1997, respectively. Although the LSA considered Gratz to be well
qualified and Hamacher to be within the qualified range, both were de-
nied early admission and were ultimately denied admission. In order
to promote consistency in the review of the many applications received,
the University’s Office of Undergraduate Admissions (OUA) uses writ-
ten guidelines for each academic year. The guidelines have changed a
number of times during the period relevant to this litigation. The OUA
considers a number of factors in making admissions decisions, including
high school grades, standardized test scores, high school quality, curricu-
lum strength, geography, alumni relationships, leadership, and race.
During all relevant periods, the University has considered African-
Americans, Hispanics, and Native Americans to be “underrepresented
minorities,” and it is undisputed that the University admits virtually
every qualified applicant from these groups. The current guidelines
use a selection method under which every applicant from an underrepre-
sented racial or ethnic minority group is automatically awarded 20
points of the 100 needed to guarantee admission.
Petitioners filed this class action alleging that the University’s use
of racial preferences in undergraduate admissions violated the Equal
Protection Clause of the Fourteenth Amendment, Title VI of the Civil
Rights Act of 1964, and 42 U. S. C. § 1981. They sought compensatory
and punitive damages for past violations, declaratory relief finding that
respondents violated their rights to nondiscriminatory treatment, an in-
junction prohibiting respondents from continuing to discriminate on the
basis of race, and an order requiring the LSA to offer Hamacher admis-
sion as a transfer student. The District Court granted petitioners’ mo-
tion to certify a class consisting of individuals who applied for and were
denied admission to the LSA for academic year 1995 and forward and
who are members of racial or ethnic groups that respondents treated
less favorably on the basis of race. Hamacher, whose claim was found
to challenge racial discrimination on a classwide basis, was designated
as the class representative. On cross-motions for summary judgment,
respondents relied on Justice Powell’s principal opinion in Regents of

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245 Cite as: 539 U. S. 244 (2003)
Syllabus
Univ. of Cal. v. Bakke, 438 U. S. 265, 317, which expressed the view that
the consideration of race as a factor in admissions might in some cases
serve a compelling government interest. Respondents contended that
the LSA has just such an interest in the educational benefits that result
from having a racially and ethnically diverse student body and that its
program is narrowly tailored to serve that interest. The court agreed
with respondents as to the LSA’s current admissions guidelines and
granted them summary judgment in that respect. However, the court
also found that the LSA’s admissions guidelines for 1995 through 1998
operated as the functional equivalent of a quota running afoul of Justice
Powell’s Bakke opinion, and thus granted petitioners summary judg-
ment with respect to respondents’ admissions programs for those years.
While interlocutory appeals were pending in the Sixth Circuit, that
court issued an opinion in Grutter v. Bollinger, post, p. 306, upholding
the admissions program used by the University’s Law School. This
Court granted certiorari in both cases, even though the Sixth Circuit
had not yet rendered judgment in this one.
Held:
1. Petitioners have standing to seek declaratory and injunctive relief.
The Court rejects Justice Stevens’ contention that, because Ha-
macher did not actually apply for admission as a transfer student, his
future injury claim is at best conjectural or hypothetical rather than real
and immediate. The “injury in fact” necessary to establish standing in
this type of case is the denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to obtain the benefit.
Northeastern Fla. Chapter, Associated Gen. Contractors of America v.
Jacksonville, 508 U. S. 656, 666. In the face of such a barrier, to estab-
lish standing, a party need only demonstrate that it is able and ready
to perform and that a discriminatory policy prevents it from doing so
on an equal basis. Ibid. In bringing his equal protection challenge
against the University’s use of race in undergraduate admissions, Ha-
macher alleged that the University had denied him the opportunity to
compete for admission on an equal basis. Hamacher was denied admis-
sion to the University as a freshman applicant even though an underrep-
resented minority applicant with his qualifications would have been ad-
mitted. After being denied admission, Hamacher demonstrated that he
was “able and ready” to apply as a transfer student should the Univer-
sity cease to use race in undergraduate admissions. He therefore has
standing to seek prospective relief with respect to the University’s con-
tinued use of race. Also rejected is Justice Stevens’ contention that
such use in undergraduate transfer admissions differs from the Univer-
sity’s use of race in undergraduate freshman admissions, so that Ha-
macher lacks standing to represent absent class members challenging
the latter. Each year the OUA produces a document setting forth

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246 GRATZ v. BOLLINGER
Syllabus
guidelines for those seeking admission to the LSA, including freshman
and transfer applicants. The transfer applicant guidelines specifically
cross-reference factors and qualifications considered in assessing fresh-
man applicants. In fact, the criteria used to determine whether a
transfer applicant will contribute to diversity are identical to those used
to evaluate freshman applicants. The only difference is that all under-
represented minority freshman applicants receive 20 points and “virtu-
ally” all who are minimally qualified are admitted, while “generally” all
minimally qualified minority transfer applicants are admitted outright.
While this difference might be relevant to a narrow tailoring analysis,
it clearly has no effect on petitioners’ standing to challenge the Universi-
ty’s use of race in undergraduate admissions and its assertion that diver-
sity is a compelling state interest justifying its consideration of the race
of its undergraduate applicants. See General Telephone Co. of South-
west v. Falcon, 457 U. S. 147, 159; Blum v. Yaretsky, 457 U. S. 991, distin-
guished. The District Court’s carefully considered decision to certify
this class action is correct. Cf. Coopers & Lybrand v. Livesay, 437 U. S.
463, 469. Hamacher’s personal stake, in view of both his past injury
and the potential injury he faced at the time of certification, demon-
strates that he may maintain the action. Pp. 260–268.
2. Because the University’s use of race in its current freshman admis-
sions policy is not narrowly tailored to achieve respondents’ asserted
interest in diversity, the policy violates the Equal Protection Clause.
For the reasons set forth in Grutter v. Bollinger, post, at 327–333, the
Court has today rejected petitioners’ argument that diversity cannot
constitute a compelling state interest. However, the Court finds that
the University’s current policy, which automatically 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 narrowly tailored to achieve educational diversity. In Bakke, Jus-
tice Powell explained his view that it would be permissible for a univer-
sity to employ an admissions program in which “race or ethnic back-
ground may be deemed a ‘plus’ in a particular applicant’s file.” 438
U. S., at 317. He emphasized, however, the importance of considering
each particular applicant as an individual, assessing all of the qualities
that individual possesses, and in turn, evaluating that individual’s ability
to contribute to the unique setting of higher education. The admissions
program Justice Powell described did not contemplate that any single
characteristic automatically ensured a specific and identifiable contribu-
tion to a university’s diversity. See id., at 315. The current LSA pol-
icy does not provide the individualized consideration Justice Powell con-
templated. The only consideration that accompanies the 20-point
automatic distribution to all applicants from underrepresented minori-
ties is a factual review to determine whether an individual is a member

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247 Cite as: 539 U. S. 244 (2003)
Syllabus
of one of these minority groups. Moreover, unlike Justice Powell’s ex-
ample, where the race of a “particular black applicant” could be consid-
ered without being decisive, see id., at 317, the LSA’s 20-point distribu-
tion has the effect of making “the factor of race . . . decisive” for
virtually every minimally qualified underrepresented minority appli-
cant, ibid. The fact that the LSA has created the possibility of an appli-
cant’s file being flagged for individualized consideration only emphasizes
the flaws of the University’s system as a whole when compared to that
described by Justice Powell. The record does not reveal precisely how
many applications are flagged, but it is undisputed that such consider-
ation is the exception and not the rule in the LSA’s program. Also,
this individualized review is only provided after admissions counselors
automatically distribute the University’s version of a “plus” that makes
race a decisive factor for virtually every minimally qualified under-
represented minority applicant. The Court rejects respondents’ con-
tention that the volume of applications and the presentation of appli-
cant information make it impractical for the LSA to use the admissions
system upheld today in Grutter. The fact that the implementation of a
program capable of providing individualized consideration might pres-
ent administrative challenges does not render constitutional an other-
wise problematic system. See, e. g., Richmond v. J. A. Croson Co.,
488 U. S. 469, 508. Nothing in Justice Powell’s Bakke opinion signaled
that a university may employ whatever means it desires to achieve
diversity without regard to the limits imposed by strict scrutiny.
Pp. 268–275.
3. Because the University’s use of race in its current freshman admis-
sions policy violates the Equal Protection Clause, it also violates Title
VI and § 1981. See, e. g., Alexander v. Sandoval, 532 U. S. 275, 281;
General Building Contractors Assn. v. Pennsylvania, 458 U. S. 375,
389–390. Accordingly, the Court reverses that portion of the District
Court’s decision granting respondents summary judgment with respect
to liability. Pp. 275–276.
Reversed in part and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. O’Connor, J., filed a
concurring opinion, in which Breyer, J., joined in part, post, p. 276.
Thomas, J., filed a concurring opinion, post, p. 281. Breyer, J., filed an
opinion concurring in the judgment, post, p. 281. Stevens, J., filed a dis-
senting opinion, in which Souter, J., joined, post, p. 282. Souter, J., filed
a dissenting opinion, in which Ginsburg, J., joined as to Part II, post,
p. 291. Ginsburg, J., filed a dissenting opinion, in which Souter, J.,
joined, and in which Breyer, J., joined as to Part I, post, p. 298.

539US1 Unit: $U76 [07-07-05 08:48:20] PAGES PGT: OPLG
248 GRATZ v. BOLLINGER
Counsel
Kirk O. Kolbo argued the cause for petitioners. With him
on the briefs were David F. Herr, R. Lawrence Purdy, Mi-
chael C. McCarthy, Michael E. Rosman, Hans Bader, and
Kerry L. Morgan.
Solicitor General Olson argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Assistant Attorney General Boyd and Deputy So-
licitor General Clement.
John Payton argued the cause for respondents. With him
on the brief for respondent Bollinger et al. were John H.
Pickering, Brigida Benitez, Craig Goldblatt, Terry A. Ma-
roney, Maureen E. Mahoney, Marvin Krislov, Jonathan
Alger, Jeffrey Lehman, Evan Caminker, Philip J. Kessler,
and Leonard M. Niehoff. Theodore M. Shaw, Norman J.
Chachkin, James L. Cott, Melissa S. Woods, Christopher A.
Hansen, Brent E. Simmons, Michael J. Steinberg, Antonia
Hernandez, Patricia Mendoza, Godfrey J. Dillard, and Mil-
ton R. Henry filed a brief for respondent Patterson et al.*
*Briefs of amici curiae urging reversal were filed for the State of Flor-
ida et al. by Charlie Crist, Attorney General of Florida, Christopher M.
Kise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, and
Daniel Woodring; for the Cato Institute by Robert A. Levy, Timothy
Lynch, James L. Swanson, and Samuel Estreicher; for the Center for
Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the
Center for Individual Freedom by Renee L. Giachino; for the Center for
New Black Leadership by Clint Bolick, William H. Mellor, and Richard
D. Komer; for the Center for the Advancement of Capitalism by David
Reed Burton; for the Claremont Institute Center for Constitutional Juris-
prudence by Edwin Meese III; for the Michigan Association of Scholars
by William F. Mohrman; for the National Association of Scholars by Wil-
liam H. Allen, Oscar M. Garibaldi, and Keith A. Noreika; for the Pacific
Legal Foundation by John H. Findley; and for the Reason Foundation by
Martin S. Kaufman.
Briefs of amici curiae urging affirmance were filed for Members of the
United States Congress by Leslie T. Thornton and Steven M. Schnee-
baum; for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney
General of Maryland, Andrew H. Baida, Solicitor General, Mark J. Davis
and William F. Brockman, Assistant Attorneys General, Eliot Spitzer,
Attorney General of New York, Caitlin J. Halligan, Solicitor General, Mi-
chelle Aronowitz, Deputy Solicitor General, and Julie Mathy Sheridan and

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249 Cite as: 539 U. S. 244 (2003)
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
We granted certiorari in this case to decide whether “the
University of Michigan’s use of racial preferences in under-
Sachin S. Pandya, Assistant Solicitors General, and by the Attorneys
General for their respective jurisdictions as follows: Terry Goddard of Ari-
zona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blu-
menthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of
Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike
Hatch of Minnesota, Mike McGrath of Montana, Patricia A. Madrid of
New Mexico, Roy Cooper of North Carolina, W. A. Drew Edmondson of
Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, Wil-
liam H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Chris-
tine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia,
and Peggy A. Lautenschlager of Wisconsin; for the State of New Jersey by
David Samson, Attorney General, Jeffrey Burstein, Assistant Attorney
General, and Donna Arons and Anne Marie Kelly, Deputy Attorneys
General; for New York City Council Speaker A. Gifford Miller et al. by
Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia, Pennsyl-
vania, et al. by Victor A. Bolden and Nelson A. Diaz; for the American
Educational Research Association et al. by Angelo N. Ancheta; for the
American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jan-
cik, Jeffrey P. Sinensky, Kara H. Stein, and Richard T. Foltin; for the
American Psychological Association by Paul R. Friedman, William F.
Sheehan, and Nathalie F. P. Gilfoyle; for Amherst College et al. by
Charles S. Sims; for the Authors of the Texas Ten Percent Plan by Ro-
lando L. Rios; for the Bay Mills Indian Community et al. by Vanya S.
Hogen; for the College Board by Janet Pitterle Holt; for Columbia Univer-
sity et al. by Floyd Abrams, Susan Buckley, and James J. Mingle; for
Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey,
Beverly Ledbetter, Robert B. Donin, and Wendy S. White; for Howard
University by Janell M. Byrd; for the Lawyers’ Committee for Civil
Rights Under Law et al. by John S. Skilton, Barbara R. Arnwine,
Thomas J. Henderson, Dennis C. Hayes, Marcia D. Greenberger, Judith
L. Lichtman, and Jocelyn C. Frye; for the Leadership Conference on Civil
Rights et al. by Robert N. Weiner and William L. Taylor; for the National
Coalition of Blacks for Reparations in America et al. by Kevin Outterson;
for the National Education Association et al. by Robert H. Chanin, John
M. West, Elliot Mincberg, Larry P. Weinberg, and John C. Dempsey; for
the National Urban League et al. by William A. Norris and Michael C.
Small; for the New America Alliance by Thomas R. Julin and D. Patricia

539US1 Unit: $U76 [07-07-05 08:48:20] PAGES PGT: OPLG
250 GRATZ v. BOLLINGER
Opinion of the Court
graduate admissions violate[s] the Equal Protection Clause
of the Fourteenth Amendment, Title VI of the Civil Rights
Act of 1964 (42 U. S. C. § 2000d), or 42 U. S. C. § 1981.” Brief
Wallace; for Northeastern University by Daryl J. Lapp and Lisa A. Sin-
clair; for the NOW Legal Defense and Education Fund et al. by Wendy
R. Weiser and Martha F. Davis; for the United Negro College Fund et al.
by Drew S. Days III and Beth S. Brinkmann; for the University of Pitts-
burgh et al. by David C. Frederick and Sean A. Lev; for Lieutenant Gen-
eral Julius W. Becton, Jr., et al. by Virginia A. Seitz, Joseph R. Reeder,
Robert P. Charrow, and Kevin E. Stern; for Senator Thomas A. Daschle
et al. by David T. Goldberg and Penny Shane; for the Hayden Family by
Roy C. Howell; and for Glenn C. Loury et al. by Jeffrey F. Liss and James
J. Halpert.
Briefs of amici curiae were filed for Michigan Governor Jennifer M.
Granholm by John D. Pirich and Mark A. Goldsmith; for the American
Federation of Labor and Congress of Industrial Organizations by Harold
Craig Becker, David J. Strom, Jonathan P. Hiatt, and Daniel W. Sherrick;
for the Asian American Legal Foundation by Daniel C. Girard and Gordon
M. Fauth, Jr.; for the Anti-Defamation League by Martin E. Karlinsky
and Steven M. Freeman; for Banks Broadcasting, Inc., by Elizabeth G.
Taylor; for the Black Women Lawyers Association of Greater Chicago,
Inc., by Sharon E. Jones; for Carnegie Mellon University et al. by W.
Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan, and Edward N.
Stoner II; for the Equal Employment Advisory Council by Jeffrey A. Nor-
ris and Ann Elizabeth Reesman; for Exxon Mobil Corp. by Richard R.
Brann; for General Motors Corp. by Kenneth S. Geller, Eileen Penner,
and Thomas A. Gottschalk; for Human Rights Advocates et al. by Con-
stance de la Vega; for the Massachusetts Institute of Technology et al. by
Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and Stacey J. Mobley;
for the National Asian Pacific American Legal Consortium et al. by Mark
A. Packman, Jonathan M. Cohen, Karen K. Narasaki, Vincent A. Eng,
and Trang Q. Tran; for the National Council of La Raza et al. by Vilma
S. Martinez and Jeffrey L. Bleich; for the National School Boards Associa-
tion et al. by Julie Underwood and Naomi Gittins; for 3M et al. by David
W. DeBruin, Deanne E. Maynard, Daniel Mach, Russell W. Porter, Jr.,
Charles R. Wall, Martin J. Barrington, Deval L. Patrick, John R. Parker,
Jr., William J. O’Brien, Gary P. Van Graafeiland, Kathryn A. Oberly,
Randall E. Mehrberg, Donald M. Remy, Ben W. Heineman, Jr., Brackett
B. Denniston III, Elpidio Villarreal, Wayne A. Budd, J. Richard Smith,
Stewart S. Hudnut, John A. Shutkin, Theodore L. Banks, Kenneth C. Fra-
zier, David R. Andrews, Jeffrey B. Kindler, Teresa M. Holland, Charles

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251 Cite as: 539 U. S. 244 (2003)
Opinion of the Court
for Petitioners i. Because we find that the manner in which
the University considers the race of applicants in its under-
graduate admissions guidelines violates these constitutional
and statutory provisions, we reverse that portion of the Dis-
trict Court’s decision upholding the guidelines.
I
A
Petitioners Jennifer Gratz and Patrick Hamacher both ap-
plied for admission to the University of Michigan’s (Univer-
sity) College of Literature, Science, and the Arts (LSA) as
residents of the State of Michigan. Both petitioners are
Caucasian. Gratz, who applied for admission for the fall of
1995, was notified in January of that year that a final decision
regarding her admission had been delayed until April. This
delay was based upon the University’s determination that,
although Gratz was “ ‘well qualified,’ ” she was “ ‘less compet-
itive than the students who ha[d] been admitted on first re-
view.’ ” App. to Pet. for Cert. 109a. Gratz was notified in
April that the LSA was unable to offer her admission. She
enrolled in the University of Michigan at Dearborn, from
which she graduated in the spring of 1999.
Hamacher applied for admission to the LSA for the fall of
1997. A final decision as to his application was also post-
poned because, though his “ ‘academic credentials [were]
in the qualified range, they [were] not at the level needed
for first review admission.’ ” Ibid. Hamacher’s application
was subsequently denied in April 1997, and he enrolled at
Michigan State University.1
W. Gerdts III, John L. Sander, Mark P. Klein, and Stephen P. Sawyer; for
Representative John Conyers, Jr., et al. by Paul J. Lawrence and Anthony
R. Miles; for Duane C. Ellison, by Mr. Ellison, pro se, and Carl V. Angelis;
and for Representative Richard A. Gephardt et al. by Andrew L. Sandler
and Mary L. Smith.
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.

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252 GRATZ v. BOLLINGER
Opinion of the Court
In October 1997, Gratz and Hamacher filed a lawsuit in
the United States District Court for the Eastern District
of Michigan against the University, the LSA,2 James Duder-
stadt, and Lee Bollinger.3 Petitioners’ complaint was a
class-action suit alleging “violations and threatened viola-
tions of the rights of the plaintiffs and the class they repre-
sent to equal protection of the laws under the Fourteenth
Amendment . . . , and for racial discrimination in violation
of 42 U. S. C. §§ 1981, 1983 and 2000d et seq.” App. 33.
Petitioners sought, inter alia, compensatory and punitive
damages for past violations, declaratory relief finding that
respondents violated petitioners’ “rights to nondiscrimina-
tory treatment,” an injunction prohibiting respondents from
“continuing to discriminate on the basis of race in violation
of the Fourteenth Amendment,” and an order requiring the
LSA to offer Hamacher admission as a transfer student.4
Id., at 40.
The District Court granted petitioners’ motion for class
certification after determining that a class action was appro-
priate pursuant to Federal Rule of Civil Procedure 23(b)(2).
The certified class consisted of “those individuals who ap-
plied for and were not granted admission to the College of
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 indi-
vidual capacity. Bollinger was the president of the University when Ha-
macher applied for admission. He was originally sued in both his indi-
vidual 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
intended to apply for, admission to the University, as well as the Citizens
for Affirmative Action’s Preservation, a nonprofit organization in Michi-
gan, sought to intervene pursuant to Federal Rule of Civil Procedure 24.
See App. 13–14. The District Court originally denied this request, see
id., at 14–15, but the Sixth Circuit reversed that decision. See Gratz v.
Bollinger, 188 F. 3d 394 (1999).

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Opinion of the Court
Literature, Science & the Arts of the University of Michigan
for all academic years from 1995 forward and who are mem-
bers of those racial or ethnic groups, including Caucasian,
that defendants treat[ed] less favorably on the basis of race
in considering their application for admission.” App. 70–71.
And Hamacher, whose claim the District Court found to chal-
lenge a “ ‘practice of racial discrimination pervasively applied
on a classwide basis,’ ” was designated as the class repre-
sentative. Id., at 67, 70. The court also granted petition-
ers’ motion to bifurcate the proceedings into a liability and
damages phase. Id., at 71. The liability phase was to de-
termine “whether [respondents’] use of race as a factor in
admissions decisions violates the Equal Protection Clause of
the Fourteenth Amendment to the Constitution.” Id., at
70. 5
B
The University has changed its admissions guidelines a
number of times during the period relevant to this litigation,
and we summarize the most significant of these changes
briefly. The University’s Office of Undergraduate Admis-
sions (OUA) oversees the LSA admissions process.6 In
order to promote consistency in the review of the large num-
ber of applications received, the OUA uses written guide-
lines for each academic year. Admissions counselors make
admissions decisions in accordance with these guidelines.
OUA considers a number of factors in making admissions
decisions, including high school grades, standardized test
scores, high school quality, curriculum strength, geography,
alumni relationships, and leadership. OUA also considers
race. During all periods relevant to this litigation, the Uni-
5 The District Court decided also to consider petitioners’ request for
injunctive and declaratory relief during the liability phase of the proceed-
ings. App. 71.
6 Our description is taken, in large part, from the “Joint Proposed Sum-
mary of Undisputed Facts Regarding Admissions Process” filed by the
parties in the District Court. App. to Pet. for Cert. 108a–117a.

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254 GRATZ v. BOLLINGER
Opinion of the Court
versity has considered African-Americans, Hispanics, and
Native Americans to be “underrepresented minorities,” and
it is undisputed that the University admits “virtually every
qualified . . . applicant” from these groups. App. to Pet. for
Cert. 111a.
During 1995 and 1996, OUA counselors evaluated applica-
tions according to grade point average combined with what
were referred to as the “SCUGA” factors. These factors in-
cluded the quality of an applicant’s high school (S), the
strength of an applicant’s high school curriculum (C), an ap-
plicant’s unusual circumstances (U), an applicant’s geographi-
cal residence (G), and an applicant’s alumni relationships (A).
After these scores were combined to produce an applicant’s
“GPA 2” score, the reviewing admissions counselors refer-
enced a set of “Guidelines” tables, which listed GPA 2 ranges
on the vertical axis, and American College Test/Scholastic
Aptitude Test (ACT/SAT) scores on the horizontal axis.
Each table was divided into cells that included one or more
courses of action to be taken, including admit, reject, delay
for additional information, or postpone for reconsideration.
In both years, applicants with the same GPA 2 score and
ACT/SAT score were subject to different admissions out-
comes based upon their racial or ethnic status.7 For exam-
ple, as a Caucasian in-state applicant, Gratz’s GPA 2 score
and ACT score placed her within a cell calling for a post-
poned decision on her application. An in-state or out-of-
state minority applicant with Gratz’s scores would have
fallen within a cell calling for admission.
7 In 1995, counselors used four such tables for different groups of appli-
cants: (1) in-state, nonminority applicants; (2) out-of-state, nonminority ap-
plicants; (3) in-state, minority applicants; and (4) out-of-state, minority ap-
plicants. In 1996, only two tables were used, one for in-state applicants
and one for out-of-state applicants. But each cell on these two tables
contained separate courses of action for minority applicants and nonminor-
ity applicants whose GPA 2 scores and ACT/SAT scores placed them in
that cell.

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255 Cite as: 539 U. S. 244 (2003)
Opinion of the Court
In 1997, the University modified its admissions procedure.
Specifically, the formula for calculating an applicant’s GPA 2
score was restructured to include additional point values
under the “U” category in the SCUGA factors. Under this
new system, applicants could receive points for underrepre-
sented minority status, socioeconomic disadvantage, or at-
tendance at a high school with a predominantly underrepre-
sented minority population, or underrepresentation in the
unit to which the student was applying (for example, men
who sought to pursue a career in nursing). Under the 1997
procedures, Hamacher’s GPA 2 score and ACT score placed
him in a cell on the in-state applicant table calling for post-
ponement of a final admissions decision. An underrepre-
sented minority applicant placed in the same cell would
generally have been admitted.
Beginning with the 1998 academic year, the OUA dis-
pensed with the Guidelines tables and the SCUGA point sys-
tem in favor of a “selection index,” on which an applicant
could score a maximum of 150 points. This index was di-
vided linearly into ranges generally calling for admissions
dispositions as follows: 100–150 (admit); 95–99 (admit or post-
pone); 90–94 (postpone or admit); 75–89 (delay or postpone);
74 and below (delay or reject).
Each application received points based on high school
grade point average, standardized test scores, academic qual-
ity of an applicant’s high school, strength or weakness of high
school curriculum, in-state residency, alumni relationship,
personal essay, and personal achievement or leadership. Of
particular significance here, under a “miscellaneous” cate-
gory, an applicant was entitled to 20 points based upon his
or her membership in an underrepresented racial or ethnic
minority group. The University explained that the “ ‘devel-
opment of the selection index for admissions in 1998 changed
only the mechanics, not the substance, of how race and eth-
nicity [were] considered in admissions.’ ” App. to Pet. for
Cert. 116a.

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256 GRATZ v. BOLLINGER
Opinion of the Court
In all application years from 1995 to 1998, the guidelines
provided that qualified applicants from underrepresented mi-
nority groups be admitted as soon as possible in light of the
University’s belief that such applicants were more likely to
enroll if promptly notified of their admission. Also from
1995 through 1998, the University carefully managed its roll-
ing admissions system to permit consideration of certain ap-
plications submitted later in the academic year through the
use of “protected seats.” Specific groups—including ath-
letes, foreign students, ROTC candidates, and underrepre-
sented minorities—were “protected categories” eligible for
these seats. A committee called the Enrollment Working
Group (EWG) projected how many applicants from each of
these protected categories the University was likely to re-
ceive after a given date and then paced admissions decisions
to permit full consideration of expected applications from
these groups. If this space was not filled by qualified candi-
dates from the designated groups toward the end of the ad-
missions season, it was then used to admit qualified candi-
dates remaining in the applicant pool, including those on the
waiting list.
During 1999 and 2000, the OUA used the selection index,
under which every applicant from an underrepresented racial
or ethnic minority group was awarded 20 points. Starting
in 1999, however, the University established an Admissions
Review Committee (ARC), to provide an additional level of
consideration for some applications. Under the new system,
counselors may, in their discretion, “flag” an application for
the ARC to review after determining that the applicant (1) is
academically prepared to succeed at the University,8 (2) has
achieved a minimum selection index score, and (3) possesses
a quality or characteristic important to the University’s com-
8 LSA applicants who are Michigan residents must accumulate 80 points
from the selection index criteria to be flagged, while out-of-state appli-
cants need to accumulate 75 points to be eligible for such consideration.
See App. 257.

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257 Cite as: 539 U. S. 244 (2003)
Opinion of the Court
position of its freshman class, such as high class rank, unique
life experiences, challenges, circumstances, interests or tal-
ents, socioeconomic disadvantage, and underrepresented
race, ethnicity, or geography. After reviewing “flagged” ap-
plications, the ARC determines whether to admit, defer, or
deny each applicant.
C
The parties filed cross-motions for summary judgment
with respect to liability. Petitioners asserted that the LSA’s
use of race as a factor in admissions violates Title VI of the
Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d, and
the Equal Protection Clause of the Fourteenth Amendment.
Respondents relied on Justice Powell’s opinion in Regents of
Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), to respond to
petitioners’ arguments. As discussed in greater detail in
the Court’s opinion in Grutter v. Bollinger, post, at 323–325,
Justice Powell, in Bakke, expressed the view that the consid-
eration of race as a factor in admissions might in some cases
serve a compelling government interest. See 438 U. S., at
317. Respondents contended that the LSA has just such
an interest in the educational benefits that result from hav-
ing a racially and ethnically diverse student body and that
its program is narrowly tailored to serve that interest.
Respondent-intervenors asserted that the LSA had a com-
pelling interest in remedying the University’s past and cur-
rent discrimination against minorities.9
9 The District Court considered and rejected respondent-intervenors’ ar-
guments in a supplemental opinion and order. See 135 F. Supp. 2d 790
(ED Mich. 2001). The court explained that respondent-intervenors “failed
to present any evidence that the discrimination alleged by them, or the
continuing effects of such discrimination, was the real justification for the
LSA’s race-conscious admissions programs.” Id., at 795. We agree, and
to the extent respondent-intervenors reassert this justification, a justifi-
cation the University has never asserted throughout the course of this
litigation, we affirm the District Court’s disposition of the issue.

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258 GRATZ v. BOLLINGER
Opinion of the Court
The District Court began its analysis by reviewing this
Court’s decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED
Mich. 2000). Although the court acknowledged that no de-
cision from this Court since Bakke has explicitly accepted
the diversity rationale discussed by Justice Powell, see 122
F. Supp. 2d, at 820–821, it also concluded that this Court had
not, in the years since Bakke, ruled out such a justification
for the use of race, 122 F. Supp. 2d, at 820–821. The District
Court concluded that respondents and their amici curiae had
presented “solid evidence” that a racially and ethnically di-
verse student body produces significant educational benefits
such that achieving such a student body constitutes a com-
pelling governmental interest. See id., at 822–824.
The court next considered whether the LSA’s admissions
guidelines were narrowly tailored to achieve that interest.
See id., at 824. Again relying on Justice Powell’s opinion in
Bakke, the District Court determined that the admissions
program the LSA began using in 1999 is a narrowly tailored
means of achieving the University’s interest in the educa-
tional benefits that flow from a racially and ethnically diverse
student body. See 122 F. Supp. 2d, at 827. The court em-
phasized that the LSA’s current program does not utilize
rigid quotas or seek to admit a predetermined number of
minority students. See ibid. The award of 20 points for
membership in an underrepresented minority group, in the
District Court’s view, was not the functional equivalent of a
quota because minority candidates were not insulated from
review by virtue of those points. See id., at 828. Likewise,
the court rejected the assertion that the LSA’s program
operates like the two-track system Justice Powell found ob-
jectionable 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 petition-
ers’ assertion that the LSA’s current system is nothing more
than a means by which to achieve racial balancing. See id.,
at 831. The court explained that the LSA does not seek to

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achieve a certain proportion of minority students, let alone
a proportion that represents the community. See ibid.
The District Court found the admissions guidelines the
LSA used from 1995 through 1998 to be more problematic.
In the court’s view, the University’s prior practice of “pro-
tecting” or “reserving” seats for underrepresented minor-
ity applicants effectively kept nonprotected applicants from
competing for those slots. See id., at 832. This system, the
court concluded, operated as the functional equivalent of a
quota and ran afoul of Justice Powell’s opinion in Bakke.10
See 122 F. Supp. 2d, at 832.
Based on these findings, the court granted petitioners’ mo-
tion for summary judgment with respect to the LSA’s admis-
sions programs in existence from 1995 through 1998, and
respondents’ motion with respect to the LSA’s admissions
programs for 1999 and 2000. See id., at 833. Accordingly,
the District Court denied petitioners’ request for injunctive
relief. See id., at 814.
The District Court issued an order consistent with its rul-
ings and certified two questions for interlocutory appeal to
the Sixth Circuit pursuant to 28 U. S. C. § 1292(b). Both par-
ties appealed aspects of the District Court’s rulings, and the
Court of Appeals heard the case en banc on the same day as
Grutter v. Bollinger. The Sixth Circuit later issued an opin-
ion in Grutter, upholding the admissions program used by
the University of Michigan Law School, and the petitioner in
that case sought a writ of certiorari from this Court. Peti-
tioners asked this Court to grant certiorari in this case as
10 The District Court determined that respondents Bollinger and Duder-
stadt, who were sued in their individual capacities under Rev. Stat. § 1979,
42 U. S. C. § 1983, were entitled to summary judgment based on the doc-
trine of qualified immunity. See 122 F. Supp. 2d, at 833–834. Petitioners
have not asked this Court to review this aspect of the District Court’s
decision. The District Court denied the Board of Regents’ motion for
summary judgment with respect to petitioners’ Title VI claim on Eleventh
Amendment immunity grounds. See id., at 834–836. Respondents have
not asked this Court to review this aspect of the District Court’s decision.

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well, despite the fact that the Court of Appeals had not yet
rendered a judgment, so that this Court could address the
constitutionality of the consideration of race in university
admissions in a wider range of circumstances. We did so.
See 537 U. S. 1044 (2002).
II
As they have throughout the course of this litigation, peti-
tioners contend that the University’s consideration of race in
its undergraduate admissions decisions violates § 1 of the
Equal Protection Clause of the Fourteenth Amendment,11
Title VI, 12 and 42 U. S. C. § 1981. 13 We consider first
whether petitioners have standing to seek declaratory and
injunctive relief, and, finding that they do, we next consider
the merits of their claims.
A
Although no party has raised the issue, Justice Stevens
argues that petitioners lack Article III standing to seek in-
junctive relief with respect to the University’s use of race 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 ‘conjec-
tural or hypothetical’ rather than ‘real and immediate.’ ”
Post, at 285 (dissenting opinion). But whether Hamacher
“actually applied” for admission as a transfer student is not
11 The Equal Protection Clause of the Fourteenth Amendment explains
that “[n]o State shall . . . deny to any person within its jurisdiction the
equal protection of the laws.”
12 Title VI provides that “[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42 U. S. C.
§ 2000d.
13 Section 1981(a) provides:
“All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
. . . and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens.”

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determinative of his ability to seek injunctive relief in this
case. If Hamacher had submitted a transfer application and
been rejected, he would still need to allege an intent to apply
again in order to seek prospective relief. If Justice Ste-
vens means that because Hamacher did not apply to trans-
fer, he must never really have intended to do so, that con-
clusion directly conflicts with the finding of fact entered by
the District Court that Hamacher “intends to transfer to
the University of Michigan when defendants cease the use of
race as an admissions preference.” App. 67.14
It is well established that intent may be relevant to stand-
ing in an equal protection challenge. In Clements v. Fash-
ing, 457 U. S. 957 (1982), for example, we considered a chal-
lenge to a provision of the Texas Constitution requiring the
immediate resignation of certain state officeholders upon
their announcement of candidacy for another office. We con-
cluded that the plaintiff officeholders had Article III stand-
ing because they had alleged that they would have an-
nounced their candidacy for other offices were it not for the
“automatic resignation” provision they were challenging.
Id., at 962; accord, Turner v. Fouche, 396 U. S. 346, 361–362,
n. 23 (1970) (plaintiff who did not own property had standing
to challenge property ownership requirement for member-
ship on school board even though 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 prop-
erty had standing to challenge property ownership require-
ment for membership on government board even though
they lacked standing to challenge the requirement “as ap-
plied”). Likewise, in Northeastern Fla. Chapter, Associ-
ated Gen. Contractors of America v. Jacksonville, 508 U. S.
656 (1993), we considered whether an association challenging
an ordinance that gave preferential treatment to certain
14 This finding is further corroborated by Hamacher’s request that the
District Court “[r]equir[e] the LSA College to offer [him] admission as a
transfer student.” App. 40.

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262 GRATZ v. BOLLINGER
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minority-owned businesses in the award of city contracts
needed to show that one of its members would have received
a contract absent the ordinance in order to establish stand-
ing. In finding that no such showing was necessary, we ex-
plained that “[t]he ‘injury in fact’ in an equal protection case
of this variety is the denial of equal treatment resulting from
the imposition of the barrier, not the ultimate inability to
obtain the benefit. . . . And in the context of a challenge to a
set-aside program, the ‘injury in fact’ is the inability to com-
pete on an equal footing in the bidding process, not the loss
of contract.” Id., at 666. We concluded that in the face of
such a barrier, “[t]o establish standing . . . , a party challeng-
ing a set-aside program like Jacksonville’s need only demon-
strate that it is able and ready to bid on contracts and that
a discriminatory policy prevents it from doing so on an equal
basis.” Ibid.
In bringing his equal protection challenge against the Uni-
versity’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 Ha-
macher applied to the University as a freshman applicant,
he was denied admission even though an underrepresented
minority applicant with his qualifications would have been
admitted. See App. to Pet. for Cert. 115a. After being
denied admission, Hamacher demonstrated that he was
“able and ready” to apply as a transfer student should the
University 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 stand-
ing. He contends that the University’s use of race in under-
graduate transfer admissions differs from its use of race in
undergraduate freshman admissions, and that therefore Ha-
macher lacks standing to represent absent class members
challenging the latter. Post, at 286–287 (dissenting opinion).

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As an initial matter, there is a question whether the rele-
vance of this variation, if any, is a matter of Article III stand-
ing at all or whether it goes to the propriety of class certifi-
cation pursuant to Federal Rule of Civil Procedure 23(a).
The parties have not briefed the question of standing versus
adequacy, however, and we need not resolve the question
today: Regardless of whether the requirement is deemed one
of adequacy or standing, it is clearly satisfied in this case.15
From the time petitioners filed their original complaint
through their brief on the merits in this Court, they have
consistently challenged the University’s use of race in under-
graduate admissions and its asserted justification of promot-
ing “diversity.” See, e. g., App. 38; Brief for Petitioners 13.
Consistent with this challenge, petitioners requested injunc-
tive relief prohibiting respondents “from continuing to dis-
criminate 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 aca-
demic years from 1995 forward. Id., at 35–36. The District
Court determined that the proposed class satisfied the re-
quirements of the Federal Rules of Civil Procedure, includ-
ing the requirements of numerosity, commonality, and typi-
cality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court
further concluded that Hamacher was an adequate repre-
15 Although we do not resolve here whether such an inquiry in this case
is appropriately addressed under the rubric of standing or adequacy, we
note that there is tension in our prior cases in this regard. See, e. g.,
Burns, Standing and Mootness in Class Actions: A Search for Consistency,
22 U. C. D. L. Rev. 1239, 1240–1241 (1989); General Telephone Co. of South-
west v. Falcon, 457 U. S. 147, 149 (1982) (Mexican-American plaintiff alleg-
ing that he was passed over for a promotion because of race was not an
adequate representative to “maintain a class action on behalf of Mexican-
American applicants” who were not hired by the same employer); Blum
v. Yaretsky, 457 U. S. 991 (1982) (class representatives who had been trans-
ferred to lower levels of medical care lacked standing to challenge trans-
fers to higher levels of care).

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sentative for the class in the pursuit of compensatory and
injunctive relief for purposes of Rule 23(a)(4), see id., at 61–
69, and found “the record utterly devoid of the presence of
. . . antagonism between the interests of . . . Hamacher, and
the members of the class which [he] seek[s] to represent,” id.,
at 61. Finally, the District Court concluded that petitioners’
claim was appropriate for class treatment because the Uni-
versity’s “ ‘practice of racial discrimination pervasively ap-
plied on a classwide basis.’ ” Id., at 67. The court certi-
fied the class pursuant to Federal Rule of Civil Procedure
23(b)(2), and designated Hamacher as the class representa-
tive. App. 70.
Justice Stevens cites Blum v. Yaretsky, 457 U. S. 991
(1982), in arguing that the District Court erred. Post, at
289. In Blum, we considered a class-action suit brought
by Medicaid beneficiaries. The named representatives in
Blum challenged decisions by the State’s Medicaid Utiliza-
tion Review Committee (URC) to transfer them to lower lev-
els of care without, in their view, sufficient procedural safe-
guards. 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 representa-
tives could not represent absent class members challenging
transfers to higher levels of care because they had not been
threatened with such transfers. We agreed. We noted that
“[n]othing in the record . . . suggests that any of the individ-
ual respondents have been either transferred to more inten-
sive 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 de-
crease in Medicaid benefits, while transfers to higher levels
of care did not).

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In the present case, the University’s use of race in under-
graduate transfer admissions does not implicate a signifi-
cantly different set of concerns than does its use of race
in undergraduate freshman admissions. Respondents chal-
lenged Hamacher’s standing at the certification stage, but
never did so on the grounds that the University’s use of race
in undergraduate transfer admissions involves a different set
of concerns than does its use of race in 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 GUIDE-
LINES FOR ALL TERMS,” which sets forth guidelines
for all individuals seeking admission to the LSA, includ-
ing freshman applicants, transfer applicants, international
student applicants, and the like. See, e. g., 2 App. in
No. 01–1333 etc. (CA6), pp. 507–542. The guidelines used to
evaluate transfer applicants specifically cross-reference fac-
tors and qualifications considered in assessing freshman ap-
plicants. In fact, the criteria used to determine whether a
transfer applicant will contribute to the University’s stated
goal of diversity are identical to that used to evaluate fresh-
man applicants. For example, in 1997, when the class was
certified and the District Court found that Hamacher had
standing to represent the class, the transfer guidelines con-
tained a separate section entitled “CONTRIBUTION TO A
DIVERSE STUDENT BODY.” 2 id., at 531. This section
explained that any transfer applicant who could “contrib-
ut[e] to a diverse student body” should “generally be ad-
mitted” even with substantially lower qualifications than
those required of other transfer applicants. Ibid. (emphasis
added). To determine whether a transfer applicant was ca-
pable of “contribut[ing] to a diverse student body,” admis-
sions counselors were instructed to determine whether that
transfer applicant met the “criteria as defined in Section IV
of the ‘U’ category of [the] SCUGA” factors used to assess

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266 GRATZ v. BOLLINGER
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freshman applicants. Ibid. Section IV of the “U” category,
entitled “Contribution to a Diverse Class,” explained that
“[t]he University is committed to a rich educational experi-
ence for its students. A diverse, as opposed to a homoge-
nous, student population enhances the educational experi-
ence 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 indicators, used in evaluating freshman and transfer
applicants alike, list being a member of an underrepresented
minority group as establishing an applicant’s contribution to
diversity. See 3 id., at 1133–1134, 1153–1154. Indeed, the
only difference between the University’s use of race in con-
sidering freshman and transfer applicants is that all under-
represented minority freshman applicants receive 20 points
and “virtually” all who are minimally qualified are admitted,
while “generally” all minimally qualified minority transfer
applicants are admitted outright. While this difference
might be relevant to a narrow tailoring analysis, it clearly
has no effect on petitioners’ standing to challenge the Uni-
versity’s use of race in undergraduate admissions and its
assertion that diversity is a compelling state interest that
justifies its consideration of the race of its undergraduate
applicants.16
16 Because the University’s guidelines concededly use race in evaluating
both freshman and transfer applications, and because petitioners have
challenged any use of race by the University in undergraduate admissions,
the transfer admissions policy is very much before this Court. Although
petitioners did not raise a narrow tailoring challenge to the transfer policy,
as counsel for petitioners repeatedly explained, the transfer policy is be-
fore this Court in that petitioners challenged any use of race by the Uni-
versity to promote diversity, including through the transfer policy. See
Tr. of Oral Arg. 4 (“[T]he [transfer] policy is essentially the same with
respect to the consideration of race”); id., at 5 (“The transfer policy consid-
ers race”); id., at 6 (same); id., at 7 (“[T]he transfer policy and the [fresh-
man] admissions policy are fundamentally the same in the respect that

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Particularly instructive here is our statement in General
Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982),
that “[i]f [defendant-employer] used a biased testing proce-
dure to evaluate both applicants for employment and incum-
bent 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 undergraduate admis-
sions 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 admissions. See, e. g.,
Brief for Petitioners 11–13. In sum, the same set of con-
cerns is implicated by the University’s use of race in evalu-
ating all undergraduate admissions applications under the
guidelines.17 We therefore agree with the District Court’s
they both consider race in the admissions process in a way that is discrimi-
natory”); id., at 7–8 (“[T]he University considers race for a purpose to
achieve a diversity that we believe is not compelling, and if that is struck
down as a rationale, then the [result] would be [the] same with respect to
the transfer policy as with respect to the [freshman] admissions policy,
Your Honor”).
17 Indeed, as the litigation history of this case demonstrates, “the class-
action device save[d] the resources of both the courts and the parties by
permitting an issue potentially affecting every [class member] to be liti-
gated in an economical fashion.” Califano v. Yamasaki, 442 U. S. 682,
701 (1979). This case was therefore quite unlike General Telephone Co.
of Southwest v. Falcon, 457 U. S. 147 (1982), in which we found that the
named representative, who had been passed over for a promotion, was not
an adequate representative for absent class members who were never
hired in the first instance. As we explained, the plaintiff ’s “evidentiary
approaches to the individual and class claims were entirely different. He
attempted to sustain his individual claim by proving intentional discrimi-
nation. He tried to prove the class claims through statistical evidence of

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268 GRATZ v. BOLLINGER
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carefully considered decision to certify this class-action chal-
lenge to the University’s consideration of race in undergradu-
ate 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 determination
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 be-
cause “the claims of the individual students run the risk of
becoming moot” and the “[t]he class action vehicle . . . pro-
vides 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 certifica-
tion, 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 undergraduate admissions violates the Four-
teenth Amendment. Specifically, they contend that this
Court has only sanctioned the use of racial classifications to
remedy identified discrimination, a justification on which re-
spondents have never relied. Brief for Petitioners 15–16.
Petitioners further argue that “diversity as a basis for
employing racial preferences is simply too open-ended, ill-
defined, and indefinite to constitute a compelling interest ca-
pable of supporting narrowly-tailored means.” Id., at 17–18,
40–41. But for the reasons set forth today in Grutter v. Bol-
linger, post, at 327–333, the Court has rejected these argu-
ments of petitioners.
disparate impact. . . . It is clear that the maintenance of respondent’s action
as a class action did not advance ‘the efficiency and economy of litigation
which is a principal purpose of the procedure.’ ” Id., at 159 (quoting
American Pipe & Constr. Co. v. Utah, 414 U. S. 538, 553 (1974)).

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Petitioners alternatively argue that even if the Universi-
ty’s interest in diversity can constitute a compelling state
interest, the District Court erroneously concluded that the
University’s use of race in its current freshman admissions
policy is narrowly tailored to achieve such an interest. Peti-
tioners 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. Respondents reply that the Uni-
versity’s current admissions program is narrowly tailored
and avoids the problems of the Medical School of the Univer-
sity of California at Davis program (U. C. Davis) rejected
by Justice Powell.18 They claim that their program “hews
closely” to both the admissions program described by Justice
Powell as well as the Harvard College admissions program
that he endorsed. Brief for Respondent Bollinger et al. 32.
Specifically, respondents contend that the LSA’s policy pro-
vides the individualized consideration that “Justice Powell
considered a hallmark of a constitutionally appropriate ad-
missions program.” Id., at 35. For the reasons set out
below, we do not agree.
18 U. C. Davis set aside 16 of the 100 seats available in its first year
medical school program for “economically and/or educationally disadvan-
taged” applicants who were also members of designated “minority groups”
as defined by the university. “To the extent that there existed a pool of
at least minimally qualified minority applicants to fill the 16 special admis-
sions seats, white applicants could compete only for 84 seats in the enter-
ing class, rather than the 100 open to minority applicants.” Regents of
Univ. of Cal. v. Bakke, 438 U. S. 265, 274, 289 (1978) (principal opinion).
Justice Powell found that the program employed an impermissible two-
track system that “disregard[ed] . . . individual rights as guaranteed by
the Fourteenth Amendment.” Id., at 320. He reached this conclusion
even though the university argued that “the reservation of a specified
number of seats in each class for individuals from the preferred ethnic
groups” was “the only effective means of serving the interest of diversity.”
Id., at 315. Justice Powell concluded that such arguments misunderstood
the very nature of the diversity he found to be compelling. See ibid.

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It is by now well established that “all racial classifications
reviewable under the Equal Protection Clause must be
strictly scrutinized.” Adarand Constructors, Inc. v. Pen˜ a,
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. (quoting 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 subject to the Constitution jus-
tify any racial classification subjecting that person to unequal
treatment under the strictest of judicial scrutiny.” Ada-
rand, 515 U. S., at 224.
To withstand our strict scrutiny analysis, respondents
must demonstrate that the University’s use of race in its cur-
rent admissions program employs “narrowly tailored meas-
ures that further compelling governmental interests.” Id.,
at 227. Because “[r]acial classifications are simply too perni-
cious to permit any but the most exact connection between
justification and classification,” Fullilove v. Klutznick, 448
U. S. 448, 537 (1980) (Stevens, J., dissenting), our review of
whether such requirements have been met must entail “ ‘a
most searching examination.’ ” Adarand, supra, at 223
(quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273
(1986) (plurality opinion of Powell, J.)). We find that the
University’s policy, which 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 narrowly tailored to achieve the inter-
est in educational diversity that respondents claim justifies
their program.
In Bakke, Justice Powell reiterated that “[p]referring
members of any one group for no reason other than race or
ethnic origin is discrimination for its own sake.” 438 U. S.,
at 307. He then explained, however, that in his view it
would be permissible for a university to employ an admis-
sions program in which “race or ethnic background may be

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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 poten-
tial contribution to diversity without the factor of race being
decisive when compared, for example, with that of an appli-
cant identified as an Italian-American if the latter is thought
to exhibit qualities more likely to promote beneficial educa-
tional pluralism.” Ibid. Such a system, in Justice Powell’s
view, would be “flexible enough to consider all pertinent ele-
ments of diversity in light of the particular qualifications of
each applicant.” Ibid.
Justice Powell’s opinion in Bakke emphasized the impor-
tance of considering each particular applicant as an individ-
ual, assessing all of the qualities that individual possesses,
and in turn, evaluating that individual’s ability to contribute
to the unique setting of higher education. The admissions
program Justice Powell described, however, did not contem-
plate that any single characteristic automatically ensured a
specific and identifiable contribution to a university’s diver-
sity. See id., at 315. See also Metro Broadcasting, Inc. v.
FCC, 497 U. S. 547, 618 (1990) (O’Connor, J., dissenting)
(concluding that the Federal Communications Commission’s
policy, which “embodie[d] the related notions . . . that a par-
ticular applicant, by virtue of race or ethnicity alone, is more
valued than other applicants because [the applicant is] ‘likely
to provide [a] distinct perspective,’ ” “impermissibly value[d]
individuals” based on a presumption that “persons think in
a manner associated with their race”). Instead, under the
approach Justice Powell described, each characteristic of a
particular applicant was to be considered in assessing the
applicant’s entire application.
The current LSA policy does not provide such individual-
ized consideration. The LSA’s policy automatically distrib-
utes 20 points to every single applicant from an “underrepre-
sented minority” group, as defined by the University. The
only consideration that accompanies this distribution of

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272 GRATZ v. BOLLINGER
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points is a factual review of an application to determine
whether an individual is a member of one of these minority
groups. Moreover, unlike Justice Powell’s example, where
the race of a “particular black applicant” could be considered
without being decisive, see Bakke, 438 U. S., at 317, the
LSA’s automatic distribution of 20 points has the effect of
making “the factor of race . . . decisive” for virtually every
minimally qualified underrepresented minority applicant.
Ibid.19
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 dis-
cussed in, and attached to, his opinion in Bakke. The ex-
ample was included to “illustrate the kind of significance
attached to race” under the Harvard College program. 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 com-
munity with promise of superior academic performance,
and B, a black who grew up in an inner-city ghetto of
semi-literate parents whose academic achievement was
lower but who had demonstrated energy and leadership
as well as an apparently-abiding interest in black power.
If a good number of black students much like A but few
like B had already been admitted, the Committee might
prefer B; and vice versa. If C, a white student with
extraordinary artistic talent, were also seeking one of
the remaining places, his unique quality might give him
an edge over both A and B. Thus, the critical criteria
are often individual qualities or experience not depend-
19 Justice Souter recognizes that the LSA’s use of race is decisive in
practice, but he attempts to avoid that fact through unsupported specula-
tion about the self-selection of minorities in the applicant pool. See post,
at 296 (dissenting opinion).

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Opinion of the Court
ent upon race but sometimes associated with it.” Ibid.
(emphasis added).
This example further demonstrates the problematic nature
of the LSA’s admissions system. Even if student C’s “ex-
traordinary artistic talent” rivaled that of Monet or Picasso,
the applicant would receive, at most, five points under the
LSA’s system. See App. 234–235. At the same time, every
single underrepresented minority applicant, including stu-
dents A and B, would automatically receive 20 points for sub-
mitting an application. Clearly, the LSA’s system does not
offer applicants the individualized selection process de-
scribed in Harvard’s example. Instead of considering how
the differing backgrounds, experiences, and characteristics
of students A, B, and C might benefit the University, admis-
sions counselors reviewing LSA applications would simply
award both A and B 20 points because their applications indi-
cate that they are African-American, and student C would
receive up to 5 points for his “extraordinary talent.” 20
Respondents emphasize the fact that the LSA has created
the possibility of an applicant’s file being flagged for individu-
alized consideration by the ARC. We think that the flag-
ging program only emphasizes the flaws of the University’s
system as a whole when compared to that described by Jus-
tice Powell. Again, students A, B, and C illustrate the
point. First, student A would never be flagged. This is be-
cause, as the University has conceded, the effect of automati-
cally awarding 20 points is that virtually every qualified un-
derrepresented minority applicant is admitted. Student A,
an applicant “with promise of superior academic perform-
ance,” would certainly fit this description. Thus, the result
of the automatic distribution of 20 points is that the Univer-
20 Justice Souter is therefore wrong when he contends that “appli-
cants to the undergraduate college are [not] denied individualized con-
sideration. ” Post, at 295. As Justice O’Connor explains in her
concurrence, the LSA’s program “ensures that the diversity contributions
of applicants cannot be individually assessed.” Post, at 279.

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274 GRATZ v. BOLLINGER
Opinion of the Court
sity 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 dis-
tribution, and that student C could muster at least 70 addi-
tional 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 individualized consideration, but it is undisputed that
such consideration is the exception and not the rule in the
operation of the LSA’s admissions program. See App. to
Pet. for Cert. 117a (“The ARC reviews only a portion of all
of the applications. The bulk of admissions decisions are ex-
ecuted based on selection index score parameters set by the
EWG”).21 Additionally, this individualized review is only
provided after admissions counselors automatically distrib-
ute the University’s version of a “plus” that makes race a
decisive factor for virtually every minimally qualified under-
represented minority applicant.
21 Justice Souter is mistaken in his assertion that the Court “take[s]
it upon itself to apply a newly-formulated legal standard to an undeveloped
record.” Post, at 297, n. 3. He ignores the fact that respondents have
told us all that is necessary to decide this case. As explained above, re-
spondents concede that only a portion of the applications are reviewed by
the ARC and that the “bulk of admissions decisions” are based on the
point system. It should be readily apparent that the availability of this
review, which comes after the automatic distribution of points, is far more
limited than the individualized review given to the “large middle group of
applicants” discussed by Justice Powell and described by the Harvard plan
in Bakke. 438 U. S., at 316 (internal quotation marks omitted).

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Opinion of the Court
Respondents contend that “[t]he volume of applications
and the presentation of applicant information make it im-
practical for [LSA] to use the . . . admissions system” upheld
by the Court today in Grutter. Brief for Respondent Bol-
linger et al. 6, n. 8. But the fact that the implementation of
a program capable of providing individualized consideration
might present administrative challenges does not render con-
stitutional an otherwise problematic system. See J. A. Cro-
son Co., 488 U. S., at 508 (citing Frontiero v. Richardson,
411 U. S. 677, 690 (1973) (plurality opinion of Brennan, J.)
(rejecting “ ‘administrative convenience’ ” as a determinant
of constitutionality in the face of a suspect classification)).
Nothing in Justice Powell’s opinion in Bakke signaled that a
university may employ whatever means it desires to achieve
the stated goal of diversity without regard to the limits im-
posed by our strict scrutiny analysis.
We conclude, therefore, that because the University’s use
of race in its current freshman admissions policy is not nar-
rowly tailored to achieve respondents’ asserted compelling
interest in diversity, the admissions policy violates the Equal
Protection Clause of the Fourteenth Amendment.22 We fur-
ther find that the admissions policy also violates Title VI and
22 Justice Ginsburg in her dissent observes that “[o]ne can reasonably
anticipate . . . that colleges and universities will seek to maintain their
minority enrollment . . . whether or not they can do so in full candor
through adoption of affirmative action plans of the kind here at issue.”
Post, at 304. She goes on to say that “[i]f honesty is the best policy, surely
Michigan’s accurately described, fully disclosed College affirmative action
program is preferable to achieving similar numbers through winks, nods,
and disguises.” Post, at 305. These observations are remarkable for two
reasons. First, they suggest that universities—to whose academic judg-
ment we are told in Grutter v. Bollinger, post, at 328, we should defer—
will pursue their affirmative-action programs whether or not they violate
the United States Constitution. Second, they recommend that these vio-
lations should be dealt with, not by requiring the universities to obey the
Constitution, but by changing the Constitution so that it conforms to the
conduct of the universities.

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276 GRATZ v. BOLLINGER
O’Connor, J., concurring
42 U. S. C. § 1981.23 Accordingly, we reverse that portion of
the District Court’s decision granting respondents summary
judgment with respect to liability and remand the case for
proceedings consistent with this opinion.
It is so ordered.
Justice O’Connor, concurring.*
I
Unlike the law school admissions policy the Court upholds
today in Grutter v. Bollinger, post, p. 306, the procedures
employed by the University of Michigan’s (University) Office
of Undergraduate Admissions do not provide for a meaning-
ful individualized review of applicants. Cf. Regents of Univ.
of Cal. v. Bakke, 438 U. S. 265 (1978) (principal opinion of
Powell, J.). The law school considers the various diversity
qualifications of each applicant, including race, on a case-by-
case basis. See Grutter v. Bollinger, post, at 337–339. By
contrast, the Office of Undergraduate Admissions relies on
the selection index to assign every underrepresented minor-
ity applicant the same, automatic 20-point bonus without
consideration of the particular background, experiences, or
23 We have explained that discrimination that violates the Equal Protec-
tion Clause of the Fourteenth Amendment committed by an institution
that accepts federal funds also constitutes a violation of Title VI. See
Alexander v. Sandoval, 532 U. S. 275, 281 (2001); United States v. Fordice,
505 U. S. 717, 732, n. 7 (1992); Alexander v. Choate, 469 U. S. 287, 293
(1985). Likewise, with respect to § 1981, we have explained that the pro-
vision was “meant, by its broad terms, to proscribe discrimination in the
making or enforcement of contracts against, or in favor of, any race.” Mc-
Donald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 295–296 (1976). Fur-
thermore, we have explained that a contract for educational services is a
“contract” for purposes of § 1981. See Runyon v. McCrary, 427 U. S. 160,
172 (1976). Finally, purposeful discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment will also violate § 1981.
See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S.
375, 389–390 (1982).
*Justice Breyer joins this opinion, except for the last sentence.

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277 Cite as: 539 U. S. 244 (2003)
O’Connor, J., concurring
qualities of each individual applicant. Cf. ante, at 271–272,
273. And this mechanized selection index score, by and
large, automatically determines the admissions decision for
each applicant. The selection index thus precludes admis-
sions counselors from conducting the type of individualized
consideration the Court’s opinion in Grutter, post, at 334, re-
quires: consideration of each applicant’s individualized quali-
fications, including the contribution each individual’s race or
ethnic identity will make to the diversity of the student body,
taking into account diversity within and among all racial and
ethnic groups. Cf. ante, at 272–273 (citing Bakke, supra,
at 324).
On cross-motions for summary judgment, the District
Court held that the admissions policy the University insti-
tuted in 1999 and continues to use today passed constitu-
tional muster. See 122 F. Supp. 2d 811, 827 (ED Mich. 2000).
In their proposed summary of undisputed facts, the parties
jointly stipulated to the admission policy’s mechanics. App.
to Pet. for Cert. 116a–118a. When the University receives
an application for admission to its incoming class, an admis-
sions counselor turns to a Selection Index Worksheet to cal-
culate the applicant’s selection index score out of 150 maxi-
mum possible points—a procedure the University began
using in 1998. App. 256. Applicants with a score of over
100 are automatically admitted; applicants with scores of 95
to 99 are categorized as “admit or postpone”; applicants with
90–94 points are postponed or admitted; applicants with
75–89 points are delayed or postponed; and applicants with
74 points or fewer are delayed or rejected. The Office of
Undergraduate Admissions extends offers of admission on a
rolling basis and acts upon the applications it has received
through periodic “[m]ass [a]ction[s].” Ibid.
In calculating an applicant’s selection index score, counsel-
ors assign numerical values to a broad range of academic
factors, as well as to other variables the University considers
important to assembling a diverse student body, including
race. Up to 110 points can be assigned for academic per-

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278 GRATZ v. BOLLINGER
O’Connor, J., concurring
formance, and up to 40 points can be assigned for the other,
nonacademic factors. Michigan residents, for example, re-
ceive 10 points, and children of alumni receive 4. Counsel-
ors may assign an outstanding essay up to 3 points and may
award up to 5 points for an applicant’s personal achievement,
leadership, or public service. Most importantly for this
case, an applicant automatically receives a 20 point bonus if
he or she possesses any one of the following “miscellaneous”
factors: membership in an underrepresented minority group;
attendance at a predominantly minority or disadvantaged
high school; or recruitment for athletics.
In 1999, the University added another layer of review to
its admissions process. After an admissions counselor has
tabulated an applicant’s selection index score, he or she may
“flag” an application for further consideration by an Admis-
sions Review Committee, which is composed of members
of the Office of Undergraduate Admissions and the Office of
the Provost. App. to Pet. for Cert. 117a. The review com-
mittee meets periodically to discuss the files of “flagged” ap-
plicants not already admitted based on the selection index
parameters. App. 275. After discussing each flagged ap-
plication, the committee decides whether to admit, defer, or
deny the applicant. Ibid.
Counselors may flag an applicant for review by the com-
mittee if he or she is academically prepared, has a selection
index score of at least 75 (for non-Michigan residents) or 80
(for Michigan residents), and possesses one of several quali-
ties valued by the University. These qualities include “high
class rank, unique life experiences, challenges, circum-
stances, interests or talents, socioeconomic disadvantage,
and under-represented race, ethnicity, or geography.” App.
to Pet. for Cert. 117a. Counselors also have the discretion
to flag an application if, notwithstanding a high selection
index score, something in the applicant’s file suggests that
the applicant may not be suitable for admission. App. 274.
Finally, in “rare circumstances,” an admissions counselor

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279 Cite as: 539 U. S. 244 (2003)
O’Connor, J., concurring
may flag an applicant with a selection index score below the
designated levels if the counselor has reason to believe from
reading the entire file that the score does not reflect the ap-
plicant’s true promise. Ibid.
II
Although the Office of Undergraduate Admissions does
assign 20 points to some “soft” variables other than race,
the points available for other diversity contributions, such
as leadership and service, personal achievement, and geo-
graphic diversity, are capped at much lower levels. Even
the most outstanding national high school leader could never
receive more than five points for his or her accomplish-
ments—a mere quarter of the points automatically assigned
to an underrepresented minority solely based on the fact of
his or her race. Of course, as Justice Powell made clear in
Bakke, a university need not “necessarily accor[d]” all diver-
sity factors “the same weight,” 438 U. S., at 317, and the
“weight attributed to a particular quality may vary from
year to year depending upon the ‘mix’ both of the student
body and the applicants for the incoming class,” id., at 317–
318. But the selection index, by setting up automatic, pre-
determined point allocations for the soft variables, ensures
that the diversity contributions of applicants cannot be indi-
vidually assessed. This policy stands in sharp contrast to
the law school’s admissions plan, which enables admissions
officers to make nuanced judgments with respect to the con-
tributions each applicant is likely to make to the diversity of
the incoming class. See Grutter v. Bollinger, post, at 337
(“[T]he Law School’s race-conscious admissions program ade-
quately ensures that all factors that may contribute to stu-
dent body diversity are meaningfully considered alongside
race in admissions decisions”).
The only potential source of individualized consideration
appears to be the Admissions Review Committee. The evi-
dence in the record, however, reveals very little about how

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280 GRATZ v. BOLLINGER
O’Connor, J., concurring
the review committee actually functions. And what evi-
dence there is indicates that the committee is a kind of after-
thought, rather than an integral component of a system of
individualized review. As the Court points out, it is undis-
puted that the “ ‘[committee] reviews only a portion of all of
the applications. The bulk of admissions decisions are exe-
cuted based on selection index score parameters set by the
[Enrollment Working Group].’ ” Ante, at 274 (quoting App.
to Pet. for Cert. 117a). Review by the committee thus rep-
resents a necessarily limited exception to the Office of Un-
dergraduate Admissions’ general reliance on the selection
index. Indeed, the record does not reveal how many appli-
cations admissions counselors send to the review committee
each year, and the University has not pointed to evidence
demonstrating that a meaningful percentage of applicants
receives this level of discretionary review. In addition, eli-
gibility for consideration by the committee is itself based on
automatic cutoff levels determined with reference to selec-
tion index scores. And there is no evidence of how the deci-
sions are actually made—what type of individualized consid-
eration is or is not used. Given these circumstances, the
addition of the Admissions Review Committee to the admis-
sions process cannot offset the apparent absence of individu-
alized consideration from the Office of Undergraduate Ad-
missions’ general practices.
For these reasons, the record before us does not support
the conclusion that the University’s admissions program for
its College of Literature, Science, and the Arts—to the ex-
tent that it considers race—provides the necessary individ-
ualized consideration. The University, of course, remains
free to modify its system so that it does so. Cf. Grutter v.
Bollinger, post, p. 306. But the current system, as I under-
stand it, is a nonindividualized, mechanical one. As a result,
I join the Court’s opinion reversing the decision of the Dis-
trict Court.

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281 Cite as: 539 U. S. 244 (2003)
Breyer, J., concurring in judgment
Justice Thomas, concurring.
I join the Court’s opinion because I believe it correctly
applies our precedents, including today’s decision in Grutter
v. Bollinger, post, p. 306. For similar reasons to those given
in my separate opinion in that case, see post, p. 349 (opinion
concurring in part and dissenting in part), however, I would
hold that a State’s use of racial discrimination in higher edu-
cation admissions is categorically prohibited by the Equal
Protection Clause.
I make only one further observation. The University of
Michigan’s College of Literature, Science, and the Arts
(LSA) admissions policy that the Court today invalidates
does not suffer from the additional constitutional defect of
allowing racial “discriminat[ion] among [the] groups” in-
cluded within its definition of underrepresented minorities,
Grutter, post, at 336 (opinion of the Court); post, at 374
(Thomas, J., concurring in part and dissenting in part),
because it awards all underrepresented minorities the same
racial preference. The LSA policy falls, however, because
it does not sufficiently allow for the consideration of non-
racial distinctions among underrepresented minority ap-
plicants. Under today’s decisions, a university may not
racially discriminate between the groups constituting the
critical mass. See post, at 374–375; Grutter, post, at 329–
330 (opinion of the Court) (stating that such “racial balancing
. . . is patently unconstitutional”). An admissions policy,
however, must allow for consideration of these nonracial dis-
tinctions among applicants on both sides of the single permit-
ted racial classification. See ante, at 272–273 (opinion of the
Court); ante, at 276–277 (O’Connor, J., concurring).
Justice Breyer, concurring in the judgment.
I concur in the judgment of the Court though I do not
join its opinion. I join Justice O’Connor’s opinion except
insofar as it joins that of the Court. I join Part I of Justice
Ginsburg’s dissenting opinion, but I do not dissent from the

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282 GRATZ v. BOLLINGER
Stevens, J., dissenting
Court’s reversal of the District Court’s decision. I agree
with Justice Ginsburg that, in implementing the Constitu-
tion’s equality instruction, government decisionmakers may
properly distinguish between policies of inclusion and exclu-
sion, post, at 301, for the former are more likely to prove con-
sistent with the basic constitutional obligation that the law
respect each individual equally, see U. S. Const., Amdt. 14.
Justice Stevens, with whom Justice Souter joins,
dissenting.
Petitioners seek forward-looking relief enjoining the Uni-
versity of Michigan from continuing to use its current race-
conscious freshman admissions policy. Yet unlike the plain-
tiff in Grutter v. Bollinger, post, p. 306, 1 the petitioners in
this case had already enrolled at other schools before they
filed their class-action complaint in this case. Neither peti-
tioner was in the process of reapplying to Michigan through
the freshman admissions process at the time this suit was
filed, and neither has done so since. There is a total absence
of evidence that either petitioner would receive any benefit
from the prospective relief sought by their lawyer. While
some unidentified members of the class may very well have
standing to seek prospective relief, it is clear that neither
petitioner does. Our precedents therefore require dismissal
of the action.
I
Petitioner Jennifer Gratz applied in 1994 for admission to
the University of Michigan’s (University) College of Litera-
ture, Science, and the Arts (LSA) as an undergraduate for
the 1995–1996 freshman class. After the University delayed
action on her application and then placed her name on an
extended waiting list, Gratz decided to attend the University
of Michigan at Dearborn instead; she graduated in 1999.
1 In challenging the use of race in admissions at Michigan’s law school,
Barbara Grutter alleged in her complaint that she “has not attended any
other law school” and that she “still desires to attend the Law School and
become a lawyer.” App. in No. 02–241, p. 30.

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Stevens, J., dissenting
Petitioner Patrick Hamacher applied for admission to LSA
as an undergraduate for the 1997–1998 freshman class.
After the University postponed decision on his application
and then placed his name on an extended waiting list, he
attended Michigan State University, graduating in 2001. In
the complaint that petitioners filed on October 14, 1997, Ha-
macher alleged that “[h]e intends to apply to transfer [to the
University of Michigan] if the discriminatory admissions sys-
tem described herein is eliminated.” App. 34.
At the class certification stage, petitioners sought to have
Hamacher represent a class pursuant to Federal Rule of
Civil Procedure 23(b)(2).2 See App. 71, n. 3. In response,
Michigan contended that “Hamacher lacks standing to repre-
sent a class seeking declaratory and injunctive relief.” Id.,
at 63. Michigan submitted that Hamacher suffered “ ‘no
threat of imminent future injury’ ” given that he had already
enrolled at another undergraduate institution.3 Id., at 64.
The District Court rejected Michigan’s contention, conclud-
ing that Hamacher had standing to seek injunctive relief be-
cause the complaint alleged that he intended to apply to
Michigan as a transfer student. See id., at 67 (“To the ex-
tent that plaintiff Hamacher reapplies to the University of
Michigan, he will again face the same ‘harm’ in that race will
continue to be a factor in admissions”). The District Court,
accordingly, certified Hamacher as the sole class representa-
tive and limited the claims of the class to injunctive and de-
claratory relief. See id., at 70–71.
In subsequent proceedings, the District Court held that
the 1995–1998 admissions system, which was in effect when
both petitioners’ applications were denied, was unlawful but
2 Petitioners did not seek to have Gratz represent the class pursuant to
Federal Rule of Civil Procedure 23(b)(2). See App. 71, n. 3.
3 In arguing that Hamacher lacked standing, Michigan also asserted that
Hamacher “would need to achieve a 3.0 grade point average to attempt to
transfer to the University of Michigan.” Id., at 64, n. 2. The District
Court rejected this argument, concluding that “Hamacher’s present
grades are not a factor to be considered at this time.” Id., at 67.

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284 GRATZ v. BOLLINGER
Stevens, J., dissenting
that Michigan’s new 1999–2000 admissions system was law-
ful. When petitioners sought certiorari from this Court,
Michigan did not cross-petition for review of the District
Court’s judgment concerning the admissions policies that
Michigan had in place when Gratz and Hamacher applied for
admission in 1994 and 1996 respectively. See Brief for Re-
spondent Bollinger et al. 5, n. 7. Accordingly, we have be-
fore us only that portion of the District Court’s judgment
that upheld Michigan’s new freshman admissions policy.
II
Both Hamacher and Gratz, of course, have standing to seek
damages as compensation for the alleged wrongful denial
of their respective applications under Michigan’s old fresh-
man admissions system. However, like the plaintiff in Los
Angeles v. Lyons, 461 U. S. 95 (1983), who had standing to
recover damages caused by “chokeholds” administered by
the police in the past but had no standing to seek injunctive
relief preventing future chokeholds, petitioners’ past injuries
do not give them standing to obtain injunctive relief to
protect third parties from similar harms. See id., at 102
(“ ‘[P]ast exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief . . .
if unaccompanied by any continuing, present adverse ef-
fects’ ” (quoting O’Shea v. Littleton, 414 U. S. 488, 495–496
(1974))). To seek forward-looking, injunctive relief, peti-
tioners must show that they face an imminent threat of fu-
ture injury. See Adarand Constructors, Inc. v. Pen˜ a, 515
U. S. 200, 210–211 (1995). This they cannot do given that
when this suit was filed, neither faced an impending threat
of future injury based on Michigan’s new freshman admis-
sions policy. 4
4 In responding to questions about petitioners’ standing at oral argu-
ment, petitioners’ counsel alluded to the fact that Michigan might continu-
ally change the details of its admissions policy. See Tr. of Oral Arg. 9.
The change in Michigan’s freshman admissions policy, however, is not the

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285 Cite as: 539 U. S. 244 (2003)
Stevens, J., dissenting
Even though there is not a scintilla of evidence that the
freshman admissions program now being administered by re-
spondents will ever have any impact on either Hamacher or
Gratz, petitioners nonetheless argue that Hamacher has a
personal stake in this suit because at the time the complaint
was filed, Hamacher intended to apply to transfer to Michi-
gan once certain admission policy changes occurred.5 See
App. 34; see also Tr. of Oral Arg. 4–5. Petitioners’ attempt
to base Hamacher’s standing in this suit on a hypothetical
transfer application fails for several reasons. First, there is
no evidence that Hamacher ever actually applied for admis-
sion as a transfer student at Michigan. His claim of future
injury is at best “conjectural or hypothetical” rather than
“real and immediate.” O’Shea v. Littleton, 414 U. S., at 494
reason why petitioners cannot establish standing to seek prospective re-
lief. Rather, the reason they lack standing to seek forward-looking relief
is that when this suit was filed, neither faced a “ ‘real and immediate
threat’ ” of future injury under Michigan’s freshman admissions policy
given that they had both already enrolled at other institutions. Adarand
Constructors, Inc. v. Pen˜ a, 515 U. S. 200, 210–211 (1995) (quoting Los
Angeles v. Lyons, 461 U. S. 95, 105 (1983)). Their decision to obtain a
college education elsewhere distinguishes this case from Allan Bakke’s
single-minded pursuit of a medical education from the University of Cali-
fornia at Davis. See Regents of Univ. of Cal. v. Bakke, 438 U. S. 265
(1978); cf. DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam).
5 Hamacher clearly can no longer claim an intent to transfer into Michi-
gan’s undergraduate program given that he graduated from college in
2001. However, this fact alone is not necessarily fatal to the instant class
action because we have recognized that, if a named class representative
has standing at the time a suit is initiated, class actions may proceed in
some instances following mootness of the named class representative’s
claim. See, e. g., Sosna v. Iowa, 419 U. S. 393, 402 (1975) (holding that the
requisite Article III “case or controversy” may exist “between a named
defendant and a member of the class represented by the named plaintiff,
even though the claim of the named plaintiff has become moot”); Franks
v. Bowman Transp. Co., 424 U. S. 747 (1976). The problem in this case is
that neither Gratz nor Hamacher had standing to assert a forward-looking,
injunctive claim in federal court at the time this suit was initiated.

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286 GRATZ v. BOLLINGER
Stevens, J., dissenting
(internal quotation marks omitted); see also Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 560 (1992).
Second, as petitioners’ counsel conceded at oral argument,
the transfer policy is not before this Court and was not ad-
dressed by the District Court. See Tr. of Oral Arg. 4–5 (ad-
mitting that “[t]he transfer admissions policy itself is not be-
fore you—the Court”). Unlike the University’s freshman
policy, which is detailed at great length in the Joint Appendix
filed with this Court, the specifics of the transfer policy are
conspicuously missing from the Joint Appendix filed with
this Court. Furthermore, the transfer policy is not dis-
cussed anywhere in the parties’ briefs. Nor is it ever
even referenced in the District Court’s Dec. 13, 2000, opinion
that upheld Michigan’s new freshman admissions policy and
struck down Michigan’s old policy. Nonetheless, evidence
filed with the District Court by Michigan demonstrates that
the criteria used to evaluate transfer applications at Michi-
gan differ significantly from the criteria used to evaluate
freshman undergraduate applications. Of special signifi-
cance, Michigan’s 2000 freshman admissions policy, for exam-
ple, provides for 20 points to be added to the selection index
scores of minority applicants. See ante, at 271. In con-
trast, Michigan does not use points in its transfer policy;
some applicants, including minority and socioeconomically
disadvantaged applicants, “will generally be admitted” if
they possess certain qualifications, including a 2.5 under-
graduate grade point average (GPA), sophomore standing,
and a 3.0 high school GPA. 10 Record 16 (Exh. C). Be-
cause of these differences, Hamacher cannot base his right
to complain about the freshman admissions policy on his hy-
pothetical injury under a wholly separate transfer policy.
For “[i]f the right to complain of one administrative defi-
ciency automatically conferred the right to complain of all
administrative deficiencies, any citizen aggrieved in one re-
spect could bring the whole structure of state administration
before the courts for review.” Lewis v. Casey, 518 U. S. 343,

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Stevens, J., dissenting
358–359, n. 6 (1996) (emphasis in original); see also Blum v.
Yaretsky, 457 U. S. 991, 999 (1982) (“[A] plaintiff who has
been subject to injurious conduct of one kind [does not] pos-
sess by virtue of that injury the necessary stake in litigating
conduct of another kind, although similar”).6
Third, the differences between the freshman and the
transfer admissions policies make it extremely unlikely, at
best, that an injunction requiring respondents to modify the
freshman admissions program would have any impact on
Michigan’s transfer policy. See Allen v. Wright, 468 U. S.
737, 751 (1984) (“[R]elief from the injury must be ‘likely’ to
follow from a favorable decision”); Schlesinger v. Reservists
Comm. to Stop the War, 418 U. S. 208, 222 (1974) (“[T]he
discrete factual context within which the concrete injury oc-
curred or is threatened insures the framing of relief no
broader than required by the precise facts to which the
court’s ruling would be applied”). This is especially true in
light of petitioners’ unequivocal disavowal of any request for
equitable relief that would totally preclude the use of race in
the processing of all admissions applications. See Tr. of
Oral Arg. 14–15.
The majority asserts that petitioners “have challenged
any use of race by the University in undergraduate admis-
sions”—freshman and transfer alike. Ante, at 266, n. 16
(emphasis in original). Yet when questioned at oral argu-
ment about whether petitioners’ challenge would impact
both private and public universities, petitioners’ counsel
stated: “Your Honor, I want to be clear about what it is that
we’re arguing for here today. We are not suggesting an ab-
6 Under the majority’s view of standing, there would be no end to Ha-
macher’s ability to challenge any use of race by the University in a variety
of programs. For if Hamacher’s right to complain about the transfer pol-
icy gives him standing to challenge the freshman policy, presumably his
ability to complain about the transfer policy likewise would enable him to
challenge Michigan’s law school admissions policy, as well as any other
race-based admissions policy used by Michigan.

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288 GRATZ v. BOLLINGER
Stevens, J., dissenting
solute rule forbidding any use of race under any circum-
stances. What we are arguing is that the interest asserted
here by the University, this amorphous, ill-defined, unlimited
interest in diversity is not a compelling interest.” Tr. of
Oral Arg. 14 (emphasis added). In addition, when asked
whether petitioners took the position that the only permissi-
ble use of race is as a remedy for past discrimination, peti-
tioners’ lawyer stated: “I would not go that far. . . . [T]here
may be other reasons. I think they would have to be ex-
traordinary and rare. . . .” Id., at 15. Consistent with
these statements, petitioners’ briefs filed with this Court at-
tack the University’s asserted interest in “diversity” but ac-
knowledge that race could be considered for remedial rea-
sons. See, e. g., Brief for Petitioners 16–17.
Because Michigan’s transfer policy was not challenged by
petitioners and is not before this Court, see supra, at 286,
we do not know whether Michigan would defend its transfer
policy on diversity grounds, or whether it might try to justify
its transfer policy on other grounds, such as a remedial inter-
est. Petitioners’ counsel was therefore incorrect in assert-
ing at oral argument that if the University’s asserted inter-
est in “diversity” were to be “struck down as a rationale,
then the law would be [the] same with respect to the transfer
policy as with respect to the original [freshman admissions]
policy.” Tr. of Oral Arg. 7–8. And the majority is likewise
mistaken in assuming that “the University’s use of race in
undergraduate transfer admissions does not implicate a sig-
nificantly different set of concerns than does its use of race
in undergraduate freshman admissions.” Ante, at 265. Be-
cause the transfer policy has never been the subject of this
suit, we simply do not know (1) whether Michigan would de-
fend its transfer policy on “diversity” grounds or some other
grounds, or (2) how the absence of a point system in the
transfer policy might impact a narrow tailoring analysis of
that policy.

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Stevens, J., dissenting
At bottom, petitioners’ interest in obtaining an injunction
for the benefit of younger third parties is comparable to that
of the unemancipated minor who had no standing to litigate
on behalf of older women in H. L. v. Matheson, 450 U. S. 398,
406–407 (1981), or that of the Medicaid patients transferred
to less intensive care who had no standing to litigate on be-
half of patients objecting to transfers to more intensive care
facilities in Blum v. Yaretsky, 457 U. S., at 1001. To have
standing, it is elementary that the petitioners’ own inter-
ests must be implicated. Because neither petitioner has a
personal stake in this suit for prospective relief, neither has
standing.
III
It is true that the petitioners’ complaint was filed as a class
action and that Hamacher has been certified as the repre-
sentative of a class, some of whose members may well have
standing to challenge the LSA freshman admissions program
that is presently in effect. But the fact that “a suit may be
a class action . . . adds nothing to the question of standing,
for even named plaintiffs who represent a class ‘must allege
and show that they personally have been injured, not that
injury has been suffered by other, unidentified members of
the class to which they belong and which they purport to
represent.’ ” Simon v. Eastern Ky. Welfare Rights Organi-
zation, 426 U. S. 26, 40, n. 20 (1976) (quoting Warth v. Seldin,
422 U. S. 490, 502 (1975)); see also 1 A. Conte & H. Newberg,
Class Actions § 2:5 (4th ed. 2002) (“[O]ne cannot acquire in-
dividual standing by virtue of bringing a class action”).7
Thus, in Blum, we squarely held that the interests of mem-
bers of the class could not satisfy the requirement that the
class representatives have a personal interest in obtaining
the particular equitable relief being sought. The class in
7 Of course, the injury to Hamacher would give him standing to claim
damages for past harm on behalf of class members, but he was certified
as the class representative for the limited purpose of seeking injunctive
and declaratory relief.

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290 GRATZ v. BOLLINGER
Stevens, J., dissenting
Blum included patients who wanted a hearing before being
transferred to facilities where they would receive more in-
tensive care. The class representatives, however, were in
the category of patients threatened with a transfer to less
intensive care facilities. In explaining why the named class
representatives could not base their standing to sue on the
injury suffered by other members of the class, we stated:
“Respondents suggest that members of the class they
represent have been transferred to higher levels of care
as a result of [utilization review committee] decisions.
Respondents, however, ‘must allege and show that they
personally have been injured, not that injury has been
suffered by other, unidentified members of the class to
which they belong and which they purport to represent.’
Warth v. Seldin, 422 U. S. 490, 502 (1975). Unless these
individuals ‘can thus demonstrate the requisite case or
controversy between themselves personally and [peti-
tioners], “none may seek relief on behalf of himself or
any other member of the class.” O’Shea v. Littleton,
414 U. S. 488, 494 (1974).’ Ibid.” 457 U. S., at 1001,
n. 13.
Much like the class representatives in Blum, Hamacher—
the sole class representative in this case—cannot meet Arti-
cle III’s threshold personal-stake requirement. While un-
identified members of the class he represents may well have
standing to challenge Michigan’s current freshman admis-
sions policy, Hamacher cannot base his standing to sue on
injuries suffered by other members of the class.
IV
As this case comes to us, our precedents leave us no alter-
native but to dismiss the writ for lack of jurisdiction. Nei-
ther petitioner has a personal stake in the outcome of the
case, and neither has standing to seek prospective relief on
behalf of unidentified class members who may or may not

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291 Cite as: 539 U. S. 244 (2003)
Souter, J., dissenting
have standing to litigate on behalf of themselves. Accord-
ingly, I respectfully dissent.
Justice Souter, with whom Justice Ginsburg joins as
to Part II, dissenting.
I agree with Justice Stevens that Patrick Hamacher has
no standing to seek declaratory or injunctive relief against a
freshman admissions policy that will never cause him any
harm. I write separately to note that even the Court’s new
gloss on the law of standing should not permit it to reach the
issue it decides today. And because a majority of the Court
has chosen to address the merits, I also add a word to say
that even if the merits were reachable, I would dissent from
the Court’s judgment.
I
The Court’s finding of Article III standing rests on two
propositions: first, that both the University of Michigan’s un-
dergraduate college’s transfer policy and its freshman admis-
sions policy seek to achieve student body diversity through
the “use of race,” ante, at 261–263, 265–269, and second, that
Hamacher has standing to challenge the transfer policy on
the grounds that diversity can never be a “compelling state
interest” justifying the use of race in any admissions deci-
sion, freshman or transfer, ante, at 269. The Court con-
cludes that, because Hamacher’s argument, if successful,
would seal the fate of both policies, his standing to challenge
the transfer policy also allows him to attack the freshman
admissions policy. Ante, at 266, n. 16 (“[P]etitioners chal-
lenged any use of race by the University to promote diver-
sity, including through the transfer policy”); ante, at 267,
n. 16 (“ ‘[T]he University considers race for a purpose to
achieve a diversity that we believe is not compelling, and if
that is struck down as a rationale, then the [result] would be
[the] same with respect to the transfer policy as with respect
to the [freshman] admissions policy, Your Honor’ ” (quoting
Tr. of Oral Arg. 7–8)). I agree with Justice Stevens’s cri-

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292 GRATZ v. BOLLINGER
Souter, J., dissenting
tique that the Court thus ignores the basic principle of Arti-
cle III standing that a plaintiff cannot challenge a govern-
ment program that does not apply to him. See ante, at
286–287, and n. 6 (dissenting opinion).1
But even on the Court’s indulgent standing theory, the de-
cision should not go beyond a recognition that diversity can
serve as a compelling state interest justifying race-conscious
decisions in education. Ante, at 268 (citing Grutter v. Bol-
linger, post, at 327–333). Since, as the Court says, “petition-
ers did not raise a narrow tailoring challenge to the transfer
policy,” ante, at 266, n. 16, our decision in Grutter is fatal to
Hamacher’s sole attack upon the transfer policy, which is the
only policy before this Court that he claims aggrieved him.
Hamacher’s challenge to that policy having failed, his stand-
ing is presumably spent. The further question whether
the freshman admissions plan is narrowly tailored to achiev-
ing student body diversity remains legally irrelevant to
Hamacher and should await a plaintiff who is actually hurt
by it.2
1 The Court’s holding arguably exposes a weakness in the rule of Blum
v. Yaretsky, 457 U. S. 991 (1982), that Article III standing may not be
satisfied by the unnamed members of a duly certified class. But no party
has invited us to reconsider Blum, and I follow Justice Stevens in ap-
proaching the case on the assumption that Blum is settled law.
2 For that matter, as the Court suggests, narrow tailoring challenges
against the two policies could well have different outcomes. Ante, at 266.
The record on the decisionmaking process for transfer applicants is under-
standably thin, given that petitioners never raised a narrow tailoring chal-
lenge against it. Most importantly, however, the transfer policy does not
use a points-based “selection index” to evaluate transfer applicants, but
rather considers race as one of many factors in making the general deter-
mination whether the applicant would make a “ ‘contribution to a diverse
student body.’ ” Ante, at 265 (quoting 2 App. in No. 01–1333 etc. (CA6),
p. 531 (capitalization omitted)). This limited glimpse into the transfer pol-
icy at least permits the inference that the university engages in a “holistic
review” of transfer applications consistent with the program upheld today
in Grutter v. Bollinger, post, at 337.

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Souter, J., dissenting
II
The cases now contain two pointers toward the line be-
tween the valid and the unconstitutional in race-conscious
admissions schemes. Grutter reaffirms the permissibility of
individualized consideration of race to achieve a diversity of
students, at least where race is not assigned a preordained
value in all cases. On the other hand, Justice Powell’s opin-
ion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978),
rules out a racial quota or set-aside, in which race is the sole
fact of eligibility for certain places in a class. Although the
freshman admissions system here is subject to argument on
the merits, I think it is closer to what Grutter approves than
to what Bakke condemns, and should not be held unconstitu-
tional on the current record.
The record does not describe a system with a quota like
the one struck down in Bakke, which “insulate[d]” all non-
minority candidates from competition from certain seats.
Bakke, supra, at 317 (opinion of Powell, J.); see also Rich-
mond v. J. A. Croson Co., 488 U. S. 469, 496 (1989) (plurality
opinion) (stating that Bakke invalidated “a plan that com-
pletely eliminated nonminorities from consideration for a
specified percentage of opportunities”). The Bakke plan “fo-
cused solely on ethnic diversity” and effectively told nonmi-
nority applicants that “[n]o matter how strong their qualifi-
cations, quantitative and extracurricular, including their own
potential for contribution to educational diversity, they are
never afforded the chance to compete with applicants from
the preferred groups for the [set-aside] special admissions
seats.” Bakke, supra, at 315, 319 (opinion of Powell, J.) (em-
phasis in original).
The plan here, in contrast, lets all applicants compete for
all places and values an applicant’s offering for any place not
only on grounds of race, but on grades, test scores, strength
of high school, quality of course of study, residence, alumni
relationships, leadership, personal character, socioeconomic

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294 GRATZ v. BOLLINGER
Souter, J., dissenting
disadvantage, athletic ability, and quality of a personal essay.
Ante, at 255. A nonminority applicant who scores highly in
these other categories can readily garner a selection index
exceeding that of a minority applicant who gets the 20-point
bonus. Cf. Johnson v. Transportation Agency, Santa Clara
Cty., 480 U. S. 616, 638 (1987) (upholding a program in which
gender “was but one of numerous factors [taken] into account
in arriving at [a] decision” because “[n]o persons are automat-
ically excluded from consideration; all are able to have their
qualifications weighed against those of other applicants” (em-
phasis deleted)).
Subject to one qualification to be taken up below, this
scheme of considering, through the selection index system,
all of the characteristics that the college thinks relevant to
student diversity for every one of the student places to be
filled fits Justice Powell’s description of a constitutionally ac-
ceptable program: one that considers “all pertinent elements
of diversity in light of the particular qualifications of each
applicant” and places each element “on the same footing for
consideration, although not necessarily according them the
same weight.” Bakke, supra, at 317. In the Court’s own
words, “each characteristic of a particular applicant [is]
considered in assessing the applicant’s entire application.”
Ante, at 271. An unsuccessful nonminority applicant cannot
complain that he was rejected “simply because he was not
the right color”; an applicant who is rejected because “his
combined qualifications . . . did not outweigh those of the
other applicant” has been given an opportunity to compete
with all other applicants. Bakke, supra, at 318 (opinion of
Powell, J.).
The one qualification to this description of the admissions
process is that membership in an underrepresented minority
is given a weight of 20 points on the 150-point scale. On the
face of things, however, this assignment of specific points
does not set race apart from all other weighted considera-
tions. Nonminority students may receive 20 points for ath-
letic ability, socioeconomic disadvantage, attendance at a so-

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295 Cite as: 539 U. S. 244 (2003)
Souter, J., dissenting
cioeconomically disadvantaged or predominantly minority
high school, or at the Provost’s discretion; they may also re-
ceive 10 points for being residents of Michigan, 6 for resi-
dence in an underrepresented Michigan county, 5 for leader-
ship and service, and so on.
The Court nonetheless finds fault with a scheme that
“automatically” distributes 20 points to minority applicants
because “[t]he only consideration that accompanies this dis-
tribution of points is a factual review of an application to
determine whether an individual is a member of one of these
minority groups.” Ante, at 271–272. The objection goes to
the use of points to quantify and compare characteristics, or
to the number of points awarded due to race, but on either
reading the objection is mistaken.
The very nature of a college’s permissible practice of
awarding value to racial diversity means that race must be
considered in a way that increases some applicants’ chances
for admission. Since college admission is not left entirely to
inarticulate intuition, it is hard to see what is inappropriate
in assigning some stated value to a relevant characteristic,
whether it be reasoning ability, writing style, running speed,
or minority race. Justice Powell’s plus factors necessarily
are assigned some values. The college simply does by a
numbered scale what the law school accomplishes in its “ho-
listic review,” Grutter, post, at 337; the distinction does not
imply that applicants to the undergraduate college are de-
nied individualized consideration or a fair chance to compete
on the basis of all the various merits their applications may
disclose.
Nor is it possible to say that the 20 points convert race into
a decisive factor comparable to reserving minority places as
in Bakke. Of course we can conceive of a point system in
which the “plus” factor given to minority applicants would
be so extreme as to guarantee every minority applicant a
higher rank than every nonminority applicant in the univer-
sity’s admissions system, see 438 U. S., at 319, n. 53 (opinion
of Powell, J.). But petitioners do not have a convincing ar-

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296 GRATZ v. BOLLINGER
Souter, J., dissenting
gument that the freshman admissions system operates this
way. The present record obviously shows that nonminority
applicants may achieve higher selection point totals than mi-
nority applicants owing to characteristics other than race,
and the fact that the university admits “virtually every qual-
ified under-represented minority applicant,” App. to Pet. for
Cert. 111a, may reflect nothing more than the likelihood that
very few qualified minority applicants apply, Brief for Re-
spondent Bollinger et al. 39, as well as the possibility that
self-selection results in a strong minority applicant pool. It
suffices for me, as it did for the District Court, that there
are no Bakke-like set-asides and that consideration of an ap-
plicant’s whole spectrum of ability is no more ruled out by
giving 20 points for race than by giving the same points for
athletic ability or socioeconomic disadvantage.
Any argument that the “tailoring” amounts to a set-aside,
then, boils down to the claim that a plus factor of 20 points
makes some observers suspicious, where a factor of 10 points
might not. But suspicion does not carry petitioners’ ulti-
mate burden of persuasion in this constitutional challenge,
Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 287–288 (1986)
(plurality opinion of Powell, J.), and it surely does not war-
rant condemning the college’s admissions scheme on this rec-
ord. Because the District Court (correctly, in my view) did
not believe that the specific point assignment was constitu-
tionally troubling, it made only limited and general findings
on other characteristics of the university’s admissions prac-
tice, such as the conduct of individualized review by the Ad-
missions Review Committee. 122 F. Supp. 2d 811, 829–830
(ED Mich. 2000). As the Court indicates, we know very lit-
tle about the actual role of the review committee. Ante, at
274 (“The record does not reveal precisely how many applica-
tions are flagged for this individualized consideration [by the
committee]”); see also ante, at 279–280 (O’Connor, J., con-
curring) (“The evidence in the record . . . reveals very little
about how the review committee actually functions”). The
point system cannot operate as a de facto set-aside if the

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297 Cite as: 539 U. S. 244 (2003)
Souter, J., dissenting
greater admissions process, including review by the commit-
tee, results in individualized review sufficient to meet the
Court’s standards. Since the record is quiet, if not silent, on
the case-by-case work of the committee, the Court would be
on more defensible ground by vacating and remanding for
evidence about the committee’s specific determinations.3
Without knowing more about how the Admissions Review
Committee actually functions, it seems especially unfair to
treat the candor of the admissions plan as an Achilles’ heel.
In contrast to the college’s forthrightness in saying just what
plus factor it gives for membership in an underrepresented
minority, it is worth considering the character of one alterna-
tive thrown up as preferable, because supposedly not based
on race. Drawing on admissions systems used at public uni-
versities in California, Florida, and Texas, the United States
contends that Michigan could get student diversity in satis-
faction of its compelling interest by guaranteeing admission
to a fixed percentage of the top students from each high
school in Michigan. Brief for United States as Amicus Cu-
riae 18; Brief for United States as Amicus Curiae in Grutter
v. Bollinger, O. T. 2002, No. 02–241, pp. 13–17.
While there is nothing unconstitutional about such a prac-
tice, it nonetheless suffers from a serious disadvantage.4 It
3 The Court surmises that the committee does not contribute meaning-
fully to the university’s individualized review of applications. Ante, at
273–274. The Court should not take it upon itself to apply a newly formu-
lated legal standard to an undeveloped record. Given the District Court’s
statement that the committee may examine “any number of applicants,
including applicants other than under-represented minority applicants,”
122 F. Supp. 2d 811, 830 (ED Mich. 2000), it is quite possible that further
factual development would reveal the committee to be a “source of individ-
ualized consideration” sufficient to satisfy the Court’s rule, ante, at 279
(O’Connor, J., concurring). Determination of that issue in the first in-
stance is a job for the District Court, not for this Court on a record that
is admittedly lacking.
4 Of course it might be pointless in the State of Michigan, where minori-
ties are a much smaller fraction of the population than in California, Flor-
ida, or Texas. Brief for Respondents Bollinger et al. 48–49.

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298 GRATZ v. BOLLINGER
Ginsburg, J., dissenting
is the disadvantage of deliberate obfuscation. The “percent-
age plans” are just as race conscious as the point scheme
(and fairly so), but they get their racially diverse results
without saying directly what they are doing or why they are
doing it. In contrast, Michigan states its purpose directly
and, if this were a doubtful case for me, I would be tempted
to give Michigan an extra point of its own for its frankness.
Equal protection cannot become an exercise in which the
winners are the ones who hide the ball.
III
If this plan were challenged by a plaintiff with proper
standing under Article III, I would affirm the judgment of
the District Court granting summary judgment to the col-
lege. As it is, I would vacate the judgment for lack of juris-
diction, and I respectfully dissent.
Justice Ginsburg, with whom Justice Souter joins,
dissenting.*
I
Educational institutions, the Court acknowledges, are not
barred from any and all consideration of race when making
admissions decisions. Ante, at 268; see Grutter v. Bollinger,
post, at 326–333. But the Court once again maintains that
the same standard of review controls judicial inspection of all
official race classifications. Ante, at 270 (quoting Adarand
Constructors, Inc. v. Pen˜ a, 515 U. S. 200, 224 (1995); Rich-
mond v. J. A. Croson Co., 488 U. S. 469, 494 (1989) (plurality
opinion)). This insistence on “consistency,” Adarand, 515
U. S., at 224, would be fitting were our Nation free of the
vestiges of rank discrimination long reinforced by law, see
id., at 274–276, and n. 8 (Ginsburg, J., dissenting). But we
are not far distant from an overtly discriminatory past, and
the effects of centuries of law-sanctioned inequality remain
painfully evident in our communities and schools.
*Justice Breyer joins Part I of this opinion.

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Ginsburg, J., dissenting
In the wake “of a system of racial caste only recently
ended,” id., at 273 (Ginsburg, J., dissenting), large dispari-
ties endure. Unemployment,1 poverty,2 and access to health
care 3 vary disproportionately by race. Neighborhoods and
schools remain racially divided. 4 African-American and
Hispanic children are all too often educated in poverty-
1 See, e. g., U. S. Dept. of Commerce, Bureau of Census, Statistical Ab-
stract of the United States: 2002, p. 368 (2002) (Table 562) (hereinafter
Statistical Abstract) (unemployment rate among whites was 3.7% in 1999,
3.5% in 2000, and 4.2% in 2001; during those years, the unemployment rate
among African-Americans was 8.0%, 7.6%, and 8.7%, respectively; among
Hispanics, 6.4%, 5.7%, and 6.6%).
2 See, e. g., U. S. Dept of Commerce, Bureau of Census, Poverty in the
United States: 2000, p. 291 (2001) (Table A) (In 2000, 7.5% of non-Hispanic
whites, 22.1% of African-Americans, 10.8% of Asian-Americans, and 21.2%
of Hispanics were living in poverty.); S. Staveteig & A. Wigton, Racial and
Ethnic Disparities: Key Findings from the National Survey of America’s
Families 1 (Urban Institute Report B–5, Feb. 2000) (“Blacks, Hispanics,
and Native Americans . . . each have poverty rates almost twice as high
as Asians and almost three times as high as whites.”).
3 See, e. g., U. S. Dept. of Commerce, Bureau of Census, Health Insurance
Coverage: 2000, p. 391 (2001) (Table A) (In 2000, 9.7% of non-Hispanic
whites were without health insurance, as compared to 18.5% of African-
Americans, 18.0% of Asian-Americans, and 32.0% of Hispanics.); Waid-
mann & Rajan, Race and Ethnic Disparities in Health Care Access and
Utilization: An Examination of State Variation, 57 Med. Care Res. and
Rev. 55, 56 (2000) (“On average, Latinos and African Americans have both
worse health and worse access to effective health care than do non-
Hispanic whites . . . .”).
4 See, e. g., U. S. Dept. of Commerce, Bureau of Census, Racial and Eth-
nic Residential Segregation in the United States: 1980–2000 (2002) (docu-
menting residential segregation); E. Frankenberg, C. Lee, & G. Orfield, A
Multiracial Society with Segregated Schools: Are We Losing the Dream?
4 (Jan. 2003), http://www.civilrightsproject.harvard.edu/research/reseg03/
AreWeLosingtheDream.pdf (all Internet materials as visited June 2, 2003,
and available in Clerk of Court’s case file) (“[W]hites are the most segre-
gated group in the nation’s public schools; they attend schools, on average,
where eighty percent of the student body is white.”); id., at 28 (“[A]lmost
three-fourths of black and Latino students attend schools that are predom-
inantly minority. . . . More than one in six black children attend a school
that is 99–100% minority . . . . One in nine Latino students attend virtu-
ally all minority schools.”).

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300 GRATZ v. BOLLINGER
Ginsburg, J., dissenting
stricken and underperforming institutions.5 Adult African-
Americans and Hispanics generally earn less than whites
with equivalent levels of education.6 Equally credentialed
job applicants receive different receptions depending on
their race.7 Irrational prejudice is still encountered in real
estate markets 8 and consumer transactions.9 “Bias both
5 See, e. g., Ryan, Schools, Race, and Money, 109 Yale L. J. 249, 273–274
(1999) (“Urban public schools are attended primarily by African-American
and Hispanic students”; students who attend such schools are dispropor-
tionately poor, score poorly on standardized tests, and are far more likely
to drop out than students who attend nonurban schools.).
6 See, e. g., Statistical Abstract 140 (Table 211).
7 See, e. g., Holzer, Career Advancement Prospects and Strategies for
Low-Wage Minority Workers, in Low-Wage Workers in the New Economy
228 (R. Kazis & M. Miller eds. 2001) (“[I]n studies that have sent matched
pairs of minority and white applicants with apparently equal credentials
to apply for jobs, whites routinely get more interviews and job offers than
either black or Hispanic applicants.”); M. Bertrand & S. Mullainathan, Are
Emily and Brendan More Employable than Lakisha and Jamal?: A Field
Experiment on Labor Market Discrimination (Nov. 18, 2002), http://
gsb.uchicago.edu/pdf/ bertrand.pdf; Mincy, The Urban Institute Audit
Studies: Their Research and Policy Context, in Clear and Convincing Evi-
dence: Measurement of Discrimination in America 165–186 (M. Fix & R.
Struyk eds. 1993).
8 See, e. g., M. Turner et al., Discrimination in Metropolitan Housing
Markets: National Results from Phase I HDS 2000, pp. i, iii (Nov. 2002),
http://www.huduser.org/Publications/pdf/Phase1_Report.pdf (paired test-
ing in which “two individuals—one minority and the other white—pose as
otherwise identical homeseekers, and visit real estate or rental agents to
inquire about the availability of advertised housing units” revealed that
“discrimination still persists in both rental and sales markets of large met-
ropolitan areas nationwide”); M. Turner & F. Skidmore, Mortgage Lending
Discrimination: A Review of Existing Evidence 2 (1999) (existing research
evidence shows that minority homebuyers in the United States “face dis-
crimination from mortgage lending institutions.”).
9 See, e. g., Ayres, Further Evidence of Discrimination in New Car Nego-
tiations and Estimates of its Cause, 94 Mich. L. Rev. 109, 109–110 (1995)
(study in which 38 testers negotiated the purchase of more than 400 auto-
mobiles confirmed earlier finding “that dealers systematically offer lower
prices to white males than to other tester types”).

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301 Cite as: 539 U. S. 244 (2003)
Ginsburg, J., dissenting
conscious and unconscious, reflecting traditional and unex-
amined habits of thought, keeps up barriers that must come
down if equal opportunity and nondiscrimination are ever
genuinely to become this country’s law and practice.” Id., at
274 (Ginsburg, J., dissenting); see generally Krieger, Civil
Rights Perestroika: Intergroup Relations After Affirmative
Action, 86 Calif. L. Rev. 1251, 1276–1291 (1998).
The Constitution instructs all who act for the government
that they may not “deny to any person . . . the equal protec-
tion of the laws.” Amdt. 14, § 1. In implementing this
equality instruction, as I see it, government decisionmakers
may properly distinguish between policies of exclusion and
inclusion. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267,
316 (1986) (Stevens, J., dissenting). Actions designed to
burden groups long denied full citizenship stature are not
sensibly ranked with measures taken to hasten the day when
entrenched discrimination and its aftereffects have been ex-
tirpated. See Carter, When Victims Happen To Be Black,
97 Yale L. J. 420, 433–434 (1988) (“[T]o say that two centuries
of struggle for the most basic of civil rights have been mostly
about freedom from racial categorization rather than free-
dom from racial oppressio[n] is to trivialize the lives and
deaths of those who have suffered under racism. To pretend
. . . that the issue presented in [Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265 (1978)] was the same as the issue in
[Brown v. Board of Education, 347 U. S. 483 (1954)] is to
pretend that history never happened and that the present
doesn’t exist.”).
Our jurisprudence ranks race a “suspect” category, “not
because [race] is inevitably an impermissible classification,
but because it is one which usually, to our national shame,
has been drawn for the purpose of maintaining racial
inequality.” Norwalk Core v. Norwalk Redevelopment
Agency, 395 F. 2d 920, 931–932 (CA2 1968) (footnote omitted).
But where race is considered “for the purpose of achieving
equality,” id., at 932, no automatic proscription is in order.

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302 GRATZ v. BOLLINGER
Ginsburg, J., dissenting
For, as insightfully explained: “The Constitution is both color
blind and color conscious. To avoid conflict with the equal
protection clause, a classification that denies a benefit, causes
harm, or imposes a burden must not be based on race. In
that sense, the Constitution is color blind. But the Constitu-
tion is color conscious to prevent discrimination being per-
petuated and to undo the effects of past discrimination.”
United States v. Jefferson County Bd. of Ed., 372 F. 2d 836,
876 (CA5 1966) (Wisdom, J.); see Wechsler, The Nationaliza-
tion of Civil Liberties and Civil Rights, Supp. to 12 Tex. Q.
10, 23 (1968) (Brown may be seen as disallowing racial classi-
fications that “impl[y] an invidious assessment” while allow-
ing such classifications when “not invidious in implication”
but advanced to “correct inequalities”). Contemporary
human rights documents draw just this line; they distinguish
between policies of oppression and measures designed to ac-
celerate de facto equality. See Grutter, post, at 344 (Gins-
burg, J., concurring) (citing the United Nations-initiated
Conventions on the Elimination of All Forms of Racial Dis-
crimination and on the Elimination of All Forms of Discrimi-
nation against Women).
The mere assertion of a laudable governmental purpose, of
course, should not immunize a race-conscious measure from
careful judicial inspection. See Jefferson County, 372 F. 2d,
at 876 (“The criterion is the relevancy of color to a legitimate
governmental purpose.”). Close review is needed “to ferret
out classifications in reality malign, but masquerading as be-
nign,” Adarand, 515 U. S., at 275 (Ginsburg, J., dissenting),
and to “ensure that preferences are not so large as to tram-
mel unduly upon the opportunities of others or interfere too
harshly with legitimate expectations of persons in once-
preferred groups,” id., at 276.
II
Examining in this light the admissions policy employed by
the University of Michigan’s College of Literature, Science,
and the Arts (College), and for the reasons well stated by

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303 Cite as: 539 U. S. 244 (2003)
Ginsburg, J., dissenting
Justice Souter, I see no constitutional infirmity. See
ante, at 293–298 (dissenting opinion). Like other top-
ranking institutions, the College has many more applicants
for admission than it can accommodate in an entering class.
App. to Pet. for Cert. 108a. Every applicant admitted under
the current plan, petitioners do not here dispute, is qualified
to attend the College. Id., at 111a. The racial and ethnic
groups to which the College accords special consideration
(African-Americans, Hispanics, and Native-Americans) his-
torically have been relegated to inferior status by law and
social practice; their members continue to experience class-
based discrimination to this day, see supra, at 298–301.
There is no suggestion that the College adopted its current
policy in order to limit or decrease enrollment by any particu-
lar racial or ethnic group, and no seats are reserved on the
basis of race. See Brief for Respondent Bollinger et al. 10;
Tr. of Oral Arg. 41–42 (in the range between 75 and 100 points,
the review committee may look at applications individually
and ignore the points). Nor has there been any demonstra-
tion that the College’s program unduly constricts admissions
opportunities for students who do not receive special consider-
ation based on race. Cf. Liu, The Causation Fallacy: Bakke
and the Basic Arithmetic of Selective Admissions, 100 Mich.
L. Rev. 1045, 1049 (2002) (“In any admissions process where
applicants greatly outnumber admittees, and where white
applicants greatly outnumber minority applicants, substantial
preferences for minority applicants will not significantly
diminish the odds of admission facing white applicants.”).10
10 The United States points to the “percentage plans” used in California,
Florida, and Texas as one example of a “race-neutral alternativ[e]” that
would permit the College to enroll meaningful numbers of minority stu-
dents. Brief for United States as Amicus Curiae 14; see U. S. Commis-
sion on Civil Rights, Beyond Percentage Plans: The Challenge of Equal
Opportunity in Higher Education 1 (Nov. 2002), http://www.usccr.gov/pubs/
percent2/percent2.pdf (percentage plans guarantee admission to state uni-
versities for a fixed percentage of the top students from high schools
in the State). Calling such 10% or 20% plans “race-neutral” seems to
me disingenuous, for they “unquestionably were adopted with the specific

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304 GRATZ v. BOLLINGER
Ginsburg, J., dissenting
The stain of generations of racial oppression is still visible
in our society, see Krieger, 86 Calif. L. Rev., at 1253, and the
determination to hasten its removal remains vital. One can
reasonably anticipate, therefore, that colleges and universi-
ties will seek to maintain their minority enrollment—and
the networks and opportunities thereby opened to minority
graduates—whether or not they can do so in full candor
through adoption of affirmative action plans of the kind here
at issue. Without recourse to such plans, institutions of
higher education may resort to camouflage. For example,
schools may encourage applicants to write of their cultural
traditions in the essays they submit, or to indicate whether
English is their second language. Seeking to improve their
chances for admission, applicants may highlight the minority
group associations to which they belong, or the Hispanic sur-
names of their mothers or grandparents. In turn, teachers’
recommendations may emphasize who a student is as much
as what he or she has accomplished. See, e. g., Steinberg,
Using Synonyms for Race, College Strives for Diversity,
purpose of increasing representation of African-Americans and Hispanics
in the public higher education system.” Brief for Respondent Bollinger
et al. 44; see C. Horn & S. Flores, Percent Plans in College Admissions:
A Comparative Analysis of Three States’ Experiences 14–19 (2003),
http://www.civilrightsproject.harvard.edu/research/affirmativeaction/
tristate.pdf. Percentage plans depend for their effectiveness on contin-
ued racial segregation at the secondary school level: They can ensure sig-
nificant minority enrollment in universities only if the majority-minority
high school population is large enough to guarantee that, in many schools,
most of the students in the top 10% or 20% are minorities. Moreover,
because such plans link college admission to a single criterion—high school
class rank—they create perverse incentives. They encourage parents to
keep their children in low-performing segregated schools, and discourage
students from taking challenging classes that might lower their grade
point averages. See Selingo, What States Aren’t Saying About the ‘X-
Percent Solution,’ Chronicle of Higher Education, June 2, 2000, p. A31.
And even if percentage plans could boost the sheer numbers of minority
enrollees at the undergraduate level, they do not touch enrollment in grad-
uate and professional schools.

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Ginsburg, J., dissenting
N. Y. Times, Dec. 8, 2002, section 1, p. 1, col. 3 (describing
admissions process at Rice University); cf. Brief for United
States as Amicus Curiae 14–15 (suggesting institutions
could consider, inter alia, “a history of overcoming disadvan-
tage,” “reputation and location of high school,” and “individ-
ual outlook as reflected by essays”). If honesty is the best
policy, surely Michigan’s accurately described, fully disclosed
College affirmative action program is preferable to achieving
similar numbers through winks, nods, and disguises.11
* * *
For the reasons stated, I would affirm the judgment of the
District Court.
11 Contrary to the Court’s contention, I do not suggest “changing the
Constitution so that it conforms to the conduct of the universities.” Ante,
at 275, n. 22. In my view, the Constitution, properly interpreted, permits
government officials to respond openly to the continuing importance of
race. See supra, at 301–302. Among constitutionally permissible op-
tions, those that candidly disclose their consideration of race seem to me
preferable to those that conceal it.

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306 OCTOBER TERM, 2002
Syllabus
GRUTTER v. BOLLINGER et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 02–241. Argued April 1, 2003—Decided June 23, 2003
The University of Michigan Law School (Law School), one of the Nation’s
top law schools, follows an official admissions policy that seeks to achieve
student body diversity through compliance with Regents of Univ. of Cal.
v. Bakke, 438 U. S. 265. Focusing on students’ academic ability coupled
with a flexible assessment of their talents, experiences, and potential,
the policy requires admissions officials to evaluate each applicant based
on all the information available in the file, including a personal state-
ment, letters of recommendation, an essay describing how the applicant
will contribute to Law School life and diversity, and the applicant’s un-
dergraduate grade point average (GPA) and Law School Admission Test
(LSAT) score. Additionally, officials must look beyond grades and
scores to so-called “soft variables,” such as recommenders’ enthusiasm,
the quality of the undergraduate institution and the applicant’s essay,
and the areas and difficulty of undergraduate course selection. The pol-
icy does not define diversity solely in terms of racial and ethnic status
and does not restrict the types of diversity contributions eligible for
“substantial weight,” but it does reaffirm the Law School’s commitment
to diversity with special reference to the inclusion of African-American,
Hispanic, and Native-American students, who otherwise might not be
represented in the student body in meaningful numbers. By enrolling
a “critical mass” of underrepresented minority students, the policy seeks
to ensure their ability to contribute to the Law School’s character and
to the legal profession.
When the Law School denied admission to petitioner Grutter, a white
Michigan resident with a 3.8 GPA and 161 LSAT score, she filed this suit,
alleging that respondents had discriminated against her on the basis of
race in violation of the Fourteenth Amendment, Title VI of the Civil
Rights Act of 1964, and 42 U. S. C. § 1981; that she was rejected because
the Law School uses race as a “predominant” factor, giving applicants
belonging to certain minority groups a significantly greater chance of
admission than students with similar credentials from disfavored racial
groups; and that respondents had no compelling interest to justify that
use of race. The District Court found the Law School’s use of race as
an admissions factor unlawful. The Sixth Circuit reversed, holding that
Justice Powell’s opinion in Bakke was binding precedent establishing

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307 Cite as: 539 U. S. 306 (2003)
Syllabus
diversity as a compelling state interest, and 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 Pow-
ell and appended to his Bakke opinion.
Held: The Law School’s narrowly tailored use of race in admissions deci-
sions to further a compelling interest in obtaining the educational bene-
fits that flow from a diverse student body is not prohibited by the Equal
Protection Clause, Title VI, or § 1981. Pp. 322–344.
(a) In the landmark Bakke case, this Court reviewed a medical
school’s racial set-aside program that reserved 16 out of 100 seats for
members of certain minority groups. The decision produced six sepa-
rate opinions, none of which commanded a majority. Four Justices
would have upheld the program on the ground that the government
can use race to remedy disadvantages cast on minorities by past racial
prejudice. 438 U. S., at 325. Four other Justices would have struck
the program down on statutory grounds. Id., at 408. Justice Powell,
announcing the Court’s judgment, provided a fifth vote not only for in-
validating the program, but also for reversing the state court’s injunc-
tion against any use of race whatsoever. In a part of his opinion that
was joined by no other Justice, Justice Powell expressed his view that
attaining a diverse student body was the only interest asserted by the
university that survived scrutiny. Id., at 311. Grounding his analysis
in the academic freedom that “long has been viewed as a special concern
of the First Amendment,” id., at 312, 314, Justice Powell emphasized
that the “ ‘nation’s future depends upon leaders trained through wide
exposure’ to the ideas and mores of students as diverse as this Nation.”
Id., at 313. However, he also emphasized that “[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 using 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. Since Bakke, Justice Pow-
ell’s opinion has been 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. Courts, however, have struggled to discern whether
Justice Powell’s diversity rationale is binding precedent. The Court
finds it unnecessary to decide this issue because the Court endorses
Justice Powell’s view that student body diversity is a compelling state
interest in the context of university admissions. Pp. 322–325.

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308 GRUTTER v. BOLLINGER
Syllabus
(b) All government racial classifications must be analyzed by a re-
viewing court under strict scrutiny. Adarand Constructors, Inc. v.
Pen˜ a, 515 U. S. 200, 227. But not all such uses are invalidated by strict
scrutiny. Race-based action necessary to further a compelling govern-
mental interest does not violate the Equal Protection Clause so long as
it is narrowly tailored to further that interest. E. g., Shaw v. Hunt,
517 U. S. 899, 908. Context matters when reviewing such action. See
Gomillion v. Lightfoot, 364 U. S. 339, 343–344. Not every decision in-
fluenced by race is equally objectionable, and strict scrutiny is designed
to provide a framework for carefully examining the importance and the
sincerity of the government’s reasons for using race in a particular con-
text. Pp. 326–327.
(c) The Court endorses Justice Powell’s view that student body diver-
sity is a compelling state interest that can justify using race in univer-
sity admissions. The Court defers to the Law School’s educational
judgment that diversity is essential to its educational mission. The
Court’s scrutiny of that interest is no less strict for taking into account
complex educational judgments in an area that lies primarily within the
university’s expertise. See, e. g., Bakke, 438 U. S., at 319, n. 53 (opinion
of Powell, J.). Attaining a diverse student body is at the heart of the
Law School’s proper institutional mission, and its “good faith” is “pre-
sumed” absent “a showing to the contrary.” Id., at 318–319. Enrolling
a “critical mass” of minority students simply to assure some specified
percentage of a particular group merely because of its race or ethnic
origin would be patently unconstitutional. E. g., id., at 307. But the
Law School defines its critical mass concept by reference to the substan-
tial, important, and laudable educational benefits that diversity is de-
signed to produce, including cross-racial understanding and the break-
ing down of racial stereotypes. The Law School’s claim is further
bolstered by numerous expert studies and reports showing that such
diversity promotes learning outcomes and better prepares students for
an increasingly diverse work force, for society, and for the legal profes-
sion. 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. High-ranking retired officers and civilian military leaders as-
sert that a highly qualified, racially diverse officer corps is essential to
national security. Moreover, because universities, and in particular,
law schools, represent the training ground for a large number of the
Nation’s leaders, Sweatt v. Painter, 339 U. S. 629, 634, the path to leader-
ship must be visibly open to talented and qualified individuals of every
race and ethnicity. Thus, the Law School has a compelling interest in
attaining a diverse student body. Pp. 327–333.

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Syllabus
(d) The Law School’s admissions program bears the hallmarks of a
narrowly tailored plan. To be narrowly tailored, a race-conscious ad-
missions program cannot “insulat[e] each category of applicants with
certain desired qualifications from competition with all other appli-
cants.” Bakke, 438 U. S., at 315 (opinion of Powell, J.). Instead, it may
consider race or ethnicity only as a “ ‘plus’ in a particular applicant’s
file”; i. e., it 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 consideration, although not
necessarily according them the same weight,” id., at 317. It follows
that universities cannot establish quotas for members of certain racial
or ethnic groups or put them on separate admissions tracks. See id.,
at 315–316. The Law School’s admissions program, like the Harvard
plan approved by Justice Powell, satisfies these requirements. More-
over, the program is flexible enough to ensure that each applicant is
evaluated as an individual and not in a way that makes race or ethnicity
the defining feature of the application. See id., at 317. The Law
School engages in a highly individualized, holistic review of each appli-
cant’s file, giving serious consideration to all the ways an applicant
might contribute to a diverse educational environment. There is no
policy, either de jure or de facto, of automatic acceptance or rejection
based on any single “soft” variable. Gratz v. Bollinger, ante, p. 244,
distinguished. Also, the program adequately ensures that all factors
that may contribute to diversity are meaningfully considered alongside
race. Moreover, the Law School frequently accepts nonminority appli-
cants with grades and test scores lower than underrepresented minority
applicants (and other nonminority applicants) who are rejected. The
Court rejects the argument that the Law School should have used other
race-neutral means to obtain the educational benefits of student body
diversity, e. g., a lottery system or decreasing the emphasis on GPA and
LSAT scores. Narrow tailoring does not require exhaustion of every
conceivable race-neutral alternative or mandate that a university choose
between maintaining a reputation for excellence or fulfilling a commit-
ment to provide educational opportunities to members of all racial
groups. See, e. g., Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280,
n. 6. The Court is satisfied that the Law School adequately considered
the available alternatives. The Court is also satisfied that, in the con-
text of individualized consideration of the possible diversity contri-
butions of each applicant, the Law School’s race-conscious admissions
program does not unduly harm nonminority applicants. Finally, race-
conscious admissions policies must be limited in time. The Court takes
the Law School at its word that it would like nothing better than to find
a race-neutral admissions formula and will terminate its use of racial

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310 GRUTTER v. BOLLINGER
Syllabus
preferences as soon as practicable. The Court expects that 25 years
from now, the use of racial preferences will no longer be necessary to
further the interest approved today. Pp. 333–343.
(e) Because the Law School’s use of race in admissions decisions is
not prohibited by the Equal Protection Clause, petitioner’s statutory
claims based on Title VI and § 1981 also fail. See Bakke, supra, at
287 (opinion of Powell, J.); General Building Contractors Assn., Inc. v.
Pennsylvania, 458 U. S. 375, 389–391. Pp. 343–344.
288 F. 3d 732, affirmed.
O’Connor, J., delivered the opinion of the Court, in which Stevens,
Souter, Ginsburg, and Breyer, JJ., joined, and in which Scalia and
Thomas, JJ., joined in part insofar as it is consistent with the views ex-
pressed in Part VII of the opinion of Thomas, J. Ginsburg, J., filed a
concurring opinion, in which Breyer, J., joined, post, p. 344. Scalia, J.,
filed an opinion concurring in part and dissenting in part, in which
Thomas, J., joined, post, p. 346. Thomas, J., filed an opinion concurring
in part and dissenting in part, in which Scalia, J., joined as to Parts
I–VII, post, p. 349. Rehnquist, C. J., filed a dissenting opinion, in which
Scalia, Kennedy, and Thomas, JJ., joined, post, p. 378. Kennedy, J.,
filed a dissenting opinion, post, p. 387.
Kirk O. Kolbo argued the cause for petitioner. With him
on the briefs were David F. Herr, R. Lawrence Purdy, Mi-
chael C. McCarthy, Michael E. Rosman, Hans Bader, and
Kerry L. Morgan.
Solicitor General Olson argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Assistant Attorney General Boyd and Deputy So-
licitor General Clement.
Maureen E. Mahoney argued the cause for respondent
Bollinger et al. With her on the brief were John H. Picker-
ing, John Payton, Brigida Benitez, Craig Goldblatt, Terry
A. Maroney, Marvin Krislov, Jonathan Alger, Evan Camin-
ker, Philip J. Kessler, and Leonard M. Niehoff.
Miranda K. S. Massie and George B. Washington filed a
brief for respondent James et al.*
*Briefs of amici curiae urging reversal were filed for the State of Flor-
ida et al. by Charlie Crist, Attorney General of Florida, Christopher M.
Kise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, and

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311 Cite as: 539 U. S. 306 (2003)
Opinion of the Court
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.
Daniel Woodring; for the Cato Institute by Robert A. Levy, Timothy
Lynch, James L. Swanson, and Samuel Estreicher; for the Center for
Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the
Center for Individual Freedom by Renee L. Giachino; for the Center for
New Black Leadership by Clint Bolick, William H. Mellor, and Richard
D. Komer; for the Center for the Advancement of Capitalism by David
Reed Burton; for the Claremont Institute Center for Constitutional Juris-
prudence by Edwin Meese III; for the Michigan Association of Scholars
by William F. Mohrman; for the National Association of Scholars by Wil-
liam H. Allen, Oscar M. Garibaldi, and Keith A. Noreika; for the Pacific
Legal Foundation by John H. Findley; for Law Professor Larry Alexander
et al. by Erik S. Jaffe; and for the Reason Foundation by Martin S.
Kaufman.
Briefs of amici curiae urging affirmance were filed for the State of
Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland,
Andrew H. Baida, Solicitor General, Mark J. Davis and William F. Brock-
man, Assistant Attorneys General, Eliot Spitzer, Attorney General of
New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz,
Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pan-
dya, Assistant Solicitors General, and by the Attorneys General for their
respective jurisdictions as follows: Terry Goddard of Arizona, Bill Lockyer
of California, Ken Salazar of Colorado, Richard Blumenthal of Connecti-
cut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe
of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota,
Mike McGrath of Montana, Patricia A. Madrid of New Mexico, Roy
Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy
Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of
Vermont, Iver A. Stridiron of the Virgin Islands, Christine O. Gregoire
of Washington, Darrell V. McGraw, Jr., of West Virginia, and Peggy A.
Lautenschlager of Wisconsin; for the State of New Jersey by David Sam-
son, Attorney General, Jeffrey Burstein, Assistant Attorney General, and
Donna Arons and Anne Marie Kelly, Deputy Attorneys General; for New
York City Council Speaker A. Gifford Miller et al. by Jack Greenberg and
Saul B. Shapiro; for the City of Philadelphia, Pennsylvania, et al. by Vic-
tor A. Bolden and Nelson A. Diaz; for the American Bar Association by
Paul M. Dodyk and Rowan D. Wilson; for the American Educational Re-

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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
search Association et al. by Angelo N. Ancheta; for the American Jewish
Committee et al. by Stewart D. Aaron, Thomas M. Jancik, Jeffrey P. Si-
nensky, Kara H. Stein, and Richard T. Foltin; for the American Law
Deans Association by Samuel Issacharoff; for the American Psychological
Association by Paul R. Friedman,William F. Sheehan, and Nathalie F. P.
Gilfoyle; for the American Sociological Association et al. by Bill Lann
Lee and Deborah J. Merritt; for Amherst College et al. by Charles S. Sims;
for the Arizona State University College of Law by Ralph S. Spritzer and
Paul Bender; for the Association of American Law Schools by Pamela S.
Karlan; for the Association of American Medical Colleges et al. by Robert
A. Burgoyne and Joseph A. Keyes, Jr.; for the Bay Mills Indian Commu-
nity et al. by Vanya S. Hogen; for the Clinical Legal Education Association
by Timothy A. Nelsen, Frances P. Kao, and Eric J. Gorman; for Columbia
University et al. by Floyd Abrams and Susan Buckley; for the Graduate
Management Admission Council et al. by Stephen M. McNabb; for the
Harvard Black Law Students Association et al. by George W. Jones, Jr.,
William J. Jefferson, Theodore V. Wells, Jr., and David W. Brown; for
Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey,
Beverly Ledbetter, Robert B. Donin, and Wendy S. White; for the Hispanic
National Bar Association et al. by Gilbert Paul Carrasco; for Howard
University by Janell M. Byrd; for Indiana University by James Fitzpat-
rick, Lauren K. Robel, and Jeffrey Evans Stake; for the King County Bar
Association by John Warner Widell, John H. Chun, and Melissa O’Lough-
lin White; for the Law School Admission Council by Walter Dellinger,
Pamela Harris, and Jonathan D. Hacker; for the Lawyers’ Committee for
Civil Rights Under Law et al. by John S. Skilton, David E. Jones, Bar-
bara R. Arnwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D.
Greenberger, and Judith L. Lichtman; for the Leadership Conference on
Civil Rights et al. by Robert N. Weiner and William L. Taylor; for the
Mexican American Legal Defense and Educational Fund et al. by Antonia
Hernandez; for the Michigan Black Law Alumni Society by Christopher J.
Wright, Timothy J. Simeone, and Kathleen McCree Lewis; for the NAACP
Legal Defense and Educational Fund, Inc., et al. by Theodore M. Shaw,
Norman J. Chachkin, Robert H. Stroup, Elise C. Boddie, and Christopher
A. Hansen; for the National Center for Fair & Open Testing by John T.
Affeldt and Mark Savage; for the National Coalition of Blacks for Repara-
tions in America et al. by Kevin Outterson; for the National Education

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313 Cite as: 539 U. S. 306 (2003)
Opinion of the Court
of around 350 students. Seeking to “admit a group of stu-
dents who individually and collectively are among the most
capable,” the Law School looks for individuals with “sub-
Association et al. by Robert H. Chanin, John M. West, Elliot Mincberg,
Larry P. Weinberg, and John C. Dempsey; for the National Urban League
et al. by William A. Norris and Michael C. Small; for the New America
Alliance by Thomas R. Julin and D. Patricia Wallace; for the New Mexico
Hispanic Bar Association et al. by Edward Benavidez; for the NOW Legal
Defense and Educational Fund et al. by Wendy R. Weiser and Martha F.
Davis; for the School of Law of the University of North Carolina by John
Charles Boger, Julius L. Chambers, and Charles E. Daye; for the Society
of American Law Teachers by Michael Selmi and Gabriel J. Chin; for the
UCLA School of Law Students of Color by Sonia Mercado; for the United
Negro College Fund et al. by Drew S. Days III and Beth S. Brinkmann;
for the University of Michigan Asian Pacific American Law Students Asso-
ciation et al. by Jerome S. Hirsch; for the University of Pittsburgh et al.
by David C. Frederick and Sean A. Lev; for Judith Areen et al. by Neal
Katyal and Kumiki Gibson; for Lieutenant General Julius W. Becton, Jr.,
et al. by Virginia A. Seitz, Joseph R. Reeder, Robert P. Charrow, and
Kevin E. Stern; for Hillary Browne et al. by Gregory Alan Berry; for
Senator Thomas A. Daschle et al. by David T. Goldberg and Penny Shane;
for the Hayden Family by Roy C. Howell; for Glenn C. Loury by Jeffrey
F. Liss and James J. Halpert; and for 13,922 Current Law Students at
Accredited American Law Schools by Julie R. O’Sullivan and Peter J.
Rubin.
Briefs of amici curiae were filed for Michigan Governor Jennifer M.
Granholm by John D. Pirich and Mark A. Goldsmith; for Members and
Former Members of the Pennsylvania General Assembly et al. by Mark
B. Cohen and Eric S. Fillman; for the American Council on Education
et al. by Martin Michaelson, Alexander E. Dreier, and Sheldon E. Stein-
bach; for the American Federation of Labor and Congress of Industrial
Organizations by Harold Craig Becker, David J. Strom, Jonathan P.
Hiatt, and Daniel W. Sherrick; for the Anti-Defamation League by Mar-
tin E. Karlinsky and Steven M. Freeman; for the Asian American Legal
Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for Banks
Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers
Association of Greater Chicago, Inc., by Sharon E. Jones; for the Boston
Bar Association et al. by Thomas E. Dwyer, Jr., and Joseph L. Kociubes;
for the Carnegie Mellon University et al. by W. Thomas McGough, Jr.,
Kathy M. Banke, Gary L. Kaplan, and Edward N. Stoner II; for the Coali-
tion for Economic Equity et al. by Eva J. Paterson and Eric K. Yamamoto;

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314 GRUTTER v. BOLLINGER
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stantial promise for success in law school” and “a strong like-
lihood of succeeding in the practice 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 vary-
ing 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 body diversity complied with this Court’s most re-
cent ruling on the use of race in university admissions. See
Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).
for the Committee of Concerned Black Graduates of ABA Accredited Law
Schools et al. by Mary Mack Adu; for the Criminal Justice Legal Founda-
tion by Kent S. Scheidegger; for the Equal Employment Advisory Council
by Jeffrey A. Norris and Ann Elizabeth Reesman; for Exxon Mobil Corp.
by Richard R. Brann; for General Motors Corp. by Kenneth S. Geller,
Eileen Penner, and Thomas A. Gottschalk; for Human Rights Advocates
et al. by Constance de la Vega; for the Massachusetts Institute of Technol-
ogy et al. by Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and
Stacey J. Mobley; for the Massachusetts School of Law by Lawrence R.
Velvel; for the National Asian Pacific American Legal Consortium et al.
by Mark A. Packman, Karen K. Narasaki, Vincent A. Eng, and Trang Q.
Tran; for the National School Boards Association et al. by Julie Under-
wood and Naomi Gittins; for the New York State Black and Puerto Rican
Legislative Caucus by Victor Goode; for Veterans of the Southern Civil
Rights Movement et al. by Mitchell Zimmerman; for 3M et al. by David
W. DeBruin, Deanne E. Maynard, Daniel Mach, Russell W. Porter, Jr.,
Charles R. Wall, Martin J. Barrington, Deval L. Patrick, William J.
O’Brien, Gary P. Van Graafeiland, Kathryn A. Oberly, Randall E. Mehr-
berg, Donald M. Remy, Ben W. Heineman, Jr., Brackett B. Denniston III,
Elpidio Villarreal, Wayne A. Budd, J. Richard Smith, Stewart S. Hudnut,
John A. Shutkin, Theodore L. Banks, Kenneth C. Frazier, David R. An-
drews, Jeffrey B. Kinder, Teresa M. Holland, Charles W. Gerdts III, John
L. Sander, Mark P. Klein, and Stephen P. Sawyer; for Ward Connerly by
Manuel S. Klausner and Patrick J. Manshardt; for Representative John
Conyers, Jr., et al. by Paul J. Lawrence and Anthony R. Miles; and for
Representative Richard A. Gephardt et al. by Andrew L. Sandler and
Mary L. Smith.

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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, ex-
periences, and potential “to contribute to the learning of
those around them.” App. 111. The policy requires admis-
sions officials to evaluate each applicant based on all the in-
formation available in the file, including 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. Id., at 83–84, 114–121. In re-
viewing an applicant’s file, admissions officials must consider
the applicant’s undergraduate grade point average (GPA)
and Law School Admission Test (LSAT) score because they
are important (if imperfect) predictors of academic success
in law school. Id., at 112. The policy stresses that “no ap-
plicant should be admitted unless we expect that applicant
to do well enough to graduate with no serious academic prob-
lems.” 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 dis-
qualify an applicant. Ibid. Rather, the policy requires ad-
missions officials to look beyond grades and test scores to
other criteria that are important to the Law School’s educa-
tional objectives. Id., at 114. So-called “ ‘soft’ variables”
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 intellectual 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.

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316 GRUTTER v. BOLLINGER
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The policy does not restrict the types of diversity contri-
butions eligible for “substantial weight” in the admissions
process, but instead recognizes “many possible bases for di-
versity admissions.” Id., at 118, 120. The policy does, how-
ever, reaffirm the Law School’s longstanding commitment
to “one particular type of diversity,” that is, “racial and eth-
nic diversity with special reference to the inclusion of stu-
dents from groups which have been historically discrimi-
nated against, like African-Americans, Hispanics and Native
Americans, who without this commitment might not be rep-
resented 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 “in-
sensitive 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 con-
tribution 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 GPA and
161 LSAT score. The Law School initially placed petitioner
on a waiting list, but subsequently rejected her application.
In December 1997, petitioner filed suit in the United States
District Court for the Eastern District of Michigan against
the Law School, the Regents 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 Lehman (Dean of the Law School), and Dennis
Shields (Director of Admissions at the Law School from 1991

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until 1998). Petitioner alleged that respondents discrimi-
nated against her on the basis of race in violation of the Four-
teenth 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 re-
jected because the Law School uses race as a “predominant”
factor, giving applicants who belong to certain minority
groups “a significantly greater chance of admission than
students with similar credentials from disfavored racial
groups.” App. 33–34. Petitioner also alleged that respond-
ents “had no compelling interest to justify their use of race in
the admissions process.” Id., at 34. Petitioner requested
compensatory and punitive damages, an order requiring the
Law School to offer her admission, and an injunction prohib-
iting 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 persons who
(A) applied for and were not granted admission to the Uni-
versity of Michigan Law School for the academic years since
(and including) 1995 until the time that judgment is entered
herein; and (B) were members of those racial or ethnic
groups, including Caucasian, that Defendants treated less fa-
vorably in considering their applications 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 in-
dicated 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 compel-

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318 GRUTTER v. BOLLINGER
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ling. The District Court also indicated that it would con-
duct 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 ex-
tensive evidence concerning the Law School’s use of race in
the admissions process. Dennis Shields, Director of Admis-
sions when petitioner applied to the Law School, testified
that he did not direct his staff to admit a particular percent-
age 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 information such as residency status and
gender). Id., at 207a. This was done, Shields testified, to
ensure that a critical mass of underrepresented minority stu-
dents would be reached so as to realize the educational bene-
fits of a diverse student body. Ibid. Shields stressed, how-
ever, that he did not seek to admit any particular number or
percentage of underrepresented minority students. Ibid.
Erica Munzel, who succeeded Shields as Director of Ad-
missions, testified that “ ‘critical mass’ ” means “ ‘meaningful
numbers’ ” or “ ‘meaningful representation,’ ” which she un-
derstood to mean a number that encourages underrepre-
sented minority students to participate in the classroom and
not feel isolated. Id., at 208a–209a. Munzel stated there is
no number, percentage, or range of numbers or percentages
that constitute critical mass. Id., at 209a. Munzel also as-
serted that she must consider the race of applicants because
a critical mass of underrepresented minority students could
not be enrolled if admissions 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, Lehman did

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not quantify critical mass in terms of numbers or percent-
ages. 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 appli-
cant to another. Ibid. In some cases, according to Leh-
man’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 Pro-
fessor Richard Lempert, who chaired the faculty committee
that drafted the 1992 policy. Lempert emphasized that the
Law School seeks students with diverse interests and back-
grounds to enhance classroom discussion and the educational
experience both inside and outside the classroom. 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 dis-
criminated 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 perspec-
tive different from that of members of groups which have
not been the victims of such discrimination. Ibid. Lemp-
ert acknowledged that other groups, such as Asians and
Jews, have experienced discrimination, but explained they
were not mentioned 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 admissions
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 benefits
of diversity. Syverud’s testimony indicated that when a
critical mass of underrepresented minority students is pres-

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320 GRUTTER v. BOLLINGER
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ent, racial stereotypes lose their force because nonminority
students learn there is no “ ‘minority viewpoint’ ” but rather
a variety of viewpoints among minority students. Id., at
215a.
In an attempt to quantify the extent to which the Law
School actually considers race in making admissions deci-
sions, the parties introduced voluminous evidence at trial.
Relying on data obtained from the Law School, petitioner’s
expert, Dr. Kinley Larntz, generated and analyzed “admis-
sions grids” for the years in question (1995–2000). These
grids show the number of applicants and the number of ad-
mittees for all combinations of GPAs and LSAT scores.
Dr. Larntz made “ ‘cell-by-cell’ ” comparisons between appli-
cants of different races to determine whether a statistically
significant relationship existed between race and admission
rates. He concluded that membership in certain minority
groups “ ‘is an extremely 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 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 dra-
matic,’ ” negative effect on underrepresented minority ad-
missions. 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, un-
derrepresented minority students would have constituted 4
percent of the entering class in 2000 instead of the actual
figure of 14.5 percent. Ibid.

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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 de-
termined that the Law School’s asserted interest in assem-
bling a diverse student body was not compelling because
“the attainment of a racially diverse class . . . was not recog-
nized as such by Bakke and it is not a remedy for past dis-
crimination.” 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 inter-
est. The District Court granted petitioner’s request for de-
claratory relief and enjoined the Law School from using race
as a factor in its admissions decisions. The Court of Ap-
peals entered a stay of the injunction pending appeal.
Sitting en banc, the Court of Appeals reversed the District
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 Appeals, Justice
Powell’s opinion with respect to diversity constituted the
controlling rationale for the judgment of this 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 dissenters, re-
jecting 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, writ-
ing separately, found it unnecessary to decide whether diver-
sity was a compelling interest because, like the other dissent-

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ers, 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 question
of national importance: Whether diversity is a compelling
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) (Hop-
wood I) (holding that diversity is not a compelling state in-
terest), 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 cer-
tain minority groups. 438 U. S. 265 (1978). The decision
produced 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 govern-
ment can use race to “remedy disadvantages cast on minori-
ties 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., concurring in judgment in part and dis-
senting in part). Justice Powell provided a fifth vote not
only for invalidating the set-aside program, but also for re-
versing 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 involv-

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ing the competitive 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 consider-
ation 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 universi-
ties across the Nation have modeled their own admissions
programs on Justice Powell’s views on permissible race-
conscious policies. See, e. g., Brief for Judith Areen et al. as
Amici Curiae 12–13 (law school admissions programs em-
ploy “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 universities as well) reviewed
their admissions procedures in light of Justice Powell’s opin-
ion . . . and set sail accordingly”). We therefore discuss Jus-
tice 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 Jus-
tice Powell’s view, when governmental decisions “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.” Id., at 299. Under this exacting stand-
ard, only one of the interests asserted by the university sur-
vived Justice Powell’s scrutiny.
First, Justice Powell rejected an interest in “ ‘reducing the
historic deficit of traditionally disfavored minorities in medi-
cal schools and in the medical profession’ ” as an unlawful
interest in racial balancing. Id., at 306–307. Second, Jus-
tice Powell rejected an interest in remedying societal dis-

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324 GRUTTER v. BOLLINGER
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crimination because such measures would risk placing un-
necessary burdens on innocent third parties “who bear no
responsibility for whatever harm the beneficiaries of the spe-
cial admissions program are thought to have suffered.” Id.,
at 310. Third, Justice Powell rejected an interest in “in-
creasing the number of physicians who will practice in com-
munities currently underserved,” concluding that even if
such an interest could be compelling 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 fur-
ther only one interest: “the attainment of a diverse student
body.” Id., at 311. With the important proviso that “con-
stitutional limitations protecting individual rights may not
be disregarded,” Justice Powell grounded his analysis in the
academic freedom that “long has been viewed as a special
concern of the First Amendment.” Id., at 312, 314. Justice
Powell emphasized that nothing less than the “ ‘nation’s fu-
ture 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

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can justify the use of race. Id., at 315. Rather, “[t]he diver-
sity 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 diversity
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 fragmented Court de-
cides a case and no single rationale explaining the result en-
joys the assent of five Justices, the holding of the Court may
be viewed as that position taken by those Members who con-
curred in the judgments on the narrowest grounds.” 430
U. S., at 193 (internal quotation marks and citation omitted).
As the divergent opinions of the lower courts demonstrate,
however, “[t]his test is more easily stated than applied to the
various opinions supporting the result in [Bakke].” Nich-
ols v. United States, 511 U. S. 738, 745–746 (1994). Com-
pare, 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); Hop-
wood I, 78 F. 3d 932 (CA5 1996) (same), with Smith v. Uni-
versity of Wash. Law School, 233 F. 3d, at 1199 (Justice Pow-
ell’s opinion, including the diversity rationale, is controlling
under Marks).
We do not find it necessary to decide whether Justice Pow-
ell’s opinion is binding under Marks. It does not seem “use-
ful to pursue the Marks inquiry to the utmost logical possi-
bility 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 reasons 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.

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B
The Equal Protection Clause provides that no State shall
“deny to any person within its jurisdiction the equal protec-
tion of the laws.” U. S. Const., Amdt. 14, § 2. Because 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 judi-
cial inquiry to ensure that the personal right to equal protec-
tion of the laws has not been infringed.” Adarand Con-
structors, Inc. v. Pen˜ a, 515 U. S. 200, 227 (1995) (emphasis
in original; internal quotation marks and citation omitted).
We are a “free people whose institutions are founded upon
the doctrine of equality.” Loving v. Virginia, 388 U. S. 1, 11
(1967) (internal quotation marks and citation omitted). It
follows from that principle that “government may treat peo-
ple differently because of their race only for the most com-
pelling reasons.” Adarand Constructors, Inc. v. Pen˜ a, 515
U. S., at 227.
We have held that all racial classifications imposed by gov-
ernment “must be analyzed by a reviewing court under strict
scrutiny.” Ibid. This means that such classifications are
constitutional only if they are narrowly tailored to further
compelling governmental interests. “Absent searching ju-
dicial inquiry into the justification for such race-based meas-
ures,” we have no way to determine what “classifications are
‘benign’ or ‘remedial’ and what classifications are in fact mo-
tivated 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 impor-
tant 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. Pen˜ a, supra, at 237 (internal
quotation marks and citation omitted). Although all gov-

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ernmental 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 scrutiny.” Id., at 230. When race-based ac-
tion is necessary to further a compelling governmental inter-
est, such action does not violate the constitutional guarantee
of equal protection so long as the narrow-tailoring require-
ment is also satisfied.
Context matters when reviewing race-based governmental
action under the Equal Protection Clause. See Gomillion
v. Lightfoot, 364 U. S. 339, 343–344 (1960) (admonishing that,
“in dealing with claims under broad provisions of the Con-
stitution, 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 controlling facts”). In Adarand Constructors,
Inc. v. Pen˜ a, we made clear that strict scrutiny must take
“ ‘relevant differences’ into account.” 515 U. S., at 228. In-
deed, as we explained, that is its “fundamental purpose.”
Ibid. Not every decision influenced by race is equally ob-
jectionable, and strict scrutiny is designed to provide a
framework for carefully examining the importance and the
sincerity of the reasons advanced by the governmental deci-
sionmaker 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 com-
pelling state interest. Before this Court, as they have

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throughout this litigation, respondents assert only one justi-
fication for their use of race in the admissions process: ob-
taining “the educational benefits that flow from a diverse
student body.” Brief for Respondent 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 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 per-
missible justification for race-based governmental action.
See, e. g., Richmond v. J. A. Croson Co., supra, at 493 (plural-
ity 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 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 diversity
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 respond-
ents 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.

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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 pur-
pose of public education and the expansive freedoms of
speech and thought associated with the university environ-
ment, 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 Hamp-
shire, 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 student body diversity as a compelling state interest, Jus-
tice Powell invoked our cases recognizing a constitutional di-
mension, 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 stu-
dent body.” Bakke, supra, at 312. From this premise, Jus-
tice 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 mis-
sion.” 438 U. S., at 313 (quoting Keyishian v. Board of Re-
gents of Univ. of State of N. Y., supra, at 603). Our conclu-
sion 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 institutional 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.
As part of its goal of “assembling a class that is both ex-
ceptionally academically qualified and broadly diverse,” the
Law School seeks to “enroll a ‘critical mass’ of minority stu-
dents.” Brief for Respondent 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

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330 GRUTTER v. BOLLINGER
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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 con-
cept of critical mass is defined by reference to the educa-
tional benefits that diversity is designed to produce.
These benefits are substantial. As the District Court em-
phasized, the Law School’s admissions policy promotes
“cross-racial understanding,” helps to break down racial ste-
reotypes, and “enables [students] to better understand per-
sons 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 enlight-
ening 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 further
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, nu-
merous studies show that student body diversity promotes
learning outcomes, and “better prepares students for an in-
creasingly diverse workforce and society, and better pre-
pares them as professionals.” Brief for American Educa-
tional 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 Amer-
ican businesses have made clear that the skills needed in
today’s increasingly global marketplace can only be devel-
oped through exposure to widely diverse people, cultures,
ideas, and viewpoints. Brief for 3M et al. as Amici Curiae

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5; Brief for General Motors Corp. as Amicus Curiae 3–4.
What is more, high-ranking retired officers and civilian lead-
ers 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 5. The
primary sources for the Nation’s officer corps are the service
academies and the Reserve Officers Training Corps (ROTC),
the latter comprising students already admitted to partic-
ipating colleges and universities. Ibid. At present, “the
military cannot 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 ad-
missions 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 educational setting.” Id., at 29 (empha-
sis in original). We agree that “[i]t requires only a small
step from this analysis to conclude that our country’s other
most selective institutions must remain both diverse and se-
lective.” Ibid.
We have repeatedly acknowledged the overriding impor-
tance of preparing students for work and citizenship, de-
scribing education 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 “education . . . 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 insti-
tutions of higher education must be accessible to all individ-
uals regardless of race or ethnicity. The United States, as
amicus curiae, affirms that “[e]nsuring that public institu-
tions are open and available to all segments of American

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society, including people of all races and ethnicities, repre-
sents a paramount government objective.” Brief for United
States as Amicus Curiae 13. And, “[n]owhere is the impor-
tance of such openness more acute than in the context of
higher education.” Ibid. Effective participation by mem-
bers 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, rep-
resent the training ground for a large number of our Na-
tion’s leaders. Sweatt v. Painter, 339 U. S. 629, 634 (1950)
(describing law school as a “proving ground for legal learn-
ing 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 Representatives.
See Brief for Association of American Law Schools as Ami-
cus 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 leader-
ship be visibly open to talented and qualified individuals of
every race and ethnicity. All members of our heterogeneous
society must have confidence in the openness and integrity
of the educational institutions that provide this training. As
we have recognized, law schools “cannot be effective in isola-
tion 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 inclu-
sive of talented and qualified individuals of every race and
ethnicity, so that all members of our heterogeneous society

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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 consist-
ently) express some characteristic minority viewpoint on any
issue.” Brief for Respondent 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 can-
not accomplish with only token numbers of minority stu-
dents. Just as growing up in a particular region or having
particular professional experiences is likely to affect an indi-
vidual’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 deter-
mined, based on its experience and expertise, that a “critical
mass” of underrepresented minorities is necessary to further
its compelling interest in securing the educational benefits
of a diverse student body.
B
Even in the limited circumstance when drawing racial dis-
tinctions 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 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 con-
tours of the narrow-tailoring inquiry with respect to race-
conscious university admissions programs. That inquiry

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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 “abando[n] strict scrutiny,” see post, at 394 (dissenting
opinion). Rather, as we have already explained, supra, at
327, we adhere to Adarand’s teaching that the very pur-
pose 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 pro-
gram cannot use a quota system—it cannot “insulat[e] each
category of applicants with certain desired qualifications
from competition with all other applicants.” Bakke, 438
U. S., at 315 (opinion of Powell, J.). Instead, a university
may consider race or ethnicity only as a “ ‘plus’ in a particular
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 diver-
sity 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.”
Ibid.
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 de-
mands 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 be-
long 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 con-
text of individualized consideration of each and every appli-
cant. Ibid.

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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., supra, at 496 (plu-
rality opinion). Quotas “ ‘impose a fixed number or percent-
age 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 “compete[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 Powell flatly re-
jected the argument that Harvard’s program was “the func-
tional 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 student body diver-
sity. 438 U. S., at 317–318.
The Law School’s goal of attaining a critical mass of under-
represented minority students does not transform its pro-

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gram into a quota. As the Harvard plan described by Jus-
tice 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 those students ad-
mitted.” Id., at 323. “[S]ome attention to numbers,” with-
out more, does not transform a flexible admissions 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), “sugges[t] there
was no further attempt at individual review save for race
itself ” during the final stages of the admissions process.
See post, at 392 (dissenting opinion). To the contrary, the
Law School’s admissions officers testified without contradic-
tion that they never gave race any more or less weight based
on the information contained in these reports. Brief for Re-
spondent Bollinger et al. 43, n. 70 (citing App. in Nos. 01–1447
and 01–1516 (CA6), p. 7336). Moreover, as Justice Ken-
nedy concedes, see post, at 390, between 1993 and 1998, 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 ad-
missions data to contend that the Law School discriminates
among different groups within the critical mass. Post, at
380–386 (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
385 (dissenting opinion).
That a race-conscious admissions program does not oper-
ate as a quota does not, by itself, satisfy the requirement of
individualized consideration. When using race as a “plus”

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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, 438 U. S., 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 consid-
eration to all the ways an applicant might contribute 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,
p. 244, the Law School awards no mechanical, predetermined
diversity “bonuses” based on race or ethnicity. See ante, at
271–272 (distinguishing a race-conscious admissions program
that automatically awards 20 points based on race from the
Harvard plan, which considered race but “did not contem-
plate that any single characteristic automatically ensured a
specific and identifiable contribution to a university’s diver-
sity”). 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 consid-
eration, although 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 admis-
sions program adequately ensures that all factors that may
contribute to student body diversity are meaningfully con-
sidered alongside race in admissions decisions. With re-

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spect to the use of race itself, all underrepresented minority
students admitted by the Law School have been deemed
qualified. By virtue of our Nation’s struggle with racial in-
equality, 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 consid-
ered valuable 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 languages, have overcome personal ad-
versity and family hardship, have exceptional records of ex-
tensive 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 con-
tribution to the class by way of a particular strength, attain-
ment, or characteristic—e. g., an unusual intellectual achieve-
ment, employment experience, nonacademic performance, or
personal 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 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 Respondent Bollinger et al. 10; App. 121–122. This
shows that the Law School seriously weighs many other di-
versity factors besides race that can make a real and disposi-
tive difference for nonminority applicants as well. By this

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339 Cite as: 539 U. S. 306 (2003)
Opinion of the Court
flexible approach, the Law School sufficiently takes into ac-
count, in practice as well as in theory, a wide variety of char-
acteristics 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 389 (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 con-
ceivable race-neutral alternative. Nor does it require a uni-
versity to choose between maintaining a reputation for ex-
cellence or fulfilling a commitment to provide educational
opportunities to members of all racial groups. See Wygant
v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6 (1986) (alterna-
tives 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, how-
ever, require serious, good faith consideration of workable
race-neutral alternatives that will achieve the diversity the
university seeks. See id., at 507 (set-aside plan not nar-
rowly tailored where “there does not appear to have been
any consideration of the use of race-neutral means”); Wygant
v. Jackson Bd. of Ed., supra, at 280, n. 6 (narrow tailoring

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340 GRUTTER v. BOLLINGER
Opinion of the Court
“require[s] consideration” of “lawful alternative and less re-
strictive 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 applicants 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 stu-
dents, 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. Be-
cause a lottery would make that kind of nuanced judgment
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 admis-
sions standards for all students, a drastic remedy that would
require the Law School to become a much different in-
stitution 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 California, 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 Cu-
riae 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 individualized assessments necessary to assemble a stu-
dent 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 al-
ternatives currently capable of producing a critical mass
without forcing the Law School to abandon the academic
selectivity that is the cornerstone of its educational mission.

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Opinion of the Court
We acknowledge that “there are serious problems of jus-
tice 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 admissions program
not unduly harm members of any racial group. Even reme-
dial race-based governmental action generally “remains sub-
ject 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 indi-
viduals 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
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 ad-
missions 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
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 governmen-
tally imposed discrimination based on race.” Palmore v. Si-

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342 GRUTTER v. BOLLINGER
Opinion of the Court
doti, 466 U. S. 429, 432 (1984). Accordingly, race-conscious
admissions policies must be limited in time. This require-
ment reflects that racial classifications, however compelling
their goals, are potentially so dangerous that they may be
employed no more broadly than the interest demands. En-
shrining a permanent justification for racial preferences
would offend this fundamental equal protection principle.
We see no reason to exempt race-conscious admissions pro-
grams 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 rea-
sonable durational limits.” Brief for Respondent Bollinger
et al. 32.
In the context of higher education, the durational require-
ment can be met by sunset provisions in race-conscious ad-
missions policies and periodic reviews to determine whether
racial preferences are still necessary to achieve student body
diversity. Universities in California, Florida, and Washing-
ton State, where racial preferences in admissions are prohib-
ited by state law, are currently engaged in experimenting
with a wide variety of alternative 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) (Ken-
nedy, J., concurring) (“[T]he States may perform their role
as laboratories for experimentation to devise various solu-
tions where the best solution is far from clear”).
The requirement that all race-conscious admissions pro-
grams have a termination point “assure[s] all citizens 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.” Richmond v. J. A.
Croson Co., 488 U. S., at 510 (plurality opinion); see also Na-
thanson & Bartnik, The Constitutionality of Preferential
Treatment for Minority Applicants to Professional Schools,

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343 Cite as: 539 U. S. 306 (2003)
Opinion of the Court
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 rationale for programs of preferential treatment; the
acid test of their justification will be their efficacy in elimi-
nating 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 for-
mula” and will terminate its race-conscious admissions pro-
gram as soon as practicable. See Brief for Respondent Bol-
linger 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 in-
creased. See Tr. of Oral Arg. 43. We expect that 25 years
from now, the use of racial preferences will no longer be nec-
essary to further the interest approved today.
IV
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 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 Amendment”); General Building Con-
tractors 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

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344 GRUTTER v. BOLLINGER
Ginsburg, J., concurring
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 342, 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 en-
sure the adequate development and protection of certain ra-
cial groups or individuals belonging to them, for the purpose
of guaranteeing them the full and equal enjoyment of human
rights and fundamental freedoms.” Annex to G. A. Res.
2106, 20 U. N. GAOR, 20th Sess., Res. Supp. (No. 14), p. 47,
U. N. Doc. A/6014, Art. 2(2) (1965). But such measures, the
Convention instructs, “shall in no case entail as a conse-
quence the maintenance of 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 limited affirmative ac-
tion); Convention on the Elimination of All Forms of Dis-
crimination against Women, Annex to G. A. Res. 34/180, 34
U. N. GAOR, 34th Sess., Res. Supp. (No. 46), p. 194, U. N.
Doc. A/34/46, Art. 4(1) (1979) (authorizing “temporary spe-
cial measures aimed at accelerating de facto equality” that
“shall be discontinued when the objectives of equality of op-
portunity 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 343. For at least part of that

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345 Cite as: 539 U. S. 306 (2003)
Ginsburg, J., concurring
time, however, the law could not fairly be described as “set-
tled,” 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. Wessmann v.
Gittens, 160 F. 3d 790 (CA1 1998); Tuttle v. Arlington Cty.
School Bd., 195 F. 3d 698 (CA4 1999); Johnson v. Board of
Regents of Univ. of Ga., 263 F. 3d 1234 (CA11 2001). More-
over, it was only 25 years before Bakke that this Court de-
clared public school segregation unconstitutional, a declara-
tion that, after prolonged resistance, yielded an end to a
law-enforced racial caste system, itself the legacy of centu-
ries 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 298–301 (Gins-
burg, J., dissenting); Adarand Constructors, Inc. v. Pen˜ a,
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 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 minori-
ties made up a majority of the student body. See E. Fran-
kenberg, C. Lee, & G. Orfield, A Multiracial Society with
Segregated Schools: Are We Losing the 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 communities lag far behind others
measured 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 Differences Between Selected Inner City and
Suburban Schools Varied by Metropolitan Area 17 (2002)).

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346 GRUTTER v. BOLLINGER
Opinion of Scalia, J.
However strong the public’s desire for improved education
systems may be, see P. Hart & R. Teeter, A National Prior-
ity: Americans Speak on Teacher Quality 2, 11 (2002) (public
opinion research conducted for Educational Testing Service);
No Child Left Behind Act of 2001, Pub. L. 107–110, 115 Stat.
1806, 20 U. S. C. § 7231 (2000 ed., Supp. I), it remains the
current reality that many minority students encounter mark-
edly inadequate and unequal educational opportunities. De-
spite these inequalities, some minority students are able to
meet the high threshold requirements set for admission to
the country’s finest undergraduate and graduate educational
institutions. As lower school education in minority commu-
nities 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.*
Justice Scalia, with whom Justice Thomas joins, con-
curring 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
*As the Court explains, the admissions policy challenged here survives
review under the standards stated in Adarand Constructors, Inc. v. Pen˜ a,
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 designed to ben-
efit or to burden a historically disadvantaged group, should be subject to
the same standard of judicial review. Cf. Gratz, ante, at 301–302 (Gins-
burg, J., dissenting); Adarand, 515 U. S., at 274, n. 8 (Ginsburg, J., dis-
senting). Nor does this case necessitate reconsideration whether inter-
ests other than “student body diversity,” ante, at 325, rank as sufficiently
important to justify a race-conscious government program. Cf. Gratz,
ante, at 301–302 (Ginsburg, J., dissenting); Adarand, 515 U. S., at 273–274
(Ginsburg, J., dissenting).

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Opinion of Scalia, J.
“critical mass” justification for its discrimination by race
challenges even the most gullible mind. The admissions sta-
tistics 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 opin-
ion.* 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 disproportion-
ately exclude blacks and other minorities. If that is a com-
pelling state interest, everything is.
I add the following: The “educational benefit” that the Uni-
versity of Michigan seeks to achieve by racial discrimination
consists, according to the Court, of “ ‘cross-racial understand-
ing,’ ” ante, at 330, and “ ‘better prepar[ation of] students for
an increasingly diverse workforce and society,’ ” ibid., all of
which is necessary not only for work, but also for good “citi-
zenship,” ante, at 331. 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) peo-
ple three feet shorter and 20 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 ben-
efit” at all, it is surely not one that is either uniquely relevant
to law school or uniquely “teachable” in a formal educational
setting. And therefore: If it is appropriate for the Univer-
*Part VII of Justice Thomas’s opinion describes those portions of the
Court’s opinion in which I concur. See post, at 374–378 (opinion concur-
ring in part and dissenting in part).

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348 GRUTTER v. BOLLINGER
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sity of Michigan Law School to use racial discrimination for
the purpose of putting together a “critical mass” that will
convey generic lessons in socialization and good citizenship,
surely it is no less appropriate—indeed, particularly appro-
priate—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, bet-
ter 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 discrimina-
tion in hiring. The nonminority individuals who are de-
prived of a legal education, a civil service 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 preferences
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 law-
suits will presumably focus on whether the discriminatory
scheme in question contains enough evaluation of the appli-
cant “as an individual,” ante, at 337, and sufficiently avoids
“separate admissions tracks,” ante, at 334, to fall under
Grutter rather than Gratz. Some will focus on whether a
university has gone beyond the bounds of a “ ‘good-faith ef-
fort’ ” 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 335 (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 set-
ting at issue, any educational benefits flow from racial diver-
sity. (That issue was not contested in Grutter; and while
the opinion accords “a degree of deference to a university’s
academic decisions,” ante, at 328, “deference does not imply

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Opinion of Thomas, J.
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 com-
mitment to the educational benefits of diversity that immu-
nize the discriminatory scheme in Grutter. (Tempting tar-
gets, 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 minority
student centers, even separate minority-only graduation cer-
emonies.) And still other suits may claim that the institu-
tion’s racial preferences 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 minor-
ity “critical mass.” I do not look forward to any of these
cases. The Constitution proscribes government discrimina-
tion 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, manifested to-
wards us. What I ask for the negro is not benevolence,
not pity, not sympathy, but simply justice. The Amer-
ican 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

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350 GRUTTER v. BOLLINGER
Opinion of Thomas, J.
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 cannot 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 Doug-
lass Papers 59, 68 (J. Blassingame & J. McKivigan eds.
1991) (emphasis in original).
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 what-
ever 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 devo-
tion to the status quo in admissions policies when such devo-
tion ripens into racial discrimination. Nor does the Consti-
tution countenance the unprecedented 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 admissions standard and then impose heightened re-
quirements only on black applicants. Similarly, a university
may not maintain a high admissions standard and grant ex-
emptions to favored races. The Law School, of its own
choosing, and for its own purposes, maintains an exclusion-
ary admissions system that it knows produces racially dis-
proportionate results. Racial discrimination is not a per-
missible solution to the self-inflicted wounds of this elitist
admissions policy.
The majority upholds the Law School’s racial discrimina-
tion not by interpreting the people’s Constitution, but by re-
sponding to a faddish slogan of the cognoscenti. Neverthe-
less, I concur in part in the Court’s opinion. First, I agree
with the Court insofar as its decision, which approves of only

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351 Cite as: 539 U. S. 306 (2003)
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one racial classification, confirms that further use of race in
admissions remains unlawful. Second, I agree with the
Court’s holding that racial discrimination in higher education
admissions will be illegal in 25 years. See ante, at 343 (stat-
ing that racial discrimination will no longer be narrowly tai-
lored, 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 discrimi-
nation should be subjected to strict scrutiny. Ante, at 326.
Before applying that standard to this case, I will briefly re-
visit 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 neces-
sity” has more frequently been termed “compelling gov-
ernmental 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 circumstances
where “pressing public necessity” or a “compelling state in-
terest” can possibly justify racial discrimination by state
actors. First, the lesson of Korematsu is that national secu-
rity 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
1 Throughout I will use the two phrases interchangeably.

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352 GRUTTER v. BOLLINGER
Opinion of Thomas, J.
past discrimination for which it is responsible. Richmond
v. J. A. Croson Co., 488 U. S. 469, 504 (1989).
The contours of “pressing public necessity” 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 unconstitu-
tional 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 pro-
vide 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 Pro-
tection Clause, deeming both asserted state interests insuf-
ficiently compelling. Id., at 275–276 (plurality opinion); id.,
at 295 (White, J., concurring in judgment) (“None of the in-
terests asserted by the [school board] . . . justify this racially
discriminatory layoff policy”).2
An even greater governmental interest involves the sen-
sitive 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 compel-
ling 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
2 The Court’s refusal to address Wygant’s rejection of a state interest
virtually indistinguishable from that presented by the Law School is per-
plexing. 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?

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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 discrimination as a justification for race
discrimination. See Wygant, supra, at 276 (plurality opin-
ion); Croson, 488 U. S., at 496–498 (plurality opinion); id., at
520–521 (Scalia, J., concurring in judgment). “Societal dis-
crimination, 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. Bol-
linger, ante, p. 298 (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 provide a bulwark against anarchy,
or to prevent violence, will constitute a “pressing public ne-
cessity.” Cf. Lee v. Washington, 390 U. S. 333, 334 (1968)
(per curiam) (Black, J., concurring) (indicating that protect-
ing 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 because 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 protection principle reflects our
Nation’s understanding that such classifications ultimately
have a destructive impact on the individual and our society.”

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354 GRUTTER v. BOLLINGER
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Adarand Constructors, Inc. v. Pen˜ a, 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 determin-
ing 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 Respondent Bollinger et al. 14. This
statement must be evaluated carefully, because it implies
that both “diversity” and “educational benefits” are compo-
nents of the Law School’s compelling state interest. Ad-
ditionally, 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
3 “[D]iversity,” for all of its devotees, is more a fashionable catchphrase
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 mis-
sion, 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 inef-
fectiveness 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 uned-
ucated to participate in elite higher education and therefore presents only
an illusory solution to the challenges facing our Nation.

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mechanism by which the Law School obtains educational
benefits, not an end of itself. The Law School, however, ap-
parently 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 balanc-
ing,” ante, at 330, 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. Compare ante, at 328 (“[T]he Law School
has a compelling interest in attaining a diverse student
body”), with ante, at 333 (referring to the “compelling inter-
est 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 “diver-
sity.” But see ante, at 332 (citing the need for “openness
and integrity of the educational institutions that provide
[legal] training” without reference to any consequential edu-
cational benefits).
One must also consider the Law School’s refusal to enter-
tain changes to its current admissions system that might
produce the same educational benefits. The Law School ad-
amantly 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 mission.” Brief for
Respondent Bollinger et al. 33–36. In other words, the Law
School seeks to improve marginally the education it offers

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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 advance the Law
School’s interest in offering a marginally superior education
while maintaining an elite institution. Unless each constit-
uent 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 educa-
tional benefits of a diverse student body.” Ante, at 333.
No serious effort is made to explain how these benefits fit
with the state interests the Court has recognized (or re-
jected) as compelling, see Part I, supra, or to place any theo-
retical constraints on an enterprising court’s desire to dis-
cover 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 holding, shun-
ning an analysis of the extent to which Justice Powell’s opin-
ion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978),
4 The Law School believes both that the educational benefits of a racially
engineered student body are large and that adjusting its overall admis-
sions standards to achieve the same racial mix would require it to sacrifice
its elite status. If the Law School is correct that the educational benefits
of “diversity” are so great, then achieving them by altering admissions
standards should not compromise its elite status. The Law School’s reluc-
tance to do this suggests that the educational benefits it alleges are not
significant or do not exist at all.

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is binding, ante, at 325, in favor of an unfounded wholesale
adoption of it.
Justice Powell’s opinion in Bakke and the Court’s decision
today rest on the fundamentally flawed proposition that ra-
cial 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 capable of judicial applica-
tion. 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 majority’s failure to justify its decision
by reference to any principle arises from the absence of any
such principle. See Part VI, infra.
B
Under the proper standard, there is no pressing public ne-
cessity in maintaining a public law school at all and, it fol-
lows, certainly not an elite law school. Likewise, marginal
improvements in legal education do not qualify as a compel-
ling 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 applied.
Additionally, circumstantial evidence as to whether a state
activity is of pressing public necessity can be obtained by
asking whether all States feel compelled to engage in that
activity. Evidence that States, in general, engage in a cer-
tain activity by no means demonstrates that the activity con-
stitutes a pressing public necessity, given the expansive role
of government in today’s society. The fact that some frac-
tion of the States reject a particular enterprise, however,
creates a presumption that the enterprise itself is not a com-
pelling state interest. In this sense, the absence of a public,
American Bar Association (ABA) accredited, law school in

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Alaska, Delaware, Massachusetts, New Hampshire, and
Rhode Island, see ABA–LSAC Official Guide to ABA-
Approved Law Schools (W. Margolis, B. Gordon, J. Pus-
karz, & D. Rosenlieb eds. 2004) (hereinafter ABA–LSAC
Guide), provides further evidence that Michigan’s mainte-
nance of the Law School does not constitute a compelling
state interest.
2
As the foregoing makes clear, Michigan has no compelling
interest in having a law school at all, much less an elite one.
Still, even assuming that a State may, under appropriate cir-
cumstances, 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 re-
view 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 re-
sponsible for its own laws establishing the rights and
duties 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 performance
by what another State may do or fail to do. That sepa-
rate responsibility of each State within its own sphere
is of the essence of statehood maintained under 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 discrimina-
tion on the basis of what the rest of the Nation “may do or
fail to do.” The only interests that can satisfy the Equal

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Protection Clause’s demands are those found within a
State’s jurisdiction.
The only cognizable state interests vindicated by operat-
ing 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 Depart-
ment 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 frequently
arise. . . . In all these matters, public and private rights
are constantly involved and discussed, and ignorance of
the Law has frequently led to results deplorable 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 train-
ing of those attorneys who will serve the citizens of Michi-
gan. In 2002, graduates of the 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 materi-
als as visited June 13, 2003, and available in Clerk of Court’s
case file), even 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 is from Michigan, see University of

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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 Michigan. 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 institu-
tion that causes it to be a waystation 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 Califor-
nia, 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 California, 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 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.
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).

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3
Finally, even if the Law School’s racial tinkering produces
tangible educational benefits, a marginal improvement in
legal education cannot justify racial discrimination where the
Law School has no compelling interest either in its existence
or in its current educational and admissions policies.
IV
The interest in remaining elite and exclusive that the ma-
jority thinks so obviously critical requires the use of admis-
sions “standards” that, in turn, create the Law School’s
“need” to discriminate on the basis of race. The Court vali-
dates these admissions standards by concluding that alter-
natives that would require “a dramatic sacrifice of . . . the
academic quality of all admitted students,” ante, at 340,
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
339 (quoting Wygant, 476 U. S., at 280, n. 6). The majority
errs, however, because race-neutral alternatives must only
be “workable,” ante, at 339, and do “about as well” in vindi-
cating the compelling state interest. The Court never ex-
plicitly 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 ex-
clusionary admissions system—it cannot have it both ways.
With the adoption of different admissions methods, such
as accepting all students who meet minimum qualifications,
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 340.

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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 discrimination. 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 devo-
tion 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
maintained at all costs along with racial discrimination, the
Court ignores the fact that other top law schools have suc-
ceeded 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 329. 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, a Marxist
economist, was investigated by the Attorney General of New
Hampshire on suspicion of being a subversive. The prosecu-
tion sought, inter alia, the contents of a lecture Sweezy had
given at the University of New Hampshire. 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 Frank-
furter’s opinion was devoted to the personal right of Sweezy
to free speech. See, e. g., id., at 265 (“For a citizen to be

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made to forego 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 exclusion of governmental intervention
in the intellectual life of a university.” Id., at 262. Accord-
ing to Justice Frankfurter: “It is the business of a university
to provide that atmosphere which is most conducive to spec-
ulation, experiment and creation. It is an atmosphere in
which there prevail ‘the four essential freedoms’ of a univer-
sity—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 Amendment
authorizes a public university to do what would otherwise
violate the Equal Protection Clause. The majority fails in
its summary effort to prove this point. The only source for
the Court’s conclusion that public universities are entitled to
deference even within the confines of strict scrutiny is Jus-
tice Powell’s opinion in Bakke. Justice Powell, for his part,
relied only on Justice Frankfurter’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 Fourteenth 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 Amend-
ment for vagueness. The statutes covered all public em-
ployees and were not invalidated only as applied to uni-

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versity 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 discrimin-
ation. 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 de-
cisions of this Court.
B
1
The Court’s deference to the Law School’s conclusion that
its racial experimentation leads to educational benefits will,
if adhered to, have serious collateral consequences. The
Court relies heavily on social science evidence to justify its
deference. See ante, at 330–332; but see also Rothman, Lip-
set, & Nevitte, Racial Diversity Reconsidered, 151 Public In-
terest 25 (2003) (finding that the racial mix of a student body
produced by racial discrimination of the type practiced by
the Law School in fact hinders students’ perception of aca-
demic quality). The Court never acknowledges, however,
the growing evidence that racial (and other sorts) of heter-
ogeneity actually impairs learning among black students.
See, e. g., Flowers & Pascarella, Cognitive Effects of College
Racial Composition on African American Students After 3
Years of College, 40 J. of College Student Development 669,
674 (1999) (concluding that black students experience supe-
rior cognitive development at Historically Black Colleges
(HBCs) and that, even among blacks, “a substantial diversity
moderates the cognitive effects of attending an HBC”);
Allen, The Color of Success: African-American College Stu-

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dent 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. 244, coun-
sel 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 “di-
verse” is indeterminate, but it is reported that in 2000 at
Morehouse College, one of the most distinguished HBCs in
the Nation, only 0.1% of the student body was white, and
only 0.2% was Hispanic. College Admissions Data Hand-
book 2002–2003, p. 613 (43d ed. 2002) (hereinafter College
Admissions Data Handbook). And at Mississippi 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 “assess-
ment that diversity will, in fact, yield educational benefits,”
ante, at 328. It follows, therefore, that an HBC’s assess-
ment 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. For-
dice, 505 U. S. 717, 748 (1992) (Thomas, J., concurring) (“Ob-
viously, a State cannot maintain . . . traditions by closing
particular institutions, historically white or historically
black, to particular racial groups”). Contained within to-
day’s majority opinion is the seed of a new constitutional
7 For example, North Carolina A&T State University, which is currently
5.4% white, College Admissions Data Handbook 643, could seek to reduce
the representation of whites in order to gain additional educational
benefits.

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justification for a concept I thought long and rightly re-
jected—racial segregation.
2
Moreover one would think, in light of the Court’s decision
in United States v. Virginia, 518 U. S. 515 (1996), that before
being given license to use racial discrimination, the Law
School would be required to radically reshape its admissions
process, even to the point of sacrificing 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 Vir-
ginia, where the 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 re-
lied 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 “experience”
of those institutions that have been forced to abandon ex-
plicit racial discrimination in admissions.

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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 discrimina-
tion in admissions, Boalt’s entering class enrolled 14 blacks
and 36 Hispanics.9 University of California Law and Medi-
cal School Enrollments, available at http://www.ucop.edu/
acadadv/datamgmt/lawmed/law-enrolls-eth2.html. Total un-
derrepresented minority student enrollment at Boalt Hall
now exceeds 1996 levels. Apparently the Law School can-
not be counted on to be as resourceful. The Court is will-
fully blind to the very real experience in California and else-
where, which raises the inference that institutions with
“reputation[s] for excellence,” ante, at 339, rivaling the Law
School’s have satisfied their sense of mission without resort-
ing to prohibited racial discrimination.
V
Putting aside the absence of any legal support for the ma-
jority’s reflexive deference, there is much to be said for the
view that the use of tests and other measures to “predict”
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
8 Cal. Const., Art. 1, § 31(a), states in full:
“The state shall not discriminate against, or grant preferential treat-
ment 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 oper-
ates without violating California law.

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meritocracy ignores the fact that the entire process is poi-
soned by numerous exceptions to “merit.” For example, in
the national debate on racial discrimination in higher educa-
tion 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” meritocracy give the lie to pro-
testations 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 leg-
acy preferences or many other kinds of arbitrary admissions
procedures. What the Equal Protection Clause does pro-
hibit are classifications made on the basis of race. So while
legacy preferences can stand under the Constitution, racial
discrimination cannot.10 I will not twist the Constitution to
invalidate legacy preferences 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 consti-
tutionally protected about “selective” admissions. The Uni-
versity of Michigan should be well aware that alternative
methods have historically been used for the admission of stu-
dents, for it brought to this country the German certificate
system in the late-19th century. See H. Wechsler, The Qual-
ified Student 16–39 (1977) (hereinafter Qualified Student).
Under this system, a secondary school was certified by a uni-
versity so that any graduate who completed the course of-
fered 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 rigor-
10 Were this Court to have the courage to forbid the use of racial discrim-
ination 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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ous subject-matter entrance examinations. Id., at 57–58.
The facially race-neutral “percent plans” now used in Texas,
California, and Florida, see ante, at 340, 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 exer-
cise more control over the composition of their student bod-
ies. Since its inception, selective admissions has been the
vehicle for racial, ethnic, and religious tinkering and experi-
mentation by university administrators. The initial driving
force for the relocation of the selective function from the high
school to the universities was the same desire to select racial
winners and losers that the Law School exhibits today. Co-
lumbia, 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 dis-
criminate 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 Qualified
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 Admission Test (LSAT). Nevertheless, law schools

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continue to use the test and then attempt to “correct” for
black underperformance by using racial discrimination in ad-
missions 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 Law School admitted 37
students—27 of whom were black; 31 of whom were “under-
represented 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’ performance 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 cer-
tainly questionable”).
Having decided to use the LSAT, the Law School must
accept the constitutional burdens that come with this deci-
sion. The Law School may freely continue to employ the
LSAT and other allegedly merit-based standards in what-
ever fashion it likes. What the Equal Protection Clause for-
bids, but the Court today allows, is the use of these stand-
ards 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 his-
torically occurred at this country’s universities, the Law
School’s intractable approach toward admissions 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 plati-

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tudes rather than principle, to force the Law School to aban-
don a decidedly imperfect admissions regime that provides
the basis for racial discrimination.
VI
The absence of any articulated legal principle supporting
the majority’s principal holding suggests another rationale.
I believe what lies beneath the Court’s decision today are
the benighted notions that one can tell when racial discrimi-
nation benefits (rather than hurts) minority groups, see Ada-
rand, 515 U. S., at 239 (Scalia, J., concurring in part and
concurring in judgment), and that racial discrimination is
necessary to remedy general societal ills. This Court’s prec-
edents supposedly settled both issues, but clearly the major-
ity still cannot commit to the principle that racial classifica-
tions 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 rejec-
tion of Adarand’s holding that beneficial and burdensome
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 330–331. But nowhere in any of the filings in this
Court is any evidence that the purported “beneficiaries” of
this racial discrimination prove themselves by performing at
(or even near) the same level as those students who receive
no preferences. Cf. Thernstrom & Thernstrom, Reflections
on the Shape of the River, 46 UCLA L. Rev. 1583, 1605–1608
(1999) (discussing the failure of defenders of racial discrimi-
nation in admissions to consider the fact that its “beneficiar-
ies” 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,

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credentialing process. The Law School is not looking for
those students who, despite a lower LSAT score or under-
graduate 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.
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 re-
stricted to elite institutions. See T. Sowell, Race and Cul-
ture 176–177 (1994) (“Even if most minority students are able
to meet the normal standards at the ‘average’ range of col-
leges and universities, the systematic mismatching of minor-
ity 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 ad-
mission to the review), and in hiring at law firms and for
judicial clerkships—until the “beneficiaries” are no longer
tolerated. While these students may graduate with law de-
grees, 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 ad-
dress the real problems facing “underrepresented minori-
ties,” 11 instead continuing their social experiments on other
people’s children.
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 “under-
represented” 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

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Beyond the harm the Law School’s racial discrimination
visits upon its test subjects, no social science has disproved
the notion that this discrimination “engender[s] attitudes of
superiority or, alternatively, provoke[s] resentment among
those who believe that they have been wronged by the gov-
ernment’s use of race.” Adarand, 515 U. S., at 241 (Thomas,
J., concurring in part and concurring in judgment). “These
programs stamp minorities with a badge of inferiority and
may cause them to develop dependencies or to adopt an atti-
tude that they are ‘entitled’ 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 Respondent Bollinger
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 discrimi-
nation. When blacks take positions in the highest places
of government, industry, or academia, it is an open ques-
tion 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 question itself unfairly marks those
blacks who would succeed without discrimination. Is this
what the Court means by “visibly open”? Ante, at 332.
Finally, the Court’s disturbing reference to the importance
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 discrimination de-
serves discussion. As noted earlier, the Court has soundly
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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rejected the remedying of societal discrimination as a justi-
fication 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 dis-
crimination and erasing racial disproportionalities in the
country’s leadership caste. And if the lack of proportional
racial representation among our leaders is not caused by so-
cietal discrimination, then “fixing” it is even less of a press-
ing 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 rejected. See
Holder v. Hall, 512 U. S. 874, 899 (1994) (Thomas, J., concur-
ring in judgment). The majority appears 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 (Douglas, 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 dis-
crimination 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 for Respondent
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 discrimi-
nation remains unlawful. Ante, at 326–327. Under today’s

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decision, it is still the case that racial discrimination that
does not help a university to enroll an unspecified number,
or “critical mass,” of underrepresented minority students is
unconstitutional. Thus, the Law School may not discrimi-
nate in admissions between similarly situated blacks and
Hispanics, or between whites and Asians. This is so be-
cause preferring black to Hispanic applicants, for instance,
does nothing to further the interest recognized by the major-
ity today.12 Indeed, the majority describes such racial bal-
ancing as “patently unconstitutional.” Ante, at 330. Like
the Court, ante, at 336, I express no opinion as to whether
the Law School’s current admissions program runs afoul of
this prohibition.
B
The Court also holds that racial discrimination in admis-
sions 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 343. While I agree that
in 25 years the practices of the Law School will be illegal,
they are, for the reasons I have given, illegal now. The ma-
jority does not and cannot rest its time limitation on any
evidence that the gap in credentials between black and white
12 That interest depends on enrolling a “critical mass” of underrepre-
sented minority students, as the majority repeatedly states. Ante, at 316,
318, 319, 330, 333, 335, 340; cf. ante, at 333 (referring to the unique experi-
ence of being a “racial minority,” as opposed to being black, or Native
American); ante, at 335–336 (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.”

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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 consti-
tuted 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 compa-
rable numbers were 1.0% and 11.3%. LSAC Statistical Re-
port (2001). No one can seriously contend, and the Court
does not, that the racial gap in academic credentials will dis-
appear in 25 years. Nor is the Court’s holding that racial
discrimination will be unconstitutional in 25 years made con-
tingent 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 346 (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 Respondent Bollinger et al. 5; App. to Pet.
for Cert. 309a (showing that the median LSAT score for all accepted appli-
cants 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 number
of blacks that have scored in these upper ranges on the LSAT has grown,
ante, at 343, 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 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.

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Indeed, the very existence of racial discrimination of the
type practiced by the Law School may impede the narrowing
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 incentive 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 remains
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 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 refusal to
change its admissions policies will itself expire. At that
point these policies will clearly have failed to “ ‘eliminat[e]
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 significantly
lower than whites.

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378 GRUTTER v. BOLLINGER
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the [perceived] need for any racial or ethnic’ ” discrimination
because the academic credentials gap will still be there.
Ante, at 343 (quoting Nathanson & Bartnik, The Constitu-
tionality of Preferential Treatment for Minority 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 343, but I believe this arises
from its refusal to define rigorously the broad state interest
vindicated today. Cf. Part II, supra. With these observa-
tions, 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 Inde-
pendence and the Equal Protection Clause. “Our Constitu-
tion is color-blind, and neither knows nor tolerates 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 remainder 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 govern-
ment must ensure that its means are narrowly tailored to
achieve a compelling state interest. Ante, at 333; 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 govern-

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mental purpose”). I do not believe, however, that the Uni-
versity 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
Respondent Bollinger et al. 13. But its actual program
bears no relation to this asserted goal. Stripped of its “crit-
ical 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. Pen˜ a, 515 U. S. 200, 223 (1995) (quoting Wygant v.
Jackson Bd. of Ed., 476 U. S. 267, 273 (1986) (plurality opin-
ion of Powell, J.)). Our cases establish that, in order to with-
stand 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 judg-
ments] 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 governmental interest”).
Before the Court’s decision today, we consistently applied
the same strict scrutiny analysis regardless of the govern-
ment’s purported reason for using race and regardless 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 mo-
tives should be required when government seeks to allocate
its resources by way of an explicit racial classification sys-
tem.’ ” Adarand, supra, at 226; Fullilove, supra, at 537
(Stevens, J., dissenting) (“Racial classifications are simply
too pernicious to permit any but the most exact connection
between justification and classification”). We likewise re-

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380 GRUTTER v. BOLLINGER
Rehnquist, C. J., dissenting
jected calls to apply more lenient review based on the partic-
ular setting in which race is being used. Indeed, even in
the specific context of higher education, we emphasized that
“constitutional limitations protecting individual rights may
not be disregarded.” Bakke, supra, at 314.
Although the Court recites the language of our strict scru-
tiny analysis, its application of that review is unprecedented
in its deference.
Respondents’ asserted justification for the Law School’s
use of race in the admissions process is “obtaining ‘the edu-
cational benefits that flow from a diverse student body.’ ”
Ante, at 328 (quoting Brief for Respondent Bollinger et al.
i). They contend that a “critical mass” of underrepresented
minorities is necessary to further that interest. Ante, at
330. Respondents and school administrators explain gener-
ally that “critical mass” means a sufficient number of under-
represented 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 op-
portunities for the type of interaction upon which the educa-
tional benefits of diversity depend; and to challenge all stu-
dents to think critically and reexamine stereotypes. See
App. to Pet. for Cert. 211a; Brief for Respondent Bollinger
et al. 26. These objectives indicate that “critical mass” re-
lates to the size of the student 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 accumu-
late a “critical mass” of each underrepresented minority

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group. See, e. g., id., at 49, n. 79 (“The Law School’s . . .
current policy . . . provide[s] a special commitment to enroll-
ing a ‘critical mass’ of ‘Hispanics’ ”). But the record dem-
onstrates that the Law School’s admissions practices with
respect to these groups differ dramatically and cannot be
defended under any consistent use of the term “critical
mass.”
From 1995 through 2000, the Law School admitted be-
tween 1,130 and 1,310 students. Of those, between 13 and
19 were Native American, between 91 and 108 were
African-American, and between 47 and 56 were Hispanic. If
the Law School is admitting between 91 and 108 African-
Americans in order to achieve “critical mass,” thereby pre-
venting African-American students from feeling “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 pos-
sibly constitute a “critical mass” of Native Americans in a
class of over 350 students? In order for this pattern of ad-
mission to be consistent with the Law School’s explanation
of “critical mass,” one would have to believe that the objec-
tives 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 im-
portance of achieving “critical mass,” without any explana-
tion of why that concept is applied differently among the
three underrepresented minority groups.
*Indeed, during this 5-year time period, enrollment of Native American
students dropped to as low as three such students. Any assertion that
such a small group constituted a “critical mass” of Native Americans is
simply absurd.

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382 GRUTTER v. BOLLINGER
Rehnquist, C. J., dissenting
These different numbers, moreover, come only as a result
of substantially different treatment among the three under-
represented 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 underrep-
resented minority applicants (and other nonminority appli-
cants) who are rejected.” Ante, at 338 (citing Brief for Re-
spondent Bollinger et al. 10). Specifically, the Law School
states that “[s]ixty-nine minority applicants were rejected
between 1995 and 2000 with at least a 3.5 [Grade Point Aver-
age (GPA)] and a [score of] 159 or higher on the [Law School
Admission Test (LSAT)]” while a number of Caucasian and
Asian-American applicants with similar or lower scores were
admitted. Ibid.
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 example, in
2000, 12 Hispanics who scored between a 159–160 on the
LSAT and earned a GPA of 3.00 or higher applied for admis-
sion and only 2 were admitted. App. 200–201. Meanwhile,
12 African-Americans in the same range of qualifications ap-
plied for admission and all 12 were admitted. Id., at 198.
Likewise, that same year, 16 Hispanics 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 petitioner’s
case. Respondents have never offered any race-specific ar-
guments explaining why significantly more individuals from
one underrepresented minority group are needed in order
to achieve “critical mass” or further student body diversity.
They certainly have not explained why Hispanics, who they

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383 Cite as: 539 U. S. 306 (2003)
Rehnquist, C. J., dissenting
have said are among “the groups most isolated by racial bar-
riers in our country,” should have their admission capped out
in this manner. Brief for Respondent Bollinger et al. 50.
True, petitioner is neither Hispanic nor Native American.
But the Law School’s disparate admissions practices with re-
spect to these minority groups demonstrate that its alleged
goal of “critical 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 underrepre-
sented minorities in preference to her. Surely strict scru-
tiny cannot permit these sorts 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 inter-
est in merely “ ‘assur[ing] within its student body some spec-
ified percentage of a particular group merely because of its
race or ethnic origin.’ ” Ante, at 329 (quoting Bakke, 438
U. S., at 307 (opinion of Powell, J.)). The Court recognizes
that such an interest “would amount to outright racial bal-
ancing, which is patently unconstitutional.” Ante, at 330.
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 336 (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 mi-
nority groups and the percentage of the admitted applicants
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.

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384 GRUTTER v. BOLLINGER
Rehnquist, C. J., dissenting
Table 1
% of
% of Number of Number of admitted
Number of applicants applicants African- applicants
Number of African- who were admitted American who were
law school American African- by the law applicants African-
Year applicants applicants American school admitted American
1995 4147 404 9.7% 1130 106 9.4%
1996 3677 342 9.3% 1170 108 9.2%
1997 3429 320 9.3% 1218 101 8.3%
1998 3537 304 8.6% 1310 103 7.9%
1999 3400 247 7.3% 1280 91 7.1%
2000 3432 259 7.5% 1249 91 7.3%
Table 2
Number of % of
% of applicants Number of admitted
Number of Number of applicants admitted Hispanic applicants
law school Hispanic who were by the law applicants who were
Year applicants applicants Hispanic school admitted Hispanic
1995 4147 213 5.1% 1130 56 5.0%
1996 3677 186 5.1% 1170 54 4.6%
1997 3429 163 4.8% 1218 47 3.9%
1998 3537 150 4.2% 1310 55 4.2%
1999 3400 152 4.5% 1280 48 3.8%
2000 3432 168 4.9% 1249 53 4.2%
Table 3
% of
% of Number of Number of admitted
Number of applicants applicants Native applicants
Number of Native who were admitted American who were
law school American Native by the law applicants Native
Year applicants applicants American school admitted American
1995 4147 45 1.1% 1130 14 1.2%
1996 3677 31 0.8% 1170 13 1.1%
1997 3429 37 1.1% 1218 19 1.6%
1998 3537 40 1.1% 1310 18 1.4%
1999 3400 25 0.7% 1280 13 1.0%
2000 3432 35 1.0% 1249 14 1.1%

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385 Cite as: 539 U. S. 306 (2003)
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. Respond-
ents themselves emphasize that the number of underrepre-
sented 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
Respondent Bollinger et al. 6 (quoting App. to Pet. for Cert.
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 suggests
a formula for admission based on the aspirational assump-
tion that all applicants are equally qualified academically,
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 Respondent 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 phenomenon,
they attempt to obscure it. See id., at 32, n. 50 (“The Law
School’s minority enrollment percentages . . . diverged from
the percentages in the applicant pool by as much as 17.7%
from 1995–2000”). But the divergence between the percent-
ages 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 demonstrate, clearly does employ racial pref-
erences in extending offers of admission. Indeed, the osten-
sibly flexible nature of the Law School’s admissions program

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386 GRUTTER v. BOLLINGER
Rehnquist, C. J., dissenting
that the Court finds appealing, see ante, at 337–338, appears
to be, in practice, a carefully managed program designed to
ensure proportionate representation of applicants from se-
lected 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 of-
fered no explanation for its actual admissions practices and,
unexplained, we are bound to conclude that the Law School
has managed its admissions program, not to achieve a “criti-
cal 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 “pat-
ently unconstitutional.” Ante, at 330.
Finally, I believe that the Law School’s program fails strict
scrutiny because it is devoid of any reasonably precise time
limit on the Law School’s use of race in admissions. We
have emphasized that we will consider “the planned duration
of the remedy” in determining whether a race-conscious pro-
gram 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 rem-
edies are appropriate, we look to several factors, including
the . . . duration of the relief ”). Our previous cases have
required some limit on the duration 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 343. Respond-
ents, on the other hand, remain more ambiguous, explain-
ing that “[t]he Law School of course recognizes that race-
conscious programs must have reasonable durational limits,
and the Sixth Circuit properly found such a limit in the Law
School’s resolve to cease considering race when genuine
race-neutral alternatives become available.” Brief for Re-
spondent Bollinger et al. 32. These discussions of a time

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387 Cite as: 539 U. S. 306 (2003)
Kennedy, J., dissenting
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 component 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 pro-
gram despite its obvious flaws. We have said that when it
comes to the use of race, the connection between 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 Protection Clause of the
Constitution.
Justice Kennedy, dissenting.
The separate opinion by Justice Powell in Regents of Univ.
of Cal. v. Bakke, 438 U. S. 265, 289–291, 315–318 (1978), 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 judiciary. 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 univer-
sity admissions reflected a tradition, grounded in the First
Amendment, of acknowledging a university’s conception of
its educational mission. Id., at 312–314; ante, at 329. Our
precedents provide a basis for the Court’s acceptance of a
university’s considered judgment that racial diversity among

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388 GRUTTER v. BOLLINGER
Kennedy, J., dissenting
students can further its educational task, when supported by
empirical evidence. Ante, at 329–331.
It is unfortunate, however, that the Court takes the first
part of Justice Powell’s rule but abandons the second. Hav-
ing approved the use of race as a factor in the admissions
process, the majority proceeds to nullify the essential safe-
guard 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 examina-
tion”). This Court has reaffirmed, subsequent to Bakke, the
absolute necessity of strict scrutiny when the State uses race
as an operative category. Adarand Constructors, Inc. v.
Pen˜ a, 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.,
concurring 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 po-
tential to destroy confidence in the Constitution 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 perfunctory,
accepts the University of Michigan Law School’s (Law

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389 Cite as: 539 U. S. 306 (2003)
Kennedy, J., dissenting
School) assurances that its admissions process meets with
constitutional requirements. The majority fails to confront
the reality of how the Law School’s admissions policy is im-
plemented. 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 330; see
also Bakke, supra, at 307 (opinion of Powell, J.). It remains
to point out how critical mass becomes inconsistent with indi-
vidual consideration in some more specific aspects of the ad-
missions process.
About 80% to 85% of the places in the entering class are
given to applicants in the upper range of Law School Admis-
sions Test scores and grades. An applicant with these cre-
dentials likely will be admitted without consideration of race
or ethnicity. With respect to the remaining 15% to 20% of
the seats, race is likely outcome determinative for many
members of minority groups. That is where the competition
becomes tight and where any given applicant’s chance of ad-
mission 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 individual review.
The Law School has not demonstrated how individual con-
sideration is, or can be, preserved at this stage of the applica-
tion process given the instruction to attain what it calls criti-
cal mass. In fact the evidence shows otherwise. There
was little deviation among admitted minority students dur-
ing 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 ex-
tended 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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390 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 fluc-
tuations among enrolled minorities in the preceding years,
1987–1994, by as much as 5% or 6%. The percentage of mi-
nority 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 in-
ference 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 percent-
age 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 Respondent Bollinger et al. 49, n. 79.
Percentage
of enrolled
minority
Year students
1987 12.3%
1988 13.6%
1989 14.4%
1990 13.4%
1991 19.1%
1992 19.8%
1993 14.5%
1994 20.1%
1995 13.5%
1996 13.8%
1997 13.6%
1998 13.8%
The narrow fluctuation band raises an inference that the
Law School subverted individual determination, and strict

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391 Cite as: 539 U. S. 306 (2003)
Kennedy, J., dissenting
scrutiny requires the Law School to overcome the inference.
Whether the objective of critical mass “is described as a
quota or a goal, it is a line drawn on the basis of race and
ethnic status,” and so risks compromising individual assess-
ment. 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 African-American background dur-
ing 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 enrolled,
despite having a comparable class size.
The Law School has the burden of proving, in conformance
with the standard of strict scrutiny, that it did not utilize
race in an unconstitutional way. Adarand Constructors, 515
U. S., at 224. At the very least, the constancy of admitted
minority students and the close correlation between the ra-
cial breakdown of admitted minorities and the composition
of the applicant pool, discussed by The Chief Justice, ante,
at 380–386, require the Law School either to produce a con-
vincing 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 389. The admissions officers consulted the
daily reports which indicated the composition of the incom-
ing class along racial lines. As Dennis Shields, Director of
Admissions from 1991 to 1996, stated, “the further [he] went
into the [admissions] season the more frequently [he] would

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392 GRUTTER v. BOLLINGER
Kennedy, J., dissenting
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 makeup 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.” Deposition of Dennis Shields in Civ. Action No. 97–
75928, pp. 129–130, 141 (ED Mich., Dec. 7, 1998).
The consultation of daily reports during the last stages in
the admissions process suggests there was no further at-
tempt at individual review save for race itself. The admis-
sions 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 objec-
tive set by the Law School.
The Law School made no effort to guard against this dan-
ger. It provided no guidelines to its admissions personnel
on how to reconcile individual assessment with the direc-
tive to admit a critical mass of minority students. The
admissions program could have been structured to elimi-
nate at least some of the risk that the promise of individ-
ual evaluation was not being kept. The daily consideration
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 in-
stance, do not keep ongoing tallies of racial or ethnic compo-
sition of their entering students. See Brief for Amherst
College et al. as Amici Curiae 10.
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

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393 Cite as: 539 U. S. 306 (2003)
Kennedy, J., dissenting
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 burden 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 admin-
istrators 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 Admis-
sions from 1979 to 1990, explained the difficulties he encoun-
tered in defining racial groups entitled to benefit under the
Law School’s affirmative action policy. He testified that fac-
ulty 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 Cu-
bans should be counted as Hispanics: One professor objected
on the grounds that Cubans were Republicans. Many aca-
demics 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, Affirma-
tive Action: Past, Present, and Future, 20 Yale L. & Pol’y
Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U. Pa. J. Const.
L. 573, 577–578 (2000); Rubenfeld, Affirmative 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

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394 GRUTTER v. BOLLINGER
Kennedy, J., dissenting
traditions. It is but further evidence of the necessity for
scrutiny that is real, not feigned, where the corrosive cate-
gory of race is a factor in decisionmaking. Prospective stu-
dents, the courts, and the public can demand that the State
and its law schools prove their process is fair and constitu-
tional 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 341–343. If it is intended to miti-
gate the damage the Court does to the concept of strict scru-
tiny, neither petitioner nor other rejected law school appli-
cants 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 admissions
schemes, that would force educational institutions to seri-
ously explore race-neutral alternatives. The Court, by con-
trast, 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 343 (quoting Brief for Respondent
Bollinger et al. 34).
If universities are given the latitude to administer pro-
grams that are tantamount to quotas, they will have few in-
centives to make the existing minority admissions schemes
transparent and protective of individual review. The un-
happy consequence will be to perpetuate the hostilities that
proper consideration of race is designed to avoid. The per-
petuation, of course, would be the worst of all outcomes.
Other programs do exist which will be more effective in

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Kennedy, J., dissenting
bringing about the harmony and mutual respect 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 consid-
ered 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 con-
text absent searching judicial review. For these reasons,
though I reiterate my approval of giving appropriate consid-
eration to race in this one context, I must dissent in the
present case.