affirmative action case
certiorari to the
No. 02-516. Argued
Petitioners Gratz and Hamacher,
both of whom are
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 injunction prohibiting respondents
from continuing to discriminate on the basis of race, and an order requiring
the LSA to offer Hamacher admission as a transfer
student. The District Court granted petitioners' motion 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 Univ. of Cal. v.
Bakke, 438
Held:
1. Petitioners have standing to seek
declaratory and injunctive relief. The Court rejects Justice Stevens'
contention that, because Hamacher 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.
2. Because the University's use of race
in its current freshman admissions 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 15-21, 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, Justice
Powell explained his view that it would be permissible for a
university to employ an admissions program in which "race or ethnic background
may be deemed a 'plus' in a particular applicant's file." 438
3. Because the University's use of race
in its current freshman admissions policy violates the Equal Protection Clause,
it also violates Title VI and §1981. See, e.g., Alexander
v. Sandoval, 532
Reversed in part and remanded.
Rehnquist, C. J. delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. O'Connor, J., filed a concurring opinion, in which Breyer, J., joined in part. Thomas, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, J., joined. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined as to Part II. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined, and in which Breyer, J., joined as to Part I.
JENNIFER GRATZ and
PATRICK HAMACHER,
PETITIONERS v.
on writ of certiorari to the
appeals for the sixth circuit
[
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 undergraduate 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 for Petitioners i. Because we find that the manner in which the University considers the race of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Court's decision upholding the guidelines.
I
A
Petitioners Jennifer Gratz
and Patrick Hamacher both applied for admission to
the
Hamacher applied for
admission to the LSA for the fall of 1997. A final decision as to his
application was also postponed 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
In October 1997, Gratz
and Hamacher filed a lawsuit in the United States
District Court for the Eastern District of Michigan against the University of
Michigan, the LSA,2 James Duderstadt, and Lee
Bollinger.3 Petitioners' complaint was a class-action suit alleging
"violations and threatened violations of the rights of the plaintiffs and
the class they represent 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
nondiscriminatory 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
The District Court granted petitioners' motion
for class certification after determining that a class action was appropriate
pursuant to Federal Rule of Civil Procedure
23(b)(2). The certified class consisted of "those individuals who applied
for and were not granted admission to the College of Literature, Science and
the Arts of the University of Michigan for all academic years from 1995 forward
and who are members of those racial or ethnic groups, including Caucasian, that
defendants treated 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 challenge a " 'practice
of racial discrimination pervasively applied on a classwide
basis,' " was designated as the class representative.
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 Admissions (OUA) oversees the LSA admissions process.6 In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines 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 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. App. to Pet. for Cert. 111a.
During 1995 and 1996, OUA counselors evaluated
applications according to grade point average combined with what were referred
to as the "SCUGA" factors. These factors included the quality of an
applicant's high school (S), the strength of an applicant's high school
curriculum (C), an applicant's unusual circumstances (U), an applicant's
geographical 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 referenced a set of "Guidelines"
tables, which listed GPA 2 ranges on the vertical axis, and American College
Test/Scholastic Aptitude Test (ACT/
In both years, applicants with the same GPA 2
score and ACT/
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 underrepresented minority status, socioeconomic
disadvantage, or attendance at a high school with a predominantly
underrepresented 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 postponement of a final admissions decision. An underrepresented
minority applicant placed in the same cell would generally have been admitted.
Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a "selection index," on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows: 100-150 (admit); 95-99 (admit or postpone); 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 quality 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" category, 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 " 'development of the selection index for admissions in 1998 changed only the mechanics, not the substance of how race and ethnicity were considered in admissions.' " App. to Pet. for Cert. 116a.
In all application years from 1995 to 1998, the guidelines provided that qualified applicants from underrepresented minority 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 rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of "protected seats." Specific groups--including athletes, foreign students, ROTC candidates, and underrepresented 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 receive 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 candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates 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 composition of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented race, ethnicity, or geography. After reviewing "flagged" applications, 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
The District Court began its analysis by reviewing this Court's decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED Mich. 2001). Although the court acknowledged that no decision 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 diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling 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 educational benefits that flow from a racially and ethnically diverse student body. See 122 F. Supp. 2d, at 827. The court emphasized 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 objectionable in Bakke on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, at 828-829. The court also dismissed petitioners' assertion that the LSA's current system is nothing more than a means by which to achieve racial balancing. See id., at 831. The court explained that the LSA does not seek to achieve a certain proportion of minority students, let alone a proportion that represents the 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 "protecting" or "reserving" seats for underrepresented minority 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' motion for summary judgment with respect to the LSA's admissions programs in existence from 1995 through 1998, and respondents' motion with respect to the LSA's admissions programs for 1999 and 2000. See id., at 833. Accordingly, the District Court denied petitioners' request for injunctive relief. See id., at 814.
The District Court issued an order consistent
with its rulings and certified two questions for interlocutory appeal to the
Sixth Circuit pursuant to 28 U. S. C. §1292(b). Both parties appealed
aspects of the District Court's rulings, and the Court of Appeals heard the
case en banc on the same day as Grutter v.
Bollinger. The Sixth Circuit later issued an opinion 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.
Petitioners asked this Court to grant certiorari in this case as 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
II
As they have throughout the course of this litigation, petitioners 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
injunctive 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
transfer student[,] [h]is claim of future injury is at
best 'conjectural or hypothetical' rather than 'real and immediate.' " Post, at 5 (dissenting opinion). But whether Hamacher "actually
applied" for admission as a transfer student is not 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
Stevens means that because Hamacher did not
apply to transfer, he must never really have intended to do so, that
conclusion directly conflicts with the finding of fact entered by the District
Court that Hamacher "intends to transfer to the
It is well established that intent may be
relevant to standing in an Equal Protection challenge. In Clements v. Fashing, 457
In bringing his equal protection challenge against the University's use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Hamacher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been 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 undergraduate admissions.
Justice Stevens raises a second argument as to standing. He contends that the University's use of race in undergraduate transfer admissions differs from its use of race in undergraduate freshman admissions, and that therefore Hamacher lacks standing to represent absent class members challenging the latter. Post, at 5 (dissenting opinion). As an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.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 undergraduate
admissions and its asserted justification of promoting "diversity."
See, e.g., App. 38; Brief for Petitioners 13. Consistent with this
challenge, petitioners requested injunctive relief prohibiting respondent
"from continuing to discriminate on the basis of race." App. 40. They sought to certify a class consisting of all
individuals who were not members of an underrepresented minority group who either
had applied for admission to the LSA and been rejected or who intended to apply
for admission to the LSA, for all academic years from 1995 forward.
Justice Stevens cites Blum
v. Yaretsky, 457
In the present case, the University's use of
race in undergraduate transfer admissions does not implicate a significantly
different set of concerns than does its use of race in undergraduate freshman
admissions. Respondents challenged 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
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 procedure to evaluate both
applicants for employment and incumbent employees, a class action on behalf of
every applicant or employee who might have been prejudiced by the test clearly
would satisfy the ... requirements of Rule 23(a)."
admissions.
B
Petitioners argue, first and foremost, that
the University's use of race in undergraduate admissions violates the
Fourteenth Amendment. Specifically, they contend that this Court has only
sanctioned the use of racial classifications to remedy identified
discrimination, a justification on which respondents have never relied. Brief for Petitioners 15-16. Petitioners further argue that
"diversity as a basis for employing racial preferences is simply too
open-ended, ill-defined, and indefinite to constitute a compelling interest
capable of supporting narrowly-tailored means."
Petitioners alternatively argue that even if
the University's interest in diversity can constitute a compelling state interest,
the District Court erroneously concluded that the University's use of race in
its current freshman admissions policy is narrowly tailored to achieve such an
interest. Petitioners 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
University's current admissions program is narrowly tailored and
avoids the problems of the Medical School of the University 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
It is by now well established that "all
racial classifications reviewable under the Equal Protection Clause must be
strictly scrutinized." Adarand Constructors, Inc. v. Peņa,
515
To withstand our strict scrutiny analysis,
respondents must demonstrate that the University's use of race in its current
admission program employs "narrowly tailored measures that further
compelling governmental interests."
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
Justice Powell's opinion in Bakke emphasized 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, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See id., at 315. See also Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 618 (1990) (O'Connor, J., dissenting) (concluding that the FCC's policy, which "embodie[d] the related notions that a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants because [the applicant is] 'likely to provide [a] distinct perspective,' "impermissibly value[d] 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 individualized consideration. The LSA's policy automatically distributes 20 points to every single applicant from an "underrepresented minority" group, as defined by the University. The only consideration that accompanies this distribution of 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 discussed in,
and attached to, his opinion in Bakke. The
example was included to "illustrate the kind of significance attached to
race" under the
"The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior 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 dependent 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 "extraordinary 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 students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA's system does not offer applicants the individualized selection process described in Harvard's example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his "extraordinary talent."20
Respondents emphasize the fact that the LSA has created the possibility of an applicant's file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the University's system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted. Student A, an applicant "with promise of superior academic performance," would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the University would never consider student A's individual background, experiences, and characteristics to assess his individual "potential contribution to diversity," Bakke, supra, at 317. Instead, every applicant like student A would simply be admitted.
It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the "review committee can look at the applications individually and ignore the points," once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this 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 executed based on selection index score parameters set by the EWG").21 Additionally, 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 underrepresented minority applicant.
Respondents contend that "[t]he volume of
applications and the presentation of applicant information make it impractical
for [LSA] to use the ... admissions system" upheld by the Court today in Grutter. Brief for Respondents 6, n. 8. But
the fact that the implementation of a program capable of providing
individualized consideration might present administrative challenges does not
render constitutional an otherwise problematic system. See J. A. Croson Co., 488
We conclude, therefore, that because the
University's use of race in its current freshman admissions policy is not
narrowly tailored to achieve respondents' asserted compelling interest in
diversity, the admissions policy violates the Equal Protection Clause of the
Fourteenth Amendment.22 We further find that the admissions policy also
violates Title VI and 42
It is so ordered.
JENNIFER
GRATZ and PATRICK HAMACHER,
PETITIONERS v.
on writ of certiorari to the
appeals for the sixth circuit
[
Justice O'Connor, concurring.**
I
Unlike the law school admissions policy the
Court upholds today in Grutter v. Bollinger,
post, p. 1, the procedures employed by the
On cross-motions for summary judgment, the District Court held that the admissions policy the University instituted in 1999 and continues to use today passed constitutional muster. See 122 F. Supp. 2d 811, 827 (ED Mich. 2001). 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 admissions counselor turns to a Selection Index Worksheet to calculate the applicant's selection index score out of 150 maximum 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]." App. 256.
In calculating an applicant's selection index
score, counselors 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 performance, and up to 40 points can be assigned for the other,
nonacademic factors.
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 Admissions 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 committee meets periodically to discuss the files of "flagged" applicants not already admitted based on the selection index parameters. App. 275. After discussing each flagged application, the committee decides whether to admit, defer, or deny the applicant. Ibid.
Counselors may flag an applicant for review by the committee 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 qualities valued by the University. These qualities include "high class rank, unique life experiences, challenges, circumstances, 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 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 applicant'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 geographic 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 accomplishments--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 diversity factors "the same weight," 438 U. S., at 317, and the "weight attributed to a particular quality may vary from year to year depending on 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, predetermined point allocations for the soft variables, ensures that the diversity contributions of applicants cannot be individually 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 contributions each applicant is likely to make to the diversity of the incoming class. See Grutter v. Bollinger, post, at 22 ("[T]he Law School's race-conscious admissions program adequately ensures that all factors that may contribute to student 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 evidence in the record, however, reveals very little about how the review committee actually functions. And what evidence there is indicates that the committee is a kind of afterthought, rather than an integral component of a system of individualized review. As the Court points out, it is undisputed that the " '[committee] reviews only a portion of all the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the [Enrollment Working Group].' " Ante, at 26 (quoting App. to Pet for Cert. 117a). Review by the committee thus represents a necessarily limited exception to the Office of Undergraduate Admissions' general reliance on the selection index. Indeed, the record does not reveal how many applications 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, eligibility for consideration by the committee is itself based on automatic cut-off levels determined with reference to selection index scores. And there is no evidence of how the decisions are actually made--what type of individualized consideration is or is not used. Given these circumstances, the addition of the Admissions Review Committee to the admissions process cannot offset the apparent absence of individualized consideration from the Office of Undergraduate Admissions' general practices.
For these reasons, the record before us does
not support the conclusion that the
JENNIFER
GRATZ and PATRICK HAMACHER,
PETITIONERS v.
on writ of certiorari to the
appeals for the sixth circuit
[
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. ___. For similar reasons to those given in my separate opinion in that case, see post, p. ___ (opinion concurring in part and dissenting in part), however, I would hold that a State's use of racial discrimination in higher education 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" included within its definition of underrepresented minorities, Grutter, post, at 24 (opinion of the Court); post, at 27 (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 nonracial distinctions among underrepresented minority applicants. Under today's decisions, a university may not racially discriminate between the groups constituting the critical mass. See ibid.; Grutter, post, at 17 (opinion of the Court) (stating that such "racial balancing ... is patently unconstitutional"). An admissions policy, however, must allow for consideration of these nonracial distinctions among applicants on both sides of the single permitted racial classification. See ante, at 24 (opinion of the Court); ante, at 1-2 (O'Connor, J., concurring).
JENNIFER
GRATZ and PATRICK HAMACHER,
PETITIONERS v.
on writ of certiorari to the
appeals for the sixth circuit
[
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 Court's reversal of the
District Court's
decision. I agree with Justice Ginsburg that, in implementing the
Constitution's equality instruction, government decisionmakers
may properly distinguish between policies of inclusion and exclusion, post,
at 4, for the former are more likely to prove consistent with the basic
constitutional obligation that the law respect each individual equally, see
U. S. Const., Amdt. 14.
JENNIFER GRATZ and
PATRICK HAMACHER,
PETITIONERS v.
on writ of certiorari to the
appeals for the sixth circuit
[
Justice Stevens, with whom Justice Souter joins, dissenting.
Petitioners seek forward-looking relief
enjoining the
I
Petitioner Jennifer Gratz
applied in 1994 for admission to the
At the class certification stage, petitioners
sought to have Hamacher represent a class pursuant to
Federal Rule Civil Procedure 23(b)(2).2 See App. 71, n. 3. In response,
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 that
II
Both Hamacher and Gratz, of course, have standing to seek damages as
compensation for the alleged wrongful denial of their respective applications
under
Even though there is not a scintilla of
evidence that the freshman admissions program now being administered by
respondents 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 Michigan 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 admission as a transfer student at
Second, as petitioners' counsel conceded at
oral argument, the transfer policy is not before this Court and was not
addressed by the District Court. See Tr. of Oral Arg.
4-5 (admitting that "[t]he transfer admissions policy itself is not before
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
discussed anywhere in the parties' briefs. Nor is it ever even referenced in
the District Court's
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
The majority asserts that petitioners
"have challenged any use of race by the University in
undergraduate admissions"--freshman and transfer alike. Ante,
at 18, n. 16 (emphasis in original). Yet when questioned at oral
argument 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 absolute rule forbidding any use of race under any circumstances.
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 permissible use of race is as a remedy for past discrimination,
petitioners' lawyer stated: "I would not go that far. . . . [T]here may be
other reasons. I think they would have to be extraordinary and rare... ."
Because Michigan's transfer policy was not
challenged by petitioners and is not before this Court, see supra, at
5, 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 interest. Petitioners' counsel was therefore
incorrect in asserting at oral argument that if the University's asserted
interest 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
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 behalf 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 interests 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 representative 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 Organization, 426
"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
Much like the class
representatives in Blum, Hamacher--the sole
class representative in this case--cannot meet Article III's
threshold personal-stake requirement. While unidentified members of the class
he represents may well have standing to challenge
IV
As this case comes to us, our precedents leave us no alternative but to dismiss the writ for lack of jurisdiction. Neither 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 have standing to litigate on behalf of themselves. Accordingly, I respectfully dissent.
JENNIFER GRATZ and
PATRICK HAMACHER,
PETITIONERS v.
on writ of certiorari to the
appeals for the sixth circuit
[
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
undergraduate college's transfer policy and its freshman admissions policy seek
to achieve student body diversity through the "use of race," ante,
at 12-20, 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 decision, freshman or transfer, ante, at 18. The Court
concludes 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 18, n. 16 ("[P]etitioners challenged any
use of race by the University to promote diversity, including through the
transfer policy"); ibid. (" '[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
critique that the Court thus ignores the basic principle of Article III
standing that a plain-
tiff cannot challenge a government program that does
not apply to him. See ante, at 6, and n. 6 (dissenting opinion).1
But even on the Court's indulgent standing theory, the decision should not go beyond a recognition that diversity can serve as a compelling state interest justifying race-conscious decisions in education. Ante, at 20 (citing Grutter v. Bollinger, post, at 15-21). Since, as the Court says, "petitioners did not raise a narrow tailoring challenge to the transfer policy," ante, at 18, 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 standing is presumably spent. The further question whether the freshman admissions plan is narrowly tailored to achieving student body diversity remains legally irrelevant to Hamacher and should await a plaintiff who is actually hurt by it.<