The following questions are for you to consider and help guide your reading as you prepare for our Module 7.

MODULE 7

BLOCK 1

1.  What was the regulation being challenged in Washington v. Davis? Why did the Court view the law as not discriminatory?  Does that make sense?

 2.  In Village of Arlington Heights, what does the Court hold are the types of permissible evidence to show that the government had a discriminatory purpose underlying a facially neutral law?

BLOCKS 2 & 3

1.  What are the main features of government-adopted voluntary affirmative action programs? What are the stated goals of such a program?  Is there any reason to doubt or suspect the government’s “benign” motives in enacting affirmative action programs?

2.  Can you think of arguments supporting the claim that affirmative action programs should be reviewed under strict scrutiny? Can you think of arguments supporting the claim that they should be subject to a more lenient intermediate scrutiny standard?  What are they, and which are more persuasive?

3.  In City of Richmond v. Croson, what does the plurality say the appropriate standard of review is in an equal protection challenge to an affirmative action program in government contracting? What does the Court say about the application of that standard to the facts in that case?  What were the most important facts the Court used to strike down the program?

4.  In Part IV of Justice O’Connor’s plurality decision in Croson, she describes the parameters that would be necessary to establish a government affirmative action program that would not violate the equal protection clause. What is Justice Scalia’s concern about this discussion, as articulated in his concurrence? 

5.  What are the most important differences between the affirmative action program adopted by the University of North Carolina in Students for Fair Admissions differ from Richmond’s program in Croson? Does the Court suggest that a different standard applies to affirmative action programs in higher education as opposed to in government contracting?  Or that the interests are different in the education context?

BLOCK 4

1.  We have discussed at length the justifications for treating the government’s explicit racial and national origin classifications with strict scrutiny. When the government adopts explicit gender classifications, do the same reasons apply?  Why or why not?

2.  How does “intermediate” scrutiny differ from strict scrutiny? Do you think this standard of review is sufficient to safeguard against gender discrimination by the government?

3.  In Craig v. Boren, the Oklahoma drinking age law, while explicitly gender based, seems to burden males, rather than females. What arguments might you make that intermediate scrutiny should still apply in an equal protection challenge to that law?

Mr. Justice WHITE delivered the opinion of the Court.

This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department.

This action began on April 10, 1970, when two Negro police officers filed suit against the then Commissioner of the District of Columbia, the Chief of the District's Metropolitan Police Department, and the Commissioners of the United States Civil Service Commission. The respondents Harley and Sellers were permitted to intervene, their amended complaint asserting that their applications to become officers in the Department had been rejected, and that the Department's recruiting procedures discriminated on the basis of race against black applicants by a series of practices including, but not limited to, a written personnel test which excluded a disproportionately high number of Negro applicants. These practices were asserted to violate respondents' rights “under the due process clause of the Fifth Amendment to the United States Constitution [as well as separate statutory claims].

According to the findings and conclusions of the District Court, to be accepted by the Department and to enter an intensive 7-week training program, the police recruit was required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on “Test 21,” which is “an examination that is used generally throughout the federal service,” which “was developed by the Civil Service Commission, not the Police Department,” and which was “designed to test verbal ability, vocabulary, reading and comprehension.”

The validity of Test 21 was the sole issue before the court on the motions for summary judgment. The District Court noted that there was no claim of “an intentional discrimination or purposeful discriminatory acts” but only a claim that Test 21 bore no relationship to job performance and “has a highly discriminatory impact in screening out black candidates.” Respondents' evidence, the District Court said, warranted three conclusions: “(a) The number of black police officers, while substantial, is not proportionate to the population mix of the city. (b) A higher percentage of blacks fail the Test than whites. (c) The Test has not been validated to establish its reliability for measuring subsequent job performance.” This showing was deemed sufficient to shift the burden of proof to the defendants in the action, petitioners here; but the court nevertheless concluded that on the undisputed facts respondents were not entitled to relief.

The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. Bolling v. Sharpe, 347 U.S. 497 (1954). But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.

Almost 100 years ago, Strauder v. West Virginia, 100 U.S. 303 (1880), established that the exclusion of Negroes from grand and petit juries in criminal proceedings violated the Equal Protection Clause, but the fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the Clause. “A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination."

The rule is the same in other contexts. . . . The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of de jure segregation is “a current condition of segregation resulting from intentional state action."

This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law's disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins, 118 U.S. 356 (1886). It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an “unequal application of the law . . . as to show intentional discrimination.” A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community, With a prima facie case made out, “the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.”

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, McLaughlin v. Florida, 379 U.S. 184 (1964), that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.

There are some indications to the contrary in our cases. In Palmer v. Thompson, 403 U.S. 217 (1971), the city of Jackson, Miss., following a court decree to this effect, desegregated all of its public facilities save five swimming pools which had been operated by the city and which, following the decree, were closed by ordinance pursuant to a determination by the city council that closure was necessary to preserve peace and order and that integrated pools could not be economically operated. Accepting the finding that the pools were closed to avoid violence and economic loss, this Court rejected the argument that the abandonment of this service was inconsistent with the outstanding desegregation decree and that the otherwise seemingly permissible ends served by the ordinance could be impeached by demonstrating that racially invidious motivations had prompted the city council's action. The holding was that the city was not overtly or covertly operating segregated pools and was extending identical treatment to both whites and Negroes. The opinion warned against grounding decision on legislative purpose or motivation, thereby lending support for the proposition that the operative effect of the law rather than its purpose is the paramount factor. But the holding of the case was that the legitimate purposes of the ordinance to preserve peace and avoid deficits were not open to impeachment by evidence that the councilmen were actually motivated by racial considerations. Whatever dicta the opinion may contain, the decision did not involve, much less invalidate, a statute or ordinance having neutral purposes but disproportionate racial consequences.

As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies “any person . . . equal protection of the laws” simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective police recruits.

Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue.

Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be “validated” in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. We are not disposed to adopt this more rigorous standard for the purposes of applying the Fifth and the Fourteenth Amendments in cases such as this.

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.

Mr. Justice STEWART joins Parts I and II of the Court's opinion.

[An opinion by Justice STEVENS, concurring, has been omitted]

[An opinion by Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting, has been omitted. The dissenting opinion focused largely on the dissenters’ argument that the majority (in excerpts taken edited out of this version of the case) should not have reached and decided the statutory issue regarding the application of Title VII in this case.]

An important question left open after Washington v. Davis was how to define the discriminatory purpose that would trigger the application of strict scrutiny rather than rational basis review. In subsequent cases, the Court has addressed that question directly.

In Personnel. Adm'r of Massachusetts v. Feeney, 442 U.S. 256 (1979), the Court reviewed a state law program that gave preference in hiring for governmental jobs to military veterans. Plaintiffs challenged the law as violating the equal protection clause because the program disproportionately benefited men, and therefore discriminated against women. Even though the disproportionate effect was significant (over 98% of the veterans in Massachusetts were male, while only 1.8% were female), the Court held that the plaintiffs could not show discriminatory purpose. Even though the legislature was likely aware that the law would benefit men disproportionately, that was not sufficient.

The Court wrote that “’Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Id. at 279. The Court has subsequently held that the same standard applies to cases claiming disproportionate negative impact based on race. McCleskey v. Kemp, 481 U.S. 279, 298 (1987)

Mr. Justice BLACK delivered the opinion of the Court.

In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District Court seeking a declaratory judgment that this state-enforced segregation of the races was a violation of the Thirteenth and Fourteenth Amendments, and asking an injunction to forbid such practices. After hearings the District Court entered a judgment declaring that enforced segregation denied equal protection of the laws but it declined to issue an injunction. The Court of Appeals affirmed, and we denied certiorari. The city proceeded to desegregate its public parks, auditoriums, golf courses, and the city zoo. However, the city council decided not to try to operate the public swimming pools on a desegregated basis. Acting in its legislative capacity, the council surrendered its lease on one pool and closed four which the city owned. A number of Negro citizens of Jackson then filed this suit to force the city to reopen the pools and operate them on a desegregated basis.

[T] he Equal Protection Clause was principally designed to protect Negroes against discriminatory action by the States. Here there has unquestionably been ‘state action’ because the official local government legislature, the city council, has closed the public swimming pools of Jackson. The question, however, is whether this closing of the pools is state action that denies ‘the equal protection of the laws' to Negroes. It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to operate or to continue to operate swimming pools. Furthermore, this is not a case where whites are permitted to use public facilities while blacks are denied access.

Petitioners have argued that respondents' action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it. The pitfalls of such analysis [have been established by our precedents].

[We have] explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swimming pools. Some evidence in the record appears to support this argument. On the other hand the courts below found that the pools were closed because the city council felt they could not be operated safely and economically on an integrated basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for any court to determine the ‘sole’ or ‘dominant’ motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.

It is true there is language in some of our cases interpreting the Fourteenth and Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. But the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites.

Petitioners have argued strenuously that a city's possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action. This proposition is, of course, true. Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. But the issue here is whether black citizens in Jackson are being denied their constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of ‘the equal protection of the laws.’

[Concurring opinions by Chief Justice BURGER and Justice BLACKMUN have been omitted]

[A dissenting opinion by Justice DOUGLAS, has been omitted]

Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

I agree with the majority that the central purpose of the Fourteenth Amendment is to protect Negroes from invidious discrimination. Consistent with this view, I had thought official policies forbidding or discouraging joint use of public facilities by Negroes and whites were at war with the Equal Protection Clause. Our cases make it unquestionably clear, as all of us agree, that a city or State may not enforce such a policy by maintaining officially separate facilities for the two races. It is also my view, but apparently not that of the majority, that a State may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order.

Let us assume a city has been maintaining segregated swimming pools and is ordered to desegregate them. Its express response is an official resolution declaring desegregation to be contrary to the city's policy and ordering the facilities closed rather than continued in service on a desegregated basis. To me it is beyond cavil that on such facts the city is adhering to an unconstitutional policy and is implementing it by abandoning the facilities. It will not do in such circumstances to say that whites and Negroes are being treated alike because both are denied use of public services. The fact is that closing the pools is an expression of official policy that Negroes are unfit to associate with whites. Closing pools to prevent interracial swimming is little different from laws or customs forbidding Negroes and whites from eating together or from co-habiting or intermarrying. The Equal Protection Clause is a hollow promise if it does not forbid such official denigrations of the race the Fourteenth Amendment was designed to protect.

The case before us is little, if any, different from the case just described. Jackson, Mississippi, closed its swimming pools when a district judge struck down the city's tradition of segregation in municipal services and made clear his expectation that public facilities would be integrated. The circumstances surrounding this action and the absence of other credible reasons for the closings leave little doubt that shutting down the pools was nothing more or less than a most effective expression of official policy that Negroes and whites must not be permitted to mingle together when using the services provided by the city.

I am quite unpersuaded by the majority's assertion that it is impermissible to impeach the otherwise valid act of closing municipal swimming pools by resort to evidence of invidious purpose or motive. Congress has long provided civil and criminal remedies for a variety of official and private conduct. In various situations these statutes and our interpretations of them provide that such conduct falls within the federal proscription only upon proof of forbidden racial motive or animus.

In May 1954, this Court held that ‘(s)eparate educational facilities are inherently unequal.’ Brown v. Board of Education, 347 U.S. 483, 495. In a series of opinions following closely in time, the Court emphasized the universality and permanence of the principle that segregated public facilities of any kind were no longer permissible under the Fourteenth Amendment.

At the beginning of the October 1955 Term, the Court made it clear that state-sanctioned segregation in the operation of public recreational facilities was prohibited.

Throughout the same period, this Court and other courts rejected attempts by various public bodies to evade their clear duty under Brown and its progeny by employing delaying tactics or other artifices short of open defiance. Meanwhile, countless class suits seeking desegregation orders were successfully prosecuted by Negro plaintiffs in the lower federal courts. Many public facilities were opened to all citizens, regardless of race, without direct intervention by this Court. Several of these local suits are relevant to the present case.

The city of Jackson was one of many places where the consistent line of decisions following from Brown had little or no effect. Public recreational facilities were not desegregated although it had become clear that such action was required by the Constitution. [Justice WHITE then catalogued all the ways in which the City of Jackson had resisted desegregation since 1954].

The record before us [shows that] [t]he conclusion of city officials that integrated pools would not be ‘economical’ was no more than ‘personal speculation.’ The prediction that the pools could not be operated safely if they were desegregated was nothing more than a ‘vague disquietude.’

With all due respect, I am quite unable to agree with the majority's assertion that there is ‘substantial evidence in the record’ to support the conclusion of the lower courts that the pools could not be operated safely and economically on an integrated basis. Officials may take effective action to control violence or to prevent it when it is reasonably imminent. But the anticipation of violence in this case rested only on unsupported assertion, to which the permanent closing of swimming pools was a wholly unjustified response.

[A dissenting opinion by Justice MARSHALL has been omitted].

Mr. Justice POWELL delivered the opinion of the Court.

In 1971 respondent Metropolitan Housing Development Corporation (MHDC) applied to petitioner, the Village of Arlington Heights, Ill., for the rezoning of a 15-acre parcel from single-family to multiple-family classification. Using federal financial assistance, MHDC planned to build 190 clustered townhouse units for low- and moderate-income tenants. The Village denied the rezoning request. MHDC [sued, alleging] that the denial was racially discriminatory and that it violated the Fourteenth Amendment and the Fair Housing Act of 1968.

Arlington Heights is a suburb of Chicago, located about 26 miles northwest of the downtown Loop area. Most of the land in Arlington Heights is zoned for detached single-family homes, and this is in fact the prevailing land use. The Village experienced substantial growth during the 1960’s, but, like other communities in northwest Cook County, its population of racial minority groups remained quite low. According to the 1970 census, only 27 of the Village’s 64,000 residents were black.

The Clerics of St. Viator, a religious order (Order), own an 80-acre parcel just east of the center of Arlington Heights. The Order decided in 1970 to devote some of its land to low- and moderate-income housing. Investigation revealed that the most expeditious way to build such housing was to work through a nonprofit developer. MHDC is such a developer.

[MHDC’s] planned development did not conform to the Village’s zoning ordinance and could not be built unless Arlington Heights rezoned the parcel to R-5, its multiple-family housing classification. Accordingly, MHDC filed with the Village Plan Commission a petition for rezoning, accompanied by supporting materials describing the development. The materials made clear that one requirement under [federal law] is an affirmative marketing plan designed to assure that a subsidized development is racially integrated. MHDC also submitted studies demonstrating the need for housing of this type and analyzing the probable impact of the development. To prepare for the hearings before the Plan Commission and to assure compliance with the Village building code, fire regulations, and related requirements, MHDC consulted with the Village staff for preliminary review of the development. The parties have stipulated that every change recommended during such consultations was incorporated into the plans.

During the spring of 1971, the Plan Commission considered the proposal at a series of three public meetings, which drew large crowds. Although many of those attending were quite vocal and demonstrative in opposition to Lincoln Green, a number of individuals and representatives of community groups spoke in support of rezoning. Some of the comments, both from opponents and supporters, addressed what was referred to as the “social issue” the desirability or undesirability of introducing at this location in Arlington Heights low- and moderate-income housing, housing that would probably be racially integrated.

Many of the opponents, however, focused on the zoning aspects of the petition, stressing two arguments. First, the area always had been zoned single-family, and the neighboring citizens had built or purchased there in reliance on that classification. Rezoning threatened to cause a measurable drop in property value for neighboring sites. Second, the Village’s apartment policy, adopted by the Village Board in 1962 and amended in 1970, called for R-5 zoning primarily to serve as a buffer between single-family development and land uses thought incompatible, such as commercial or manufacturing districts. Lincoln Green did not meet this requirement, as it adjoined no commercial or manufacturing district.

[The Plan Commission, and then the Village Board of Trustees, voted to deny MHDC’s rezoning petition].

Our decision last Term in Washington v. Davis, 426 U.S. 229 (1976), made it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. “Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.” Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.

Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.

Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action whether it “bears more heavily on one race than another,” Washington v. Davis, supra, 426 U.S., at 242 may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Gomillion v. Lightfoot, 364 U.S. 339 (1960). The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence.

The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes. For example, if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC’s plans to erect integrated housing, we would have a far different case. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.

The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege.

The foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed. With these in mind, we now address the case before us.

The impact of the Village’s decision does arguably bear more heavily on racial minorities. Minorities constitute 18% of the Chicago area population, and 40% of the income groups said to be eligible for Lincoln Green. But there is little about the sequence of events leading up to the decision that would spark suspicion. The area around the Viatorian property has been zoned R-3 since 1959, the year when Arlington Heights first adopted a zoning map. Single-family homes surround the 80-acre site, and the Village is undeniably committed to single-family homes as its dominant residential land use. The rezoning request progressed according to the usual procedures. The Plan Commission even scheduled two additional hearings, at least in part to accommodate MHDC and permit it to supplement its presentation with answers to questions generated at the first hearing.

The statements by the Plan Commission and Village Board members, as reflected in the official minutes, focused almost exclusively on the zoning aspects of the MHDC petition, and the zoning factors on which they relied are not novel criteria in the Village’s rezoning decisions. There is no reason to doubt that there has been reliance by some neighboring property owners on the maintenance of single-family zoning in the vicinity. The Village originally adopted its buffer policy long before MHDC entered the picture and has applied the policy too consistently for us to infer discriminatory purpose from its application in this case. Finally, MHDC called one member of the Village Board to the stand at trial. Nothing in her testimony supports an inference of invidious purpose.

In sum, Respondents simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village’s decision. This conclusion ends the constitutional inquiry. The court of Appeals’ further finding that the Village’s decision carried a discriminatory “ultimate effect” is without independent constitutional significance.

[Opinions by Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in part and dissenting in part, and by Justice WHITE, dissenting have been omitted. The primary point of these opinions was that they believed the case should be remanded to the lower courts to further explore the factual basis of the plaintiffs’ claim that the Village acted with discriminatory purpose].

As the Court noted in Village of Arlington Heights, in applying Washington v. Davis, the Court has held that the plaintiff only needs to show that discrimination was "a motivating factor," not the sole factor, behind the challenged government actions. Even if the plaintiff presents evidence sufficient to show that race was a motivating factor, they will not necessarily prevail. The burden then shifts to the government defendant, which will then be given the opportunity to show by a preponderance of the evidence that it would have made the exact same decision even if race had not been a factor. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287(1977). If the government defendant does that, the plaintiff's claim fails.

Justice O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III–B, and IV, an opinion with respect to Part II, in which THE CHIEF JUSTICE and Justice WHITE join, and an opinion with respect to Parts III–A and V, in which THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY join.

In this case, we confront once again the tension between the Fourteenth Amendment's guarantee of equal treatment to all citizens, and the use of race-based measures to ameliorate the effects of past discrimination on the opportunities enjoyed by members of minority groups in our society.

I

On April 11, 1983, the Richmond City Council adopted the Minority Business Utilization Plan (the Plan). The Plan required prime contractors to whom the city awarded construction contracts to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises (MBE's). The 30% set-aside did not apply to city contracts awarded to minority-owned prime contractors.

The Plan defined an MBE as “[a] business at least fifty-one (51) percent of which is owned and controlled ... by minority group members.” “Minority group members” were defined as “[c]itizens of the United States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” There was no geographic limit to the Plan; an otherwise qualified MBE from anywhere in the United States could avail itself of the 30% set-aside. The Plan declared that it was “remedial” in nature, and enacted “for the purpose of promoting wider participation by minority business enterprises in the construction of public projects.” The Plan expired on June 30, 1988, and was in effect for approximately five years.

The Plan was adopted by the Richmond City Council after a public hearing. Seven members of the public spoke to the merits of the ordinance: five were in opposition, two in favor. Proponents of the set-aside provision relied on a study which indicated that, while the general population of Richmond was 50% black, only 0.67% of the city's prime construction contracts had been awarded to minority businesses in the 5–year period from 1978 to 1983. It was also established that a variety of contractors' associations, whose representatives appeared in opposition to the ordinance, had virtually no minority businesses within their membership.

There was no direct evidence of race discrimination on the part of the city in letting contracts or any evidence that the city's prime contractors had discriminated against minority-owned subcontractors.

[After unsuccessfully attempting to comply with the MBE requirement, J.A. Croson Company, a mechanical plumbing and heating contractor, was denied a contract that it bid on and was also denied a waiver of the MBE requirement. Croson then sued.]

II

[A] state or local subdivision (if delegated the authority from the State) has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction. This authority must, of course, be exercised within the constraints of § 1 of the Fourteenth Amendment.

As a matter of state law, the city of Richmond has legislative authority over its procurement policies, and can use its spending powers to remedy private discrimination, if it identifies that discrimination with the particularity required by the Fourteenth Amendment.

Thus, if the city could show that it had essentially become a “passive participant” in a system of racial exclusion practiced by elements of the local construction industry, we think it clear that the city could take affirmative steps to dismantle such a system. It is beyond dispute that any public entity, state or federal, has a compelling interest in assuring that public dollars, drawn from the tax contributions of all citizens, do not serve to finance the evil of private prejudice.

III

A

2

The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race. To whatever racial group these citizens belong, their “personal rights” to be treated with equal dignity and respect are implicated by a rigid rule erecting race as the sole criterion in an aspect of public decisionmaking.

Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are “benign” or “remedial” and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to “smoke out” illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen “fit” this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.

Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility. We thus reaffirm [our prior decision] that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.

Our continued adherence to the standard of review employed in Wygant does not, as Justice MARSHALL's dissent suggests, indicate that we view “racial discrimination as largely a phenomenon of the past” or that “government bodies need no longer preoccupy themselves with rectifying racial injustice.” As we indicate, States and their local subdivisions have many legislative weapons at their disposal both to punish and prevent present discrimination and to remove arbitrary barriers to minority advancement. Rather, our interpretation of § 1 stems from our agreement with the view expressed by Justice Powell in Bakke 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.”

Even were we to accept a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different groups to defend their interests in the representative process, heightened scrutiny would still be appropriate in the circumstances of this case. One of the central arguments for applying a less exacting standard to “benign” racial classifications is that such measures essentially involve a choice made by dominant racial groups to disadvantage themselves. If one aspect of the judiciary's role under the Equal Protection Clause is to protect “discrete and insular minorities” from majoritarian prejudice or indifference, some maintain that these concerns are not implicated when the “white majority” places burdens upon itself. See J. Ely, Democracy and Distrust 170 (1980).

In this case, blacks constitute approximately 50% of the population of the city of Richmond. Five of the nine seats on the city council are held by blacks. The concern that a political majority will more easily act to the disadvantage of a minority based on unwarranted assumptions or incomplete facts would seem to militate for, not against, the application of heightened judicial scrutiny in this case.

B

The District Court found the city council's “findings sufficient to ensure that, in adopting the Plan, it was remedying the present effects of past discrimination in the construction industry.” [A] generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. It “has no logical stopping point.” “Relief” for such an ill-defined wrong could extend until the percentage of public contracts awarded to MBE's in Richmond mirrored the percentage of minorities in the population as a whole.

Appellant argues that it is attempting to remedy various forms of past discrimination that are alleged to be responsible for the small number of minority businesses in the local contracting industry. Among these the city cites the exclusion of blacks from skilled construction trade unions and training programs. This past discrimination has prevented them “from following the traditional path from laborer to entrepreneur.” The city also lists a host of nonracial factors which would seem to face a member of any racial group attempting to establish a new business enterprise, such as deficiencies in working capital, inability to meet bonding requirements, unfamiliarity with bidding procedures, and disability caused by an inadequate track record.

While there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts in Richmond, Virginia. Like the claim that discrimination in primary and secondary schooling justifies a rigid racial preference in medical school admissions, an amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.

It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination, just as it was sheer speculation how many minority medical students would have been admitted to the medical school at Davis absent past discrimination in educational opportunities. Defining these sorts of injuries as “identified discrimination” would give local governments license to create a patchwork of racial preferences based on statistical generalizations about any particular field of endeavor.

These defects are readily apparent in this case. The 30% quota cannot in any realistic sense be tied to any injury suffered by anyone. The District Court relied upon five predicate “facts” in reaching its conclusion that there was an adequate basis for the 30% quota: (1) the ordinance declares itself to be remedial; (2) several proponents of the measure stated their views that there had been past discrimination in the construction industry; (3) minority businesses received 0.67% of prime contracts from the city while minorities constituted 50% of the city's population; (4) there were very few minority contractors in local and state contractors' associations; and (5) in 1977, Congress made a determination that the effects of past discrimination had stifled minority participation in the construction industry nationally.

None of these “findings,” singly or together, provide the city of Richmond with a “strong basis in evidence for its conclusion that remedial action was necessary.” Wygant, 476 U.S., at 277, 106 S.Ct., at 1849 (plurality opinion). There is nothing approaching a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry.

The District Court accorded great weight to the fact that the city council designated the Plan as “remedial.” But the mere recitation of a “benign” or legitimate purpose for a racial classification is entitled to little or no weight. Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice.

The District Court also relied on the highly conclusionary statement of a proponent of the Plan that there was racial discrimination in the construction industry “in this area, and the State, and around the nation.” It also noted that the city manager had related his view that racial discrimination still plagued the construction industry in his home city of Pittsburgh. These statements are of little probative value in establishing identified discrimination in the Richmond construction industry.

Reliance on the disparity between the number of prime contracts awarded to minority firms and the minority population of the city of Richmond is similarly misplaced. There is no doubt that “[w]here gross statistical disparities can be shown, they alone in a proper case may constitute prima facie proof of a pattern or practice of discrimination” under Title VII. But it is equally clear that “[w]hen special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.”

In sum, none of the evidence presented by the city points to any identified discrimination in the Richmond construction industry. We, therefore, hold that the city has failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race. To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. “Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications....” We think such a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.

The foregoing analysis applies only to the inclusion of blacks within the Richmond set-aside program. There is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the Richmond construction industry. The District Court took judicial notice of the fact that the vast majority of “minority” persons in Richmond were black. It may well be that Richmond has never had an Aleut or Eskimo citizen. The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose was not in fact to remedy past discrimination.

If a 30% set-aside was “narrowly tailored” to compensate black contractors for past discrimination, one may legitimately ask why they are forced to share this “remedial relief” with an Aleut citizen who moves to Richmond tomorrow? The gross overinclusiveness of Richmond's racial preference strongly impugns the city's claim of remedial motivation.

IV

As noted by the court below, it is almost impossible to assess whether the Richmond Plan is narrowly tailored to remedy prior discrimination since it is not linked to identified discrimination in any way. We limit ourselves to two observations in this regard.

First, there does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting. Many of the barriers to minority participation in the construction industry relied upon by the city to justify a racial classification appear to be race neutral. If MBE's disproportionately lack capital or cannot meet bonding requirements, a race-neutral program of city financing for small firms would, a fortiori, lead to greater minority participation. There is no evidence in this record that the Richmond City Council has considered any alternatives to a race-based quota.

Second, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. It rests upon the “completely unrealistic” assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.

Since the city must already consider bids and waivers on a case-by-case basis, it is difficult to see the need for a rigid numerical quota.

V

Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction. If the city of Richmond had evidence before it that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities it could take action to end the discriminatory exclusion. Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors, an inference of discriminatory exclusion could arise. Under such circumstances, the city could act to dismantle the closed business system by taking appropriate measures against those who discriminate on the basis of race or other illegitimate criteria. In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion.

Nor is local government powerless to deal with individual instances of racially motivated refusals to employ minority contractors. Where such discrimination occurs, a city would be justified in penalizing the discriminator and providing appropriate relief to the victim of such discrimination. Moreover, evidence of a pattern of individual discriminatory acts can, if supported by appropriate statistical proof, lend support to a local government's determination that broader remedial relief is justified.

Even in the absence of evidence of discrimination, the city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races would open the public contracting market to all those who have suffered the effects of past societal discrimination or neglect. Many of the formal barriers to new entrants may be the product of bureaucratic inertia more than actual necessity, and may have a disproportionate effect on the opportunities open to new minority firms. Their elimination or modification would have little detrimental effect on the city's interests and would serve to increase the opportunities available to minority business without classifying individuals on the basis of race. The city may also act to prohibit discrimination in the provision of credit or bonding by local suppliers and banks. Business as usual should not mean business pursuant to the unthinking exclusion of certain members of our society from its rewards.

In the case at hand, the city has not ascertained how many minority enterprises are present in the local construction market nor the level of their participation in city construction projects. The city points to no evidence that qualified minority contractors have been passed over for city contracts or subcontracts, either as a group or in any individual case. Under such circumstances, it is simply impossible to say that the city has demonstrated “a strong basis in evidence for its conclusion that remedial action was necessary.”

Proper findings in this regard are necessary to define both the scope of the injury and the extent of the remedy necessary to cure its effects. Such findings also serve to assure 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. Absent such findings, there is a danger that a racial classification is merely the product of unthinking stereotypes or a form of racial politics. “[I]f there is no duty to attempt either to measure the recovery by the wrong or to distribute that recovery within the injured class in an evenhanded way, our history will adequately support a legislative preference for almost any ethnic, religious, or racial group with the political strength to negotiate ‘a piece of the action’ for its members.” Because the city of Richmond has failed to identify the need for remedial action in the awarding of its public construction contracts, its treatment of its citizens on a racial basis violates the dictates of the Equal Protection Clause.

[Separate opinions by Justice STEVENS and Justice KENNEDY, concurring in part and concurring in the judgment, has been omitted]

Justice SCALIA, concurring in the judgment.

I agree with much of the Court's opinion, and, in particular, with Justice O'CONNOR's conclusion that strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is “remedial” or “benign.” I do not agree, however, with Justice O'CONNOR's dictum suggesting that, despite the Fourteenth Amendment, state and local governments may in some circumstances discriminate on the basis of race in order (in a broad sense) “to ameliorate the effects of past discrimination.” The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected.

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—for example, a prison race riot, requiring temporary segregation of inmates—can justify an exception to the principle embodied in the Fourteenth Amendment that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

In my view there is only one circumstance in which the States may act by race to “undo the effects of past discrimination”: where that is necessary to eliminate their own maintenance of a system of unlawful racial classification. If, for example, a state agency has a discriminatory pay scale compensating black employees in all positions at 20% less than their nonblack counterparts, it may assuredly promulgate an order raising the salaries of “all black employees” to eliminate the differential. This distinction explains our school desegregation cases, in which we have made plain that States and localities sometimes have an obligation to adopt race-conscious remedies. While there is no doubt that those cases have taken into account the continuing “effects” of previously mandated racial school assignment, we have held those effects to justify a race-conscious remedy only because we have concluded, in that context, that they perpetuate a “dual school system.”

Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting.

It is a welcome symbol of racial progress when the former capital of the Confederacy acts forthrightly to confront the effects of racial discrimination in its midst. In my view, nothing in the Constitution can be construed to prevent Richmond, Virginia, from allocating a portion of its contracting dollars for businesses owned or controlled by members of minority groups.

A majority of this Court holds today, however, that the Equal Protection Clause of the Fourteenth Amendment blocks Richmond's initiative. The essence of the majority's position is that Richmond has failed to catalog adequate findings to prove that past discrimination has impeded minorities from joining or participating fully in Richmond's construction contracting industry. I find deep irony in second-guessing Richmond's judgment on this point. As much as any municipality in the United States, Richmond knows what racial discrimination is; a century of decisions by this and other federal courts has richly documented the city's disgraceful history of public and private racial discrimination. In any event, the Richmond City Council has supported its determination that minorities have been wrongly excluded from local construction contracting. Its proof includes statistics showing that minority-owned businesses have received virtually no city contracting dollars and rarely if ever belonged to area trade associations; testimony by municipal officials that discrimination has been widespread in the local construction industry; and exhaustive and widely publicized federal studies which showed that pervasive discrimination in the Nation's tight-knit construction industry had operated to exclude minorities from public contracting. These are precisely the types of statistical and testimonial evidence which, until today, this Court had credited in cases approving of race-conscious measures designed to remedy past discrimination.

More fundamentally, today's decision marks a deliberate and giant step backward in this Court's affirmative-action jurisprudence. Cynical of one municipality's attempt to redress the effects of past racial discrimination in a particular industry, the majority launches a grapeshot attack on race-conscious remedies in general. The majority's unnecessary pronouncements will inevitably discourage or prevent governmental entities, particularly States and localities, from acting to rectify the scourge of past discrimination. This is the harsh reality of the majority's decision, but it is not the Constitution's command.

As an initial matter, the majority takes an exceedingly myopic view of the factual predicate on which the Richmond City Council relied when it passed the Minority Business Utilization Plan. The majority analyzes Richmond's initiative as if it were based solely upon the facts about local construction and contracting practices adduced during the city council session at which the measure was enacted. In so doing, the majority downplays the fact that the city council had before it a rich trove of evidence that discrimination in the Nation's construction industry had seriously impaired the competitive position of businesses owned or controlled by members of minority groups. It is only against this backdrop of documented national discrimination, however, that the local evidence adduced by Richmond can be properly understood. The majority's refusal to recognize that Richmond has proved itself no exception to the dismaying pattern of national exclusion which Congress so painstakingly identified infects its entire analysis of this case.

Today, for the first time, a majority of this Court has adopted strict scrutiny as its standard of Equal Protection Clause review of race-conscious remedial measures. This is an unwelcome development. A profound difference separates governmental actions that themselves are racist, and governmental actions that seek to remedy the effects of prior racism or to prevent neutral governmental activity from perpetuating the effects of such racism.

Racial classifications “drawn on the presumption that one race is inferior to another or because they put the weight of government behind racial hatred and separatism” warrant the strictest judicial scrutiny because of the very irrelevance of these rationales. By contrast, racial classifications drawn for the purpose of remedying the effects of discrimination that itself was race based have a highly pertinent basis: the tragic and indelible fact that discrimination against blacks and other racial minorities in this Nation has pervaded our Nation's history and continues to scar our society. “Because the consideration of race is relevant to remedying the continuing effects of past racial discrimination, and because governmental programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, ... such programs should not be subjected to conventional ‘strict scrutiny’—scrutiny that is strict in theory, but fatal in fact.”

In concluding that remedial classifications warrant no different standard of review under the Constitution than the most brutal and repugnant forms of state-sponsored racism, a majority of this Court signals that it regards racial discrimination as largely a phenomenon of the past, and that government bodies need no longer preoccupy themselves with rectifying racial injustice. I, however, do not believe this Nation is anywhere close to eradicating racial discrimination or its vestiges. In constitutionalizing its wishful thinking, the majority today does a grave disservice not only to those victims of past and present racial discrimination in this Nation whom government has sought to assist, but also to this Court's long tradition of approaching issues of race with the utmost sensitivity.

Today's decision, finally, is particularly noteworthy for the daunting standard it imposes upon States and localities contemplating the use of race-conscious measures to eradicate the present effects of prior discrimination and prevent its perpetuation. The majority restricts the use of such measures to situations in which a State or locality can put forth “a prima facie case of a constitutional or statutory violation.” In so doing, the majority calls into question the validity of the business set-asides which dozens of municipalities across this Nation have adopted.

[An opinion by Justice BLACKMUN, with whom Justice BRENNAN joins, dissenting, has been omitted].

The Supreme Court had been grappling with the question of affirmative action programs for admission to higher education programs for decades prior to the next decision, Students for Fair Admissions v. Harvard/University of North Carolina.

You may recall from our discussion of mootness, that the Court was first asked to address the question in Defunis v. Odegaard (3.4.8), but the Court found that case to be moot. The first case to address the question on the merits was Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Bakke was a white man who was denied admission to the University of California, Davis medical school. He alleged that the denial of his admission was based on the school's affirmative action program, which set aside 16 seats (out of 100 total) in the medical school for applicants from historically underrepresented racial minority groups. As a consequence, white students were competing for 84 seats while students who were racial minorities could compete for all 100. Bakke argued that the admissions program violated the Equal Protection Clause as well as Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal education funding from discriminating on the basis of race. The California Supreme Court had ruled that the admissions program was subject to strict scrutiny, that it failed that test, and that the University could not prove that Bakke would not have been omitted had the program not existed. It ordered the University to admit Bakke to its medical school.

The U.S. Supreme Court reviewed the California Supreme Court's decision on direct appeal. The Court split 4-1-4, so there was no majority holding. Justice Powell, who was the single Justice in the middle, wrote an opinion for the Court. First, he wrote that the Equal Protection Clause and Title VI meant the same thing with regard to race discrimination claims. He believed, however, that any state program that explicitly discriminated on the basis of race or ethnicity should be subject to strict scrutiny, even if the program was designed to benefit racial minorities. He therefore ruled that the California Supreme Court decision requiring the school to admit Bakke should be affirmed.

Although Justice Powell believed an admissions program that specifically took race into account was unconstitutional, in dicta, he noted that some universities had taken race into account without using a fixed quota system. He cited with approval the admissions program at Harvard University, which used an applicant's racial minority status as a "plus" factor in admissions, but did not use race as a controlling factor. Instead, the program took into account a wide range of factors, including geography, different skills and backgrounds, public service backgrounds, age, socioeconomic status, etc. Quoting from an amicus brief submitted by Harvard, Columbia, Stanford, and the University of Pennsylvania, he noted that such a program meant

"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 just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer."

Of such a program, Justice Powell wrote:

This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.

Chief Justice Burger and Justices Stewart, Rehnquist, and Stevens concurred in part and dissented in part. They disagreed that the Equal Protection Clause and Title VI involved the same legal standard. However, they would have found that the University's program violated Title VI and also voted to affirm. But they said that it was unnecessary to reach the Equal Protection Clause issue in this case.

Four Justices (Brennan, White, Marshall, and Blackmun) wrote separately. Although they agreed with Justice Powell that the Equal Protection Clause and Title VI meant the same thing with regard to race discrimination claims, they would have held that racial classifications designed to overcome substantial, chronic minority underrepresentation should be subject only to intermediate scrutiny, meaning that such programs could be permitted if they were substantially related to serving an important government interest. Accordingly, they would have reversed the California Supreme Court.

The upshot of Bakke was one Justice calling for the application of strict scrutiny to government voluntary affirmative action programs, four Justices calling for the application of intermediate scrutiny, and four Justices stating no opinion.

The next major higher education case was not until 2003, when the Court decided Grutter v. Bollinger, 539 U.S. 306 (2003). By this time, the Court had already decided the Croson case, which applied strict scrutiny to affirmative action programs. On its terms, however, Croson only applied in the area of government contracting, and did not address the proper standard of review in the higher education context. Barbara Grutter was a white woman who challenged the University of Michigan law school's affirmative action program as a violation of the Equal Protection Clause after she was denied admission.

That program used something similar to the program that Justice Powell noted with approval in Bakke. Each applicant was evaluated as an individual. The law school focused on their academic ability as well as a "flexible assessment of applicants' talents, experiences, and potential to contribute to learning of those around them." This meant that in addition to reviewing applicants' undergraduate GPAs and LSAT scores, the school could consider "soft variables," including enthusiasm of recommenders, quality of undergraduate institution, difficulty of undergraduate curriculum, as well as a range of factors contributing to diversity, including race and ethnicity, but also including many other experiences that differentiated them from other applicants. Unlike previous affirmative action programs the Court had evaluated, Michigan's stated goal here was not to remedy past race discrimination in its own admissions program, but to draw a class with a diverse set of experiences and perspectives because diversity "has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts."

Although race was only one of these factors, the law school's policy also reaffirmed "the Law School's longstanding commitment to 'one particular type of diversity,' that is, 'racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African–Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.' 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.” Grutter, 539 U.S. at 316. The term "critical mass" was defined not as a strict numerical quota or percentage, but was put in place to ensure that there woudl be "meaningful representation" of racial minorities in the law school's class.

In a 5-4 decision, the Court upheld the law school's admissions program. In an opinion written by Justice O'Connor, the Court held that even though Michigan's program only took race into account as one factor, it was nonetheless subject to strict scrutiny. But the majority held that Michigan had satisfied that standard. First, it held that the law school's interest in attaining a diverse student body was compelling. The Court suggested that the school's educational judgment about the importance of diversity was entitled to some deference given its expertise in higher education. It also held that the program was narrowly tailored. Drawing from Justice Powell's opinion in Bakke, the Court found that a program that considers race in admissions, but does not use hard quotas or fixed percentages was flexible enough to ensure each applicant was subject to individualized consideration. It also found that Michigan had considered and rejected race neutral alternatives such as a pure lottery system for admissions and a percentage plan, in which anyone who finished in a specified top percentage of their undergraduate class would be admitted.

In some notable dicta, Justice O'Connor also indicated, as had previous courts, that in order to meet the narrow tailoring standard, a government affirmative action program could only be temporary (and therefore narrowly tailored to addressing the racial equality problem it was designed to address). Accordingly, she wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

In separate opinions, a total of four Justices dissented. While agreeing that strict scrutiny applied, they would have concluded that Michigan did not meet that standard. Justice Thomas wrote that compelling government interest meant a "pressing public necessity," and that the school did not have such a necessity for its law school's admissions policy.

On the same day that the Court decided Grutter, it decided Gratz v. Bollinger, in which it declared the University of Michigan's undergraduate affirmative action program violated the Equal Protection Clause. Because of the number of applications Michigan receives each year for its entering undergraduate class, it could not as a practical matter, do individual assessments. So, unlike the law school's program, which required individual assessment of each applicant, the undergraduate program required the automatic assignment of 20 points to each applicant who was from an underrepresented racial minority group. That was about one-fifth of the total score needed to guarantee admission. The Court viewed that as more like a quota and therefore not narrowly tailored to serve any compelling interest in diversity.

Notwithstanding the decision in Grutter, in 2006, Michigan voters approved a state ballot initiative by a vote of 58% to 42% to amend the State Constitution to ban all state entities, including public universities, from enacting or using affirmative action programs. That amendment was upheld against a constitutional challenge in Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. By Any Means Necessary (BAMN), 572 U.S. 291 (2014).

Chief Justice ROBERTS delivered the opinion of the Court.

In these cases we consider whether the admissions systems used by Harvard College and the University of North Carolina, two of the oldest institutions of higher learning in the United States, are lawful under the Equal Protection Clause of the Fourteenth Amendment.

Founded in 1636, Harvard College has one of the most selective application processes in the country. Over 60,000 people applied to the school last year; fewer than 2,000 were admitted. Gaining admission to Harvard is thus no easy feat. It can depend on having excellent grades, glowing recommendation letters, or overcoming significant adversity. It can also depend on your race.

The admissions process at Harvard works as follows. Every application is initially screened by a “first reader,” who assigns scores in six categories: academic, extracurricular, athletic, school support, personal, and overall. A rating of “1” is the best; a rating of “6” the worst. . . . A score of “1” on the overall rating—a composite of the five other ratings—“signifies an exceptional candidate with >90% chance of admission.” In assigning the overall rating, the first readers “can and do take an applicant’s race into account.”

Once the first read process is complete, Harvard convenes admissions subcommittees. . . . The subcommittees are responsible for making recommendations to the full admissions committee. The subcommittees can and do take an applicant’s race into account when making their recommendations.

The next step of the Harvard process is the full committee meeting. The committee has 40 members, and its discussion centers around the applicants who have been recommended by the regional subcommittees. At the beginning of the meeting, the committee discusses the relative breakdown of applicants by race. The “goal,” according to Harvard’s director of admissions, “is to make sure that [Harvard does] not hav[e] a dramatic drop-off ” in minority admissions from the prior class. Each applicant considered by the full committee is discussed one by one, and every member of the committee must vote on admission. Only when an applicant secures a majority of the full committee’s votes is he or she tentatively accepted for admission. At the end of the full committee meeting, the racial composition of the pool of tentatively admitted students is disclosed to the committee.

The final stage of Harvard’s process is called the “lop,” during which the list of tentatively admitted students is winnowed further to arrive at the final class. Any applicants that Harvard considers cutting at this stage are placed on a “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. The full committee decides as a group which students to lop. In doing so, the committee can and does take race into account. Once the lop process is complete, Harvard’s admitted class is set. In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.”

Founded shortly after the Constitution was ratified, the University of North Carolina (UNC) prides itself on being the “nation’s first public university.” Like Harvard, UNC’s “admissions process is highly selective”: In a typical year, the school “receives approximately 43,500 applications for its freshman class of 4,200.”

Every application the University receives is initially reviewed by one of approximately 40 admissions office readers . . . [who] are required to consider “[r]ace and ethnicity ... as one factor” in their review. Other factors include academic performance and rigor, standardized testing results, extracurricular involvement, essay quality, personal factors, and student background. Readers are responsible for providing numerical ratings for the academic, extracurricular, personal, and essay categories. During the years at issue in this litigation, underrepresented minority students were “more likely to score [highly] on their personal ratings than their white and Asian American peers,” but were more likely to be “rated lower by UNC readers on their academic program, academic performance, ... extracurricular activities,” and essays.

After assessing an applicant’s materials along these lines, the reader “formulates an opinion about whether the student should be offered admission” and then “writes a comment defending his or her recommended decision.” In making that decision, readers may offer students a “plus” based on their race, which “may be significant in an individual case.” The admissions decisions made by the first readers are, in most cases, “provisionally final.”

Following the first read process, “applications then go to a process called ‘school group review’ ... where a committee composed of experienced staff members reviews every [initial] decision.” The review committee receives a report on each student which contains, among other things, their “class rank, GPA, and test scores; the ratings assigned to them by their initial readers; and their status as residents, legacies, or special recruits.” The review committee either approves or rejects each admission recommendation made by the first reader, after which the admissions decisions are finalized. In making those decisions, the review committee may also consider the applicant’s race.

Petitioner, Students for Fair Admissions (SFFA), is a nonprofit organization founded in 2014 whose purpose is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law.” In November 2014, SFFA filed separate lawsuits against Harvard College and the University of North Carolina, arguing that their race-based admissions programs violated, respectively, Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The District Courts in both cases held bench trials to evaluate SFFA’s claims. [Both trial courts upheld the Harvard and UNC admissions programs, and the decision in the Harvard case was affirmed by the First Circuit].

[Part II, in which the majority concludes that SFFA has proper standing to bring these cases, has been omitted]

III

A

Despite our early recognition of the broad sweep of the Equal Protection Clause, this Court—alongside the country—quickly failed to live up to the Clause’s core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America.

After Plessy, “American courts ... labored with the doctrine [of separate but equal] for over half a century.”

[Decisions from Brown v. Board of Education on invalidated state and local government laws and programs that mandated segregation of the races]. These decisions reflect the “core purpose” of the Equal Protection Clause: “do[ing] away with all governmentally imposed discrimination based on race."

Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies “without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.” For “[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.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289–290 (1978) (opinion of Powell, J.). “If both are not accorded the same protection, then it is not equal.”

Any exception to the Constitution’s demand for equal protection must survive a daunting two-step examination known in our cases as “strict scrutiny.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995). Under that standard we ask, first, whether the racial classification is used to “further compelling governmental interests.” Grutter v. Bollinger, 539 U.S. 306, 326. Second, if so, we ask whether the government’s use of race is “narrowly tailored”—meaning “necessary”—to achieve that interest.

Outside the circumstances of these cases, our precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot. See Johnson v. California, 543 U.S. 499, 512–513 (2005).

[Here, the Court discussed the Bakke  and Grutter cases]

IV

Twenty years [after Grutter’s dicta that affirmative action programs would no longer be necessary after 25 years] no end is in sight. “Harvard’s view about when [race-based admissions will end] doesn’t have a date on it.” Neither does UNC’s. Yet both insist that the use of race in their admissions programs must continue.

But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.[FN4]

[FN4: The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation's military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.]

A

Respondents have fallen short of satisfying [their] burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.” UNC points to similar benefits, namely, “(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.”

Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately “train[ed]”; whether the exchange of ideas is “robust”; or whether “new knowledge” is being developed? Even if these goals could somehow be measured, moreover, how is a court to know when they have been reached, and when the perilous remedy of racial preferences may cease? There is no particular point at which there exists sufficient “innovation and problem-solving,” or students who are appropriately “engaged and productive.” Finally, the question in this context is not one of no diversity or of some: it is a question of degree. How many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve.

Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, UNC works to avoid the underrepresentation of minority groups, while Harvard likewise “guard[s ] against inadvertent drop-offs in representation” of certain minority groups from year to year, To accomplish both of those goals, in turn, the universities measure the racial composition of their classes using the following categories: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African-American; and (6) Native American. It is far from evident, though, how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.

For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as “Hispanic,” are arbitrary or undefined. And still other categories are underinclusive. When asked at oral argument “how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,” UNC’s counsel responded, “[I] do not know the answer to that question.”

The universities’ main response to these criticisms is, essentially, “trust us.” None of the questions recited above need answering, they say, because universities are “owed deference” when using race to benefit some applicants but not others. It is true that our cases have recognized a “tradition of giving a degree of deference to a university’s academic decisions.” Grutter, 539 U.S. at 328. But we have been unmistakably clear that any deference must exist “within constitutionally prescribed limits,” and that “deference does not imply abandonment or abdication of judicial review,” Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.

B

The race-based admissions systems that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a “negative” and that it may not operate as a stereotype.

First, our cases have stressed that an individual’s race may never be used against him in the admissions process. Here, however, the First Circuit found that Harvard’s consideration of race has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard. And the District Court observed that Harvard’s “policy of considering applicants’ race ... overall results in fewer Asian American and white students being admitted.”

Respondents nonetheless contend that an individual’s race is never a negative factor in their admissions programs, but that assertion cannot withstand scrutiny. Harvard, for example, draws an analogy between race and other factors it considers in admission. “[W]hile admissions officers may give a preference to applicants likely to excel in the Harvard-Radcliffe Orchestra,” Harvard explains, “that does not mean it is a ‘negative’ not to excel at a musical instrument.” But on Harvard’s logic, while it gives preferences to applicants with high grades and test scores, “that does not mean it is a ‘negative’ ” to be a student with lower grades and lower test scores. This understanding of the admissions process is hard to take seriously. College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.

Respondents also suggest that race is not a negative factor because it does not impact many admissions decisions. Yet, at the same time, respondents also maintain that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned. And they acknowledge that race is determinative for at least some—if not many—of the students they admit. How else but “negative” can race be described if, in its absence, members of some racial groups would be admitted in greater numbers than they otherwise would have been? The “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.”

Respondents’ admissions programs are infirm for a second reason as well. We have long held that universities may not operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U.S. at 333.

Yet by accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, respondents’ programs tolerate the very thing that Grutter foreswore: stereotyping. The point of respondents’ admissions programs is that there is an inherent benefit in race qua race—in race for race’s sake. Respondents admit as much. Harvard’s admissions process rests on the pernicious stereotype that “a black student can usually bring something that a white person cannot offer.” UNC is much the same. It argues that race in itself “says [something] about who you are.”

We have time and again forcefully rejected the notion that government actors may intentionally allocate preference to those “who may have little in common with one another but the color of their skin.” The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.

C

If all this were not enough, respondents’ admissions programs also lack a “logical end point.”

Respondents and the Government first suggest that respondents’ race-based admissions programs will end when, in their absence, there is “meaningful representation and meaningful diversity” on college campuses. The metric of meaningful representation, respondents assert, does not involve any “strict numerical benchmark,” “precise number or percentage,” “specified percentage,” So what does it involve?

Numbers all the same. The results of the Harvard admissions process reflect this numerical commitment. For the admitted classes of 2009 to 2018, black students represented a tight band of 10.0%–11.7% of the admitted pool. The same theme held true for other minority groups.

UNC’s admissions program operates similarly. The University frames the challenge it faces as “the admission and enrollment of underrepresented minorities,” a metric that turns solely on whether a group’s “percentage enrollment within the undergraduate student body is lower than their percentage within the general population in North Carolina,” The University “has not yet fully achieved its diversity-related educational goals,” it explains, in part due to its failure to obtain closer to proportional representation.

The problem with these approaches is well established. “[O]utright racial balancing” is “patently unconstitutional.” That is so, we have repeatedly explained, because “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” By promising to terminate their use of race only when some rough percentage of various racial groups is admitted, respondents turn that principle on its head. Their admissions programs “effectively assure[ ] that race will always be relevant ... and that the ultimate goal of eliminating” race as a criterion “will never be achieved.”

Respondents’ second proffered end point fares no better. Respondents assert that universities will no longer need to engage in race-based admissions when, in their absence, students nevertheless receive the educational benefits of diversity. But as we have already explained, it is not clear how a court is supposed to determine when stereotypes have broken down or “productive citizens and leaders” have been created. Nor is there any way to know whether those goals would adequately be met in the absence of a race-based admissions program.

Third, respondents suggest that race-based preferences must be allowed to continue for at least five more years, based on the Court’s statement in Grutter that it “expect[ed] that 25 years from now, the use of racial preferences will no longer be necessary.” The 25-year mark articulated in Grutter, however, reflected only that Court’s view that race-based preferences would, by 2028, be unnecessary to ensure a requisite level of racial diversity on college campuses. Ibid. That expectation was oversold. Neither Harvard nor UNC believes that race-based admissions will in fact be unnecessary in five years, and both universities thus expect to continue using race as a criterion well beyond the time limit that Grutter suggested.

Finally, respondents argue that their programs need not have an end point at all because they frequently review them to determine whether they remain necessary. Respondents point to language in Grutter that, they contend, permits “the durational requirement [to] be met” with “periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.” But Grutter never suggested that periodic review could make unconstitutional conduct constitutional. To the contrary, the Court made clear that race-based admissions programs eventually had to end—despite whatever periodic review universities conducted.

VI

For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Justice JACKSON took no part in the consideration or decision of the case in No. 20–1199.

Justice THOMAS, concurring.

I wrote separately in Grutter, explaining that the use of race in higher education admissions decisions—regardless of whether intended to help or to hurt—violates the Fourteenth Amendment. [In Grutter, Justice Thomas argued, as he has in other cases, that affirmative action programs harm racial minorities in part because they reflect the majority’s viewpoint that members of such groups cannot succeed in education, contracting, or any other endeavor without such programs, thus perpetuating a dangerous and racist stereotype of inferiority.  His dissent here articulates what he suggests is “an originalist defense of the colorblind Constitution.’]

[Separate concurring opinions by Justice GORSUCH and Justice KAVANAUGH have been omitted]

Justice SOTOMAYOR, with whom Justice KAGAN and Justice JACKSON join, dissenting. [Justice JACKSON was recused in the Harvard case, so she joined this dissent only as to the North Carolina case]

The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation and the “importance of education to our democratic society.” For 45 years, the Court extended Brown’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity. This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools.

Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent.

A

Equal educational opportunity is a prerequisite to achieving racial equality in our Nation. From its founding, the United States was a new experiment in a republican form of government where democratic participation and the capacity to engage in self-rule were vital. At the same time, American society was structured around the profitable institution that was slavery, which the original Constitution protected. The Constitution initially limited the power of Congress to restrict the slave trade, Art. I, § 9, cl. 1, accorded Southern States additional electoral power by counting three-fifths of their enslaved population in apportioning congressional seats, § 2, cl. 3, and gave enslavers the right to retrieve enslaved people who escaped to free States, Art. IV, § 2, cl. 3. Because a foundational pillar of slavery was the racist notion that Black people are a subordinate class with intellectual inferiority, Southern States sought to ensure slavery’s longevity by prohibiting the education of Black people, whether enslaved or free. Thus, from this Nation’s birth, the freedom to learn was neither colorblind nor equal.

With time, and at the tremendous cost of the Civil War, abolition came. More than two centuries after the first African enslaved persons were forcibly brought to our shores, Congress adopted the Thirteenth Amendment to the Constitution, which abolished “slavery” and “involuntary servitude, except as a punishment for crime.” § 1. “Like all great historical transformations,” emancipation was a movement, “not a single event” owed to any single individual, institution, or political party.

The fight for equal educational opportunity, however, was a key driver. Literacy was an “instrument of resistance and liberation.” Education “provided the means to write a pass to freedom” and “to learn of abolitionist activities.” It allowed enslaved Black people “to disturb the power relations between master and slave,” which “fused their desire for literacy with their desire for freedom.” Put simply, “[t]he very feeling of inferiority which slavery forced upon [Black people] fathered an intense desire to rise out of their condition by means of education.” W. E. B. Du Bois, Black Reconstruction in America 1860–1880.

Yet emancipation marked the beginning, not the end, of that era. Abolition alone could not repair centuries of racial subjugation. Following the Thirteenth Amendment’s ratification, the Southern States replaced slavery with “a system of ‘laws which imposed upon [Black people] onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value.’ ” Those so-called “Black Codes” discriminated against Black people on the basis of race, regardless of whether they had been previously enslaved.

Moreover, the criminal punishment exception in the Thirteenth Amendment facilitated the creation of a new system of forced labor in the South. Southern States expanded their criminal laws, which in turn “permitted involuntary servitude as a punishment” for convicted Black persons.

Congress thus went further and embarked on months of deliberation about additional Reconstruction laws [and later] adopted the Fourteenth Amendment. Proponents of the Amendment declared that one of its key goals was to “protec[t] the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.” That is, the Amendment sought “to secure to a race recently emancipated, a race that through many generations [was] held in slavery, all the civil rights that the superior race enjoy.” To promote this goal, Congress enshrined a broad guarantee of equality in the Equal Protection Clause of the Amendment. That Clause commands that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.”

Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal. One such law was the Freedmen’s Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide certain benefits to refugees and newly emancipated freedmen. For the Bureau, education “was the foundation upon which all efforts to assist the freedmen rested.” Consistent with that view, the Bureau provided essential “funding for black education during Reconstruction.”

Black people were the targeted beneficiaries of the Bureau’s programs, especially when it came to investments in education in the wake of the Civil War. Each year surrounding the passage of the Fourteenth Amendment, the Bureau “educated approximately 100,000 students, nearly all of them black,” and regardless of “degree of past disadvantage.” The Bureau also provided land and funding to establish some of our Nation’s Historically Black Colleges and Universities (HBCUs).

Indeed, contemporaries understood that the Freedmen’s Bureau Act benefited Black people. Supporters defended the law by stressing its race-conscious approach. See, e.g., Cong. Globe 632 (statement of Rep. Moulton) (“[T]he true object of this bill is the amelioration of the condition of the colored people”); Joint Comm. Rep. 11 (reporting that “the Union men of the south” declared “with one voice” that the Bureau’s efforts “protect[ed] the colored people”). Opponents argued that the Act created harmful racial classifications that favored Black people and disfavored white Americans. See, e.g., Cong. Globe 397 (statement of Sen. Willey) (the Act makes “a distinction on account of color between the two races”), 544 (statement of Rep. Taylor) (the Act is “legislation for a particular class of the blacks to the exclusion of all whites”), App. to Cong. Globe, 39th Cong., 1st Sess., 69–70 (statement of Rep. Rousseau) (“You raise a spirit of antagonism between the black race and the white race in our country, and the law-abiding will be powerless to control it”). President Andrew Johnson vetoed the bill on the basis that it provided benefits “to a particular class of citizens,” 6 Messages and Papers of the Presidents 1789–1897, p. 425 (J. Richardson ed. 1897) (Messages & Papers) (A. Johnson to House of Rep. July 16, 1866), but Congress overrode his veto. Thus, rejecting those opponents’ objections, the same Reconstruction Congress that passed the Fourteenth Amendment eschewed the concept of colorblindness as sufficient to remedy inequality in education.

Congress similarly appropriated federal dollars explicitly and solely for the benefit of racial minorities. For example, it appropriated money for “ ‘the relief of destitute colored women and children,’ ” without regard to prior enslavement. Several times during and after the passage of the Fourteenth Amendment, Congress also made special appropriations and adopted special protections for the bounty and prize money owed to “colored soldiers and sailors” of the Union Army. In doing so, it rebuffed objections to these measures as “class legislation” “applicable to colored people and not ... to the white people.” This history makes it “inconceivable” that race-conscious college admissions are unconstitutional.

The Reconstruction era marked a transformational point in the history of American democracy. Its vision of equal opportunity leading to an equal society “was short-lived,” however, “with the assistance of this Court.” That endeavor culminated with the Court’s shameful decision in Plessy v. Ferguson, 163 U.S. 537 (1896), which established that “equality of treatment” exists “when the races are provided substantially equal facilities, even though these facilities be separate.”

In a powerful dissent, Justice Harlan explained in Plessy that the Louisiana law at issue, which authorized segregation in railway carriages, perpetuated a “caste” system. Although “[t]he white race deems itself to be the dominant race ... in prestige, in achievements, in education, in wealth, and in power,” Justice Harlan explained, there is “no superior, dominant, ruling class of citizens” in the eyes of the law. In that context, Justice Harlan thus announced his view that “[o]ur constitution is color-blind.”

It was not until half a century later, in Brown, that the Court honored the guarantee of equality in the Equal Protection Clause and Justice Harlan’s vision of a Constitution that “neither knows nor tolerates classes among citizens.”

Brown was a race-conscious decision that emphasized the importance of education in our society. The desegregation cases that followed Brown confirm that the ultimate goal of that seminal decision was to achieve a system of integrated schools that ensured racial equality of opportunity, not to impose a formalistic rule of race-blindness. Affirmative steps, this Court held, are constitutionally necessary when mere formal neutrality cannot achieve Brown’s promise of racial equality.

Bakke, Grutter, and Fisher are an extension of Brown’s legacy. Those decisions recognize that “ ‘experience lend[s] support to the view that the contribution of diversity is substantial.’ ” Racially integrated schools improve cross-racial understanding, “break down racial stereotypes,” and ensure that students obtain “the skills needed in today’s increasingly global marketplace ... through exposure to widely diverse people, cultures, ideas, and viewpoints.” More broadly, inclusive institutions that are “visibly open to talented and qualified individuals of every race and ethnicity” instill public confidence in the “legitimacy” and “integrity” of those institutions and the diverse set of graduates that they cultivate. That is particularly true in the context of higher education, where colleges and universities play a critical role in “maintaining the fabric of society” and serve as “the training ground for a large number of our Nation’s leaders.” It is thus an objective of the highest order, a “compelling interest” indeed, that universities pursue the benefits of racial diversity and ensure that “the diffusion of knowledge and opportunity” is available to students of all races.

Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the Fourteenth Amendment is not only contrary to precedent and the entire teachings of our history, but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.

After more than a century of government policies enforcing racial segregation by law, society remains highly segregated. About half of all Latino and Black students attend a racially homogeneous school with at least 75% minority student enrollment. The share of intensely segregated minority schools (i.e., schools that enroll 90% to 100% racial minorities) has sharply increased. To this day, the U. S. Department of Justice continues to enter into desegregation decrees with schools that have failed to “eliminat[e] the vestiges of de jure segregation.”

Moreover, underrepresented minority students are more likely to live in poverty and attend schools with a high concentration of poverty. When combined with residential segregation and school funding systems that rely heavily on local property taxes, this leads to racial minority students attending schools with fewer resources. In turn, underrepresented minorities are more likely to attend schools with less qualified teachers, less challenging curricula, lower standardized test scores, and fewer extracurricular activities and advanced placement courses. It is thus unsurprising that there are achievement gaps along racial lines, even after controlling for income differences.

Systemic inequities disadvantaging underrepresented racial minorities exist beyond school resources. Students of color, particularly Black students, are disproportionately disciplined or suspended, interrupting their academic progress and increasing their risk of involvement with the criminal justice system. Underrepresented minorities are less likely to have parents with a postsecondary education who may be familiar with the college application process. Further, low-income children of color are less likely to attend preschool and other early childhood education programs that increase educational attainment. All of these interlocked factors place underrepresented minorities multiple steps behind the starting line in the race for college admissions.

The Court today stands in the way of respondents’ commendable undertaking and entrenches racial inequality in higher education. The majority opinion does so by turning a blind eye to these truths and overruling decades of precedent, “content for now to disguise” its ruling as an application of “established law and move on.” As Justice THOMAS puts it, “Grutter is, for all intents and purposes, overruled.”

It is a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required by stare decisis. The Court simply moves the goalposts, upsetting settled expectations and throwing admissions programs nationwide into turmoil. In the end, however, it is clear why the Court is forced to change the rules of the game to reach its desired outcome: Under a faithful application of the Court’s settled legal framework, Harvard and UNC’s admissions programs are constitutional and comply with Title VI of the Civil Rights Act of 1964.

[Justice SOTOMAYOR then explained why, in her view, the Harvard and UNC programs both satisfied the strict scrutiny standard based on the extensive factual record from the trials in these two cases].

The majority does not dispute that some uses of race are constitutionally permissible. Indeed, it agrees that a limited use of race is permissible in some college admissions programs. In a footnote, the Court exempts military academies from its ruling in light of “the potentially distinct interests” they may present. To the extent the Court suggests national security interests are “distinct,” those interests cannot explain the Court’s narrow exemption, as national security interests are also implicated at civilian universities.

It is not a stereotype to acknowledge the basic truth that young people’s experiences are shaded by a societal structure where race matters. Acknowledging that there is something special about a student of color who graduates valedictorian from a predominantly white school is not a stereotype. Nor is it a stereotype to acknowledge that race imposes certain burdens on students of color that it does not impose on white students. “For generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.” Utah v. Strieff, 579 U.S. 232, 254 (2016) (SOTOMAYOR, J., dissenting). Those conversations occur regardless of socioeconomic background or any other aspect of a student’s self-identification. They occur because of race.

The absence of racial diversity, by contrast, actually contributes to stereotyping. “[D]iminishing the force of such stereotypes is both a crucial part of [respondents’] mission, and one that [they] cannot accomplish with only token numbers of minority students.” When there is an increase in underrepresented minority students on campus, “racial stereotypes lose their force” because diversity allows students to “learn there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.” By preventing respondents from achieving their diversity objectives, it is the Court’s opinion that facilitates stereotyping on American college campuses.

Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, “the arc of the moral universe” will bend toward racial justice despite the Court’s efforts today to impede its progress. Martin Luther King “Our God is Marching On!” Speech (Mar. 25, 1965).

Justice JACKSON, with whom Justice SOTOMAYOR and Justice KAGAN join, dissenting.

Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Yet, today, the Court determines that holistic admissions programs like the one that the University of North Carolina (UNC) has operated, consistent with Grutter v. Bollinger, are a problem with respect to achievement of that aspiration, rather than a viable solution (as has long been evident to historians, sociologists, and policymakers alike)

I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start. Students for Fair Admissions (SFFA) has maintained, both subtly and overtly, that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants.

This contention blinks both history and reality in ways too numerous to count. But the response is simple: Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry.

Understood properly, then, what SFFA caricatures as an unfair race-based preference cashes out, in a holistic system, to a personalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth plus all that has happened to them since. It ensures a full accounting of everything that bears on the individual’s resilience and likelihood of enhancing the UNC campus. It also forecasts his potential for entering the wider world upon graduation and making a meaningful contribution to the larger, collective, societal goal that the Equal Protection Clause embodies (its guarantee that the United States of America offers genuinely equal treatment to every person, regardless of race).

Furthermore, and importantly, the fact that UNC’s holistic process ensures a full accounting makes it far from clear that any particular applicant of color will finish ahead of any particular nonminority applicant. For example, as the District Court found, a higher percentage of the most academically excellent in-state Black candidates (as SFFA’s expert defined academic excellence) were denied admission than similarly qualified White and Asian American applicants. That, if nothing else, is indicative of a genuinely holistic process.

The majority seems to think that race blindness solves the problem of race-based disadvantage. But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants  . . .will inevitably widen that gap, not narrow it. It will delay the day that every American has an equal opportunity to thrive, regardless of race.

SFFA similarly asks us to consider how much longer UNC will be able to justify considering race in its admissions process. Whatever the answer to that question was yesterday, today’s decision will undoubtedly extend the duration of our country’s need for such race consciousness, because the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society (the closure of which today’s decision will forestall).

To be sure, while the gaps are stubborn and pernicious, Black people, and other minorities, have generally been doing better. But those improvements have only been made possible because institutions like UNC have been willing to grapple forthrightly with the burdens of history. SFFA’s complaint about the “indefinite” use of race-conscious admissions programs, then, is a non sequitur. These programs respond to deep-rooted, objectively measurable problems; their definite end will be when we succeed, together, in solving those problems.

The overarching reason the majority gives for becoming an impediment to racial progress—that its own conception of the Fourteenth Amendment’s Equal Protection Clause leaves it no other option—has a wholly self-referential, two-dimensional flatness. The majority and concurring opinions rehearse this Court’s idealistic vision of racial equality, from Brown forward, with appropriate lament for past indiscretions. But the race-linked gaps that the law (aided by this Court) previously founded and fostered—which indisputably define our present reality—are strangely absent and do not seem to matter.

With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.

No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.

The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.

As the Civil War neared its conclusion, General William T. Sherman and Secretary of War Edwin Stanton convened a meeting of Black leaders in Savannah, Georgia. During the meeting, someone asked Garrison Frazier, the group’s spokesperson, what “freedom” meant to him. He answered, “ ‘placing us where we could reap the fruit of our own labor, and take care of ourselves ... to have land, and turn it and till it by our own labor.’ ”

Today’s gaps exist because that freedom was denied far longer than it was ever afforded. Therefore, as Justice SOTOMAYOR correctly and amply explains, UNC’s holistic review program pursues a righteous end—legitimate “ ‘because it is defined by the Constitution itself. The end is the maintenance of freedom.’ ”

Viewed from this perspective, beleaguered admissions programs such as UNC’s are not pursuing a patently unfair, ends-justified ideal of a multiracial democracy at all. Instead, they are engaged in an earnest effort to secure a more functional one. The admissions rubrics they have constructed now recognize that an individual’s “merit”—his ability to succeed in an institute of higher learning and ultimately contribute something to our society—cannot be fully determined without understanding that individual in full. There are no special favorites here.

UNC has thus built a review process that more accurately assesses merit than most of the admissions programs that have existed since this country’s founding. Moreover, in so doing, universities like UNC create pathways to upward mobility for long excluded and historically disempowered racial groups. Our Nation’s history more than justifies this course of action. And our present reality indisputably establishes that such programs are still needed—for the general public good—because after centuries of state-sanctioned (and enacted) race discrimination, the aforementioned intergenerational race-based gaps in health, wealth, and well-being stubbornly persist.

Rather than leaving well enough alone, today, the majority is having none of it. Turning back the clock (to a time before the legal arguments and evidence establishing the soundness of UNC’s holistic admissions approach existed), the Court indulges those who either do not know our Nation’s history or long to repeat it. Simply put, the race-blind admissions stance the Court mandates from this day forward is unmoored from critical real-life circumstances. Thus, the Court’s meddling not only arrests the noble generational project that America’s universities are attempting, it also launches, in effect, a dismally misinformed sociological experiment.

Time will reveal the results. Yet the Court’s own missteps are now both eternally memorialized and excruciatingly plain. For one thing—based, apparently, on nothing more than Justice Powell’s initial say so—it drastically discounts the primary reason that the racial-diversity objectives it excoriates are needed, consigning race-related historical happenings to the Court’s own analytical dustbin. Also, by latching onto arbitrary timelines and professing insecurity about missing metrics, the Court sidesteps unrefuted proof of the compelling benefits of holistic admissions programs that factor in race (hard to do, for there is plenty), simply proceeding as if no such evidence exists. Then, ultimately, the Court surges to vindicate equality, but Don Quixote style—pitifully perceiving itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled and will hamper the best judgments of our world-class educational institutions about who they need to bring onto their campuses right now to benefit every American, no matter their race.

The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore). It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.

Jelani Cobb, The End of Affirmative Action, The New Yorker (June 29, 2023) (comment)

Any proper obituary for affirmative action (1961-2023) in higher education would be obliged to note that it had been in decline for years before it met its ultimate demise this week. The policy had weathered successive legal challenges dating back to the nineteen-seventies. It was often difficult to tell whether the effect of these suits was to inspire more nuanced and legally sustainable approaches for insuring diversity or to better define the target opponents were aiming at. As with other untimely passings, the scale of what has been lost is difficult to assess in the moment. But not entirely impossible.

The term “affirmative action” was introduced in an executive order issued by President John F. Kennedy on March 6, 1961, articulating a policy of proactively impeding discrimination in hiring. In the ensuing years, there have been many iterations of this practice: numerical targets, or “quotas,” in the early days; increasingly sophisticated formulas pegged to goals of diversity more recently. But the common thread was a sober, if imperfect, attempt to grapple with the abiding inequality in American society and to navigate closer to equitable representation in our institutions and opportunities. It yielded significant results as an engine that drove integration in the wake of the civil-rights movement and helped expand the Black middle class.

Yet, almost from the outset, critics of the policy could be seen impatiently tapping their watches, questioning how long (white) society was meant to endure the patent unfairness of these racial considerations. (The gender considerations of affirmative action, which were introduced by the Johnson Administration, have been targeted in different ways.) Even its supporters were commonly ambivalent. In the 2003 Grutter v. Bollinger case, which challenged admissions practices at the University of Michigan Law School, the Supreme Court narrowly defended the policy. Justice Sandra Day O’Connor wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Yet “How long?” was always the wrong question. It presupposed that there was a standard speed at which groups whose disadvantages were the product of centuries of social engineering were meant to recover and achieve. The salient metric was progress, not time. It matters that, half a century after the end of the civil-rights movement, the median net worth of white households was still ten times the median net worth of Black households—a disparity driven by decades of restricted access to education, employment, and housing. These disadvantages were not simply the product of economic class—middle-class Black students in the United States are still more likely to attend schools with fewer resources than their middle- class white peers. Crucially, in the wake of the 1978 Regents of the University of California v. Bakke case, one of the first significant challenges to affirmative action, these factors were discarded as a rationale for the policy in place of a more nebulous (and, presumably, more palatable) pursuit of social and institutional “diversity.” It’s worth noting that the two suits that Students for Fair Admissions brought, against Harvard and the University of North Carolina, which alleged, among other things, discrimination against Asian American applicants, and which gave the Court’s conservatives the opportunity to dismantle affirmative action, were heard in the midst of a concerted multi-state assault on the edifice of diversity that has sprung up in the decades since Bakke.

The Supreme Court telegraphed its 6–3 vote last October, when the arguments were heard. A Times headline blurted, “Supreme Court Seems Ready to Throw Out Race-Based College Admissions.” Notably, Justice Clarence Thomas, whose contempt for affirmative action dates back decades, to his years at Yale Law School and the inscrutable idea that the policy was responsible for the dearth of job offers he received after graduation, specifically questioned the utility of diversity as a goal during oral arguments. “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.” This is a specious argument. The many diversity programs in higher education have as their goal fostering heterogeneous communities across lines of nationality, background, interests, talents, and experiences. Of the hundred and sixteen people who have served on the Supreme Court, only two—Justices Thurgood Marshall and Clarence Thomas—knew what it felt like to attend a segregated school as a Black person. This perspective inarguably benefits a body dedicated to adjudicating cases that affect the entire society. The reasoning is not difficult to grasp, even if it is, apparently, difficult to uphold.

The ultimate impact of this decision will become clearer over time, but it is safe to predict that the result will be fewer students from traditionally underrepresented minorities on college campuses, particularly at the most competitive institutions. In 1998, after the University of California system stripped away race, gender, and ethnicity as a factor in admissions, the number of Black and Latino students enrolled at its most selective schools, Berkeley and U.C.L.A., dropped by some forty per cent. This was not just a product of there being fewer minority students admitted; fewer highly qualified Black and Latino students even applied, perhaps thinking that they wouldn’t get in. It’s not improbable for a national version of this phenomenon to crop up in coming years. It is also possible that the proportion of Black and Latino students at less well-resourced colleges, which generally have lower graduation rates, will increase. It would not be surprising for this ruling to generate a tide of applications at historically Black colleges and universities, albeit for reasons that signify less over-all opportunity.

The implications of this decision are not confined to future generations of students. As with abortion rights, this case deals with a policy that the majority of the public supports—in a recent poll, sixty-three per cent of Americans said that the Supreme Court should allow colleges to consider race and ethnicity in admissions—but that the majority of conservatives wished to see ended. The Dobbs decision, last year, furthered suspicions that this Court, with its 6–3 super-majority of conservatives, operates simply to translate Republican priorities into the law of the land. By last fall, faith in the Court had fallen to a new low—just forty-seven per cent of Americans placed “a great deal” or “a fair amount” of trust in the federal judiciary, reflecting a twenty-point drop from the results of a similar poll just two years earlier. This ruling will potentially exacerbate that distrust, and with good reason. Two decades have passed since Justice O’Connor set a timer for affirmative action’s viability, but the train seems to have arrived in the station early. The ruling marks a new departure, and we’re heading in the opposite direction from progress.

The link to this article is here: https://www.nytimes.com/interactive/2023/07/24/upshot/ivy-league-elite-college-admissions.html?searchResultPosition=1

Aatish Bhatia, Claire Cain Miller, and Josh Katz, Study of Elite College Admissions Data Suggests Being Very Rich is its Own Qualification, New York Times (July 24, 2023)

Elite colleges have long been filled with the children of the richest families: At Ivy League schools, one in six students has parents in the top 1 percent.

A large new study, released Monday, shows that it has not been because these children had more impressive grades on average or took harder classes. They tended to have higher SAT scores and finely honed résumés, and applied at a higher rate — but they were overrepresented even after accounting for those things. For applicants with the same SAT or ACT score, children from families in the top 1 percent were 34 percent more likely to be admitted than the average applicant, and those from the top 0.1 percent were more than twice as likely to get in.

The study by Opportunity Insights, a group of economists based at Harvard who study inequality — quantifies for the first time the extent to which being very rich is its own qualification in selective college admissions.

The analysis is based on federal records of college attendance and parental income taxes for nearly all college students from 1999 to 2015, and standardized test scores from 2001 to 2015. It focuses on the eight Ivy League universities, as well as Stanford, Duke, M.I.T. and the University of Chicago. It adds an extraordinary new data set: the detailed, anonymized internal admissions assessments of at least three of the 12 colleges, covering half a million applicants. (The researchers did not name the colleges that shared data or specify how many did because they promised them anonymity.)

The new data shows that among students with the same test scores, the colleges gave preference to the children of alumni and to recruited athletes, and gave children from private schools higher nonacademic ratings. The result is the clearest picture yet of how America’s elite colleges perpetuate the intergenerational transfer of wealth and opportunity.

“What I conclude from this study is the Ivy League doesn’t have low-income students because it doesn’t want low-income students,” said Susan Dynarski, an economist at the Harvard Graduate School of Education, who has reviewed the data and was not involved in the study.

In effect, the study shows, these policies amounted to affirmative action for the children of the 1 percent, whose parents earn more than $611,000 a year. It comes as colleges are being forced to rethink their admissions processes after the Supreme Court ruling that race-based affirmative action is unconstitutional.

“Are these highly selective private colleges in America taking kids from very high-income, influential families and basically channeling them to remain at the top in the next generation?” said Raj Chetty, an economist at Harvard who directs Opportunity Insights, and an author of the paper with John N. Friedman of Brown and David J. Deming of Harvard. “Flipping that question on its head, could we potentially diversify who’s in a position of leadership in our society by changing who is admitted?”

Representatives from several of the colleges said that income diversity was an urgent priority, and that they had taken significant steps since 2015, when the data in the study ends, to admit lower-income and first-generation students. These include making tuition free for families earning under a certain amount; giving only grants, not loans, in financial aid; and actively recruiting students from disadvantaged high schools.

“We believe that talent exists in every sector of the American income distribution,” said Christopher L. Eisgruber, the president of Princeton. “I am proud of what we have done to increase socioeconomic diversity at Princeton, but I also believe that we need to do more — and we will do more.”

Affirmative action for the rich

In a concurring opinion in the affirmative action case, Justice Neil Gorsuch addressed the practice of favoring the children of alumni and donors, which is also the subject of a new case. “While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most,” he wrote.

The new paper did not include admissions rates by race because previous research had done so, the researchers said. They found that racial differences were not driving the results. When looking only at applicants of one race, for example, those from the highest-income families still had an advantage. Yet the top 1 percent is overwhelmingly white. Some analysts have proposed diversifying by class as a way to achieve more racial diversity without affirmative action.

The new data showed that other selective private colleges, like Northwestern, N.Y.U. and Notre Dame, had a similarly disproportionate share of children from rich families. Public flagship universities were much more equitable. At places like the University of Texas at Austin and the University of Virginia, applicants with high-income parents were no more likely to be admitted than lower-income applicants with comparable scores.

Less than 1 percent of American college students attend the 12 elite colleges. But the group plays an outsize role in American society: 12 percent of Fortune 500 chief executives and a quarter of U.S. senators attended. So did 13 percent of the top 0.1 percent of earners. The focus on these colleges is warranted, the researchers say, because they provide paths to power and influence — and diversifying who attends has the potential to change who makes decisions in America.

The researchers did a novel analysis to measure whether attending one of these colleges causes success later in life. They compared students who were wait-listed and got in, with those who didn’t and attended another college instead. Consistent with previous research, they found that attending an Ivy instead of one of the top nine public flagships did not meaningfully increase graduates’ income, on average. However, it did increase a student’s predicted chance of earning in the top 1 percent to 19 percent, from 12 percent.

For outcomes other than earnings, the effect was even larger — it nearly doubled the estimated chance of attending a top graduate school, and tripled the estimated chance of working at firms that are considered prestigious, like national news organizations and research hospitals.

“Sure, it’s a tiny slice of schools,” said Professor Dynarski, who has studied college admissions and worked with the University of Michigan on increasing the attendance of low-income students, and has occasionally contributed to The New York Times. “But having representation is important, and this shows how much of a difference the Ivies make: The political elite, the economic elite, the intellectual elite are coming out of these schools.”

The missing middle class

The advantage to rich applicants varied by college, the study found: At Dartmouth, students from the top 0.1 percent were five times as likely to attend as the average applicant with the same test score, while at M.I.T. they were no more likely to attend. (The fact that children from higher-income families tend to have higher standardized test scores and are likelier to receive private coaching suggests that the study may actually underestimate their admissions advantage.)

An applicant with a high test score from a family earning less than $68,000 a year was also likelier than the average applicant to get in, though there were far fewer applicants like this.

Children from middle- and upper-middle-class families — including those at public high schools in high-income neighborhoods — applied in large numbers. But they were, on an individual basis, less likely to be admitted than the richest or, to a lesser extent, poorest students with the same test scores. In that sense, the data confirms the feeling among many merely affluent parents that getting their children into elite colleges is increasingly difficult.

“We had these very skewed distributions of a whole lot of Pell kids and a whole lot of no-need kids, and the middle went missing,” said an Ivy League dean of admissions, who has seen the new data and spoke anonymously in order to talk openly about the process. “You’re not going to win a P.R. battle by saying you have X number of families making over $200,000 that qualify for financial aid.”

The researchers could see, for nearly all college students in the United States from 1999 to 2015, where they applied and attended, their SAT or ACT scores and whether they received a Pell grant for low-income students. They could also see their parents’ income tax records, which enabled them to analyze attendance by earnings in more detail than any previous research. They conducted the analysis using anonymized data.

For the several elite colleges that also shared internal admissions data, they could see other aspects of students’ applications between 2001 and 2015, including how admissions offices rated them. They focused their analysis on the most recent years, 2011 to 2015.

Though they had this data for a minority of the dozen top colleges, the researchers said they thought it was representative of the other colleges in the group (with the exception of M.I.T.). The other colleges admitted more students from high-income families, showed preferences for legacies and recruited athletes, and described similar admissions practices in conversations with the researchers, they said.

“Nobody has this kind of data; it’s completely unheard-of,” said Michael Bastedo, a professor at the University of Michigan’s School of Education, who has done prominent research on college admissions. “I think it’s really important to good faith efforts for reforming the system to start by being able to look honestly and candidly at the data.”

How the richest students benefit

Before this study, it was clear that colleges enrolled more rich students, but it was not known whether it was just because more applied. The new study showed that’s part of it: One-third of the difference in attendance rates was because middle-class students were somewhat less likely to apply or matriculate. But the bigger factor was that these colleges were more likely to accept the richest applicants.

Legacy admissions

The largest advantage for the 1 percent was the preference for legacies. The study showed — for the first time at this scale — that legacies were more qualified overall than the average applicant. But even when comparing applicants who were similar in every other way, legacies still had an advantage.

When high-income applicants applied to the college their parents attended, they were accepted at much higher rates than other applicants with similar qualifications — but at the other top-dozen colleges, they were no more likely to get in.

“This is not a sideshow, not just a symbolic issue,” Professor Bastedo said of the finding.

Athletes

One in eight admitted students from the top 1 percent was a recruited athlete. For the bottom 60 percent, that figure was one in 20. That’s largely because children from rich families are more likely to play sports, especially more exclusive sports played at certain colleges, like rowing and fencing. The study estimated that athletes were admitted at four times the rate of nonathletes with the same qualifications.

“There’s a common misperception that it’s about basketball and football and low-income kids making their way into selective colleges,” Professor Bastedo said. “But the enrollment leaders know athletes tend to be wealthier, so it’s a win-win.”

Nonacademic ratings

There was a third factor driving the preference for the richest applicants. The colleges in the study generally give applicants numerical scores for academic achievement and for more subjective nonacademic virtues, like extracurricular activities, volunteering and personality traits. Students from the top 1 percent with the same test scores did not have higher academic ratings. But they had significantly higher nonacademic ratings.

At one of the colleges that shared admissions data, students from the top 0.1 percent were 1.5 times as likely to have high nonacademic ratings as those from the middle class. The researchers said that, accounting for differences in the way each school assesses nonacademic credentials, they found similar patterns at the other colleges that shared data.

The biggest contributor was that admissions committees gave higher scores to students from private, nonreligious high schools. They were twice as likely to be admitted as similar students — those with the same SAT scores, race, gender and parental income — from public schools in high-income neighborhoods. A major factor was recommendations from guidance counselors and teachers at private high schools.

“Parents rattle off that a kid got in because he was first chair in the orchestra, ran track,” said John Morganelli Jr., a former director of admissions at Cornell and founder of Ivy League Admissions, where he advises high school students on applying to college. “They never say what really happens: Did the guidance counselor advocate on that kid’s behalf?”

Recommendation letters from private school counselors are notoriously flowery, he said, and the counselors call admissions officers about certain students.

“This is how the feeder schools get created,” he said. “Nobody’s calling on behalf of a middle- or lower-income student. Most of the public school counselors don’t even know these calls exist.”

The end of need-blind admissions?

Overall, the study suggests, if elite colleges had done away with the preferences for legacies, athletes and private school students, the children of the top 1 percent would have made up 10 percent of a class, down from 16 percent in the years of the study.

Legacy students, athletes and private school students do no better after college, in terms of earnings or reaching a top graduate school or firm, it found. In fact, they generally do somewhat worse.

The dean of admissions who spoke anonymously said change was easier said than done: “I would say there’s much more commitment to this than may be obvious. It’s just the solution is really complicated, and if we could have done it, we would have.”

For example, it’s not feasible to choose athletes from across the income spectrum if many college sports are played almost entirely by children from high-earning families. Legacies are perhaps the most complicated, the admissions dean said, because they tend to be highly qualified and their admission is important for maintaining strong ties with alumni.

Ending that preference, the person said, “is not an easy decision to make, given the alumni response, especially if you’re not in immediate concurrence with the rest of the Ivies.” (Though children of very large donors also get special consideration by admissions offices, they were not included in the analysis because there are relatively few of them.)

People involved in admissions say that achieving more economic diversity would be difficult without doing something else: ending need-blind admissions, the practice that prevents admissions officers from seeing families’ financial information so their ability to pay is not a factor. Some colleges are already doing what they call “need-affirmative admissions,” for the purpose of selecting more students from the low end of the income spectrum, though they often don’t publicly acknowledge it for fear of blowback.

There is a tool, Landscape from the College Board, to help determine if an applicant grew up in a neighborhood with significant privilege or adversity. But these colleges have no knowledge of parents’ income if students don’t apply for financial aid.

Ivy League colleges and their peers have recently made significant efforts to recruit more low-income students and subsidize tuition. Several now make attendance entirely free for families below a certain income — $100,000 at Stanford and Princeton, $85,000 at Harvard, and $60,000 at Brown.

At Princeton, one-fifth of students are now from low-income families, and one-fourth receive a full ride. It has recently reinstated a transfer program to recruit low-income and community college students. At Harvard, one-fourth of this fall’s freshman class is from families with incomes less than $85,000, who will pay nothing. The majority of freshmen will receive some amount of aid.

Dartmouth just raised $500 million to expand financial aid: “While we respect the work of Harvard’s Opportunity Insights, we believe our commitment to these investments and our admissions policies since 2015 tells an important story about the socioeconomic diversity among Dartmouth students,” said Jana Barnello, a spokeswoman.

Public flagships do admissions differently, in a way that ends up benefiting rich students less. The University of California schools forbid giving preference to legacies or donors, and some, like U.C.L.A., do not consider letters of recommendation. The application asks for family income, and colleges get detailed information about California high schools. Application readers are trained to consider students’ circumstances, like whether they worked to support their families in high school, as “evidence of maturity, determination and insight.”

The University of California system also partners with schools in the state, from pre-K through community college, to support students who face barriers. There’s a robust program for transfer students from California community colleges; at U.C.L.A., half are from low-income backgrounds.

M.I.T., which stands out among elite private schools as displaying almost no preference for rich students, has long had a practice of not giving a preference to legacy applicants, said its dean of admissions, Stuart Schmill. It does recruit athletes, but they do not receive any preference or go through a separate admissions process (as much as it may frustrate coaches, he said).

“I think the most important thing here is talent is distributed equally but opportunity is not, and our admissions process is designed to account for the different opportunities students have based on their income,” he said. “It’s really incumbent upon our process to tease out the difference between talent and privilege.”

The first time the Supreme Court directly addressed a claim of gender discrimination was in Bradwell v. Illinois, 83 U.S. 130 (1872). In that case, Myra Bradwell, an Illinois resident, challenged a rule in the State of Illinois forbidding women to be members of the bar. This case was soon after the ratification of the Fourteenth Amendment, and Bradwell brought the claim not under the Equal Protection Clause, but under the part of that amendment protecting all citizens from States' abridgement of the "privileges or immunities of a citizen." (Unlike the Art. IV Privileges and Immunities Clause, this provision of the Fourteenth Amendment protected the rights of U.S. citizenship, rather than state citizenship, from state interference). The Court rejected Bradwell's claim based on its conclusion that the practice of law was not a "privilege or immunity" of U.S. citizenship. Id. at 139. Perhaps more noteworthy was a separate concurrence by Justice Bradley, in which he wrote (perhaps reflective of the general attitude about women among some segments of society):

The claim that, under the fourteenth amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life.

It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

Id. at 140-42 (Bradwell, J.,concurring in the judgment)

Nearly 100 years later, the Supreme Court would examine a gender discrimination claim under the Equal Protection Clauses, In Reed v. Reed, 404 U.S. 71 (1971), the Court heard a challenge to an Idaho law that designated who should be appointed as the administrator of a person's estate if they died without a will. Every state has such rules, and they typically create an order of priority. For example, they might provide that if a person dies without a will, their spouse, if they are married, should be the administrator; if they have no spouse, then their parent should be the administrator; and if their parents are no longer living, then their child should be the administrator, and so forth. But the rules also have to establish a way of selecting the administrator if more than one person qualifies. So, if a person dies without a will and their parents are both living, who should be the administrator. Idaho's answer was that where there were two people of different sexes with equal priority under the state's law, the courts should automatically appoint the male.

The Court struck down the Idaho law, stating the following:

[T]his Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of [the Idaho law]. . .

Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. The crucial question, however, is whether [Idaho's law] advances that objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

Id. at 75-77.

Mr. Justice BRENNAN announced the judgment of the Court in an opinion in which Mr. Justice DOUGLAS, Mr. Justice WHITE, and Mr. Justice MARSHALL join.

The question before us concerns the right of a female member of the uniformed services to claim her spouse as a ‘dependent’ for the purposes of obtaining increased quarters allowances and medical and dental benefits on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a ‘dependent’ without regard to whether she is in fact dependent upon him for any part of her support. A servicewoman, on the other hand, may not claim her husband as a ‘dependent’ under these programs unless he is in fact dependent upon her for over one-half of his support. Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the [equal protection component of the] Due Process Clause of the Fifth Amendment.

Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her ‘dependent.’ Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support. In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits.

Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members, a majority of the three-judge District Court [below] surmised that Congress might reasonably have concluded that, since the husband in our society is generally the ‘breadwinner’ in the family—and the wife typically the ‘dependent’ partner—‘it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members.’ Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District Court speculated that such differential treatment might conceivably lead to a ‘considerable saving of administrative expense and manpower.’

At the outset, appellants contend that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed, 404 U.S. 71 (1971).

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.

As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. And although blacks were guaranteed the right to vote in 1870, women were denied even that right—which is itself ‘preservative of other basic civil and political rights'—until adoption of the Nineteenth Amendment half a century later.

It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.

Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate ‘the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . ..’ And what differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.

The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under the federal law, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command ‘dissimilar treatment for men and women who are . . . similarly situated.’

Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere ‘administrative convenience.’ In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.

The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits. And in light of the fact that the dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits rather than through the more costly hearing process, the Government's explanation of the statutory scheme is, to say the least, questionable.

In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, ‘the Constitution recognizes higher values than speed and efficiency.’ And when we enter the realm of ‘strict judicial scrutiny,’ there can be no doubt that ‘administrative convenience’ is not a shibboleth, the mere recitation of which dictates constitutionality. On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands ‘dissimilar treatment for men and women who are . . . similarly situated,’ and therefore involves the ‘very kind of arbitrary legislative choice forbidden by the (Constitution) . . ..’ Reed v. Reed, 404 U.S., at 77. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.

Mr. Justice STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution.

Mr. Justice REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court, Frontiero v. Laird, 341 F.Supp. 201 (1972).

Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in the judgment.

I agree that the challenged statutes constitute an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment, but I cannot join the opinion of Mr. Justice BRENNAN, which would hold that all classifications based upon sex, ‘like classifications based upon race, alienage, and national origin,’ are ‘inherently suspect and must therefore be subjected to close judicial scrutiny.’ It is unnecessary for the Court in this case to characterize sex as a suspect classification, with all of the far-reaching implications of such a holding.

There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democractic process, are debating the proposed Amendment. It seems to me that this reaching out to pre-empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.

There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.

Mr. Justice BRENNAN delivered the opinion of the Court.

The interaction of two sections of an Oklahoma statute prohibits the sale of “nonintoxicating” 3.2% beer to males under the age of 21 and to females under the age of 18. The question to be decided is whether such a gender-based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment.

[The Court described how, under Oklahoma law at that time, the age of majority for both males and females was 18 for both criminal and civil law except with regard to the ability to purchase 3.2% beer]

Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are “subject to scrutiny under the Equal Protection Clause.” To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.

We accept for purposes of discussion the District Court's identification of the objective underlying [the Oklahoma law] as enhancement of traffic safety. Clearly, the protection of public health and safety represents an important function of state and local governments. However, appellees' statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge.

The appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for “driving under the influence” and “drunkenness” substantially exceeded female arrests for that same age period. Similarly, youths aged 17-21 were found to be overrepresented among those killed or injured in traffic accidents, with males again numerically exceeding females in this regard. Third, a random roadside survey in Oklahoma City revealed that young males were more inclined to drive and drink beer than were their female counterparts. Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for “driving under the influence.” Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma's experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol. Conceding that “the case is not free from doubt, the District Court nonetheless concluded that this statistical showing substantiated “a rational basis for the legislative judgment underlying the challenged classification.”

Even were this statistical evidence accepted as accurate, it nevertheless offers only a weak answer to the equal protection question presented here. The most focused and relevant of the statistical surveys, arrests of 18-20-year-olds for alcohol-related driving offenses, exemplifies the ultimate unpersuasiveness of this evidentiary record. Viewed in terms of the correlation between sex and the actual activity that Oklahoma seeks to regulate driving while under the influence of alcohol the statistics broadly establish that .18% of females and 2% of males in that age group were arrested for that offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device. Certainly if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous “fit.” Indeed, prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive empirical relationships than this.

Moreover, the statistics exhibit a variety of other shortcomings that seriously impugn their value to equal protection analysis. Setting aside the obvious methodological problems, the surveys do not adequately justify the salient features of Oklahoma's gender-based traffic-safety law. None purports to measure the use and dangerousness of 3.2% beer as opposed to alcohol generally, a detail that is of particular importance since, in light of its low alcohol level, Oklahoma apparently considers the 3.2% beverage to be “nonintoxicating.” Moreover, many of the studies, while graphically documenting the unfortunate increase in driving while under the influence of alcohol, make no effort to relate their findings to age-sex differentials as involved here. Indeed, the only survey that explicitly centered its attention upon young drivers and their use of beer albeit apparently not of the diluted 3.2% variety reached results that hardly can be viewed as impressive in justifying either a gender or age classification.

There is no reason to belabor this line of analysis. It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause. Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it is further recognized that Oklahoma's statute prohibits only the selling of 3.2% beer to young males and not their drinking the beverage once acquired (even after purchase by their 18-20-year-old female companions), the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed's requirement that the gender-based difference be substantially related to achievement of the statutory objective.

We hold, therefore, that under Reed, Oklahoma's 3.2% beer statute invidiously discriminates against males 18-20 years of age. We conclude that the gender-based differential contained in [the Oklahoma law] constitutes a denial of the equal protection of the laws to males aged 18-20.

[Separate opinions by several of the Justices have been omitted]

Mr. Justice STEVENS, concurring.

There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard.

I am inclined to believe that what has become known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion. I also suspect that a careful explanation of the reasons motivating particular decisions may contribute more to an identification of that standard than an attempt to articulate it in all-encompassing terms. It may therefore be appropriate for me to state the principal reasons which persuaded me to join the Court's opinion.

In this case, the classification is not as obnoxious as some the Court has condemned, nor as inoffensive as some the Court has accepted. It is objectionable because it is based on an accident of birth, because it is a mere remnant of the now almost universally rejected tradition of discriminating against males in this age bracket, and because, to the extent it reflects any physical difference between males and females, it is actually perverse. The question then is whether the traffic safety justification put forward by the State is sufficient to make an otherwise offensive classification acceptable.

The classification is not totally irrational. Nevertheless, there are several reasons why I regard the justification as unacceptable. It is difficult to believe that the statute was actually intended to cope with the problem of traffic safety, since it has only a minimal effect on access to a not very intoxicating beverage and does not prohibit its consumption. Moreover, the empirical data submitted by the State accentuate the unfairness of treating all 18-21-year-old males as inferior to their female counterparts. The legislation imposes a restraint on 100% of the males in the class allegedly because about 2% of them have probably violated one or more laws relating to the consumption of alcoholic beverages. It is unlikely that this law will have a significant deterrent effect either on that 2% or on the law-abiding 98%. But even assuming some such slight benefit, it does not seem to me that an insult to all of the young men of the State can be justified by visiting the sins of the 2% on the 98%.

Mr. Justice REHNQUIST, dissenting.

The Court's disposition of this case is objectionable on two grounds. First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications. Second is the Court's enunciation of this standard, without citation to any source, as being that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” The only redeeming feature of the Court's opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality opinion in Frontiero v. Richardson, 411 U.S. 677 (1973), from their view that sex is a “suspect” classification for purposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the “rational basis” equal protection analysis and I believe that it is constitutional under that analysis.

The Court's conclusion that a law which treats males less favorably than females “must serve important governmental objectives and must be substantially related to achievement of those objectives” apparently comes out of thin air. The Equal Protection Clause contains no such language, and none of our previous cases adopt that standard. I would think we have had enough difficulty with the two standards of review which our cases have recognized the norm of “rational basis,” and the “compelling state interest” required where a “suspect classification” is involved so as to counsel weightily against the insertion of still another “standard” between those two. How is this Court to divine what objectives are important? How is it to determine whether a particular law is “substantially” related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at “important” objectives or, whether the relationship to those objectives is “substantial” enough.

The applicable rational-basis test is one which “permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

One survey of arrest statistics assembled in 1973 indicated that males in the 18-20 age group were arrested for “driving under the influence” almost 18 times as often as their female counterparts, and for “drunkenness” in a ratio of almost 10 to 1. Accepting, as the Court does, appellants' comparison of the total figures with 1973 Oklahoma census data, this survey indicates a 2% arrest rate among males in the age group, as compared to a .18% rate among females.

Other surveys indicated (1) that over the five-year period from 1967 to 1972, nationwide arrests among those under 18 for drunken driving increased 138%, and that 93% of all persons arrested for drunken driving were male; (2) that youths in the 17-21 age group were overrepresented among those killed or injured in Oklahoma traffic accidents, that male casualties substantially exceeded female, and that deaths in this age group continued to rise while overall traffic deaths declined; (3) that over three-fourths of the drivers under 20 in the Oklahoma City area are males, and that each of them, on average, drives half again as many miles per year as their female counterparts; (4) that four-fifths of male drivers under 20 in the Oklahoma City area state a drink preference for beer, while about three-fifths of female drivers of that age state the same preference; and (5) that the percentage of male drivers under 20 admitting to drinking within two hours of driving was half again larger than the percentage for females, and that the percentage of male drivers of that age group with a blood alcohol content greater than .01% was almost half again larger than for female drivers.

The Court's criticism of the statistics relied on by the District Court conveys the impression that a legislature in enacting a new law is to be subjected to the judicial equivalent of a doctoral examination in statistics. Legislatures are not held to any rules of evidence such as those which may govern courts or other administrative bodies, and are entitled to draw factual conclusions on the basis of the determination of probable cause which an arrest by a police officer normally represents. In this situation, they could reasonably infer that the incidence of drunk driving is a good deal higher than the incidence of arrest.

The Oklahoma Legislature could have believed that 18-20-year-old males drive substantially more, and tend more often to be intoxicated than their female counterparts; that they prefer beer and admit to drinking and driving at a higher rate than females; and that they suffer traffic injuries out of proportion to the part they make up of the population. Under the appropriate rational-basis test for equal protection, it is neither irrational nor arbitrary to bar them from making purchases of 3.2% beer, which purchases might in many cases be made by a young man who immediately returns to his vehicle with the beverage in his possession.

Justice GINSBURG delivered the opinion of the Court.

Virginia's public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution's equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.

Founded in 1839, VMI is today the sole single-sex school among Virginia's 15 public institutions of higher learning. VMI's distinctive mission is to produce “citizen-soldiers,” men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an “adversative method” modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school's graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course.

VMI has notably succeeded in its mission to produce leaders; among its alumni are military generals, Members of Congress, and business executives. The school's alumni overwhelmingly perceive that their VMI training helped them to realize their personal goals. VMI's endowment reflects the loyalty of its graduates; VMI has the largest per-student endowment of all public undergraduate institutions in the Nation.

Neither the goal of producing citizen-soldiers nor VMI's implementing methodology is inherently unsuitable to women. And the school's impressive record in producing leaders has made admission desirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords.

In 1990, prompted by a complaint filed with the Attorney General by a female high-school student seeking admission to VMI, the United States sued the Commonwealth of Virginia and VMI, alleging that VMI's exclusively male admission policy violated the Equal Protection Clause of the Fourteenth Amendment. Trial of the action consumed six days and involved an array of expert witnesses on each side.

The District Court ruled in favor of VMI.

The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court's judgment. The appellate court held: “The Commonwealth of Virginia has not ... advanced any state policy by which it can justify its determination, under an announced policy of diversity, to afford VMI's unique type of program to men and not to women.

In response to the Fourth Circuit's ruling, Virginia proposed a parallel program for women: Virginia Women's Institute for Leadership (VWIL). The 4–year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI's mission—to produce “citizen-soldiers”—the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources.

The average combined SAT score of entrants at Mary Baldwin is about 100 points lower than the score for VMI freshmen. Mary Baldwin's faculty holds “significantly fewer Ph.D.'s than the faculty at VMI,” and receives significantly lower salaries, While VMI offers degrees in liberal arts, the sciences, and engineering, Mary Baldwin, at the time of trial, offered only bachelor of arts degrees. A VWIL student seeking to earn an engineering degree could gain one, without public support, by attending Washington University in St. Louis, Missouri, for two years, paying the required private tuition.

The cross-petitions in this suit present two ultimate issues. First, does Virginia's exclusion of women from the educational opportunities provided by VMI—extraordinary opportunities for military training and civilian leadership development—deny to women “capable of all of the individual activities required of VMI cadets,” the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, if VMI's “unique” situation,—as Virginia's sole single-sex public institution of higher education—offends the Constitution's equal protection principle, what is the remedial requirement?

Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action.

Today's skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, “our Nation has had a long and unfortunate history of sex discrimination.” Frontiero v. Richardson, 411 U.S. 677, 684 (1973). Through a century plus three decades and more of that history, women did not count among voters composing “We the People”; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “basis in reason” could be conceived for the discrimination.

The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring:

“Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” to “promot[e] equal employment opportunity,” to advance full development of the talent and capacities of our Nation's people. But such classifications may not be used, as they once were to create or perpetuate the legal, social, and economic inferiority of women.

Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no “exceedingly persuasive justification” for excluding all women from the citizen-soldier training afforded by VMI. We therefore affirm the Fourth Circuit's initial judgment, which held that Virginia had violated the Fourteenth Amendment's Equal Protection Clause. Because the remedy proffered by Virginia—the Mary Baldwin VWIL program—does not cure the constitutional violation, i.e., it does not provide equal opportunity, we reverse the Fourth Circuit's final judgment in this case.

Virginia challenges [the] “liability” ruling and asserts two justifications in defense of VMI's exclusion of women. First, the Commonwealth contends, “single-sex education provides important educational benefits,” Brief for Cross–Petitioners and the option of single-sex education contributes to “diversity in educational approaches,” Second, the Commonwealth argues, “the unique VMI method of character development and leadership training,” the school's adversative approach, would have to be modified were VMI to admit women. We consider these two justifications in turn.

Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation. Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the Commonwealth. In cases of this genre, our precedent instructs that “benign” justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.

Virginia next argues that VMI's adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessarily be “radical,” so “drastic,” Virginia asserts, as to transform, indeed “destroy,” VMI's program. Neither sex would be favored by the transformation, Virginia maintains: Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would “eliminat[e] the very aspects of [the] program that distinguish [VMI] from ... other institutions of higher education in Virginia.”

It may be assumed, for purposes of this decision, that most women would not choose VMI's adversative method. As Fourth Circuit Judge Motz observed, however, in her dissent from the Court of Appeals' denial of rehearing en banc, it is also probable that “many men would not want to be educated in such an environment.” (On that point, even our dissenting colleague might agree.) Education, to be sure, is not a “one size fits all” business. The issue, however, is not whether “women—or men—should be forced to attend VMI”; rather, the question is whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.

The notion that admission of women would downgrade VMI's stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophec[ies],” once routinely used to deny rights or opportunities. When women first sought admission to the bar and access to legal education, concerns of the same order were expressed.

The Commonwealth's justification for excluding all women from “citizen-soldier” training for which some are qualified, in any event, cannot rank as “exceedingly persuasive,” as we have explained and applied that standard.

Virginia and VMI trained their argument on “means” rather than “end,” and thus misperceived our precedent. Single-sex education at VMI serves an “important governmental objective,” they maintained, and exclusion of women is not only “substantially related,” it is essential to that objective.

The Commonwealth's misunderstanding and, in turn, the District Court's, is apparent from VMI's mission: to produce “citizen-soldiers,” individual “ ‘imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready ... to defend their country in time of national peril.’ ”

Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the Commonwealth's great goal is not substantially advanced by women's categorical exclusion, in total disregard of their individual merit, from the Commonwealth's premier “citizen-soldier” corps. Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification,’ ” that must be the solid base for any gender-defined classification.

A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in “the position they would have occupied in the absence of [discrimination].” The constitutional violation in this suit is the categorical exclusion of women from an extraordinary educational opportunity afforded men. A proper remedy for an unconstitutional exclusion, we have explained, aims to “eliminate [so far as possible] the discriminatory effects of the past” and to “bar like discrimination in the future.”

Justice THOMAS took no part in the consideration or decision of these cases.

[An opinion by Chief Justice REHNQUIST, concurring in the judgment, has been omitted]

Justice SCALIA, dissenting.

Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people. As to facts: It explicitly rejects the finding that there exist “gender-based developmental differences” supporting Virginia's restriction of the “adversative” method to only a men's institution, and the finding that the all-male composition of the Virginia Military Institute (VMI) is essential to that institution's character. As to precedent: It drastically revises our established standards for reviewing sex-based classifications. And as to history: It counts for nothing the long tradition, enduring down to the present, of men's military colleges supported by both States and the Federal Government.

Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were—as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy—so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States—the old one—takes no sides in this educational debate, I dissent.

Chief Justice ROBERTS delivered the opinion of the Court.

In this case, we consider whether a Tennessee law banning certain medical care for transgender minors violates the Equal Protection Clause of the Fourteenth Amendment.

[The first part of the majority opinion rejects the claim that heightened scrutiny should apply to the Tennessee law, concluding that the law discriminates on the basis of age and on the basis of medical use, not on the basis of sex.]

The plaintiffs separately argue that SB1 warrants heightened scrutiny because it discriminates against transgender individuals, who the plaintiffs assert constitute a quasi-suspect class. This Court has not previously held that transgender individuals are a suspect or quasi-suspect class. And this case, in any event, does not raise that question because SB1 does not classify on the basis of transgender status. As we have explained, SB1 includes only two classifications: healthcare providers may not administer puberty blockers or hormones to minors (a classification based on age) to treat gender dysphoria, gender identity disorder, or gender incongruence (a classification based on medical use). The plaintiffs do not argue that the first classification turns on transgender status, and our case law forecloses any such argument as to the second.

We have explained that a State does not trigger heightened constitutional scrutiny by regulating a medical procedure that only one sex can undergo unless the regulation is a mere pretext for invidious sex discrimination.

By the same token, SB1 does not exclude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.

[The Court then distinguished its decision in Bostock v. Clayton County, 590 U.S. 644 (2020), which held that Title VII’s statutory prohibition on employment discrimination “because of” sex does prohibit discrimination against persons because they are gay or transgender.]

The plaintiffs urge us to apply Bostock’s reasoning to this case. In their view, SB1 violates the Equal Protection Clause because it prohibits a minor whose biological sex is female from receiving testosterone to live as a male but allows a minor whose biological sex is male to receive testosterone for the same purposes (and vice versa). Applying Bostock’s reasoning, they argue that SB1 discriminates on the basis of sex because it intentionally penalizes members of one sex for traits and actions that it tolerates in another.

We have not yet considered whether Bostock’s reasoning reaches beyond the Title VII context, and we need not do so here. For reasons we have already explained, changing a minor’s sex or transgender status does not alter the application of SB1.

[The Court then applied the rational basis test to the Tennessee law and upheld it on the grounds that the state legislature had concluded that the banned medical treatments could harm minors and the ban on these treatments was rationally related to serving that legitimate interest].

[A concurring opinion by Justice Thomas has been omitted]

Justice BARRETT, with whom Justice THOMAS joins, concurring.

Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class. I write separately to explain why, in my view, it does not.

To determine whether a group constitutes a “suspect class” akin to the canonical examples of race and sex, we apply a test derived from the famous footnote 4 in United States v. Carolene Products Co. See 304 U.S. 144 (1938) (suggesting that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry”). We consider whether members of the group in question “exhibit obvious, immutable or distinguishing characteristics that define them as a discrete group,” whether the group has, “[a]s a historical matter, ... been subjected to discrimination,” and whether the group is “a minority or politically powerless.” The test is strict, as evidenced by the failure of even vulnerable groups to satisfy it: We have held that the mentally disabled, the elderly, and the poor are not suspect classes. In fact, as far as I can tell, we have never embraced a new suspect class under this test. Our restraint reflects the principle that “[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.”

To begin, transgender status is not marked by the same sort of “‘obvious, immutable, or distinguishing characteristics’” as race or sex. In particular, it is not defined by a trait that is “‘definitively ascertainable at the moment of birth.’” The plaintiffs here, for instance, began to experience gender dysphoria at varying ages—some from a young age, others not until the onset of puberty. Meanwhile, the plaintiffs acknowledge that some transgender individuals “detransition” later in life—in other words, they begin to identify again with the gender that corresponds to their biological sex. Accordingly, transgender status does not turn on an “immutable ... characteristi[c].”

Nor is the transgender population a “discrete group,” as our cases require. Instead, like classes we have declined to recognize as suspect, the category of transgender individuals is “large, diverse, and amorphous.” The boundaries of the group, in other words, are not defined by an easily ascertainable characteristic that is fixed and consistent across the group.

Finally, holding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretion. The parties agree that the States have a legitimate interest in regulating health care. They also agree that transgender status implicates physical and mental health—indeed, this case is about the medical treatment of children with gender dysphoria, which is “clinically significant distress resulting from the incongruence between ... gender identity and ... sex assigned at birth,” and which “can result in severe anxiety, depression, self-harm, and even suicide.” The question of how to regulate a medical condition such as gender dysphoria involves a host of policy judgments that legislatures, not courts, are best equipped to make.

Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams. If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of “closely scrutiniz[ing] legislative choices” in all these domains. To be sure, an individual law “‘inexplicable by anything but animus’” is unconstitutional. But legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the Equal Protection Clause is satisfied.

The conclusion that transgender individuals do not share the “obvious, immutable, or distinguishing characteristics” of “a discrete group” is enough to demonstrate that transgender status does not define a suspect class. But the second factor—whether the group has, “[a]s a historical matter, ... been subjected to discrimination,”.—also poses a problem for the plaintiffs’ argument.

In addressing this factor, the plaintiffs assume that a history of private discrimination may satisfy this condition. For instance, the plaintiffs argue that “it is undeniable that transgender individuals, as a class, have ‘historically been subject to discrimination including in education, employment, housing, and access to healthcare.’” This assumption is mistaken. For purposes of the Fourteenth Amendment, the relevant question is whether the group has been subject to a longstanding pattern of discrimination in the law. In other words, we ask whether the group has suffered a history of de jure discrimination.

Focusing the inquiry on de jure state action would also clarify the test for political powerlessness, which is another factor we have used to determine whether a classification is suspect. Carolene Products, the source of the “discrete and insular minority” test, equates political powerlessness with laws burdening those who lacked a vote. This kind of “political powerlessness,” which leaves the affected persons altogether unable to protect themselves in the political process, tracks the experience of the existing suspect classes.

We have said little, however, about what “political powerlessness” means for our recognition of new suspect classes. And in the absence of clear guidance from us, lower courts have resorted to considering evidence like whether the group has drawn the support of powerful interest groups, achieved equal representation in government, or obtained affirmative statutory protection from discrimination in the private sector. These markers reflect sociological intuitions about a group’s relative political power; they do not constitute an objective, legally grounded standard that courts can apply consistently. A legacy of de jure discrimination, by contrast, more precisely (and objectively) captures the interests that lie at the heart of the Equal Protection Clause.

In future cases, I would not recognize a new suspect class absent a demonstrated history of de jure discrimination.

[An opinion by Justice Alito, concurring in part and concurring in the judgment, has been omitted].

Justice SOTOMAYOR, with whom Justice JACKSON joins, and with whom Justice KAGAN joins as to all but Part V, dissenting.

Today, the Court considers a Tennessee law that categorically prohibits doctors from prescribing certain medications to adolescents if (and only if) they will help a patient “identify with, or live as, a purported identity inconsistent with the minor’s sex.” In addition to discriminating against transgender adolescents, who by definition “identify with” an identity “inconsistent” with their sex, that law conditions the availability of medications on a patient’s sex. Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

SB1 plainly classifies on the basis of sex, so the Constitution demands intermediate scrutiny. Recall that SB1 prohibits the prescription of hormone therapy and puberty blockers only if done to “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to alleviate “discomfort or distress from a discordance between the minor’s sex and asserted identity.” Use of the same drugs to treat any other “‘disease’” is unaffected. Physicians may continue, for example, to prescribe hormones and puberty blockers to treat any “physical or chemical abnormality present in a minor that is inconsistent with the normal development of a human being of the minor’s sex.”

What does that mean in practice? Simply that sex determines access to the covered medication. Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl.

How does the majority wriggle itself (and the Sixth Circuit) free of any obligation to take a closer look? It abstracts away the sex classification on SB1’s face, asserting that the law classifies based only on “age” and “medical purpose.” The theory, apparently, is that SB1 is sex neutral because it simply allows doctors to “administer puberty blockers or hormones to minors to treat certain conditions but not to treat gender dysphoria.” Unlike a law that prohibits attendance at a religious service “inconsistent with” the attendee’s religion, the majority says, “[a] law prohibiting the administration of specific drugs for particular medical uses” simply does not trigger heightened scrutiny.

The problem with the majority’s argument is that the very “medical purpose” SB1 prohibits is defined by reference to the patient’s sex. Key to whether a minor may receive puberty blockers or hormones is whether the treatment facilitates the “medical purpose” of helping the minor live or appear “inconsistent with” the minor’s sex. That is why changing a patient’s sex yields different outcomes under SB1.

Having blithely dispensed with the notion that SB1 classifies on the basis of sex, the majority next asserts that “SB1 does not classify on the basis of transgender status.” That too is contrary to the statute’s text and plainly wrong.

SB1 prohibits Tennessee physicians from offering hormones and puberty blockers to allow a minor to “identify with” a gender identity inconsistent with her sex. Desiring to “identify with” a gender identity inconsistent with sex is, of course, exactly what it means to be transgender. The two are wholly coextensive. That is why it would defy common sense to suggest an employer’s policy of firing all persons identifying with or living as an identity inconsistent with their sex does not discriminate on the basis of transgender status.

Left with nowhere else to turn, the Court hinges its conclusion to the contrary on the by-now infamous footnote 20 of Geduldig v. Aiello, 417 U.S. 484 (1974), which declared that discrimination on the basis of pregnancy is not discrimination on the basis of sex. The footnote reasoned that, although “only women can become pregnant,” “[n]ormal pregnancy is an objectively identifiable physical condition with unique characteristics” and “lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation ... on any reasonable basis, just as with respect to any other physical condition.” The takeaway, according to the majority, is that “not ... every legislative classification concerning pregnancy is a sex-based classification,” and so (apparently) not every legislative classification concerning “gender incongruence” (at least in the context of medical treatments) classifies on the basis of transgender status.

Geduldig was “egregiously wrong” when it was decided, both “[b]ecause pregnancy discrimination is inevitably sex discrimination” and because discrimination against women is so “tightly interwoven with society’s beliefs about pregnancy and motherhood.” Coleman v. Court of Appeals of Md., 566 U.S. 30, 56–57 (2012) (Ginsburg, J., dissenting). That the majority must resuscitate so unpersuasive a source, widely rejected as indefensible even 40 years ago, is itself a telling sign of the weakness of its position. Divorced from its fact-specific context, Geduldig’s reasoning may well suggest that a law depriving all individuals who “have ever, or may someday, menstruate” of access to health insurance would be sex neutral merely because not all women menstruate.

That SB1 discriminates on the basis of transgender status is yet another reason it must be subject to heightened scrutiny. For one, this Court already decided in Bostock that “it is impossible to discriminate against a person for being ... transgender without discriminating against that individual based on sex,” 590 U.S. at 660, and sex discrimination is of course subject to heightened scrutiny. Nor should there be serious dispute that transgender persons bear the hallmarks of a quasi-suspect class.

Transgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence. Individuals whose gender identity diverges from their sex identified at birth (whether labeled as “transgender” at the time or not), moreover, have been subject to a lengthy history of de jure discrimination in the form of cross-dressing bans, police brutality, and anti-sodomy laws. Beginning in 1843, cities ranging from “major metropolitan centers such as Chicago and Los Angeles to small cities and towns including Cheyenne, Wyoming and Vermillion, South Dakota” enacted ordinances that (most commonly) criminalized any person “‘appear[ing] upon any public street or other public place ... in a dress not belonging to his or her sex.’” In any event, those searching for more evidence of de jure discrimination against transgender individuals, need look no further than the present. The Federal Government, for example, has started expelling transgender servicemembers from the military and threatening to withdraw funding from schools and nonprofits that espouse support for transgender individuals.

Transgender persons, moreover, have a defining characteristic (incongruence between sex and gender identity) that plainly “‘bears no relation to [the individual’s] ability to perform or contribute to society.’” Cleburne, 473 U.S. at 441. As a group, the class is no more “‘large, diverse, and amorphous,’” ante, at 1852 (opinion of BARRETT, J.), than most races or ethnic groups, many of which similarly include individuals with “‘a huge variety’” of identities and experiences, ante, at 1852 (opinion of BARRETT, J.). As evidenced by the recent rise in discriminatory state and federal policies and the fact that transgender people “are underrepresented in every branch of government,” moreover, the class lacks the political power to vindicate its interests before the very legislatures and executive agents actively singling them out for discriminatory treatment. In refusing to say as much, the Court today renders transgender Americans doubly vulnerable to state-sanctioned discrimination.

[In Part V of Justice Sotomayor’s dissenting opinion, she concludes that the Tennessee law would fail under intermediate scrutiny. Justice Kagan did not join Part V, suggesting that it would be more appropriate to remand the case to the lower courts for the application of intermediate scrutiny].