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Race
  • 1 The Civil Rights Cases

    1

    Supreme Court of the United States
    ‘THE CIVIL RIGHTS CASES.’

    UNITED STATES
    v.
    STANLEY. [On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the District of Kansas.]

    UNITED STATES
    v.
    RYAN. [In Error to the Circuit Court of the United States for the District of California.]

    UNITED STATES
    v.
    NICHOLS. [On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Western District of Missouri.]

    UNITED STATES
    v.
    SINGLETON. [On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Southern District of New York.]

    ROBINSON and wife
    v.
    MEMPHIS & CHARLESTON R. CO. [In Error to the Circuit Court of the United States for the Western District of Tennessee.]

    October 15, 1883.

    HARLAN, J., dissents.

    **19 *5 Sol. Gen. Phillips, for plaintiff, the United States.No counsel for defendants, Stanley, Ryan, Nichols, and Singleton.*7 Wm. M. Randolph, for plaintiffs in error, Robinson and wife.*8 W. Y. C. Humes, for defendant in error, the Memphis & Charleston R. Co.
    BRADLEY, J.

    *4 These cases are all founded on the first and second sections of the act of congress known as the ‘Civil Rights Act,’ passed March 1, 1875, entitled ‘An act to protect all citizens in their civil and legal rights.’ 18 St. 335. Two of the cases, those against Stanley and Nichols, are indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and Singleton, are, one an information, the other an indictment, for denying to individuals the privileges and accommodations of a theater, the information against Ryan being for refusing a colored person a seat in the dress circle of Maguire's theater in San Francisco; and the indictment against Singleton being for denying to another person, whose color is not stated, the full enjoyment of the accommodations of the theater known as the Grand Opera House in New York, ‘said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude.’ The case of Robinson and wife against the Memphis & Charleston Railroad Company was an action brought in the circuit court of the United States for the western district of Tennessee, to recover the penalty of $500 given by the second section of the act; and the gravamen was the refusal by the conductor of the railroad company to allow the wife to ride in the ladies' car, for the reason, as stated in one of the counts, that she was a person of African descent. The jury rendered a verdict for the defendants in this case upon the merits under a charge of the court, to which a bill of exceptions was taken by the plaintiffs. The case was tried on the assumption by both parties of the validity of the act of congress; and the principal point made by the exceptions was that the judge allowed evidence to go to the jury tending to show that the conductor had reason to suspect that the plaintiff, the wife, was an improper person, because she was in company with a young man whom he supposed to be a white man, and on that account inferred that there was some improper connection between them; and the judge charged the jury, in substance, that if this was the conductor's bona fide reason for excluding the woman from the car, they might take it into consideration on the question of the liability of the company. The case is brought here by writ of error at the suit of the plaintiffs. The cases of Stanley, Nichols, and Singleton come up on certificates of division of opinion between the judges below as to the constitutionality of the first and second sections of the act referred to; and the case of Ryan, on a writ of error to the judgment of the circuit court for the district of California sustaining a demurrer to the information.

    **20 It is obvious that the primary and important question in all *9 the cases is the constitutionality of the law; for if the law is unconstitutional none of the prosecutions can stand.

    The sections of the law referred to provide as follows:

    ‘Section 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accomodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of publie amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

    ‘Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accomodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall, also, for every such offense, be deemed guity of a misdemeanor, and upon conviction thereof shall be fined not less than $500 nor more than $1,000, or shall be imprisoned not less than 30 days nor more than one year: Provided, that all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any state: And provided, further, that a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.’

    Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, *10 PUBLIC CONVEYANCES, AND THEATERS; BUT That such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theaters, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves. Its effect is to declare that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement, as are enjoyed by white citizens; and vice versa. The second section makes it a penal offense in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section.

    Has congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the **21 constitution before the adoption of the last three amendments. The power is sought, first, in the fourteenth amendment, and the views and arguments of distinguished senators, advanced while the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have.

    The first section of the fourteenth amendment,-which is the one relied on,-after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the states. It declares that*11*‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.‘ It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited state law and state acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon congress, and this is the whole of it. It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, **22 and be directed to the correction*12 of their operation and effect. A quite full discussion of this aspect of the amendment may be found in U. S. v. Cruikshank, 92 U. S. 542; Virginia v.Rives, 100 U. S. 313, and Ex parte Virginia, Id. 339.

    An apt illustration of this distinction may be found in some of the provisions of the original constitution. Take the subject of contracts, for example. The constitution prohibited the states from passing any law impairing the obligation of contracts. This did not give to congress power to provide laws for the general enforcement of contracts; nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by state legislation might be counteracted and corrected; and this power was exercised. The remedy which congress actually provided was that contained in the twenty-fifth section of the judiciary act of 1789, giving to the supreme court of the United States jurisdiction by writ of error to review the final decisions of state courts whenever they should sustain the validity of a state statute or authority, alleged to be repugnant to the constitution or laws of the United States. By this means, if a state law was passed impairing the obligation of a contract, and the state tribunals sustained the validity of the law, the mischief could be corrected in this court. The legislation of congress, and the proceedings provided for under it, were corrective in their character. No attempt was made to draw into the United States courts the litigation of contracts generally, and no such attempt would have been sustained. We do not say that the remedy provided was the only one that might have been provided in that case. Probably congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a state law; and, under the broad provisions of the act of March 3, 1875, giving to the circuit courts jurisdiction of all cases arising under the constitution and laws of the United States, it is possible that such jurisdiction now exists. But under that or any other law, it must appear, as *13 well by allegation as proof at the trial, that the constitution had been violated by the action of the state legislature. Some obnoxious state law passed, or that might be passed, is necessary to be assumed in order to lay the foundation of any federal remedy in the case, and for the very sufficient reason that the constitutional prohibition is against state laws impairing the obligation of contracts.

    And so in the present case, until some state law has been passed, or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against state laws and acts done under state authority. Of course, legislation may **23 and should be provided in advance to meet the exigency when it arises, but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, state laws or state action of some kind adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make congress take the place of the state legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the state without due process of law, congress may, therefore, provide due process of law for their vindication in every case; and that, because the denial by a state to any persons of the equal protection of the laws is prohibited by the amendment, therefore congress may establish laws for their equal protection. In fine, the legislation which congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the states may *14adopt or enforce, and which by the amendment they are prohibited from making or enforcing, or such acts and proceedings as the states may commit or take, and which by the amendment they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for congress to adopt. It is sufficient for us to examine whether the law in question is of that character.

    An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the fourteenth amendment on the part of the states. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offenses, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the states; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in states which have the justest laws respecting the personal rights of citizens, ans whose authorities are ever ready to enforce such laws as to those which arise in states that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals is society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the state or its authorities.

    If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may **24 not congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property? If it is supposable that the states may deprive persons of life, liberty, and property without due process of law, (and the amendment itself does suppose this,) why should not congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theaters. The truth is that the implication of a power to legislate in this manner is based *15 upon the assumption that if the states are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon congress to enforce the prohibition, this gives congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such state legislation or action. The assumption is certainly unsound. It is repugnant to the tenth amendment of the constitution, which declares that powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.

    We have not overlooked the fact that the fourth section of the act now under consideration has been held by this court to be constitutional. That section declares ‘that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States, or of any state, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.’ In Ex parte Virginia, 100 U. S. 339, it was held that an indictment against a state officer under this section for excluding persons of color from the jury list is sustainable. But a moment's attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service on juries are only created by the law, and the first part of the section is aimed at certain disqualifying laws, namely, those which make mere race or color a disqualification; and the second clause is directed against those who, assuming to use the authority of the state government, carry into effect such a rule of disqualification. In the Virginia case, the state, through its officer, enforced a rule of disqualification which the law was intended to abrogate and counteract. Whether the statute-book of the state actually laid down any such rule of disqualification or not, the state, through its officer, enforced such a rule; and it is against such state action, through its officers and agents, that the last clause of the section is directed. *16 This aspect of the law was deemed sufficient to divest it of any unconstitutional character, and makes it differ widely from the first and second sections of the same act which we are now considering.

    **25 These sections, in the objectionable features before referred to, are different also from the law ordinarily called the ‘Civil Rights Bill,’ originally passed April 9, 1866, and re-enacted with some modifications in sections 16, 17, 18, of the enforcement act, passed May 31, 1870. That law, as re-enacted, after declaring that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding, proceeds to enact that any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any state or territory to the deprivation of any rights secured or protected by the preceding section, (above quoted,) or to different punishment, pains, or penalties, on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdememeanor, and subject to fine and imprisonment as specified in the act. This law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to-wit, the words ‘any law, statute, ordinance, regulation, or custom to the contrary not-withstanding,’ which gave the declaratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to state laws by making the penalty apply only to those who should subject *17 parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any state or territory, thus preserving the corrective character of the legislation. Rev. St. §§ 1977, 1978, 1979, 5510. The civil rights bill here referred to is analogous in its character to what a law would have been under the original constitution, declaring that the validity of contracts should not be impaired, and that if any person bound by a contract should refuse to comply with it under color or pretense that it had been rendered void or invalid by a state law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and unconstitutional defense.

    In this connection it is proper to state that civil rights, such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any **26 such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and to sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow-citizen; but unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the state where the wrongful acts are committed. Hence, in all those cases where the constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offenses, but abrogation and *18denial of rights, which it denounces, and for which it clothes the congress with power to provide a remedy. This abrogation and denial of rights, for which the states alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some state law or state authority for its excuse and perpetration.

    Of course, these remarks do not apply to those cases in which congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the states, as in the regulation of commerce with foreign nations, among the several states, and with the Indian tribes, the coining of money, the establishment of post-offices and post-roads, the declaring of war, etc. In these cases congress has power to pass laws for regulating the subjects specified, in every detail, and the conduct and transactions of individuals respect thereof. But where a subject is not submitted to the general legislative power of congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular state legislation or state action in reference to that subject, the power given is limited by its object, and any legislation by congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of state officers.

    If the principles of interpretation which we have laid down are correct, as we deem them to be,-and they are in accord with the principles laid down in the cases before referred to, as well as in the recent case of U. S. v. Harris, decided at the last term of this court, **27 [1 SUP. CT. REP. 601,]-it is clear that the law in question cannot be sustained by any grant of legislative power made to congress by the fourteenth amendment. That amendment prohibits the states from denying to any person the equal protection of the laws, and declares that congress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse state legislation on the subject,*19 declares that all persons shall be entitled to equal accommodation and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen such equal accommodations and privileges. This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces state legislation on the same subject, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed congress with plenary power over the whole subject, is not now the question. What we have to decide is, whether such plenary power has been conferred upon congress by the fourteenth amendment, and, in our judgment, it has not.

    We have discussed the question presented by the law on the assumption that a right to enjoy equal accommodations and privileges in all inns, public conveyances, and places of public amusement, is one of the essential rights of the citizen which no state can abridge or interfere with. Whether it is such a right or not is a different question, which, in the view we have taken of the validity of the law on the ground already stated, it is not necessary to examine.

    We have also discussed the validity of the law in reference to cases arising in the states only; and not in reference to cases arising in the territories or the District of Columbia, which are subject to the plenary legislation of congress in every branch of municipal regulation. Whether the law would be a valid one as applied to the territories and the district is not a question for consideration in the cases before us; they all being cases arising within the limits of states. And whether congress, in the exercise of its power to regulate commerce among the several states, might or might not pass a law regulating rights in public conveyances passing from one state to another, is also a question which is not now before us, as the sections in question are not conceived in any such view.

    *20 But the power of congress to adopt direct and primary, as distinguished from corrective, legislation on the subject in hand, is sought, in the second place, from the thirteenth amendment, which abolishes slavery. This amendment declares ‘that neither slavery, nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United**28 States, or any place subject to their jurisdiction;’ and it gives congress power to enforce the amendment by appropriate legislation.

    This amendment, as well as the fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.

    It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the thirteenth amendment may be regarded as nullifying all state laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in congress to enforce the article by appropriate legislation, clothes congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United Stated; and upon this assumption it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of public amusement; the argument being that the denial of such equal accommodations and privileges is in itself a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that that *21 congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery, with all its badges and incidents, is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theater, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the thirteenth amendment.

    In a very able and learned presentation of the cognate question as to the extent of the rights, privileges, and immunities of citizens which cannot rightfully be abridged by state laws under the fourteenth amendment, made in a former case, a long list of burdens and disabilities of a servile character, incident to feudal vasslage in France, and which were abolished by the decrees of the national assembly, was presented for the purpose of showing that all inequalities and observances exacted by one man from another, were servitudes or badges of slavery, which a great nation, in its effort to establish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom which had **29 the force of law, and exacted by one man from another without the latter's consent. Should any such servitudes be imposed by a state law, there can be no doubt that the law would be repugnant to the fourteenth, no less than to the thirteenth, amendment; nor any greater doubt that congress has adequate power to forbid any such servitude from being exacted.

    But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theater, of its accommodations and privileges to an individual, even through the denial be founded on the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such an act of denial? Whether it might not be a denial of a right which, if sanctioned by the state law, would be obnoxious to the prohibitions of the fourteenth amendment, is another question. But what has it to do with the question of slavery? It may be that by the black code, (as it was called,) in the times when slavery prevailed, the proprietors of inns and public *22 conveyances were forbidden to receive persons of the African race, because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now, however justly it might be deemed an invasion of the party's legal right as a citizen, and amenable to the prohibitions of the fourteenth amendment.

    The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offenses. Congress, as we have seen, by the civil rights bill of 1866, passed in view of the thirteenth amendment, before the fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible from; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property, as is enjoyed by white citizens. Whether this legislation was fully authorized by the thirteenth amendment alone, without the support which it afterwards received from the fourteenth amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that at that **30 time (in 1866) congress did not assume, under the authority given by the thirteenth amendment, to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery.

    *23 We must not forget that the province and scope of the thirteenth and fourteenth amendments are different: the former simply abolished slavery: the latter prohibited the states from abridging the privileges or immunities of citizens of the United States, from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of congress under them are different. What congress has power to do under one, it may not have power to do under the other. Under the thirteenth amendment, it has only to do with slavery and its incidents. Under the fourteenth amendment, it has power to counteract and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or immunities which have the effect to abridge any deprive them of life, liberty, or property without due process of law, or to deny to any of them the equal protection of the laws. Under the thirteenth amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not; under the fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against state regulations or proceedings.

    The only question under the present head, therefore, is, whether the refusal to any persons of the accommodations of an inn, or a public conveyance, or a place of public amusement, by an individual, and without any sanction or support from any state law or regulation, does inflict upon such persons any manner of servitude, or form of slavery, as those terms are understood in this country? Many wrongs may be obnoxious to the prohibitions of the fourteenth amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse-stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the right to pursue any peaceful *24 avocations allowed to others. What is called calss legislation would belong to this category, and would be obnoxious to the prhibitions of the fourteenth amendment, but would not to the prohibitions of the fourteenth when not involving the idea of any subjection of one man to another. The thirteenth amendment has respect, not to distinctions of race, or**31 class, or color, but to slavery. The fourteenth amendment extends its protection to races and classes, and prohibits any state legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.

    Now, conceding, for the sake of the argument, that the admission to an inn, a public conveyance, or a place of public amusement, on equal terms with all other citizens, is the right of every man and all classes of men, is it any more than one of those rights which the states by the fourteenth amendment are forbidden to deny to any person? and is the consitution violated until the denial of the right has some state sanction or authority? Can the act of a mere individual, the owner of the inn, the public conveyance, or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears?

    After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the state; or, if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which congress has adopted, or may adopt, for counteracting the effect of state laws, or state action, prohibited by the fourteenth amendment. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in *25 other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the states, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of the fourteenth amendment, congress has full power to afford a remedy under that amendment and in accordance with it.

    When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at **32 that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the thirteenth amendment, (which merely abolishes slavery,) but by force of the fourteenth and fifteenth amendments.

    On the whole, we are of opinion that no countenance of authority for the passage of the law in question can be found in either the thirteenth or fourteenth amendment of the constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several states is concerned.

    This conclusion disposes of the cases now under consideration. In the cases ofU. S. v. Ryan, and of Robinson v. Memphis & C. *26 R. Co., the judgments must be affirmed. In the other cases, the answer to be given will be, that the first and second sections of the act of congress of March 1, 1875, entitled ‘An act to protect all citizens in their civil and legal rights,’ are unconstitutional and void, and that judgment should be rendered upon the several indictments in those cases accordingly. And it is so ordered.

    HARLAN, J., dissents.

    **33 HARLAN, J., dissenting.

    The opinion in these cases proceeds, as it seems to me, upon grounds entirely too narrow and artificial. The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism. ‘It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul.’ Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.

    The purpose of the first section of the act of congress of March 1, 1875, was to prevent race discrimination. It does not assume to define the general conditions and limitations under which inns, public conveyances, and places of public amusement may be conducted, but only declares that such conditions and limitations, whatever they may be, shall not be applied, by way of *27discrimination, on account of race, color, or previous condition of servitude. The second section provides a penalty against any one denying, or aiding or inciting the denial, to any citizen that equality of right given by the first section, except for reasons by law applicable to citizens of every race or color, and regardless of any previous condition of servitude.

    There seems to be no substantial difference between my brethren and myself as to what was the purpose of congress; for they say that the essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theaters, but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. The effect of the statute, the court says, is that colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white persons, and vice versa.

    The court adjudges that congress is without power, under either the thirteenth or fourteenth amendment, to establish such regulations, and that the first and second sections of the statute are, in all their parts, unconstitutional and void.

    **34 *28 *Before considering the particular language and scope of these amendments it will be proper to recall the relations which, prior to their adoption, subsisted between the national government and the institution of slavery, as indicated by the provisions of the constitution, the legislation of congress, and the decisions of this court. In this mode we may obtain keys with which to open the mind of the people, and discover the thought intended to be expressed.

    In section 2 of article 4 of the constitution it was provided that ‘no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.’ Under the authority of that clause congress passed the fugitive slave law of 1793, establishing the mode for the recovery of a fugitive slave, and prescribing a penalty against any person knowingly and willingly obstructing or hindering the master, his agent or attorney, in seizing, arresting, and recovering the fugitive, or who should rescue the fugitive from him, or who should harbor or conceal the slave after notice that he was a fugitive.

    In Prigg v. Com. 16 Pet. 539, this court had occasion to define the powers and duties of congress in reference to fugitives from labor. Speaking by Mr. Justice STORY, the court laid down these propositions: That a clause of the constitution conferring a right should not be so construed as to make it shadowy, or unsubstantial, or leave the citizen without a remedial power adequate for its protection, when another mode, equally accordant with the words and the sense in which they were used, would enforce and protect the right so granted; that congress is not restricted to legislation for the exertion*29 of its powers expressly granted; but, for the protection of rights guarantied by the constitution, it may employ, through legislation, such means, not prohibited, as are necessary and proper, or such as are appropriate, to attain the ends proposed; that the constitution recognized the master's right of property in his fugitive slave, and, as incidental thereto, the right of seizing and recovering him, regardless of any state law, or regulation, or local custom whatsoever; and that the right of the master to have his slave, so escaping, delivered up on claim, being guarantied by the constitution, the fair implication was that the national government was clothed with appropriate authority and functions to enforce it.

    The court said:

    ‘The fundamental principle, applicable to all cases of this sort, would seem to be that when the end is required the means are given, and when the duty is enjoined the ability to perform it is contemplated to exist on the part of the functionary to whom it is intrusted.’

    Again:

    ‘It would be a strange anomaly and forced construction to suppose that the national government meant to rely for the due fulfillment of its own **35 proper duties, and the rights which it intended to secure, upon state legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union should be confided to state sovereignty, which could not rightfully act beyond its own territorial limits.’

    The act of 1793 was, upon these grounds, adjudged to be a constitutional exercise of the powers of congress.

    It is to be observed, from the report of Prigg's Case, that Pennsylvania, by her attorney general, pressed the argument that the obligation to surrender fugitive slaves was on the states and for the states, subject to the restriction that they should not pass laws or establish regulations liberating such fugitives; that the constitution did not take from the states the right to determine the status of all persons within their respective jurisdictions; that it was for the state in which the alleged fugitive was found to determine, through her courts, or in such modes as she prescribed, whether the person arrested was, in fact, a freeman or a fugitive slave; that the sole power *30 of the general government in the premises was, by judicial instrumentality, to restrain and correct, not to forbid and prevent in the absence of hostile state action; and that, for the general government to assume primary authority to legislate on the subject of fugitive slaves, to the exclusion of the states, would be a dangerous encroachment on state sovereignty. But to such suggestions this court turned a deaf ear, and adjudged that primary legislation by congress to enforce the master's right was authorized by the constitution.

    We next come to the fugitive slave act of 1850, the constitutionality of which rested, as did that of 1793, solely upon the implied power of congress to enforce the master's rights. The provisions of that act were far in advance of previous legislation. They placed at the disposal of the master seeking to recover his fugitive slave, substantially, the whole power of the nation. It invested commissioners, appointed under the act, with power to summon the posse comitatus for the enforcement of its provisions, and commanded ‘all good citizens' to assist in its prompt and efficient execution whenever their services were required as part of the posse comitatus. Without going into the details of that act, it is sufficient to say that congress omitted from it nothing which the utmost ingenuity could suggest as essential to the successful enforcement of the master's claim to recover his fugitive slave. And this court, in Ableman v. Booth, 21 How. 526, adjudged it to be, ‘in all of its provisions, fully authorized by the constitution of the United States.’

    The only other decision prior to the adoption of the recent amendments, to which reference will be made, is Dred Scott v. Sandford, 19 How. 393. That suit was instituted in a circuit court of the United States by Dred Scott, claiming to be a citizen of Missouri, the defendant being a citizen of another state. Its object was to assert the title of himself and family to freedom. The defendant pleaded in**36 abatement to the jurisdiction of the court that Scott-being of African descent, whose ancestors, of pure African blood, were brought into this country, and sold as slaves-was not a citizen. The only matter in issue, said the court, was whether the descendants of slaves so imported *31 and sold, when they should be emancipated, or who were born of parents who had become free before their birth, are citizens of a state in the sense in which the word ‘citizen’ is used in the constitution of the United States.

    In determining that question the court instituted an inquiry as to who were citizens of the several states at the adoption of the constitution, and who, at that time, were recognized as the people whose rights and liberties had been violated by the British government. The result was a declaration by this court, speaking through Chief Justice TANEY, that the legislation and histories of the times, and the language used in the Declaration of Independence, showed ‘that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that instrument:’ that ‘they had for more than a century before been regarded as beings of an inferior race, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit;’ that he was ‘bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it;’ and that ‘this opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without for a moment doubting the correctness of this opinion.’

    The judgment of the court was that the words ‘people of the United States' and ‘citizens' meant the same thing, both describing ‘the political body who, according to our republican institutions, form the sovereignty and hold the power and conduct the government through their representatives;’ that ‘they are what we familiarly call the ‘sovereign people,’ and *32 every citizen is one of this people and a constituent member of this sovereignty;' but that the class of persons described in the plea in abatement did not compose a portion of this people, were not ‘included, and were not intended to be included, under the word ‘citizens' in the constitution;’ that, therefore, they could ‘claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States;’ that, ‘on the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the **37 dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.’

    Such were the relations which, prior to the adoption of the thirteenth amendment, existed between the government, whether national or state, and the descendants, whether free or in bondage, of those of African blood who had been imported into this country and sold as slaves.

    The first section thereof provides that ‘neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.’ Its second section declares that ‘congress shall have power to enforce this article by appropriate legislation.’ This amendment was followed by the civil rights act of April 9, 1866, which, among other things, provided that ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.’ 14 St. 27. The power of congress, in this mode, to elevate the race thus liberated to the plane of national citizenship, was maintained, by the supporters of the act of 1866, to be as full and complete as its power, by general statute, to make the children, being of full age, of persons naturalized in this country, citizens of the United States without going through the process of naturalization. The act of 1866, in this respect, was also likened to that of 1843, in which congress declared ‘that the Stockbridge tribe of Indians, and each and every one of them, shall be deemed to be, and are hereby declared to be, citizens of the United States to *33 all intent and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens, and shall in all respects be subject to the laws of the United States.’ If the act of 1866 was valid, as conferring national citizenship upon all embraced by its terms, then the colored race, liberated by the thirteenth amendment, became citizens of the United States prior to the adoption of the fourteenth amendment. But, in the view which I take of the present case, it is not necessary to examine this question.

    The terms of the thirteenth amendment are absolute and universal. They embrace every race which then was, or might thereafter be, within the United States. No race, as such, can be excluded from the benefits or rights thereby conferred. Yet it is historically true that that amendment was suggested by the condition, in this country, of that race which had been declared by this court to have had, according to the opinion entertained by the most civilized portion of the white race at the time of the adoption of the constitution, ‘no rights which the white man was bound to respect,’ none of the privileges or immunities secured by that instrument to citizens of the United States. It had reference, in a peculiar sense, to a people **38 which (although the larger part of them were in slavery) had been invited by an act of congress to aid, by their strong right arms, in saving from overthrow a government which, theretofore, by all of its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them.

    These are the circumstances under which the thirteenth amendment was proposed for adoption. They are now recalled only that we may better understand what was in the minds of the people when that amendment was being considered, and what were the mischiefs to be remedied, and the grievances to be redressed.

    We have seen that the power of congress, by legislation, to enforce the master's right to have his slave delivered up on claim was implied from the recognition and guaranty of that right in the national constitution. But the power conferred by the thirteenth amendment does not rest upon implication or *34inference. Those who framed it were not ignorant of the discussion, covering many years of the country's history, as to the constitutional power of congress to enact the fugitive slave laws of 1793 and 1850. When, therefore, it was determined, by a change in the fundamental law, to uproot the institution of slavery wherever it existed in this land, and to establish universal freedom, there was a fixed purpose to place the power of congress in the premises beyond the possibility of doubt. Therefore, ex industria, the power to enforce the thirteenth amendment, by appropriate legislation, was expressly granted. Legislation for that purpose, it is conceded, may be direct and primary. But to what specific ends may it be directed? This court has uniformly held that the national government has the power, whether expressly given or not, to secure and protect rights conferred or guarantied by the constitution. U. S. v. Reese, 92 U. S. 214; Strauder v. West Virginia, 100 U. S. 303.That doctrine ought not now to be abandoned, when the inquiry is not as to an implied power to protect the master's rights, but what may congress do, under powers expressly granted, for the protection of freedom, and the rights necessarily inhering in a state of freedom.

    The thirteenth amendment, my brethren concede, did something more than to prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. They admit that it established and decreed universal civil freedomthroughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several states for such protection, in their civil rights, necessarily growing out of freedom, as those states, in their discretion, choose to provide? Were the states, against whose solemn protest the institution was destroyed, **39 to be left perfectly free, so far as national interference was concerned, to make or allow dircriminations against that race, as such, in the enjoyment of those fundamental rights that inhere in a state of freedom? *35 Had the thirteenth amendment stopped with the sweeping declaration, in its first section, against the existence of slavery and involuntary servitude, except for crime, congress would have had the power, by implication, according to the doctrines of Prigg v. Com., repeated in Strauder v. West Virginia, to protect the freedom thus established, and consequently to secure the enjoyment of such civil rights as were fundamental in freedom. But that it can exert its authority to that extent is now made clear, and was intended to be made clear, by the express grant of power contained in the second section of that amendment.

    That there are burdens and disabilities which constitute badges of slavery and servitude, and that the express power delegated to congress to enforce, by appropriate legislation, the thirteenth amendment, may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. They lie at the very foundation of the civil rights act of 1866. Whether that act was fully authorized by the thirteenth amendment alone, without the support which it afterwards received from the fourteenth amendment, after the adoption of which it was re-enacted with some additions, the court, in its opinion, says it is unnecessary to inquire. But I submit, with all respect to my brethren, that its constitutionality is conclusively shown by other portions of their opinion. It is expressly conceded by them that the thirteenth amendment established freedom; that there are burdens and disabilities, the necessary incidents of slavery, which constitute its substance and visible form; that congress, by the act of 1866, passed in view of the thirteenth amendment, before the fourteenth was adopted, undertook to remove certain burdens and disabilities, the necessary incidents of slavery, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property as is enjoyed by white citizens; that under the thirteenth amendment congress has to do with slavery and *36 its incidents; and that legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not. These propositions being conceded, it is impossible, as it seems to me, to question the constitutional validity of the civil rights act of 1866. I do not contend that the thirteenth amendment invests congress with authority, by legislation, to regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several states. But I do **40 hold that since slavery, as the court has repeatedly declared, was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment, by appropriate legislation, may enact laws to protect that people against the deprivation, on account of their race, of any civil rights enjoyed by other freemen in the same state; and such legislation may be of a direct and primary character, operating upon states, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the state.

    By way of testing the correctness of this position, let us suppose that, prior to the adoption of the fourteenth amendment, a state had passed a statute denying to freemen of African descent, resident within its limits, the same rights which were accorded to white persons, of making or enforcing contracts, or of inheriting, purchasing, leasing, selling, and conveying property; or a statute subjecting colored people to severer punishment for particular offenses than was prescribed for white persons, or excluding that race from the benefit of the laws exempting homesteads from execution. Recall the legislation of 1865-66 in some of the states, of which this court, in the *37 Slaughter-house Cases, said that it imposed upon the colored race onerous disabilities and burdens; curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; forbade them to appear in the towns in any other character than menial servants; required them to reside on and cultivate the soil, without the right to purchase or own it; excluded them from many occupations of gain; and denied them the privilege of giving testimony in the courts where a white man was a party. 16 Wall. 57. Can there by any doubt that all such legislation might have been reached by direct legislation upon the part of congress under its express power to enforce the thirteenth amendment? Would any court have hesitated to declare that such legislation imposed badges of servitude in conflict with the civil freedom ordained by that amendment? That it would have been also in conflict with the fourteenth amendment, because inconsistent with the fundamental rights of American citizenship, does not prove that it would have been consistent with the thirteenth amendment.

    What has been said is sufficient to show that the power of congress under the thirteenth amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent at least of protecting the race, so liberated, against discrimination, in respect of legal rights belonging to freemen, where such discrimination is based upon race.

    **41 It remains now to inquire what are the legal rights of colored persons in respect of the accommodations, privileges, and facilities of public conveyances, inns, and places of public amusement.

    1. As to public conveyances on land and water. In New Jersey Steam Nav. Co. v.Merchants' Bank, 6 How. 382, this court, speaking by Mr. Justice NELSON, said that a common carrier is ‘in the exercise of a sort of public office and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.’ To the same effect is Munn v. Illinois, 94 U. S. 113. In Olcott v. Sup'rs, 16 Wall. 694, it was ruled that *38 railroads are public highways, established, by authority of the state, for the public use; that they are none the less public highways because controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the conveyance of the public; that no matter who is the agent, and what is the agency, the function performed is that of the state; that although the owners may be private companies, they may be compelled to permit the public to use these works in the manner in which they can be used; that upon these grounds alone have the courts sustained the investiture of railroad corporations with the state's right of eminent domain, or the right of municipal corporations, under legislative authority, to assess, levy, and collect taxes to aid in the construction of railroads. So in Town of Queensbury v. Culver, 19 Wall. 91, it was said that a municipal subscription of railroad stock was in aid of the construction and maintenance of a public highway and for the promotion of a public use. Again, in Township of Pine Grove v. Talcott, 19 Wall. 676: ‘Though the corporation [railroad] was private, its work was public; as much so as if it were to be constructed by the state.’ To the like effect are numerous adjudications in this and the state courts with which the profession is familiar. The supreme judicial court of Massachusetts, in Inhabitants of Worcester v. Western R. Corp. 4 Metc. 566, said, in reference to a certain railroad:

    ‘The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement. * * * It is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation; but it is in trust for the public.’

    In Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, the court, referring to an act repealing the charter of a railroad, and under which the state took possession of the road, said, speaking by BLACK, J.:

    ‘It is a public highway, solemnly devoted to public use. When the lands were taken it was for such use, or they could not have been taken at all. * * * Railroads established*39 upon land taken by the right of eminent domain by authority of the commonwealth, created by her laws as thoroughfares for commerce, are her highways. No corporation has property in them, though it may have franchises annexed to and exercisable within them.’

    **42 In many courts it has been held that because of the public interest in such a corporation the land of a railroad company cannot be levied on and sold under execution by a creditor. The sum of the adjudged cases is that a railroad corporation is a governmental agency, created primarily for public purposes, and subject to be controlled for the public benefit. It is upon that ground that the state, when unfettered by contract, may regulate, in its discretion, the rates of fares of passengers and freight. And upon this ground, too, the state may regulate the entire management of railroads in all matters affecting the convenience and safety of the public; as, for example, by regulating speed, compelling stops of prescribed length at stations, and prohibiting discriminations and favoritism. If the corporation neglect or refuse to discharge its duties to the public, it may be coerced to do so by appropriate proceedings in the name or in behalf of the state.

    Such being the relations these corporations hold to the public, it would seem that the right of a colored person to use an improved public highway, upon the terms accorded to freemen of other races, is as fundamental in the state of freedom, established in this country, as are any of the rights which my brethren concede to be so far fundamental as to be deemed the essence of civil freedom. ‘Personal liberty consists,’ says Blackstone, ‘in the power of locomotion, of changing situation, or removing one's person to whatever place one's own inclination may direct, without restraint, unless by due course of law.’ But of what value is this right of locomotion, if it may be clogged by such burdens as congress intended by the act of 1875 to remove? They are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained, except upon the assumption that there is still, in this land of universal liberty, a class which may yet be discrimated against, even in respect of rights of a character *40 so essential and so supreme, that, deprived of their enjoyment, in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most necessary means of existence; and all this solely because they belong to a particular race which the nation has liberated. The thirteenth amendment alone obliterated the race line, so far as all rights fundamental in a state of freedom are concerned.

    2. As to inns. The same general observations which have been made as to railroads are applicable to inns. The word ‘inn’ has a technical legal signification. It means, in the act of 1875, just what it meant at common law. A mere private boarding-house is not an inn, nor is its keeper subject to the responsibilities, or entitled to the privileges of a common innkeeper. ‘To constitute one an innkeeper, within the legal force of that term, he must keep a house of entertainment or lodging for all travelers or wayfarers who might choose to accept the same, being of good character or conduct.’ Redf. Carr. § 575. Says Judge STORY:

    **43 ‘An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants. An innkeeper is bound to take in all travelers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation; and he must guard their goods with proper diligence. * * * If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be indicted therefor. * * * They [carriers of passengers] are no more at liberty to refuse a passenger, if they have sufficient room and accommodations, than an innkeeper is to refuse suitable room and accommodations to a guest.’ Story, Bailm. §§ 475, 476.

    Said Mr. Justice COLERIDGE, in Rex v. Ivens, 7 Car. & P. 213, (32 E. C. L. 495:)

    ‘An indictment lies against an innkeeper who refuses to receive a guest, he having at the time room in his house; and either the price of the guest's entertainment being tendered to him, or such circumstances occurring as will dispense with that *41 tender. This law is founded in good sense. The innkeeper is not to select his guests. He has no right to say to one, you shall come to my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants, they having in return a kind of privilege of entertaining travelers and supplying them with that they want.’

    These authorities are sufficient to show a keeper of an inn is in the exercise of aquasi public employment. The law gives him special privileges, and he is charged with certain duties and responsibilities to the public. The public nature of his employment forbids him from discriminating against any person asking admission as a guest on account of the race or color of that person.

    3. As to places of public amusement. It may be argued that the managers of such places have no duties to perform with which the public are, in any legal sense, concerned, or with which the public have any right to interfere; and that the exclusion of a black man from a place of public amusement on account of his race, or the denial to him, on that ground, of equal accommodations at such places, violates no legal right for the vindication of which he may invoke the aid of the courts. My answer to that argument is that places of public amusement, within the meaning of the act of 1875, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction. A license from the public to establish a place of public amusement, imports, in law, equality of right, at such places, among all the members of that public. This must be so, unless it be-which I deny-that the common municipal government of all the people may, in the exertion of its powers, conferred for the benefit of all, discriminate or authorize discrimination against a particular race, solely because of its former condition of servitude.

    I also submit whether it can be said-in view of the doctrines of this court as announced in Munn v. Illinois, *42 U. S. 123, and reaf **44 firmed in Peik v.Chicago & N. W. Ry. Co. 94 U. S. 178-that the management of places of public amusement is a purely private matter, with which government has no rightful concern. In the Munn Case the question was whether the state of Illinois could fix, by law, the maximum of charges for the storage of grain in certain warehouses in that state-the private property of individual citizens. After quoting a remark attributed to Lord Chief Justice HALE, to the effect that when private property is ‘affected with a public interest it ceases to be juris privati only,’ the court says:

    ‘Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.’

    The doctrines of Munn v. Illinois have never been modified by this court, and I am justified, upon the authority of that case, in saying that places of public amusement, conducted under the authority of the law, are clothed with a public interest, because used in a manner to make them of public consequence and to affect the community at large. The law may therefore regulate, to some extent, the mode in which they shall be conducted, and consequently the public have rights in respect of such places which may be vindicated by the law. It is consequently not a matter purely of private concern.

    Congress has not, in these matters, entered the domain of state control and supervision. It does not assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall be conducted or managed. It simply declares in effect that since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the legal rights in the accommodations *43 and advantages of public conveyances, inns, and places of public amusement.

    I am of the, opinion that such discrimination practiced [sic] by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude, the imposition of which congress may prevent under its power. By appropriate legislation, to enforce the thirteenth amendment; and consequently, without reference to its enlarged power under the fourteenth amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the constitution.

    It remains now to consider these cases with reference to the power congress has possessed since the adoption of the fourteenth amendment.

    Before the adoption of the recent amendments it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a state, or even of the United States, with the rights **45 and privileges guarantied to citizens by the national constitution; further, that one might have all the rights and privileges of a citizen of a state without being a citizen in the sense in which that word was used in the national constitution, and without being entitled to the privileges and immunities of citizens of the several states. Still further, between the adoption of the thirteenth amendment and the proposal by congress of the fourteenth amendment, on June 16, 1866, the statute-books of several of the states, as we have seen, had become loaded down with enactments which, under the guise of apprentice, vagrant, and contract regulations, sought to keep the colored race in a condition, practically, of servitude. It was openly announced that whatever rights persons of that race might have as freemen, under the guaranties of the national constitution, they could not become citizens of a state, with the rights belonging to citizens, except by the consent of such state; consequently, that their civil rights, as citizens of the state, depended entirely upon state legislation. To meet this new peril to the black race, that the *44 purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of congress, the fourteenth amendment was proposed for adoption.

    Remembering that this court, in the Slaughter-house Cases, declared that the one pervading purpose found in all the recent amendments, lying at the foundation of each, and without which none of them would have been suggested, was ‘the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him;’ that each amendment was addressed primarily to the grievances of that race,-let us proceed to consider the language of the fourteenth amendment. Its first and fifth sections are in these words:

    ‘Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    * * *

    ‘Sec. 5. That congress shall have power to enforce, by appropriate legislation, the provisions of this article.’

    It was adjudged in Strauder v. West Virginia and Ex parte Virginia, 100 U. S. 307, 345, and my brethren concede, that positive rights and privileges were intended to be secured, and are in fact secured, by the fourteenth amendment.

    But when, under what circumstances, and to what extent may congress, by means of legislation, exert its power to enforce the provisions of this amendment? The logic of the opinion of the majority of the court-the foundation upon which its whole reasoning seems **46 to rest-is that the general government cannot, in advance of hostile state laws or hostile state *45 proceedings, actively interfere for the protection of any of the rights, privileges, and immunities secured by the fourteenth amendment. It is said that such rights, privileges, and immunities are secured by way of prohibition against state laws and state proceedings affecting such rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; also, that congressional legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.

    In illustration of its position, the court refers to the clause of the constitution forbidding the passage by a state of any law impairing the obligation of contracts. The clause does not, I submit, furnish a proper illustration of the scope and effect of the fifth section of the fourteenth amendment. No express power is given congress to enforce, by primary direct legislation, the prohibition upon state laws impairing the obligation of contracts. Authority is, indeed, conferred to enact all necessary and proper laws for carrying into execution the enumerated powers of congress, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof. And, as heretofore shown, there is also, by necessary implication, power in congress, by legislation, to protect a right derived from the national constitution. But a prohibition upon a state is not a power in congress or in the national government. It is simply adenial of power to the state. And the only mode in which the inhibition upon state laws impairing the obligation of contracts can be enforced, is, indirectly, through the courts, in suits where the parties raise some question as to the constitutional validity of such laws. The judicial power of the United States extends to such suits, for the reason that they are suits arising under the constitution. The fourteenth amendment presents the first instance in our history of the investiture of congress with affirmative power, by legislation, to enforce an express prohibition upon the states. It is not said that the judicial power of the nation may be exerted for the enforcement of that amendment. No enlargement of the judicial power was required, for it is clear *46 that had the fifth section of the fourteenth amendment been entirely omitted, the judiciary could have stricken down all state laws and nullified all state proceedings in hostility to rights and privileges secured or recognized by that amendment. The power given is, in terms, by congressional legislation, to enforce the provisions of the amendment.

    The assumption that this amendment consists wholly of prohibitions upon state laws and state proceedings in hostility to its provisions, is unauthorized by its language. The first clause of the first section-‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, **47 and of the state wherein they reside’-is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted, as well citizenship of the United States, as citizenship of the state in which they respectively resided. It introduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the political community known as the ‘People of the United States.’ They became, instantly, citizens of the United States, and of their respective states. Further, they were brought, by this supreme act of the nation, within the direct operation of that provision of the constitution which declares that ‘the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’ Article 4, § 2.

    The citizenship thus acquired by that race, in virtue of an affirmative grant by the nation, may be protected, not alone by the judicial branch of the government, but by congressional legislation of a primary direct character; this, because the power of congress is not restricted to the enforcement of prohibitions upon state laws or state action. It is, in terms distinct and positive, to enforce ‘the provisionsof this article’ of amendment; not simply those of a prohibitive character, but the provisions,- all of the provisions,-affirmative and prohibitive, of the amendment. It is, therefore, a grave misconception to suppose that the fifth section of the amendment has reference exclusively to express prohibitions upon state laws or state action. If any right was created by that amendment, the *47 grant of power, through appropriate legislation, to enforce its provisions authorizes congress, by means of legislation operating throughout the entire Union, to guard, secure, and protect that right.

    It is, therefore, an essential inquiry what, if any, right, privilege, or immunity was given by the nation to colored persons when they were made citizens of the state in which they reside? Did the national grant of state citizenship to that race, of its own force, invest them with any rights, privileges, and immunities whatever? That they became entitled, upon the adoption of the fourteenth amendment, ‘to all privileges and immunities of citizens in the several states,’ within the meaning of section 2 of article 4 of the constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to which, by that clause of the constitution, they became entitled? To this it may be answered, generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free government, ‘common to the citizens in the latter states under their constitutions and laws by virtue of their being citizens.’ Of that provision it has been said, with the approval of this court, that no other one in the constitution has tended so strongly to constitute the citizens of the United States one people. Ward v. Maryland, 12 Wall. 430; Corfield v. Coryell, 4 Wash. C. C. 371;Paul v. Virginia, 8 Wall. 180; Slaughter-house Cases, 16 Wall. 77.

    Although this court has wisely forborne any attempt, by a comprehensive **48definition, to indicate all the privileges and immunities to which the citizens of each state are entitled of right to enjoy in the several states, I hazard nothing, in view of former adjudications, in saying that no state can sustain her denial to colored citizens of other states, while within her limits, of privileges or immunities, fundamental in republican citizenship, upon the ground that she accords such privileges and immunities only to her white citizens and withholds them from her colored citizens. The colored citizens of other states, within the jurisdiction of that state, could claim, under the constitution, every privilege and immunity *48 which that state secures to her white citizens. Otherwise, it would be in the power of any state, by discriminating class legislation against its own citizens of a particular race or color, to withhold from citizens of other states, belonging to that proscribed race, when within her limits, privileges and immunities of the character regarded by all courts as fundamental in citizenship; and that, too, when the constitutional guaranty is that the citizens of each state shall be entitled to ‘ allprivileges and immunities of citizens of the several states.’ No state may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the constitutional right of citizens of other states, of whatever race, to enjoy in that state all such privileges and immunities as are there accorded to her most favored citizens. A colored citizen of Ohio or Indiana, being in the jurisdiction of Tennessee, is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter state. It is not to be supposed that any one will controvert this proposition.

    But what was secured to colored citizens of the United States-as between them and their respective states-by the grant to them of state citizenship? With what rights, privileges, or immunities did this grant from the nation invest them? There is one, if there be no others-exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same state. That, surely, is their constitutional privilege when within the jurisdiction of other states. And such must be their constitutional right, in their own state, unless the recent amendments be ‘splendid baubles,’ thrown out to delude those who deserved fair and generous treatment at the hands of the nation. Citizenship in this country necessarily imports equality of civil rights among citizens of every race in the same state. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the state, or its officers, or by individuals, or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude. In U. S. v. Cruikshank, 92 U. S. 555, it was said *49 that ‘the equality of rights of citizens is a principle of republicanism.’ And in Ex parte Virginia, 100 U. S. 344, the emphatic language of this court is that ‘one great purpose of these amendments **49 was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the states.’ So, in Strauder v. West Virginia, Id. 306, the court, alluding to the fourteenth amendment, said: ‘This is one of a series of constitutional provisions having a common purpose, namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.’ Again, in Neal v.Delaware, 103 U. S. 386, it was ruled that this amendment was designed, primarily, ‘to secure to the colored race, thereby invested with the rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons.’

    Much light is thrown upon this part of the discussion by the language of this court in reference to the fifteenth amendment. In U. S. v. Cruikshank it was said:

    ‘In U. S. v. Reese, 92 U. S. 214, we held that the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on account of race, etc., is. The right to vote in the states comes from the states; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the constitution of the United States, but the last has been.’

    Here, in language at once clear and forcible, is stated the principle for which I contend. It can hardly be claimed that exemption from race discrimination, in respect of civil rights, against those to whom state citizenship was granted by the*50 nation, is any less for the colored race a new constitutional right, derived from and secured by the national constitution, than is exemption from such discrimination in the exercise of the elective franchise. It cannot be that the latter is an attribute of national citizenship, while the other is not essential in national citizenship, or fundamental in state citizenship.

    If, then, exemption from discrimination in respect of civil rights is a new constitutional right, secured by the grant of state citizenship to colored citizens of the United States, why may not the nation, by means of its own legislation of a primary direct character, guard, protect, and enforce that right? It is a right and privilege which the nation conferred. It did not come from the states in which those colored citizens reside. It has been the established doctrine of this court during all its history, accepted as vital to the national supremacy, that congress, in the absence of a positive delegation of power to the state legislatures, may by legislation enforce and protect any right derived from or created by the national constitution. It was so declared in Prigg v. Com. It was reiterated in **50 U. S. v.Reese, 92 U. S. 214, where the court said that ‘rights and immunities created by and dependent upon the constitution of the United States can be protected by congress. The form and manner of the protection may be such as congress, in the legitimate exercise of its discretion, shall provide. These may be varied to meet the necessities of the particular right to protected.’ It was distinctly reaffirmed inStrauder v. West Virginia, 100 U. S. 310, where we said that ‘a right or immunity created by the constitution or only guarantied by it, even without any express delegation of power, may be protected by congress.’ Will any one claim, in view of the declarations of this court in former cases, or even without them, that exemption of colored citizens within their states from race discrimination, in respect of the civil rights of citizens, is not an immunity created or derived from the national constitution?

    This court has always given a broad and liberal construction to the constitution, so as to enable congress, by legislation, to *51 enforce rights secured by that instrument. The legislation congress may enact, in execution of its power to enforce the provisions of this amendment, is that which is appropriate to protect the right granted. Under given circumstances, that which the court characterizes as corrective legislation might be sufficient. Under other circumstances primary direct legislation may be required. But it is for congress, not the judiciary, to say which is best adapted to the end to be attained. In U. S. v. Fisher, 2 Cranch, 358, this court said that ‘congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution.’ ‘The sound construction of the constitution,’ said Chief Justice MARSHALL, ‘must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate,-let it be within the scope of the constitution,-and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.’McCulloch v. Maryland, 4 Wheat. 423.

    Must these rules of construction be now abandoned? Are the powers of the national legislature to be restrained in proportion as the rights and privileges, derived from the nation, are more valuable? Are constitutional provisions, enacted to secure the dearest rights of freemen and citizens, to be subjected to that rule of construction, applicable to private instruments, *52 which requires that the words to be interpreted must be taken most strongly against those who employ them? Or shall it be remembered that ‘a constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature,-for perpetual union, for the establishment of justice, for the general welfare, and for a **51 perpetuation of the blessings of liberty,-necessarily requires that every interpretation of its powers should have a constant reference to these objects? No interpretation of the words in which those powers are granted can be a sound one which narrows down their ordinary import so as to defeat those objects.’ 1 Story, Const. § 422.

    The opinion of the court, as I have said, proceeds upon the ground that the power of congress to legislate for the protection of the rights and privileges secured by the fourteenth amendment cannot be brought into activity except with the view, and as it may become necessary, to correct and annul state laws and state proceedings in hostility to such rights and privileges. In the absence of state laws or state action, adverse to such rights and privileges, the nation may not actively interfere for their protection and security. Such I understand to be the position of my brethren. If the grant to colored citizens of the United States of citizenship in their respective states imports exemption from race discrimination, in their states, in respect of the civil rights belonging to citizenship, then, to hold that the amendment remits that right to the states for their protection, primarily, and stays the hands of the nation, until it is assailed by state laws or state proceedings, is to adjudge that the amendment, so far from enlarging the powers of congress,-as we have heretofore said it did,-not only curtails them, but reverses the policy which the general government has pursued from its very organization. Such an interpretation of the amendment is a denial to congress of the power, by appropriate legislation, to enforce one of its provisions. In view of the circumstances under which the recent amendments were incorporated into the constitution, and especially in view of the peculiar character of the new *53 rights they created and secured, it ought not to be presumed that the general government has abdicated its authority, by national legislation, direct and primary in its character, to guard and protect privileges and immunities secured by that instrument. Such an interpretation of the constitution ought not to be accepted if it be possible to avoid it. Its acceptance would lead to this anomalous result: that whereas, prior to the amendments, congress, with the sanction of this court, passed the most stringent laws-operating directly and primarily upon states, and their officers and agents, as well as upon individuals-in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments. I venture, with all respect for the opinion of others, to insist that the national legislature may, without transcending the limits of the constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover **52 his fugitive slave, were legitimate exertions of an implied power to protect and enforce a right recognized by the constitution, why shall the hands of congress be tied, so that-under an express power, by appropriate legislation, to enforce a constitutional provision, granting citizenship-it may not, by means of direct legislation, bring the whole power of this nation to bear upon states and their officers, and upon such individuals and corporations exercising public functions, as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

    It does not seem to me that the fact that, by the second clause of the first section of the fourteenth amendment, the states are expressly prohibited from making or enforcing laws abridging the privileges and immunities of citizens of the United States, furnishes any sufficient reason for holding or maintaining that the amendment was intended to deny congress the power, by general, primary, and direct legislation, of *54 protecting citizens of the United States, being also citizens of their respective states, against discrimination, in respect to their rights as citizens, founded on race, color, or previous condition of servitude. Such an interpretation of the amendment is plainly repugnant to its fifth section, conferring upon congress power, by appropriate legislation, to enforce, not merely the provisions containing prohibitions upon the states, but all of the provisions of the amendment, including the provisions, express and implied, of the grant of citizenship in the first clause of the first section of the article. This alone is sufficient for holding that congress is not restricted to the enactment of laws adapted to counteract and redress the operation of state legislation, or the action of state officers of the character prohibited by the amendment. It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights, as citizens, was to be apprehended, not altogether from unfriendly state legislation, but from the hostile action of corporations and individuals in the states. And it is to be presumed that it was intended, by that section, to clothe congress with power and authority to meet that danger. If the rights intended to be secured by the act of 1875 are such as belong to the citizen, in common or equally with other citizens in the same state, then it is not to be denied that such legislation is appropriate to the end which congress is authorized to accomplish, viz., to protect the citizen, in respect of such rights, against discrimination on account of his race. As to the prohibition in the fourteenth amendment upon the making or enforcing of state laws abridging the privileges of citizens of the United States, it was impossible for any state to have enforced laws of that character. The judiciary could have annulled all such legislation under the provision that the constitution shall be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. The states were *55 already under an implied prohibition not to abridge any privilege or immunity belonging to citizens of the United **53 States as such. Consequently, the prohibition upon state laws hostile to the rights belonging to citizens of the United States, was intended only as an express limitation on the powers of the states, and was not intended to diminish, in the slightest degree, the authority which ten nation has always exercised, of protecting, by means of its own direct legislation, rights created or secured by the constitution. The purpose not to diminish the national authority is distinctly negatived by the express grant of power, by legislation, to enforce every provision of the amendment, including that which, by the grant of citizenship in the state, secures exemption from race discrimination in respect of the civil rights of citizens.

    It is said that any interpetation of the fourteenth amendment different from that adopted by the court, would authorize congress to enact a municipal code for all the states, covering every matter affecting the life, liberty, and property of the citizens of the several states. Not so. Prior to the adoption of that amendment the constitutions of the several states, without, perhaps, an exception, secured allpersons against deprivation of life, liberty, or property, otherwise than by due process of law, and, in some form, recognized the right of all persons to the equal protection of the laws. These rights, therefore, existed before that amendment was proposed or adopted. If, by reason of that fact, it be assumed that protection in these rights of persons still rests, primarily, with the states, and that congress may not interfere except to enforce, by means of corrective legislation, the prohibitions upon state laws or state proceedings inconsistent with those rights, it does not at all follow that privileges which have been granted by the nation may not be protected by primary legislation upon the part of congress. The rights and immunities of persons recognized in the prohibitive clauses of the amendments were always *56 under the protection, primarily, of the states, while rights created by or derived from the United States have always been, and, in the nature of things, should always be, primarily, under the protection of the general government. Exemption from race discrimination in respect of the civil rights which are fundamental in citizenship in a republican government, is, as we have seen, a new constitutional right, created by the nation, with express power in congress, by legislation, to enforce the constitutional provision from which it is derived. If, in some sense, such race discrimination is a denial of the equal protection of the laws, within the letter of the last clause of the first section, it cannot be possible that a mere prohibition upon state denial of such equal protection to persons within its jurisdiction, or a prohibition upon state laws abridging the privileges and immunities of citizens of the United States, takes from the nation the power which it has uniformly exercised of protecting, by primary direct legislation, those privileges and immunities which existed under the constitution before the adoption of the fourteenth amendment, or which have been created **54 by that amendment in behalf of those thereby made citizens of their respective states.

    *57 It was said of Dred Scott v. Sandford that this court in that case overruled the action of two generations, virtually inserted a new clause in the constitution, changed its character, and made a new departure in the workings of the federal government. I may be permitted to say that if the recent amendments are so construed that congress may not, in its own discretion, and independently of the action or non-action of the states, provide, by legislation of a primary and direct character, for the security of rights created by the national constitution; if it be adjudged that the obligation to protect the fundamental privileges and immunities granted by the fourteenth amendment to citizens residing in the several states, rests, primarily, not on the nation, but on the states; if it be further adjudged that individuals and corporations exercising public functions may, without liability to direct primary legislation on the part of congress, make the race of citizens the ground for denying them that equality of civil rights which the constitution ordains as a principle of republican citizenship,-then, not only the foundations upon which the national supremacy has always securely rested will be materially disturbed, but we shall enter upon an era of constitutional law when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was accorded to slavery and the rights of the master.

    But if it were conceded that the power of congress could not be brought into activity until the rights specified in the act of 1875 had been abridged or denied by some state law or state action, I maintain that the decision of the court is erroneous. There has been adverse state action within the fourteenth amendment as heretofore interpreted by this court. I allude to Ex parte Virginia, supra. It appears, in that case, that one Cole, judge of a county court, was charged with the duty, by the laws of Virginia, of selecting grand and petit jurors. The law of the state did not authorize or permit him, in making such selections, to discriminate against colored citizens because of their race. But he was indicted in the federal court, under the act of 1875, for making such discriminations. *58 The attorney general of Virginia contended before us that the state had done its duty, and had not authorized or directed that county judge to do what he was charged with having done, and consequently that the state had not denied to the colored race the equal protection of the laws, and the act of Cole must therefore be deemed his individual act, in contravention of the will of the state. Plausible as this argument was, it failed to convince this court, and after saying that the fourteenth amendment had reference to the political body denominated a state, ‘by whatever instruments or in whatever modes that action may be taken,’ and that a state acts by its legislative, executive, and judicial authorities, and can act in no other way, we proceeded:

    **55 ‘The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and, as he acts under the name and for the state, and is clothed with the state's power, his act is that of the state. This must be so, or the constitutional prohibition has no meaning. Then the state has clothed one of its agents with power to annul or evade it. But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a state, but upon the persons who are the agents of the state, in the denial of the rights which were intended to be secured.’ 100 U.S. 346, 347.

    In every material sense applicable to the practical enforcement of the fourteenth amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents of the state, because *59 amenable, in respect of their public duties and functions, to public regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial by these instrumentalities of the state to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the state within the meaning of the fourteenth amendment. If it be not, then that race is left, in respect of the civil rights under discussion, practically at the mercy of corporations and individuals wielding power under public authority.

    But the court says that congress did not, in the act of 1866, assume, under the authority given by the thirteenth amendment, to adjust what may be called the social rights of men and races in the community. I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern. I agree that if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amenable to the law for his conduct in that regard; for no legal right of a citizen is violated by the refusal of others to maintain merely social relations with him, even upon grounds of race. What I affirm is that no state, nor the officers of any state, nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in their civil rights, because of their race, or because they once labored under disabilities imposed upon them as a race. The rights which congress, by the act of 1875, endeavored to secure and protect are legal, not social, rights. The right, for instance, of a **56 colored citizen to use the accommodations of a public highway upon the same terms as are permitted to white citizens is no more a social right than his right, under the law, to use the public streets of a city, or a town, or a turnpike road, or a public market, or a post-office, or his right to sit *60in a public building with others, of whatever race, for the purpose of hearing the political questions ot the day discussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black races sitting side by side watching the progress of our business. It would never occur to any one that the presence of a colored citizen in a court-house or court-room was an invasion of the social rights of white persons who may frequent such places. And yet such a suggestion would be quite as sound in law-1 say it with all respect-as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of the white race.

    The court, in its opinion, reserves the question whether congress, in the exercise of its power to regulate commerce among the several states, might or might not pass a law regulating rights in public conveyances passing from one state to anoher. I beg to suggest that that precise question was substantially presented here in the only one of these cases relating to railroads,- Robinson v.Memphis & C. R. Co. In that case it appears that Mrs. Robinson, a citizen of Mississippi, purchased a railroad ticket entitling her to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia. Might not the act of 1875 be maintained in that case, as applicable at least to commerce between the states, notwithstanding it does not, upon its face, profess to have been passed in pursuance of the power given to congress to regulate commerce? Has it ever been held that the judiciary should overturn a statute because the legislative department did not accurately recite therein the particular provision of the constitution authorizing its enactment? We have often enforced municipal bonds in aid of railroad subscriptions where they failed to recite the statute authorizing their issue, but recited one which did not sustain their validity. The inquiry in such cases has been, was there in any statute authority for the execution of the bonds? Upon this branch of the case it may be remarked that the state of Louisiana, in 1869, passed a statute *61 giving to passengers, without regard to race or color, equality of right in the accommodations of railroad and street cars, steam-boats, or other water-crafts, stage-coaches, omnibuses, or other vehicles. But in Hall v.De Cuir, 95 U. S. 487, that act was pronounced unconstitutional so far as it related to commerce between the states, this court saying that ‘if the public good requires such legislation it must come from congress and not from the states.’ I suggest that it may become a pertinent inquiry whether congress may, in the exertion of its power to regulate commerce among the states, enforce **57 among passengers on public conveyances equality of right without regard to race, color, or previous condition of servitude, if it be true-which I do not admit-that such legislation would be an interference by government with the social rights of the people.

    My brethren say that when a man has emerged from slavery, and by the aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. *62 At every step in this direction the nation has been confronted with class tyrany, which a contemporary English historian says is, of all tyrannies, the most intolerable, ‘for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.’ To-day it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree-for the due enforcement of which, by appropriate legislation, congress has been invested with express power-every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.

    For the reasons stated I feel constrained to withhold my assent to the opinion of the court.

  • 2 Strauder v. West Virginia

    1

    Supreme Court of the United States

    STRAUDERv.WEST VIRGINIA.

    October Term, 1879

    **1 ERROR to the Supreme Court of Appeals of the State of West Virginia.



    The facts are stated in the opinion of the court.

    *304 Mr. Charles Devens and Mr. George O. Davenport for the plaintiff in error.Mr. Robert White, Attorney-General of West Virginia, and Mr. James W. Green, contra.

    **2 @1. The Fourteenth Amendment of the Constitution of the United States considered, and held to be one of a series of constitutional provisions having a common purpose; namely, to secure to a recently emancipated race, which had been held in slavery through many generations, all the civil rights that the superior race enjoy, and to give to it the protection of the general government, in the enjoyment of such rights, whenever they should be denied by the States. Whether the amendment had other, and if so what, purposes, not decided.



    @2. The amendment not only gave citizenship and the privileges of citizenship to persons of color, but denied to any State the power to withhold from them the equal protection of the laws, and invested Congress with power, by appropriate legislation, to enforce its provisions.



    @3. The amendment, although prohibitory in terms, confers by necessary implication a positive immunity, or right, most valuable to persons of the colored race,-the right to exemption from unfriendly legislation against them distinctively as colored,-exemption from discriminations, imposed by public authority, which imply legal inferiority in civil society, lessen the security of their rights, and are steps towards reducing them to the condition of a subject race.



    @4. The statute of West Virginia, which, in effect, singles out and denies to colored citizens the right and privilege of participating in the administration of the law, as jurors, because of their color, though qualified in all other respects, is, practically, a brand upon them, and a discrimination against them which is forbidden by the amendment. It denies to such citizens the equal protection of the laws, since the constitution of juries is a very essential part of the protection which the trial by jury is intended to secure. They very idea of a jury is that it is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of persons having the same legal status in society as that which he holds.



    @5. Where, as here, the State statute secures to every white man the right of trial by jury selected from, and without discrimination against, his race, and at the same time permits or requires such discrimination against the colored man because of his race, the latter is not equally protected by law with the former.



    @6. Sect. 641 of the Revised Statutes, which declares that ‘when any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the past of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, . . . such suit or prosecution may, upon the petition of such defendant, filed in said State court, at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending,’ considered and held not to be in conflict with the Constitution of the United States.



    MR. JUSTICE STRONG delivered the opinion of the court.



    **3 The plaintiff in error, a colored man, was indicated for murder in the Circuit Court of Ohio County, in West Virginia, on the 20th of October, 1874, and upon trial was convicted and sentenced. The record was then removed to the Supreme Court of the State, and there the judgment of the Circuit Court was affirmed. The present case is a writ of error to that court, and it is now, in substance, averred that at the trial in the State court the defendant (now plaintiff in error) was denied rights to which he was entitled under the Constitution and laws of the United States.



    In the Circuit Court of the State, before the trial of the indictment was commenced, the defendant presented his petition, verified by his oath, praying for a removal of the cause into the Circuit Court of the United States, assigning, as ground for the removal, that ‘by virtue of the laws of the State of West Virginia no colored man was eligible to be a member of the grand jury or to serve on a petit jury in the State; that white men are so eligible, and that by reason of his being a colored man and having been a slave, he had reason to believe, and did believe, he could not have the full and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to him as such citizen on every trial which might take place on the indictment in the courts of the State were much more enhanced than if he was a white man.’ This petition was denied by the State court, and the cause was forced to trial.



    Motions to quash the venire, ‘because the law under which*305 it was issued was unconstitutional, null, and void,’ and successive motions to challenge the array of the panel, for a new trial, and in arrest of judgment were then made, all of which were overruled and made by exceptions parts of the record.



    The law of the State to which reference was made in the petition for removal and in the several motions was enacted on the 12th of March, 1873 (Acts of 1872-73, p. 102), and it is as follows: ‘All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.’ The persons excepted are State officials.



    In this court, several errors have been assigned, and the controlling questions underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color; and, second, if he has such a right, and is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States?



    **4 It is to be observed that the first of these questions is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury.



    The questions are important, for they demand a construction of the recent amendments of the Constitution. If the defendant has a right to have a jury selected for the trial of his case without discrimination against all persons of his race or color, because of their race or color, the right, if not created, is protected by those amendments, and the legislation of Congress under them. The Fourteenth Amendment ordains that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or *306enforce any laws which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’



    This is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall. 36), cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions *307 by appropriate legislation. To quote the language used by us in the Slaughter-House Cases, ‘No one can fail to be impressed with the one pervaiding purpose found in all the amendments, lying at the foundation of each, and without which none of them would have been suggested,-we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.’ So again: ‘The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied, and by it [the Fourteenth Amendment] such laws were forbidden. If, however, the States did not conform their laws to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation.’ And it was added, ‘We doubt very much whether any action of a State, not directed by way of discrimination against the negroes, as a class, will ever be held to come within the purview of this provision.’



    **5 If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the *308colored race,-the right to exemption from unfriendly legislation against them distinctively as colored,-exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.



    That the West Virginia statute respecting juries-the statute that controlled the selection of the grand and petit jury in the case of the plaintiff in error-is such a discrimination ought not to be doubted. Nor would it be if the persons excluded by it were white men. If in those States where the colored people constitute a majority of the entire population a law should be enacted excluding all white men from jury service, thus denying to them the privilege of participating equally with the the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the laws. Nor if a law should be passed excluding all naturalized Celtic Irishmen, would there by any doubt of its inconsistency with the spirit of the amendment. The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.



    The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says, ‘The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by *309 the Great Charter.’ It is also guarded by statutory enactments intended to make impossible what Mr. Bentham called ‘packing juries.’ It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy. Prejudice in a local community is held to be a reason for a change of venue. The framers of the constitutional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was doubtless a motive that led to the amendment. By their manumission and citizenship the colored race became entitled to the equal protection of the laws of the States in which they resided; and the apprehension that through prejudice they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice that portion of the amendment would have been unnecessary, and it might have been left to the States to extend equality of protection.



    **6 In view of these considerations, it is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offence against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?*310



    We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. As we have said more than once, its design was to protect an emancipated race, and to strike down all possible legal discriminations against those who belong to it. To quote further from 16 Wall.,supra: ‘In giving construction to any of these articles [amendments], it is necessary to keep the main purpose steadily in view.’ ‘It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.’ We are not now called upon to affirm or deny that it had other purposes.



    The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.



    Concluding, therefore, that the statute of West Virginia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the State, it remains only to be considered whether the power of Congress to enforce the provisions of the Fourteenth Amendment by appropriate legislation is sufficient to justify the enactment of sect. 641 of the Revised Statutes.



    **7 A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress. Prigg v.The Commonwealth of Pennsylvania, 16 Pet. 539. So in *311United States v. Reese (92 (U. S. 214), it was said by the Chief Justice of this court: ‘Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected.’ But there is express authority to protect the rights and immunities referred to in the Fourteenth Amendment, and to enforce observance of them by appropriate congressional legislation. And one very efficient and appropriate mode of extending such protection and securing to a party the enjoyment of the right or immunity, is a law providing for the removal of his case from a State court, in which the right is denied by the State law, into a Federal court, where it will be upheld. This is an ordinary mode of protecting rights and immunities conferred by the Federal Constitution and laws. Sect. 641 is such a provision. It enacts that ‘when any civil suit or criminal prosecution is commenced in any State court for any cause whatsoever against any person who is denied, or cannot enforce, in the judicial tribunals of the State, or in the part of the State where such prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial, or final hearing of the case, stating the facts, and verified by oath, be removed before trial into the next Circuit Court of the United States to be held in the district where it is pending.’



    This act plainly has reference to sects. 1977 and 1978 of the statutes which partially enumerate the rights and immunities intended to be guaranteed by the Constitution, the first of which declares that ‘all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, *312 pains, penalties, taxes, licenses, and exactions of every kind, and to no other.’ This act puts in the form of a statute what had been substantially ordained by the constitutional amendment. It was a step towards enforcing the constitutional provisions. Sect. 641 was an advanced step, fully warranted, we think, by the fifth section of the Fourteenth Amendment.



    **8 We have heretofore considered and affirmed the constitutional power of Congress to authorize the removal from State courts into the circuit courts of the United States, before trial, of criminal prosecutions for alleged offences against the laws of the State, when the defence presents a Federal question, or when a right under the Federal Constitution or laws is involved. Tennessee v. Davis, supra, p. 257. It is unnecessary now to repeat what we there said.



    That the petition of the plaintiff in error, filed by him in the State court before the trial of his case, made a case for removal into the Federal Circuit Court, under sect. 641, is very plain, if, by the constitutional amendment and sect. 1977 of the Revised Statutes, he was entitled to immunity from discrimination against him in the selection of jurors, because of their color, as we have endeavored to show that he was. It set forth sufficient facts to exhibit a denial of that immunity, and a denial by the statute law of the State.



    There was error, therefore, in proceeding to the trial of the indictment against him after his petition was filed, as also in overruling his challenge to the array of the jury, and in refusing to quash the panel.



    The judgment of the Supreme Court of West Virginia will be reversed, and the case remitted with instructions to reverse the judgment of the Circuit Court of Ohio county; and it is



    So ordered.



    MR. JUSTICE FIELD.



    **8 I dissent from the judgment of the court in this case, on the grounds stated in my opinion in Ex parte Virginia (infra, p. 349), and MR. JUSTICE CLIFFORD concurs with me.

    U.S.,1879Strauder v. West Virginia100 U.S. 303, 10 Otto 303, 1879 WL 16562 (U.S.W.Va.), 25 L.Ed. 664END OF DOCUMENT

  • 3 Korematsu v. United States

    1
    323 U.S. 214
    3
    65 S.Ct. 193
    5
    89 L.Ed. 194
    7
    TOYOSABURO KOREMATSU

    v.

    UNITED STATES.

    9
    No. 22.
    11
    Argued Oct. 11, 12, 1944.
    13
    Decided Dec. 18, 1944.
    15
    Rehearing Denied Feb. 12, 1945.
    17

              See 324 U.S. 885, 65 S.Ct. 674.

    19

    Page 215

    21

              Mr. Wayne M. Collins, of San Francisco, Cal., and Mr. Charles A. Horsky, of Washington, D.C., for petitioner.

    23

              Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.

    25

               Mr. Justice BLACK delivered the opinion of the Court.

    27

              The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area', contrary to Civilian Exclusion Order No. 34 of the Commanding General

    29

    Page 216

    31

    of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,1 and the importance of the constitutional question involved caused us to grant certiorari.

    33

              It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes pustify the existence of such restrictions; racial antagonism never can.

    35

              In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a, which provides that

    37

              '* * * whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.'

    39

              Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were sub-

    41

    Page 217

    43

    stantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. * * *'

    45

              One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a 'protection against espionage and against sabotage.' In Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

    47

              The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

    49

              In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude

    51

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    those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

    55

              In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.

    57

              Here, as in the Hirabayashi case, supra, 320 U.S. at page 99, 63 S.Ct. at page 1385, 87 L.Ed. 1774, '* * * we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.'

    59

              Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of

    61

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    whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.2

    65

              We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed. 841; Block v. Hirsh, 256 U.S. 135, 154, 155, 41 S.Ct. 458, 459, 65 L.Ed. 865, 16 A.L.R. 165. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kumezo Kawato, 317 U.S. 69, 73, 63 S.Ct. 115, 117, 87 L.Ed. 58. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory

    67

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    exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

    71

              It is argued that on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands.

    73

              There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time 'until and to the extent that a future proclamation or order should so permit or direct.' 7 Fed.Reg. 2601. That 'future order', the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did 'direct' exclusion from the area of all persons of Japanese ancestry, before 12 o'clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of Congress. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the March 27 and May 3rd orders, whether he remained in or left the area.

    75

              It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had

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    already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as 'assembly centers', in order 'to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area No. 1 to restrict and regulate such migration.' Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, elevan days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.

    81

              We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centersBut were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear

    83

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    when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. There is no reason why violations of these orders, insofar as they were promulgated pursuant to congressional enactment, should not be treated as separate offenses.

    87

              The Endo case (Ex parte Mitsuye Endo) 323 U.S. 283, 65 S.Ct. 208, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected.

    89

              Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us.

    91

              Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion

    93

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    Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

    97

              It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for

    99

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    action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified.

    103

              Affirmed.

    105

               Mr. Justice FRANKFURTER, concurring.

    107

              According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own.

    109

              The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is 'the power to wage war successfully.' Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382, 87 L.Ed. 1774 and see Home Bldg. & L. Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as 'an

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    unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. 'The war power of the United States, like its other powers * * * is subject to applicable constitutional limitations', Hamilton v. Kentucky Distilleries, Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. To recognize that military orders are 'reasonably expedient military precautions' in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047; Id., 155 U.S. 3, 15 S.Ct. 19, 39 L.Ed. 49, and Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435. To find that theConstitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

    115

              Mr. Justice ROBERTS.

    117

              I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

    119

              This is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774,

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    nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

    125

              The Government's argument, and the opinion of the court, in my judgment, erroneously divide that which is single and indivisible and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home, by refusing voluntarily to leave and, so, knowingly and intentionally, defying the order and the Act of Congress.

    127

              The petitioner, a resident of San Leandro, Alameda County, California, is a native of the United States of Japanese ancestry who, according to the uncontradicted evidence, is a loyal citizen of the nation.

    129

              A chronological recitation of events will make it plain that the petitioner's supposed offense did not, in truth, consist in his refusal voluntarily to leave the area which included his home in obedience to the order excluding him therefrom. Critical attention must be given to the dates and sequence of events.

    131

              December 8, 1941, the United States declared war on Japan.

    133

              February 19, 1942, the President issued Executive Order No. 9066,1 which, after stating the reason for issuing the

    135

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    order as 'protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities', provided that certain Military Commanders might, in their discretion, 'prescribe military areas' and define their extent, 'from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions' the 'Military Commander may impose in his discretion.'

    139

              February 20, 1942, Lieutenant General DeWitt was designated Military Commander of the Western Defense Command embracing the westernmost states of the Union,—about one-fourth of the total area of the nation.

    141

              March 2, 1942, General DeWitt promulgated Public Proclamation No. 1,2 which recites that the entire Pacific Coast is 'particularly subject to attack, to attempted invasion * * * and, in connection therewith, is subject to espionage and acts of sabotage'. It states that 'as a matter of military necessity' certain military areas and zones are established known as Military Areas Nos. 1 and 2. It adds that 'Such persons or classes of persons as the situation may require' will, by subsequent orders, 'be excluded from all of Military Area No. 1' and from certain zones in Military Area No. 2. Subsequent proclamations were made which, together with Proclamation No. 1, included in such areas and zones all of California, Washington, Oregon, Idaho, Montana, Nevada and Utah, and the southern portion of Arizona. The orders required that if any person of Japanese, German or Italian ancestry residing in Area No. 1 desired to change his habitual residence he must execute and deliver to the authorities a Change of Residence Notice.

    143

              San Leandro, the city of petitioner's residence, lies in Military Area No. 1.

    145

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              On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that in which he lived.

    149

              March 21, 1942, Congress enacted3 that anyone who knowingly 'shall enter, remain in, leave, or commit any act in any military area or military zone prescribed * * * by any military commander * * * contrary to the restrictions applicable to any such area or zone or contrary to the order of * * * any such military commander' shall be guilty of a misdemeanor. This is the Act under which the petitioner was charged.

    151

              March 24, 1942, General DeWitt instituted the curfew for certain areas within his command, by an order the validity of which was sustained in Hirabayashi v. United States, supra.

    153

              March 24, 1942, General DeWitt began to issue a series of exclusion orders relating to specified areas.

    155

              March 27, 1942, by Proclamation No. 4,4 the General recited that 'it is necessary, in order to provide for the welfare and to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1 to restrict and regulate such migration'; and ordered that, as of March 29, 1942, 'all alien Japanese and persons of Japanese ancestry who are within the limits of Military Area No. 1, be and they are hereby

    157

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    prohibited from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct.'5

    161

              No order had been made excluding the petitioner from the area in which he lived. By Proclamation No. 4 he was, after March 29, 1942, confined to the limits of Area No. 1. If the Executive Order No. 9066 and the Act of Congress meant what they said, to leave that area, in the face of Proclamation No. 4, would be to commit a misdemeanor.

    163

              May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 346 providing that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry, both alien and non-alien, were to be excluded from a described portion of Military Area No. 1, which included the County of Alameda, California. The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942, supra. It is important to note that the order, by its express terms, had no application to persons within the bounds 'of an established Assembly Center pursuant to instructions from this Headquarters * * *.' The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution.

    165

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    167

              The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document,—and, in the light of the above recitation, I think it is not,—that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order.

    169

              In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing.

    171

              June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty and convicted. Sentence was suspended and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 91027 establishing the War Relocation Authority under which so-called Relocation Centers, a enphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has

    173

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    been confined either in an Assembly Center, within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Mitsuye Endo, 323 U.S. 283, 65 S.Ct. 208, demonstrate, he was illegally held in custody.

    177

              The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34 ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument then is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature,—a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case with the court's the court. I might agree with the court's disposition of the hypothetical case.8 The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature the Hirabayashi case would be authority for sustaining it.

    179

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    But the facts above recited, and those set forth in Ex parte Metsuye Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality.

    183

              As I have said above, the petitioner, prior to his arrest, was faced with two diametrically contradictory orders given sanction by the Act of Congress of March 21, 1942. The earlier of those orders made him a criminal if he left the zone in which he resided; the later made him a criminal if he did not leave.

    185

              I had supposed that if a citizen was constrained by two laws, or two orders having the force of law, and obedience to one would violate the other, to punish him for violation of either would deny him due process of law. And I had supposed that under these circumstances a conviction for violating one of the orders could not stand.

    187

              We cannot shut our eyes to the fact that had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation instead of addressing ourselves to the actualities of the case?

    189

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              These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that where he was subject to two conflicting laws he was not bound, in order to escape violation of one of the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter.

    193

              Again it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute but must obey it though he knows it is no law and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law.

    195

              Moreover, it is beside the point to rest decision in part on the fact that the petitioner, for his own reasons, wished to remain in his home. If, as is the fact he was constrained so to do, it is indeed a narrow application of constitutional rights to ignore the order which constrained him, in order to sustain his conviction for violation of another contradictory order.

    197

              I would reverse the judgment of conviction.

    199

               Mr. Justice MURPHY, dissenting.

    201

              This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism.

    203

              In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and con-

    205

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    sideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.

    209

              At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. 'What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.' Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 196, 77 L.Ed. 375.

    211

              The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell, 13 Wall. 623, 627, 628, 20 L.Ed. 474; Mitchell v. Harmony, 13 How. 115, 134, 135, 14 L.Ed. 75; Raymond v. Thomas, 91 U.S. 712, 716, 23 L.Ed. 434. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast 'all persons of Japanese ancestry, both alien and non-alien,' clearly does not meet that test. Being an obvious racial discrimination, the

    213

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    order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an 'immediate, imminent, and impending' public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.

    217

              It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.

    219

              That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than

    221

    Page 236

    223

    bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area.1 In it he refers to all individuals of Japanese descent as 'subversive,' as belonging to 'an enemy race' whose 'racial strains are undiluted,' and as constituting 'over 112,000 potential enemies * * * at large today' along the Pacific Coast.2 In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,3 or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

    225

              Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not

    227

    Page 237

    229

    ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be 'a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.'4 They are claimed to be given to 'emperor worshipping ceremonies'5 and to 'dual citizenship.'6 Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,7 together with facts as to

    231

    Page 238

    233

    certain persons being educated and residing at length in Japan.8 It is intimated that many of these individuals deliberately resided 'adjacent to strategic points,' thus enabling them 'to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.' 9 The need for protective custody is also asserted. The report refers without identity to 'numerous incidents of violence' as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the 'situation was fraught with danger to the Japanese population itself' and that the general public 'was ready to take matters into its own hands.'10 Finally, it is intimated, though not directly

    235

    Page 239

    237

    charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,11 as well as for unidentified radio transmissions and night signalling.

    239

              The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation.12 A military judg-

    241

    Page 240

    243

    ment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.13

    245

              The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.

    247

    Page 241

    249

              No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group 'were unknown and time was of the essence.'14 Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these 'subversive' persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.

    251

              Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,15 a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It

    253

    Page 242

    255

    seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved—or at least for the 70,000 American citizens—especially when a large part of this number represented children and elderly men and women. 16 Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.

    257

              I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

    259

               Mr. Justice JACKSON, dissenting.

    261

              Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by

    263

    Page 243

    265

    residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

    267

              Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

    269

              A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole—only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

    271

              Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, § 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should

    273

    Page 244

    275

    enact such a criminal law, I should suppose this Court would refuse to enforce it.

    277

              But the 'law' which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine.

    279

              It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.

    281

              But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is

    283

    Page 245

    285

    what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

    287

              The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

    289

              In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

    291

              Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a farm more

    293

    Page 246

    295

    subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic.'1 A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

    297

              It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Kiyshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

    299

              In that case we were urged to consider only that curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language

    301

    Page 247

    303

    will do. He said: 'Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.' 320 U.S. at page 101, 63 S.Ct. at page 1386, 87 L.Ed. 1774. 'We decide only the issue as we have defined it—we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.' 320 U.S. at page 102, 63 S.Ct. at page 1386, 87 L.Ed. 1774. And again: 'It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.' 320 U.S. at page 105, 63 S.Ct. at page 1387, 87 L.Ed. 1774. (Italics supplied.) However, in spite of our limiting words we did validate a discrimination of the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

    305

              I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.

    307

    Page 248

    309

              Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

    311

              My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution I would reverse the judgment and discharge the prisoner.

    313

    1 9 Cir.,.

    315

    2 Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, Part II, 608—726; Final Report, Japanese Evacuation from the West Coast, 1942, 309—327; Hearings before the Committee on Immigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain nationals of the United States, pp. 37—42, 49—58.

    317

    1 7 Fed.Reg. 1407.

    319

    2 7 Fed.Reg. 2320.

    321

    3 56 Stat. 173, 18 U.S.C.A. § 97a.

    323

    4 7 Fed.Reg. 2601.

    325

    5 The italics in the quotation are mine. The use of the word 'voluntarily' exhibits a grim irony probably not lost on petitioner and others in like case. Either so, or its use was a disingenuous attempt to camouflage the compulsion which was to be applied.

    327

    6 7 Fed.Reg. 3967.

    329

    7 Fed.Reg. 2165.

    331

    8 My agreement would depend on the definition and application of the terms 'temporary' and 'emergency'. No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained, at the date of the restraint out of which the litigation arose. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841.

    333

    1 Final Report, Japanese Evacuation from the West Coast, 1942, by Lt.Gen. J. L. De Witt. This report is dated June 5, 1943, but was not made public until January, 1944.

    335

    2 Further evidence of the Commanding General's attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739—40 (78th Cong., 1st Sess.):

    337

    I don't want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. * * * The danger of the Japanese was, and is now—if they are permitted to come back—espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. * * * But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. * * *'

    339

    3 The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that 'while it was believed that some were loyal, it was known that many were not.' (Italics added.)

    341

    4 Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States.

    343

    5. Final Report, pp. 10—11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown.

    345

    6 Final Report, p. 22. The charge of 'dual citizenship' springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claim as to all born in the United States after 1925. See Freeman, 'Genesis, Exodus, and Leviticus; Genealogy, Evacuation, and Law,' 28 Cornell L.Q. 414, 447—8, and authorities there cited; McWilliams, Prejudice, 123—4 (1944).

    347

    7 Final Report, pp. 12. We have has various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121—3 (1944).

    349

    8 Final Report, pp. 13. Such persons constitute a very small part of the entire group and most of them belong to the Kibei movement—the actions and membership of which are well known to our Government agents.

    351

    9 Final Report, p. 10 see also pp. vii, 9, 15—17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese Americans. See McWilliams, Prejudice, 119 121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59—93.

    353

    10 Final Report, pp. 8. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.) 1—2. Cf. House Report No. 2124 (77th Cong., 2d Sess.) 145—7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944).

    355

    11 Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942—a considerable time after the Japanese American had been evacuated from their home and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3.

    357

    12 Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154—6; McWilliams, Prejudice, 126—8 (1944). Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, has frankly admitted that 'We're charged with wanting to get rid of the Japs for selfish reasons. We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. * * * They undersell the white man in the markets. * * * They work their women and children while the white farmer has to pay wages for his help,. If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either.' Quoted by Taylor in his article 'The People Nobody Wants,' 214 Sat. Eve. Post 24, 66 (May 9, 1942).

    359

    13 See notes 4—12, supra.

    361

    14 Final Report, p. vii; see also p. 18.

    363

    15 The Final Report, p. 34, makes the amazing statement that as of February 14, 1942, 'The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.' Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage.

    365

    16 During a period of six months, the 112 alien tribunals or hearing boards set up by the British Government shortly after the outbreak of the present war summoned and examined approximately 74,000 German and Austrian aliens. These tribunals determined whether each individual enemy alien was a real enemy of the Allies or only a 'friendly enemy.' About 64,000 were freed from internment and from any special restrictions, and only 2,000 were interned. Kempner, 'The Enemy Alien Problem in the Present War,' 34 Amer. Journ. of Int. Law 443, 444—46; House Report No. 2124 (77th Cong., 2d Sess.), 280—1.

    367

    1 Nature of the Judicial Process, p. 51.

  • 4 Plessy v. Ferguson

    1
    163 U.S. 537
    3
    16 S.Ct. 1138
    5
    41 L.Ed. 256
    7
    PLESSY

    v.

    FERGUSON.

    9
    No. 210.
    11
    May 18, 1896.
    13

    Page 538

    15

              This was a petition for writs of prohibition and certiorari originally filed in the supreme court of the state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal district court for the parish of Orleans, and setting forth, in substance, the following facts:

    17

              That petitioner was a citizen of the United States and a resident of the state of Louisiana, of mixed descent, in the proportion of seven-e ghths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws; that on June 7, 1892, he engaged and paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race, but, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach, and occupy another seat, in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach, and hurried off to, and imprisoned in, the parish jail of

    19

    Page 539

    21

    New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the general assembly of the state, approved July 10, 1890, in such case made and provided.

    23

              The petitioner was subsequently brought before the recorder of the city for preliminary examination, and committed for trial to the criminal district court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the constitution of the United States; that petitioner interposed a plea to such information, based upon the unconstitutionality of the act of the general assembly, to which the district attorney, on behalf of the state, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal district court were annexed to the petition as an exhibit.

    25

              Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue, and be made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the supreme court.

    27

              To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to ad-

    29

    Page 540

    31

    mit that he was in any sense or in any proportion a colored man.

    33

              The case coming on for hearing before the supreme court, that court was of opinion that the law under which the prosecution was had was constitutional and denied the relief prayed for by the petitioner (Ex parte Plessy, 45 La. Ann. 80, 11 South. 948); whereupon petitioner prayed for a writ of error from this court, which was allowed by the chief justice of the supreme court of Louisiana.

    35

              Mr. Justice Harlan dissenting.

    37

              A. W. Tourgee and S. F. Phillips, for plaintiff in error.

    39

              Alex. Porter Morse, for defendant in error.

    41

               Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

    43

              This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.

    45

              The first section of the statute enacts 'that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.'

    47

              By the second section it was enacted 'that the officers of such passenger trains shall have power and are hereby required

    49

    Page 541

    51

    to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.'

    53

              The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that 'nothing in this act shall be construed as applying to nurses attending children of the other race.' The fourth section is immaterial.

    55

              The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

    57

              The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate

    59

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    said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

    63

              The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states.

    65

              1. That it does not conflict with the thirteenth amendment, which abolished slavery and involuntary servitude, except § a punishment for crime, is too clear for argument. Slavery implies involuntary servitude,—a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter-House Cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word 'servitude' was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case, that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern states, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; and that the fourteenth amendment was devised to meet this exigency.

    67

              So, too, in the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but

    69

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    only as involving an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears. 'It would be running the slavery question into the ground,' said Mr. Justice Bradley, 'to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.'

    73

              A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection.

    75

              2. By the fourteenth amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

    77

              The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states.

    79

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    81

              The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguish d from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

    83

              One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. 'The great principle,' said Chief Justice Shaw, 'advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. * * * But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.' It was held that the powers of the committee extended to the establish-

    85

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    ment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by congress under its general power of legislation over the District of Columbia (sections 281-283, 310, 319, Rev. St. D. C.), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210; Lehew v. Brummell (Mo. Sup.) 15 S. W. 765; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361; People v. Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.

    89

              Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.

    91

              The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U. S. 303, it was held that a law of West Virginia limiting to white male persons 21 years of age, and citizens of the state, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step towards reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. Virginia v. Rivers, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; ush v. Com., 107 U. S. 110, 1 Sup. Ct. 625; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of

    93

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    color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Co. v. Brown, 17 Wall. 445.

    97

              Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U. S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the states.

    99

              In the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was held that an act of congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theaters, and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the fourteenth amendment was prohibitory upon the states only, and the legislation authorized to be adopted by congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counter-acting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the fourteenth amendment 'does not invest congress with power to legislate upon subjects that are within the

    101

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    domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.'

    105

              Much nearer, and, indeed, almost directly in point, is the case of the Louisville, N. O. & T. Ry. Co. v. State, 133 U. S. 587, 10 Sup. Ct. 348, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. The case was presented in a different aspe t from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the supreme court of Mississippi (66 Miss. 662, 6 South. 203) had held that the statute applied solely to commerce within the state, and, that being the construction of the state statute by its highest court, was accepted as conclusive. 'If it be a matter,' said the court (page 591, 133 U. S., and page 348, 10 Sup. Ct.), 'respecting commerce wholly within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the federal constitution. * * * No question arises under this section as to the power of the state to separate in different compartments interstate pas-

    107

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    sengers, or affect, in any manner, the privileges and rights of such passengers. All that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races. That affecting only commerce within the state is no invasion of the power given to congress by the commerce clause.'

    111

              A like course of reasoning applies to the case under consideration, since the supreme court of Louisiana, in the case of State v. Judge, 44 La. Ann. 770, 11 South. 74, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the state. The case was decided largely upon the authority of Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 South, 203, and affirmed by this court in 133 U. S. 587, 10 Sup. Ct. 348. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the state of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in Railroad v. Miles, 55 Pa. St. 209; Day v. Owen 5 Mich. 520; Railway Co. v. Williams, 55 Ill. 185; Railroad Co. v. Wells, 85 Tenn. 613; 4 S. W. 5; Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; The Sue, 22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639; People v. King (N. Y. App.) 18 N. E. 245; Houck v. Railway Co., 38 Fed. 226; Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St. Commerce Com. R. 428.

    113

              While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensa-

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    tion in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state, is to be deemed a white, and who a colored, person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

    119

              It is claimed by the plaintiff in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is 'property,' in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called 'property.' Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

    121

              In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side

    123

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    of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Co. v. Husen, 95 U. S. 465; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. 714, and cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct.; Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538; Capen v. Foster, 12 Pick. 485; State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v. Rems, 41 Pa. St. 396; Osman v. Riley, 15 Cal. 48.

    127

              So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances

    129

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    is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

    133

              We consider the u derlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: 'This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.' Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly

    135

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    or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

    139

              It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states; some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chavers, 5 Jones [N. C.] 1); others, that it depends upon the preponderance of blood (Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others, that the predominance of white blood must only be in the proportion of three-fourths (People v. Dean, 14 Mich. 406; Jones v. Com., 80 Va. 544). But these are questions to be determined under the laws of each state, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

    141

              The judgment of the court below is therefore affirmed.

    143

              Mr. Justice BREWER did not hear the argument or participate in the decision of this case.

    145

               Mr. Justice HARLAN dissenting.

    147

              By the Louisiana statute the validity of which is here involved, all railway companies (other than street-railroad companies) carry passengers in that state are required to have separate but equal accommodations for white and colored persons, 'by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.' Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of is race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race,

    149

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    he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors, and employees of railroad companies to comply with the provisions of the act.

    153

              Only 'nurses attending children of the other race' are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.

    155

              While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act 'white and colored races' necessarily include all citizens of the United States of both races residing in that state. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

    157

              Thus, the state regulates the use of a public highway by citizens of the United States solely upon the basis of race.

    159

              However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States.

    161

              That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise 'of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.' Mr. Justice Strong, delivering the judgment of

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    this court in Olcott v. Supervisors, 16 Wall. 678, 694, said: 'That railroads, though constructed by private corporations, and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly, it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use?' So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: 'Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the state.' So, in Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564: 'The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement.' 'It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation; but it is in trust for the public.'

    167

              In respect of civil r ghts, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the

    169

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    race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.

    173

              The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.'

    175

              These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure 'to a race recently emancipated, a race that through

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    many generations have been held in slavery, all the civil rights that the superior race enjoy.' They declared, in legal effect, this court has further said, 'that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.' We also said: 'The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy; and discriminations which are steps towards reducing them to the condition of a subject race.' It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race, however well qualified in other respects to dischar e the duties of jurymen, was repugnant to the fourteenth amendment. Strauder v. West Virginia, 100 U. S. 303, 306, 307; Virginia v. Rives, Id. 313; Ex parte Virginia, Id. 339; Neal v. Delaware, 103 U. S. 370, 386; Bush v. Com., 107 U. S. 110, 116, 1 Sup. Ct. 625. At the present term, referring to the previous adjudications, this court declared that 'underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or the states against any citizen because of his race. All citizens are equal before the law.' Gibson v. State, 162 U. S. 565, 16 Sup. Ct. 904.

    181

              The decisions referred to show the scope of the recent amendments of the constitution. They also show that it is not within the power of a state to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.

    183

              It was said in argument that the statute of Louisiana does

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    187

    not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. 'Personal liberty,' it has been well said, 'consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law.' 1 Bl. Comm. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

    189

              It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a state can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road

    191

    Page 558

    193

    or street? Why may it not require sheriffs to assign whites to one side of a court room, and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?

    195

              The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the la . Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained, 'the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.' Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate. Each much keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly, sometimes literally, in order to carry out the legisla-

    197

    Page 559

    199

    tive will. But, however construed, the intent of the legislature is to be respected if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.

    201

              The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the spreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

    203

              In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

    205

              It was adjudged in that case that the descendants of Africans who were imported into this country, and sold as slaves, were not included nor intended to be included under the word 'citizens' in the constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that, at time of the adoption of the constitution, they were 'considered as a subordinate and inferior class of beings, who had been subjugated by the dominant

    207

    Page 560

    209

    race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.' 17 How. 393, 404. The recent amendments of the constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the states, a dominant race,—a superior class of citizens,—which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the constitution, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities, as citizens, the states are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

    211

              The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the

    213

    Page 561

    215

    war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.

    217

              There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he does object, and he ought never to cease objecting, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.

    219

    Page 562

    221

              The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds.

    223

              If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,—our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

    225

              The result of the whole matter is that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a state cannot, consistently with the constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a state may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a 'partition' when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a 'partition,' and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a movable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the 'partition' used in the court room happens to be stationary, provision could be made for screens with openings through

    227

    Page 563

    229

    which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the constitution.

    231

              I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them, are wholly inapplicable, because rendered prior to the adoption of the last amendments of the constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States, and residing ere, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

    233

              I am of opinion that the state of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the constitution of the United States. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the

    235

    Page 564

    237

    'People of the United States,' for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

    239

              For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

  • 5 Brown v. Board of Education (Brown I)

    1
    347 U.S. 483
    3
    74 S.Ct. 686
    5
    98 L.Ed. 873
    7
    BROWN et al.

    v.

    BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KAN., et al. BRIGGS et al. v. ELLIOTT et al. DAVIS et al. v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VA., et al. GEBHART et al. v. BELTON et al.

    9
    Nos. 1, 2, 4, 10.
    11
    Reargued Dec. 7, 8, 9, 1953.
    13
    Decided May 17, 1954.
    15

              [Syllabus from pages 483-484 intentionally omitted]

    17

    Page 484

    19

              No. 1:

    21

              Mr. Robert L. Carter, New York City, for appellants Brown and others.

    23

              Mr. Paul E. Wilson, Topeka, Kan., for appellees Board of Education of Topeka and others.

    25

              Nos. 2, 4:

    27

              Messrs. Spottswood Robinson III, Thurgood Marshall, New York City, for appellants Briggs and Davis and others.

    29

              Messrs. John W. Davis,

    31

    Page 485

    33

    T. Justin Moore, J. Lindsay Almond, Jr., Richmond, Va., for appellees Elliott and County School Board of Prince Edward County and others.

    35

              Asst. Atty. Gen. J. Lee Rankin for United States amicus curiae by special leave of Court.

    37

              No. 10:

    39

              Mr. H. Albert Young, Wilmington, Del., for petitioners Gebhart et al.

    41

              Mr. Jack Greenberg, Thurgood Marshall, New York City, for respondents Belton et al.

    43

    Page 486

    45

               Mr. Chief Justice WARREN delivered the opinion of the Court.

    47

              These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.1

    49

    Page 487

    51

                        In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance,

    53

    Page 488

    55

    they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called 'separate but equal' doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

    57

              The plaintiffs contend that segregated public schools are not 'equal' and cannot be made 'equal,' and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.2 Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.3

    59

    Page 489

    61

              Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

    63

              An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time.4 In the South, the movement toward free common schools, sup-

    65

    Page 490

    67

    ported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

    69

              In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.5 The doctrine of

    71

    Page 491

    73

      "separate but equal" did not make its appearance in this court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.6 American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the 'separate but equal' doctrine in the field of public education.7 In Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262, and Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, the validity of the doctrine itself was not challenged.8 In more recent cases, all on the graduate school

    75

    Page 492

    77

    level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 s.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

    79

              In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other 'tangible' factors.9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

    81

              In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout

    83

    Page 493

    85

    the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

    87

              Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

    89

              We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

    91

              In Sweatt v. Painter, supra (339 U.S. 629, 70 S.Ct. 850), in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on 'those qualities which are incapable of objective measurement but which make for greatness in a law school.' In McLaurin v. Oklahoma State Regents, supra (339 U.S. 637, 70 S.Ct. 853), the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: '* * * his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.'

    93

    Page 494

    95

    Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

    97

              'Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system.'10

    99

              Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.11 Any lan-

    101

    Page 495

    103

    guage in Plessy v. Ferguson contrary to this finding is rejected.

    105

              We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. 12

    107

              Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.13 The Attorney General

    109

    Page 496

    111

    of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.14

    113

              It is so ordered.

    115

              Cases ordered restored to docket for further argument on question of appropriate decrees.

    117

    1. In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan.Gen.Stat.1949, § 72—1724. Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F.Supp. 797. The case is here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

    119

    In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S.C.Const. Art. XI, § 7; S.C.Code 1942, § 5377. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admis-

    121

    sion to the white schools during the equalization program. 98 F.Supp. 529. This Court vacated the District Court's judgment and remanded the case for the purpose of obtaining the court's views on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F.Supp. 920. The case is again here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

    123

    In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va.Const. § 140; Va.Code 1950, § 22—221. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to 'proceed with all reasonable diligence and dispatch to remove' the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F.Supp. 337. The case is here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

    125

    In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del.Const. Art. X, § 2; Del.Rev.Code, 1935, § 2631, 14 Del.C. § 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. Del.Ch., 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor's decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition.

    127

    2. 344 U.S. 1, 73 S.Ct. 1, 97 L.Ed. 3, Id., 344 U.S. 141, 73 S.Ct. 124, 97 L.Ed. 152, Gebhart v. Belton, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689.

    129

    3. 345 U.S. 972, 73 S.Ct. 1118, 97 L.Ed. 1388. The Attorney General of the United States participated both Terms as amicus curiae.

    131

    4. For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II: Cubberley, Public Education in the United States (1934 ed.), cc. II—XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Cremin, supra, at 269—275; Cubberley, supra, at 288—339, 408—431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South (e.g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408—423. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. Id., at 427—428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112—132, 175—195. Compulsory school attendance laws were not generally adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563—565.

    133

    5. In re Slaughter-House Cases, 1873, 16 Wall. 36, 67—72, 21 L.Ed. 394; Strauder v. West Virginia, 1880, 100 U.S. 303, 307—308, 25 L.Ed. 664.

    135

    'It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored, exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.'

    137

    See also State of Virginia v. Rives, 1879, 100 U.S. 313, 318, 25 L.Ed. 667; Ex parte Virginia, 1879, 100 U.S. 339, 344—345, 25 L.Ed. 676.

    139

    6. The doctrine apparently originated in Roberts v. City of Boston, 1850, 5 Cush. 198, 59 Mass. 198, 206, upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern.

    141

    7. See also Berea College v. Kentucky, 1908, 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81.

    143

    8. In the Cumming case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school.

    145

    9. In the Kansas case, the court below found substantial equality as to all such factors. 98 F.Supp. 797, 798. In the South Carolina case, the court below found that the defendants were proceeding 'promptly and in good faith to comply with the court's decree.' 103 F.Supp. 920, 921. In the Virginia case, the court below noted that the equalization program was already 'afoot and progressing,' 103 F.Supp. 337, 341; since then, we have been advised, in the Virginia Attorney General's brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state's equalization program was well under way. 91 A.2d 137, 139.

    147

    10. A similar finding was made in the Delaware case: 'I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.' 87 A.2d 862, 865.

    149

    11. K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44—48; Frazier, The Negro in the United States (1949), 674—681. And see generally Myrdal, An American Dilemma (1944).

    151

    12. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, concerning the Due Process Clause of the Fifth Amendment.

    153

    13. '4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

    155

    '(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

    157

    '(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

    159

    '5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b),

    161

    '(a) should this Court formulate detailed decrees in these cases;

    163

    '(b) if so, what specific issues should the decrees reach;

    165

    '(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

    167

    '(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?'

    169

    14. See Rule 42, Revised Rules of this Court, effective July 1, 1954, 28 U.S.C.A.

  • 6 Brown v. Board of Education (Brown II)

    1
    349 U.S. 294
    3
    75 S.Ct. 753
    5
    99 L.Ed. 1083
    7
    Oliver BROWN, et al., Appellants,

    v.

    BOARD OF EDUCATION OF TOPEKA, Shawnee County, KANSAS, et al. Harry BRIGGS, Jr., et al., Appellants, v. R. W. ELLIOTT, et al. Dorothy E. DAVIS, et al., Appellants, v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, et al. Spottswood Thomas BOLLING, et al., Petitioners, v. C. Melvin SHARPE, et al. Francis B. GEBHART, et al., Petitioners, v. Ethel Louise BELTON, et al.

    9
    Nos. 1 to 5.
    11
    Argued April 11, 12, 13 and 14, 1955.
    13
    Decided May 31, 1955.
    15

              [Syllabus from pages 294-295 intentionally omitted]

    17

    Page 296

    19

              Mr. Robert L. Carter, New York City, for appellants in No. 1.

    21

              Mr. Harold R. Fatzer, Topeka, Kan., for appellees in No. 1.

    23

              Messrs. Thurgood Marshall, New York City, and Spottswood W. Robinson, III, Richmond, Va., for appellants in Nos. 2 and 3.

    25

              Messrs. S. E. Rogers, Summerton, S.C., and Robert McC. Figg, Jr., Charleston, S.C., for appellees in No. 2.

    27

              Messrs. Archibald G. Robertson, Richmond, Va., and J. Lindsay Almond, Jr., Atty. Gen., for appellees in No. 3.

    29

              Messrs. George E. C. Hayes and James M. Nabrit, Jr., Washington, D.C., for petitioners in No. 4.

    31

              Mr. Milton D. Korman, Washington, D.C., for respondents in No. 4.

    33

    Page 297

    35

              Mr. Joseph Donald Craven, Wilmington, Del., for petitioners in No. 5.

    37

              Mr. Louis L. Redding, Wilmington, Del., for respondents in No. 5.

    39

              Messrs. Richard W. Ervin and Ralph E. Odum, Tallahassee, Fla., for State of Florida, I. Beverly Lake, Raleigh, N.C., for State of North Carolina, Thomas J. Gentry, Little Rock, Ark., for State of Arkansas, Mac Q. Williamson, Oklahoma, City, Okl., for State of Oklahoma, C. Ferdinand Sybert, Ellicott City, Md., for State of Maryland, John Ben Shepperd and Burnell Waldrep, Austin, Tex., for State of Texas, Sol. Gen. Simon E. Sobeloff, Washington, D.C., for the United States, amici curiae.

    41

      [Amicus Curiae Information from page 297 intentionally omitted]

    43

    Page 298

    45

               Mr. Chief Justice WARREN delivered the opinion of the Court.

    47

              These cases were decided on May 17, 1954. The opinions of that date,1 declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.

    49

              Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief.2 In view of the nationwide importance of the decision, we invited the Attorney General of the United

    51

    Page 299

    53

    States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument.

    55

              These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief.

    57

              Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.3

    59

    Page 300

    61

              In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies4 and by a facility for adjusting and reconciling public and private needs.5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

    63

              While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools

    65

    Page 301

    67

    on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

    69

              The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of the plaintiffs to schools previously attended only by white children—is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.

    71

              It is so ordered.

    73

              Judgments, except that in case No. 5, reversed and cases remanded with directions; judgment in case No. 5 affirmed and case remanded with directions.

    75

    1. 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.

    77

    2. Further argument was requested on the following questions, 347 U.S. 483, 495—496, note 13, 74 S.Ct. 686, 692, 98 L.Ed. 873, previously propounded by the Court:

    79

    '4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

    81

    '(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

    83

    '(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

    85

    '5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b),

    87

    '(a) should this Court formulate detailed decrees in these cases;

    89

    '(b) if so, what specific issues should the decrees reach;

    91

    '(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

    93

    '(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?'

    95

    3. The cases coming to us from Kansas, South Carolina, and Virginia were originally heard by three-judge District Courts convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284. These cases will accordingly be remanded to those three-judge courts. See Briggs v. Elliott, 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392.

    97

    4. See Alexander v. Hillman, 296 U.S. 222, 239, 56 S.Ct. 204, 209, 80 L.Ed. 192.

    99

    5. See Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64 S.Ct. 587, 591, 592, 88 L.Ed. 754.

  • 7 Bolling v. Sharpe

    1

    Supreme Court of the United States

    BOLLING et al.v.SHARPE et al.

    No. 8.

    Reargued Dec. 8, 9, 1953.Decided May 17, 1954.

    *498 Mr. Chief Justice WARREN delivered the opinion of the Court.



    This case challenges the validity of segregation in the public schools of the District of Columbia. The petitioners, minors of the Negro race, allege that such segregation deprives them of due process of law under the Fifth Amendment. They were refused admission to a public school attended by white children solely because of their race. They sought the aid of the District Court for the District of Columbia in obtaining admission. That court dismissed their complaint. The Court granted a writ of certiorari before judgment in the Court of Appeals because of the importance of the constitutional question presented. 344 U.S. 873, 73 S.Ct. 173, 97 L.Ed. 676.



    [1] [2] We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools.FN1 The legal problem in the District of Columbia is somewhat *499 different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws' is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.FN2



    FN1. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686.

    FN2. Detroit Bank v. United States, 317 U.S. 329, 63 S.Ct. 297, 87 L.Ed. 304; Currin v. Wallace, 306 U.S. 1, 13-14, 59 S.Ct. 379, 386, 83 L.Ed. 441; Steward Machine Co. v. Davis, 301 U.S. 548, 585, 57 S.Ct. 883, 890, 81 L.Ed. 1279.

    [3] [4] Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.FN3 As long ago as 1896, this Court declared the principle ‘that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race.'FN4 And in Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law.



    FN3. Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194; Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774.

    FN4. Gibson v. Mississippi, 162 U.S. 565, 591, 16 S.Ct. 904, 910, 40 L.Ed. 1075. Cf. Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 198-199, 65 S.Ct. 226, 230, 89 L.Ed. 173.

    [5] [6] Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a *500 proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus **695 it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.



    In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. FN5 We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.



    FN5. Cf. Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187.

    For the reasons set out in Brown v. Board of Education, this case will be restored to the docket for reargument on Questions 4 and 5 previously propounded by the Court. 345 U.S. 972, 73 S.Ct. 1114, 97 L.Ed. 1388.



    It is so ordered.



    Case restored to docket for reargument on question of appropriate decree.



    U.S. 1954.BOLLING v. SHARPE347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, 53 O.O. 331

  • 8 Loving v. Virginia

    1
    388 U.S. 1
    3
    87 S.Ct. 1817
    5
    18 L.Ed.2d 1010
    7
    Richard Perry LOVING et ux., Appellants,

    v.

    COMMONWEALTH OF VIRGINIA.

    9
    No. 395.
    11
    Argued April 10, 1967.
    13
    Decided June 12, 1967.
    15

              Philip J. Hirschkop, pro hac vice, by special leave of Court, Bernard S. Cohen, Alexandria, Va., for appellants.

    17

              R. D. McIlwaine, III, Richmond, Va., for appellee.

    19

              William M. Marutani, Philadelphia, Pa., for Japanese American Citizens League, as amicus curiae, by special leave of Court.

    21

    Page 2

    23

               Mr. Chief Justice WARREN delivered the opinion of the Court.

    25

              This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.1 For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

    27

              In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court

    29

    Page 3

    31

    of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

    33

              'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.'

    35

              After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia antimiscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court.

    37

              The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and, after

    39

    Page 4

    41

    modifying the sentence, affirmed the convictions.2 The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986, 87 S.Ct. 595, 17 L.Ed.2d 448.

    43

              The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 20—58 of the Virginia Code:

    45

              'Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20—59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.'

    47

              Section 20—59, which defines the penalty for miscegenation, provides:

    49

              'Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.'

    51

              Other central provisions in the Virginia statutory scheme are § 20—57, which automatically voids all marriages between 'a white person and a colored person' without any judicial proceeding,3 and §§ 20—54 and 1—14 which,

    53

    Page 5

    55

    respectively, define 'white persons' and 'colored persons and Indians' for purposes of the statutory prohibitions.4 The Lovings have never disputed in the course of this litigation that Mrs. Loving is a 'colored person' or that Mr. Loving is a 'white person' within the meanings given those terms by the Virginia statutes.

    57

    Page 6

    59

              Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.5 Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. 6 The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a 'white person' marrying other than another 'white person,'7 a prohibition against issuing marriage licenses until the issuing official is satisfied that

    61

    Page 7

    63

    the applicants' statements as to their race are correct,8 certificates of 'racial composition' to be kept by both local and state registrars,9 and the carrying forward of earlier prohibitions against racial intermarriage.10

    65
    I.
    67

              In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were 'to preserve the racial integrity of its citizens,' and to prevent 'the corruption of blood,' 'a mongrel breed of citizens,' and 'the obliteration of racial pride,' obviously an endorsement of the doctrine of White Supremacy. Id., at 90, 87 S.E.2d, at 756. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

    69

              While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element

    71

    Page 8

    73

    as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

    75

                Because we reject the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. People of State of New York, 336 U.S. 106, 6 § .Ct. 463, 93 L.Ed. 533 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a non-resident in a storage warehouse, Allied Stores of Ohio,

    77

    Page 9

    79

    Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.

    81

              The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that the pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources 'cast some light' they are not sufficient to resolve the problem; '(a)t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.' Brown v. Board of Education of Topeka, 347 U.S. 483, 489, 74 S.Ct. 686, 689, 98 L.Ed. 873 (1954). See also Strauder

    83

    Page 10

    85

    v. State of West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

    87

              The State finds support for its 'equal application' theory in the decision of the Court in Pace v. State of Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated 'Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.' McLaughlin v. Florida, supra, 379 U.S. at 188, 85 S.Ct. at 286. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases, 16 Wall. 36, 71, 21 L.Ed. 394 (1873); Strauder v. State of West Virginia, 100 U.S. 303, 307—308 2 5 L.Ed. 664 (1880); Ex parte Virginia, 100 U.S. 339, 344—345, 26 L.Ed. 676 (1880); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

    89

    Page 11

    91

              There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated '(d)istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.' Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny,' Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they 'cannot conceive of a valid legislative purpose * * * which makes the color of a person's skin the test of whether his conduct is a criminal offense.' McLaughlin v. Florida, supra, 379 U.S. at 198, 85 S.Ct. at 292, (Stewart, J., joined by Douglas, J., concurring).

    93

              There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.11 We have consistently denied

    95

    Page 12

    97

    the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

    99
    II.
    101

              These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

    103

              Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.

    105

              These convictions must be reversed. It is so ordered.

    107

              Reversed.

    109

    Page 13

    111

               Mr. Justice STEWART, concurring.

    113

              I have previously expressed the belief that 'it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.' McLaughlin v. State of Florida, 379 U.S. 184, 198, 85 S.Ct. 283, 292, 13 L.Ed.2d 222 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.

    115

    1. Section 1 of the Fourteenth Amendment provides:

    117

    'All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

    119

    2. 206 Va. 924, 147 S.E.2d 78 (1966).

    121

    3. Section 20—57 of the Virginia Code provides:

    123

    'Marriages void without decree.—All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.' Va.Code Ann. § 20—57 (1960 Repl.Vol.).

    125

    4. Sectin 20—54 of the Virginia Code provides:

    127

    'Intermarriage prohibited; meaning of term 'white persons.' It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term 'white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chaper.' Va.Code Ann. § 20—54 (1960 Repl.Vol.).

    129

    The exception for persons with less than one-sixteenth 'of the blood of the American Indian' is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by 'the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas * * *.' Plecker, The New Family and Race Improvement, 17 Va.Health Bull., Extra No. 12, at 25—26 (New Family Series No. 5, 1925), cited in Wadlington, The Loving Case; Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 Va.L.Rev. 1189, 1202, n. 93 (1966).

    131

    Section 1—14 of the Virginia Code provides:

    133

    Colored persons and Indians defined.—Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians.' Va.Code Ann. § 1—14 (1960 Repl.Vol.).

    135

    5. After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md.Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala.Const., Art. 4, § 102, Ala.Code, Tit. 14, § 360 (1958); Arkansas, Ark.Stat.Ann. § 55—104 (1947); Delaware, Del.Code Ann., Tit. 13, § 101 (1953); Florida, Fla.Const., Art. 16, § 24, F.S.A., Fla.Stat. § 741.11 (1965) F.S.A.; Georgia, Ga.Code Ann. § 53—106 (1961); Kentucky, Ky.Rev.Stat.Ann. § 402.020 (Supp.1966); Louisiana, La.Rev.Stat. § 14:79 (1950); Mississippi, Miss.Const., Art. 14, § 263, Miss.Code Ann. § 459 (1956); Missouri, Mo.Rev.Stat. § 451.020 (Supp.1966), V.A.M.S.; North Carolina, N.C.Const., Art. XIV, § 8, N.C.Gen.Stat. § 14—181 (1953); Oklahoma, Okla.Stat., Tit. 43, § 12 (Supp.1965); South Carolina, S.C.Const., Art. 3, § 33, S.C.Code Ann. § 20—7 (1962); Tennessee, Tenn.Const., Art. 11, § 14, Tenn.Code Ann. § 36 402 (1955); Vernon's Ann.Texas, Tex.Pen.Code, Art. 492 (1952); West Virginia, W.Va.Code Ann. § 4697 (1961).

    137

    Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Coor ado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming.

    139

    The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948).

    141

    6. For a historical discussion of Virginia's miscegenation statutes, see Wadlington, supra, n. 4.

    143

    7. Va.Code Ann. § 20—54 (1960 Repl.Vol.).

    145

    8. Va.Code Ann. § 20—53 (1960 Repl.Vol.).

    147

    9. Va.Code Ann. § 20—50 (1960 Repl.Vol.).

    149

    10. Va.Code Ann. § 20—54 (1960 Repl.Vol.).

    151

    11. Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, 'An Act to Preserve Racial Integrity,' extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve 'racial integrity.' We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the 'integrity' of all races.

  • 9 Palmore v. Sidoti

    1
    466 U.S. 429
    3
    104 S.Ct. 1879
    5
    80 L.Ed.2d 421
    7
    Linda Sidoti PALMORE, Petitioner

    v.

    Anthony J. SIDOTI.

    9
    No. 82-1734.
    11

                              Supreme Court of the United States

    13
    Argued Feb. 22, 1984.
    15
    Decided April 25, 1984.
    17
    Syllabus
    19

              When petitioner and respondent, both Caucasians, were divorced in Florida, petitioner, the mother, was awarded custody of their 3-year-old daughter. The following year respondent sought custody of the child by filing a petition to modify the prior judgment because of changed conditions, namely, that petitioner was then cohabiting with a Negro, whom she later married. The Florida trial court awarded custody to respondent, concluding that the child's best interests would be served thereby. Without focusing directly on the parental qualifications of petitioner, her present husband, or respondent, the court reasoned that although respondent's resentment at petitioner's choice of a black partner was insufficient to deprive petitioner of custody, there would be a damaging impact on the child if she remained in a racially mixed household. The Florida District Court of Appeal affirmed.

    21

              Held: The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother. The Constitution cannot control such prejudice, but neither can it tolerate it. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Pp. 431-434.

    23

              426 So.2d 34 (Fla. 2 DCA 1982), reversed.

    25

              Robert J. Shapiro, Tampa, Fla., for petitioner.

    27

              John E. Hawtrey, Bryan, Tex., for respondent.

    29

    Page 430

    31

               Chief Justice BURGER delivered the opinion of the Court.

    33

              We granted certiorari to review a judgment of a state court divesting a natural mother of the custody of her infant child because of her remarriage to a person of a different race.

    35
    I
    37

              When petitioner Linda Sidoti Palmore and respondent Anthony J. Sidoti, both Caucasians, were divorced in May 1980 in Florida, the mother was awarded custody of their 3-year-old daughter.

    39

              In September 1981 the father sought custody of the child by filing a petition to modify the prior judgment because of changed conditions. The change was that the child's mother was then cohabiting with a Negro, Clarence Palmore, Jr., whom she married two months later. Additionally, the father made several allegations of instances in which the mother had not properly cared for the child.

    41

              After hearing testimony from both parties and considering a court counselor's investigative report, the court noted that the father had made allegations about the child's care, but the court made no findings with respect to these allegations. On the contrary, the court made a finding that "there is no issue as to either party's devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent." App. to Pet. for Cert. 24.

    43

              The court then addressed the recommendations of the court counselor, who had made an earlier report "in [another] case coming out of this circuit also involving the social consequences of an interracial marriage. Niles v. Niles, 299 So.2d 162." Id., at 25. From this vague reference to that earlier case, the court turned to the present case and noted the counselor's recommendation for a change in custody because

    45

    Page 431

    47

    "[t]he wife [petitioner] has chosen for herself and for her child, a life-style unacceptable to the father and to society. . . . The child . . . is, or at school age will be, subject to environmental pressures not of choice." Record 84 (emphasis added).

    49

              The court then concluded that the best interests of the child would be served by awarding custody to the father. The court's rationale is contained in the following:

    51

              The Second District Court of Appeal affirmed without opinion, 426 So.2d 34 (1982), thus denying the Florida Supreme Court jurisdiction to review the case. See Fla. Const., Art. V, § 3(b)(3); Jenkins v. State, 385 So.2d 1356 (Fla.1980). We granted certiorari, 464 U.S. 913, 104 S.Ct. 271, 78 L.Ed.2d 253 (1983), and we reverse.

    53
    II
    55

              The judgment of a state court determining or reviewing a child custody decision is not ordinarily a likely candidate for review by this Court. However, the court's opinion, after stating that the "father's evident resentment of the mother's choice of a black partner is not sufficient" to deprive her of custody, then turns to what it regarded as the damaging im-

    57

    Page 432

    59

    pact on the child from remaining in a racially mixed household. App. to Pet. for Cert. 26. This raises important federal concerns arising from the Constitution's commitment to eradicating discrimination based on race.

    61

              The Florida court did not focus directly on the parental qualifications of the natural mother or her present husband, or indeed on the father's qualifications to have custody of the child. The court found that "there is no issue as to either party's devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent." Id., at 24. This, taken with the absence of any negative finding as to the quality of the care provided by the mother, constitutes a rejection of any claim of petitioner's unfitness to continue the custody of her child.

    63

              The court correctly stated that the child's welfare was the controlling factor. But that court was entirely candid and made no effort to place its holding on any ground other than race. Taking the court's findings and rationale at face value, it is clear that the outcome would have been different had petitioner married a Caucasian male of similar respectability.

    65

              A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed 1 discrimination based on race. See Strauder v. West Virginia, 100 U.S. 303, 307-308, 310, 25 L.Ed. 664 (1880). Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Such classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be "necessary . . . to the accomplishment" of their

    67

    Page 433

    69

    legitimate purpose, McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964). See Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967).

    71

              The State, of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years. In common with most states, Florida law mandates that custody determinations be made in the best interests of the children involved. Fla.Stat. § 61.13(2)(b)(1) (1983). The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause.

    73

              It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.

    75

              The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not.2 The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. "Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held." Palmer v. Thompson, 403 U.S. 217, 260-261, 91 S.Ct. 1940, 1962-1963, 29 L.Ed.2d 438 (1971) (WHITE, J., dissenting).

    77

              This is by no means the first time that acknowledged racial prejudice has been invoked to justify racial classifications. In Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917), for example,

    79

    Page 434

    81

    this Court invalidated a Kentucky law forbidding Negroes to buy homes in white neighborhoods.

    83

              "It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution." Id., at 81, 38 S.Ct., at 20.

    85

              Whatever problems racially mixed households may pose for children in 1984 can no more support a denial of constitutional rights than could the stresses that residential integration was thought to entail in 1917. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.3

    87

              The judgment of the District Court of Appeal is reversed.

    89

              It is so ordered.

    91

    1 The actions of state courts and judicial officers in their official capacity have long been held to be state action governed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Ex parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676 (1880).

    93

    2 In light of our holding based on the Equal Protection Clause, we need not reach or resolve petitioner's claim based on the Fourteenth Amendment's Due Process Clause.

    95

    3 This conclusion finds support in other cases as well. For instance, in Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963), city officials claimed that desegregation of city parks had to proceed slowly to "prevent interracial disturbances, violence, riots, and community confusion and turmoil." Id., at 535, 83 S.Ct., at 1319. The Court found such predictions no more than "personal speculations or vague disquietudes," id., at 536, 83 S.Ct., at 1320, and held that "constitutional rights may not be denied simply because of hostility to their assertion or exercise," id., at 535, 83 S.Ct., at 1319-1320. In Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963), the Court reversed a Negro defendant's breach-of-peace conviction, holding that "the possibility of disorder by others cannot justify exclusion of persons from a place if they otherwise have a constitutional right (founded upon the Equal Protection Clause) to be present." Id., at 293, 83 S.Ct., at 1246.

  • 10 Lee v. Washington

    Lee v. Washington

    1

    390 U.S. 333 (1968)
    LEE, COMMISSIONER OF CORRECTIONS OF ALABAMA, ET AL.
    v.
    WASHINGTON ET AL.
    No. 75.

    Supreme Court of United States.
    Argued November 7, 1967.
    Decided March 11, 1968.

    3

    Nicholas S. Hare, Special Assistant Attorney General of Alabama, argued the cause for appellants. With him on the briefs were MacDonald Gallion, Attorney General, Gordon Madison, Assistant Attorney General, and J. M. Breckenridge.

    5

    Charles Morgan, Jr., argued the cause for appellees. With him on the brief were Orzell Billingsley, Jr., and Melvin L. Wulf.

    7

    PER CURIAM.

    9

    This appeal challenges a decree of a three-judge District Court declaring that certain Alabama statutes violate the Fourteenth Amendment to the extent that they require segregation of the races in prisons and jails, and establishing a schedule for desegregation of these institutions. The State’s contentions that Rule 23 of the Federal Rules of Civil Procedure, which relates to class actions, was violated in this case and that the challenged statutes are not unconstitutional are without merit. The remaining contention of the State is that the specific orders directing desegregation of prisons and 334*334 jails make no allowance for the necessities of prison security and discipline, but we do not so read the “Order, Judgment and Decree” of the District Court, which when read as a whole we find unexceptionable.

    11

    The judgment is affirmed.

    13

    MR. JUSTICE BLACK, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART, concurring.

    15

    In joining the opinion of the Court, we wish to make explicit something that is left to be gathered only by implication from the Court’s opinion. This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails. We are unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court’s firm commitment to the Fourteenth Amendment’s prohibition of racial discrimination.

  • 11 Grutter v. Bollinger

    1
    539 U.S. 306
    3
    GRUTTER
    v.
    BOLLINGER et al.
    5
    No. 02-241.
    7
    Supreme Court of United States.
    9
    Argued April 1, 2003.
    11
    Decided June 23, 2003.
    13

            The University of Michigan Law School (Law School), one of the Nation's top law schools, follows an official admissions policy that seeks to achieve student body diversity through compliance with Regents of Univ. of Cal. v. Bakke, 438 U. S. 265. Focusing on students' academic ability coupled with a flexible assessment of their talents, experiences, and potential, the policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, an essay describing how the applicant will contribute to Law School life and diversity, and the applicant's undergraduate grade point average (GPA) and Law School Admission Test (LSAT) score. Additionally, officials must look beyond grades and scores to so-called "soft variables," such as recommenders' enthusiasm, the quality of the undergraduate institution and the applicant's essay, and the areas and difficulty of undergraduate course selection. The policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity contributions eligible for "substantial weight," but it does reaffirm the Law School's commitment to diversity with special reference to the inclusion of African-American, Hispanic, and Native-American students, who otherwise might not be represented in the student body in meaningful numbers. By enrolling a "critical mass" of underrepresented minority students, the policy seeks to ensure their ability to contribute to the Law School's character and to the legal profession.

    15

            When the Law School denied admission to petitioner Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score, she filed this suit, alleging that respondents had discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U. S. C. § 1981; that she was rejected because the Law School uses race as a "predominant" factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups; and that respondents had no compelling interest to justify that use of race. The District Court found the Law School's use of race as an admissions factor unlawful. The Sixth Circuit reversed, holding that Justice Powell's opinion in Bakke was binding precedent establishing

    17

    [539 U.S. 307]

    19

    diversity as a compelling state interest, and that the Law School's use of race was narrowly tailored because race was merely a "potential `plus' factor" and because the Law School's program was virtually identical to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion.

    21

            Held: The Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or § 1981. Pp. 322-344.

    23

            (a) In the landmark Bakke case, this Court reviewed a medical school's racial set-aside program that reserved 16 out of 100 seats for members of certain minority groups. The decision produced six separate opinions, none of which commanded a majority. Four Justices would have upheld the program on the ground that the government can use race to remedy disadvantages cast on minorities by past racial prejudice. 438 U. S., at 325. Four other Justices would have struck the program down on statutory grounds. Id., at 408. Justice Powell, announcing the Court's judgment, provided a fifth vote not only for invalidating the program, but also for reversing the state court's injunction against any use of race whatsoever. In a part of his opinion that was joined by no other Justice, Justice Powell expressed his view that attaining a diverse student body was the only interest asserted by the university that survived scrutiny. Id., at 311. Grounding his analysis in the academic freedom that "long has been viewed as a special concern of the First Amendment," id., at 312, 314, Justice Powell emphasized that the "`nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation." Id., at 313. However, he also emphasized that "[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," that can justify using race. Id., at 315. Rather, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Ibid. Since Bakke, Justice Powell's opinion has been the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views. Courts, however, have struggled to discern whether Justice Powell's diversity rationale is binding precedent. The Court finds it unnecessary to decide this issue because the Court endorses Justice Powell's view that student body diversity is a compelling state interest in the context of university admissions. Pp. 322-325.

    25

    [539 U.S. 308]

    27

            (b) All government racial classifications must be analyzed by a reviewing court under strict scrutiny. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227. But not all such uses are invalidated by strict scrutiny. Race-based action necessary to further a compelling governmental interest does not violate the Equal Protection Clause so long as it is narrowly tailored to further that interest. E. g., Shaw v. Hunt, 517 U. S. 899, 908. Context matters when reviewing such action. See Gomillion v. Lightfoot, 364 U. S. 339, 343-344. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the government's reasons for using race in a particular context. Pp. 326-327.

    29

            (c) The Court endorses Justice Powell's view that student body diversity is a compelling state interest that can justify using race in university admissions. The Court defers to the Law School's educational judgment that diversity is essential to its educational mission. The Court's scrutiny of that interest is no less strict for taking into account complex educational judgments in an area that lies primarily within the university's expertise. See, e. g., Bakke, 438 U. S., at 319, n. 53 (opinion of Powell, J.). Attaining a diverse student body is at the heart of the Law School's proper institutional mission, and its "good faith" is "presumed" absent "a showing to the contrary." Id., at 318-319. Enrolling a "critical mass" of minority students simply to assure some specified percentage of a particular group merely because of its race or ethnic origin would be patently unconstitutional. E. g., id., at 307. But the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes. The Law School's claim is further bolstered by numerous expert studies and reports showing that such diversity promotes learning outcomes and better prepares students for an increasingly diverse work force, for society, and for the legal profession. Major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. High-ranking retired officers and civilian military leaders assert that a highly qualified, racially diverse officer corps is essential to national security. Moreover, because universities, and in particular, law schools, represent the training ground for a large number of the Nation's leaders, Sweatt v. Painter, 339 U. S. 629, 634, the path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity. Thus, the Law School has a compelling interest in attaining a diverse student body. Pp. 327-333.

    31

    [539 U.S. 309]

    33

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

    35

    [539 U.S. 310]

    37

    preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. Pp. 333-343.

    39

            (e) Because the Law School's use of race in admissions decisions is not prohibited by the Equal Protection Clause, petitioner's statutory claims based on Title VI and § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389-391. Pp. 343-344.

    41

            288 F. 3d 732, affirmed.

    43

            O'CONNOR, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined, and in which SCALIA and THOMAS, JJ., joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of THOMAS, J. GINSBURG, J., filed a concurring opinion, in which BREYER, J., joined, post, p. 344. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined, post, p. 346. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined as to Parts I-VII, post, p. 349. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined, post, p. 378. KENNEDY, J., filed a dissenting opinion, post, p. 387.

    45

            CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

    47

            Kirk O. Kolbo argued the cause for petitioner. With him on the briefs were David F. Herr, R. Lawrence Purdy, Michael C. McCarthy, Michael E. Rosman, Hans Bader, and Kerry L. Morgan.

    49

            Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Boyd and Deputy Solicitor General Clement.

    51

            Maureen E. Mahoney argued the cause for respondent Bollinger et al. With her on the brief were John H. Pickering, John Payton, Brigida Benitez, Craig Goldblatt, Terry A. Maroney, Marvin Krislov, Jonathan Alger, Evan Caminker, Philip J. Kessler, and Leonard M. Niehoff.

    53

            Miranda K. S. Massie and George B. Washington filed a brief for respondent James et al.*

    55

    [539 U.S. 311]

    57

            JUSTICE O'CONNOR delivered the opinion of the Court.

    59

            This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful.

    61

    [539 U.S. 312]

    63
    I
    65
    A
    67

            The Law School ranks among the Nation's top law schools. It receives more than 3,500 applications each year for a class

    69

    [539 U.S. 313]

    71

    of around 350 students. Seeking to "admit a group of students who individually and collectively are among the most capable," the Law School looks for individuals with "substantial

    73

    [539 U.S. 314]

    75

    promise for success in law school" and "a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others." App. 110. More broadly, the Law School seeks "a mix of students with varying backgrounds and experiences who will respect and learn from each other." Ibid. In 1992, the dean of the Law School charged a faculty committee with crafting a written admissions policy to implement these goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity complied with this Court's most recent ruling on the use of race in university admissions. See Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).

    77

    [539 U.S. 315]

    79

    Upon the unanimous adoption of the committee's report by the Law School faculty, it became the Law School's official admissions policy.

    81

            The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants' talents, experiences, and potential "to contribute to the learning of those around them." App. 111. The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. Id., at 83-84, 114-121. In reviewing an applicant's file, admissions officials must consider the applicant's undergraduate grade point average (GPA) and Law School Admission Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. Id., at 112. The policy stresses that "no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems." Id., at 111.

    83

            The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School. Id., at 113. Nor does a low score automatically disqualify an applicant. Ibid. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School's educational objectives. Id., at 114. So-called "`soft' variables" such as "the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection" are all brought to bear in assessing an "applicant's likely contributions to the intellectual and social life of the institution." Ibid.

    85

            The policy aspires to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts." Id., at 118.

    87

    [539 U.S. 316]

    89

    The policy does not restrict the types of diversity contributions eligible for "substantial weight" in the admissions process, but instead recognizes "many possible bases for diversity admissions." Id., at 118, 120. The policy does, however, reaffirm 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." Id., at 120. By enrolling a "`critical mass' of [underrepresented] minority students," the Law School seeks to "ensur[e] their ability to make unique contributions to the character of the Law School." Id., at 120-121.

    91

            The policy does not define diversity "solely in terms of racial and ethnic status." Id., at 121. Nor is the policy "insensitive to the competition among all students for admission to the [L]aw [S]chool." Ibid. Rather, the policy seeks to guide admissions officers in "producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession." Ibid.

    93
    B
    95

            Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit in the United States District Court for the Eastern District of Michigan against the Law School, the Regents of the University of Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President of the University of Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis Shields (Director of Admissions at the Law School from 1991

    97

    [539 U.S. 317]

    99

    until 1998). Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d; and Rev. Stat. § 1977, as amended, 42 U. S. C. § 1981.

    101

            Petitioner further alleged that her application was rejected because the Law School uses race as a "predominant" factor, giving applicants who belong to certain minority groups "a significantly greater chance of admission than students with similar credentials from disfavored racial groups." App. 33-34. Petitioner also alleged that respondents "had no compelling interest to justify their use of race in the admissions process." Id., at 34. Petitioner requested compensatory and punitive damages, an order requiring the Law School to offer her admission, and an injunction prohibiting the Law School from continuing to discriminate on the basis of race. Id., at 36. Petitioner clearly has standing to bring this lawsuit. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993).

    103

            The District Court granted petitioner's motion for class certification and for bifurcation of the trial into liability and damages phases. The class was defined as "`all persons who (A) applied for and were not granted admission to the University of Michigan Law School for the academic years since (and including) 1995 until the time that judgment is entered herein; and (B) were members of those racial or ethnic groups, including Caucasian, that Defendants treated less favorably in considering their applications for admission to the Law School.'" App. to Pet. for Cert. 191a-192a.

    105

            The District Court heard oral argument on the parties' cross-motions for summary judgment on December 22, 2000. Taking the motions under advisement, the District Court indicated that it would decide as a matter of law whether the Law School's asserted interest in obtaining the educational benefits that flow from a diverse student body was compelling.

    107

    [539 U.S. 318]

    109

    The District Court also indicated that it would conduct a bench trial on the extent to which race was a factor in the Law School's admissions decisions, and whether the Law School's consideration of race in admissions decisions constituted a race-based double standard.

    111

            During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School's use of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant's race along with all other factors. Id., at 206a. Shields testified that at the height of the admissions season, he would frequently consult the so-called "daily reports" that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). Id., at 207a. This was done, Shields testified, to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body. Ibid. Shields stressed, however, that he did not seek to admit any particular number or percentage of underrepresented minority students. Ibid.

    113

            Erica Munzel, who succeeded Shields as Director of Admissions, testified that "`critical mass'" means "`meaningful numbers'" or "`meaningful representation,'" which she understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated. Id., at 208a-209a. Munzel stated there is no number, percentage, or range of numbers or percentages that constitute critical mass. Id., at 209a. Munzel also asserted that she must consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores. Ibid.

    115

            The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses, Lehman did

    117

    [539 U.S. 319]

    119

    not quantify critical mass in terms of numbers or percentages. Id., at 211a. He indicated that critical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race. Ibid. When asked about the extent to which race is considered in admissions, Lehman testified that it varies from one applicant to another. Ibid. In some cases, according to Lehman's testimony, an applicant's race may play no role, while in others it may be a "`determinative'" factor. Ibid.

    121

            The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with diverse interests and backgrounds to enhance classroom discussion and the educational experience both inside and outside the classroom. Id., at 213a. When asked about the policy's "`commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,'" Lempert explained that this language did not purport to remedy past discrimination, but rather to include students who may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination. Ibid. Lempert acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers. Ibid.

    123

            Kent Syverud was the final witness to testify about the Law School's use of race in admissions decisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted several expert reports on the educational benefits of diversity. Syverud's testimony indicated that when a critical mass of underrepresented minority students is present,

    125

    [539 U.S. 320]

    127

    racial stereotypes lose their force because nonminority students learn there is no "`minority viewpoint'" but rather a variety of viewpoints among minority students. Id., at 215a.

    129

            In an attempt to quantify the extent to which the Law School actually considers race in making admissions decisions, the parties introduced voluminous evidence at trial. Relying on data obtained from the Law School, petitioner's expert, Dr. Kinley Larntz, generated and analyzed "admissions grids" for the years in question (1995-2000). These grids show the number of applicants and the number of admittees for all combinations of GPAs and LSAT scores. Dr. Larntz made "`cell-by-cell'" comparisons between applicants of different races to determine whether a statistically significant relationship existed between race and admission rates. He concluded that membership in certain minority groups "`is an extremely strong factor in the decision for acceptance,'" and that applicants from these minority groups "`are given an extremely large allowance for admission'" as compared to applicants who are members of nonfavored groups. Id., at 218a-220a. Dr. Larntz conceded, however, that race is not the predominant factor in the Law School's admissions calculus. 12 Tr. 11-13 (Feb. 10, 2001).

    131

            Dr. Stephen Raudenbush, the Law School's expert, focused on the predicted effect of eliminating race as a factor in the Law School's admission process. In Dr. Raudenbush's view, a race-blind admissions system would have a "`very dramatic,'" negative effect on underrepresented minority admissions. App. to Pet. for Cert. 223a. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Ibid. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Ibid. Under this scenario, underrepresented minority students would have constituted 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent. Ibid.

    133

    [539 U.S. 321]

    135

            In the end, the District Court concluded that the Law School's use of race as a factor in admissions decisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School's asserted interest in assembling a diverse student body was not compelling because "the attainment of a racially diverse class . . . was not recognized as such by Bakke and it is not a remedy for past discrimination." Id., at 246a. The District Court went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of race to further that interest. The District Court granted petitioner's request for declaratory relief and enjoined the Law School from using race as a factor in its admissions decisions. The Court of Appeals entered a stay of the injunction pending appeal.

    137

            Sitting en banc, the Court of Appeals reversed the District Court's judgment and vacated the injunction. The Court of Appeals first held that Justice Powell's opinion in Bakke was binding precedent establishing diversity as a compelling state interest. According to the Court of Appeals, Justice Powell's opinion with respect to diversity constituted the controlling rationale for the judgment of this Court under the analysis set forth in Marks v. United States, 430 U. S. 188 (1977). The Court of Appeals also held that the Law School's use of race was narrowly tailored because race was merely a "potential `plus' factor" and because the Law School's program was "virtually identical" to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion. 288 F. 3d 732, 746, 749 (CA6 2002).

    139

            Four dissenting judges would have held the Law School's use of race unconstitutional. Three of the dissenters, rejecting the majority's Marks analysis, examined the Law School's interest in student body diversity on the merits and concluded it was not compelling. The fourth dissenter, writing separately, found it unnecessary to decide whether diversity was a compelling interest because, like the other dissenters,

    141

    [539 U.S. 322]

    143

    he believed that the Law School's use of race was not narrowly tailored to further that interest.

    145

            We granted certiorari, 537 U. S. 1043 (2002), to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Compare Hopwood v. Texas, 78 F. 3d 932 (CA5 1996) (Hopwood I) (holding that diversity is not a compelling state interest), with Smith v. University of Wash. Law School, 233 F. 3d 1188 (CA9 2000) (holding that it is).

    147
    II
    149
    A
    151

            We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. 438 U. S. 265 (1978). The decision produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to "remedy disadvantages cast on minorities by past racial prejudice." Id., at 325 (joint opinion of Brennan, White, Marshall, and Blackmun, concurring in judgment in part and dissenting in part). Four other Justices avoided the constitutional question altogether and struck down the program on statutory grounds. Id., at 408 (opinion of STEVENS, J., joined by Burger, C. J., and Stewart and REHNQUIST, JJ., concurring in judgment in part and dissenting in part). Justice Powell provided a fifth vote not only for invalidating the set-aside program, but also for reversing the state court's injunction against any use of race whatsoever. The only holding for the Court in Bakke was that a "State has a substantial interest that legitimately may be served by a properly devised admissions program involving

    153

    [539 U.S. 323]

    155

    the competitive consideration of race and ethnic origin." Id., at 320. Thus, we reversed that part of the lower court's judgment that enjoined the university "from any consideration of the race of any applicant." Ibid.

    157

            Since this Court's splintered decision in Bakke, Justice Powell's opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views on permissible race-conscious policies. See, e. g., Brief for Judith Areen et al. as Amici Curiae 12-13 (law school admissions programs employ "methods designed from and based on Justice Powell's opinion in Bakke"); Brief for Amherst College et al. as Amici Curiae 27 ("After Bakke, each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of Justice Powell's opinion . . . and set sail accordingly"). We therefore discuss Justice Powell's opinion in some detail.

    159

            Justice Powell began by stating that "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." Bakke, 438 U. S., at 289-290. In Justice Powell's view, when governmental decisions "touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest." Id., at 299. Under this exacting standard, only one of the interests asserted by the university survived Justice Powell's scrutiny.

    161

            First, Justice Powell rejected an interest in "`reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession' " as an unlawful interest in racial balancing. Id., at 306-307. Second, Justice Powell rejected an interest in remedying societal discrimination

    163

    [539 U.S. 324]

    165

    because such measures would risk placing unnecessary burdens on innocent third parties "who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered." Id., at 310. Third, Justice Powell rejected an interest in "increasing the number of physicians who will practice in communities currently underserved," concluding that even if such an interest could be compelling in some circumstances the program under review was not "geared to promote that goal." Id., at 306, 310.

    167

            Justice Powell approved the university's use of race to further only one interest: "the attainment of a diverse student body." Id., at 311. With the important proviso that "constitutional limitations protecting individual rights may not be disregarded," Justice Powell grounded his analysis in the academic freedom that "long has been viewed as a special concern of the First Amendment." Id., at 312, 314. Justice Powell emphasized that nothing less than the "`nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." Id., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967)). In seeking the "right to select those students who will contribute the most to the `robust exchange of ideas,' " a university seeks "to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 U. S., at 313. Both "tradition and experience lend support to the view that the contribution of diversity is substantial." Ibid.

    169

            Justice Powell was, however, careful to emphasize that in his view race "is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." Id., at 314. For Justice Powell, "[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," that

    171

    [539 U.S. 325]

    173

    can justify the use of race. Id., at 315. Rather, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Ibid.

    175

            In the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice Powell's diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent under Marks. In that case, we explained that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." 430 U. S., at 193 (internal quotation marks and citation omitted). As the divergent opinions of the lower courts demonstrate, however, "[t]his test is more easily stated than applied to the various opinions supporting the result in [Bakke]." Nichols v. United States, 511 U. S. 738, 745-746 (1994). Compare, e. g., Johnson v. Board of Regents of Univ. of Ga., 263 F. 3d 1234 (CA11 2001) (Justice Powell's diversity rationale was not the holding of the Court); Hopwood v. Texas, 236 F. 3d 256, 274-275 (CA5 2000) (Hopwood II) (same); Hopwood I, 78 F. 3d 932 (CA5 1996) (same), with Smith v. University of Wash. Law School, 233 F. 3d, at 1199 (Justice Powell's opinion, including the diversity rationale, is controlling under Marks).

    177

            We do not find it necessary to decide whether Justice Powell's opinion is binding under Marks. It does not seem "useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it." Nichols v. United States, supra, at 745-746. More important, for the reasons set out below, today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions.

    179

    [539 U.S. 326]

    181
    B
    183

            The Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U. S. Const., Amdt. 14, § 2. Because the Fourteenth Amendment "protect[s] persons, not groups," all "governmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed." Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995) (emphasis in original; internal quotation marks and citation omitted). We are a "free people whose institutions are founded upon the doctrine of equality." Loving v. Virginia, 388 U. S. 1, 11 (1967) (internal quotation marks and citation omitted). It follows from that principle that "government may treat people differently because of their race only for the most compelling reasons." Adarand Constructors, Inc. v. Peña, 515 U. S., at 227.

    185

            We have held that all racial classifications imposed by government "must be analyzed by a reviewing court under strict scrutiny." Ibid. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. "Absent searching judicial inquiry into the justification for such race-based measures," we have no way to determine what "classifications are `benign' or `remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to "`smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.

    187

            Strict scrutiny is not "strict in theory, but fatal in fact." Adarand Constructors, Inc. v. Peña, supra, at 237 (internal quotation marks and citation omitted). Although all governmental

    189

    [539 U.S. 327]

    191

    uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, "whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection." 515 U. S., at 229-230. But that observation "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny." Id., at 230. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.

    193

            Context matters when reviewing race-based governmental action under the Equal Protection Clause. See Gomillion v. Lightfoot, 364 U. S. 339, 343-344 (1960) (admonishing that, "in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts"). In Adarand Constructors, Inc. v. Peña, we made clear that strict scrutiny must take "`relevant differences' into account." 515 U. S., at 228. Indeed, as we explained, that is its "fundamental purpose." Ibid. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.

    195
    III
    197
    A
    199

            With these principles in mind, we turn to the question whether the Law School's use of race is justified by a compelling state interest. Before this Court, as they have

    201

    [539 U.S. 328]

    203

    throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining "the educational benefits that flow from a diverse student body." Brief for Respondent Bollinger et al. i. In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity.

    205

            We first wish to dispel the notion that the Law School's argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e. g., Richmond v. J. A. Croson Co., supra, at 493 (plurality opinion) (stating that unless classifications based on race are "strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility"). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.

    207

            The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225 (1985); Board of Curators of Univ. of Mo.

    209

    [539 U.S. 329]

    211

    v. Horowitz, 435 U. S. 78, 96, n. 6 (1978); Bakke, 438 U. S., at 319, n. 53 (opinion of Powell, J.).

    213

            We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. See, e. g., Wieman v. Updegraff, 344 U. S. 183, 195 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957); Shelton v. Tucker, 364 U. S. 479, 487 (1960); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S., at 603. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: "The freedom of a university to make its own judgments as to education includes the selection of its student body." Bakke, supra, at 312. From this premise, Justice Powell reasoned that by claiming "the right to select those students who will contribute the most to the `robust exchange of ideas,'" a university "seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 U. S., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., supra, at 603). Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that "good faith" on the part of a university is "presumed" absent "a showing to the contrary." 438 U. S., at 318-319.

    215

            As part of its goal of "assembling a class that is both exceptionally academically qualified and broadly diverse," the Law School seeks to "enroll a `critical mass' of minority students." Brief for Respondent Bollinger et al. 13. The Law School's interest is not simply "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin." Bakke, 438 U. S., at

    217

    [539 U.S. 330]

    219

    307 (opinion of Powell, J.). That would amount to outright racial balancing, which is patently unconstitutional. Ibid.; Freeman v. Pitts, 503 U. S. 467, 494 (1992) ("Racial balance is not to be achieved for its own sake"); Richmond v. J. A. Croson Co., 488 U. S., at 507. Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

    221

            These benefits are substantial. As the District Court emphasized, the Law School's admissions policy promotes "cross-racial understanding," helps to break down racial stereotypes, and "enables [students] to better understand persons of different races." App. to Pet. for Cert. 246a. These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds." Id., at 246a, 244a.

    223

            The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." Brief for American Educational Research Association et al. as Amici Curiae 3; see, e. g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003).

    225

            These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae

    227

    [539 U.S. 331]

    229

    5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security." Brief for Julius W. Becton, Jr., et al. as Amici Curiae 5. The primary sources for the Nation's officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Ibid. At present, "the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies." Ibid. (emphasis in original). To fulfill its mission, the military "must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educational setting." Id., at 29 (emphasis in original). We agree that "[i]t requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective." Ibid.

    231

            We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage" with a fundamental role in maintaining the fabric of society. Plyler v. Doe, 457 U. S. 202, 221 (1982). This Court has long recognized that "education. . . is the very foundation of good citizenship." Brown v. Board of Education, 347 U. S. 483, 493 (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms that "[e]nsuring that public institutions are open and available to all segments of American

    233

    [539 U.S. 332]

    235

    society, including people of all races and ethnicities, represents a paramount government objective." Brief for United States as Amicus Curiae 13. And, "[n]owhere is the importance of such openness more acute than in the context of higher education." Ibid. Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.

    237

            Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders. Sweatt v. Painter, 339 U. S. 629, 634 (1950) (describing law school as a "proving ground for legal learning and practice"). Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. See Brief for Association of American Law Schools as Amicus Curiae 5-6. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. Id., at 6.

    239

            In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools "cannot be effective in isolation from the individuals and institutions with which the law interacts." See Sweatt v. Painter, supra, at 634. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society

    241

    [539 U.S. 333]

    243

    may participate in the educational institutions that provide the training and education necessary to succeed in America.

    245

            The Law School does not premise its need for critical mass on "any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue." Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a "critical mass" of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.

    247
    B
    249

            Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still "constrained in how it may pursue that end: [T]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose." Shaw v. Hunt, 517 U. S. 899, 908 (1996) (internal quotation marks and citation omitted). The purpose of the narrow tailoring requirement is to ensure that "the means chosen `fit' th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Richmond v. J. A. Croson Co., 488 U. S., at 493 (plurality opinion).

    251

            Since Bakke, we have had no occasion to define the contours of the narrow-tailoring inquiry with respect to race-conscious university admissions programs. That inquiry

    253

    [539 U.S. 334]

    255

    must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education. Contrary to JUSTICE KENNEDY'S assertions, we do not "abando[n] strict scrutiny," see post, at 394 (dissenting opinion). Rather, as we have already explained, supra, at 327, we adhere to Adarand's teaching that the very purpose of strict scrutiny is to take such "relevant differences into account." 515 U. S., at 228 (internal quotation marks omitted).

    257

            To be narrowly tailored, a race-conscious admissions program cannot use a quota system—it cannot "insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants." Bakke, 438 U. S., at 315 (opinion of Powell, J.). Instead, a university may consider race or ethnicity only as a "`plus' in a particular applicant's file," without "insulat[ing] the individual from comparison with all other candidates for the available seats." Id., at 317. In other words, an admissions program must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Ibid.

    259

            We find that the Law School's admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. See id., at 315-316. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Ibid. Universities can, however, consider race or ethnicity more flexibly as a "plus" factor in the context of individualized consideration of each and every applicant. Ibid.

    261

    [539 U.S. 335]

    263

            We are satisfied that the Law School's admissions program, like the Harvard plan described by Justice Powell, does not operate as a quota. Properly understood, a "quota" is a program in which a certain fixed number or proportion of opportunities are "reserved exclusively for certain minority groups." Richmond v. J. A. Croson Co., supra, at 496 (plurality opinion). Quotas "`impose a fixed number or percentage which must be attained, or which cannot be exceeded,'" Sheet Metal Workers v. EEOC, 478 U. S. 421, 495 (1986) (O'CONNOR, J., concurring in part and dissenting in part), and "insulate the individual from comparison with all other candidates for the available seats," Bakke, supra, at 317 (opinion of Powell, J.). In contrast, "a permissible goal.. . require[s] only a good-faith effort . . . to come within a range demarcated by the goal itself," Sheet Metal Workers v. EEOC, supra, at 495, and permits consideration of race as a "plus" factor in any given case while still ensuring that each candidate "compete[s] with all other qualified applicants," Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 638 (1987).

    265

            Justice Powell's distinction between the medical school's rigid 16-seat quota and Harvard's flexible use of race as a "plus" factor is instructive. Harvard certainly had minimum goals for minority enrollment, even if it had no specific number firmly in mind. See Bakke, supra, at 323 (opinion of Powell, J.) ("10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States"). What is more, Justice Powell flatly rejected the argument that Harvard's program was "the functional equivalent of a quota" merely because it had some "`plus' " for race, or gave greater "weight" to race than to some other factors, in order to achieve student body diversity. 438 U. S., at 317-318.

    267

            The Law School's goal of attaining a critical mass of under-represented minority students does not transform its program

    269

    [539 U.S. 336]

    271

    into a quota. As the Harvard plan described by Justice Powell recognized, there is of course "some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted." Id., at 323. "[S]ome attention to numbers," without more, does not transform a flexible admissions system into a rigid quota. Ibid. Nor, as JUSTICE KENNEDY posits, does the Law School's consultation of the "daily reports," which keep track of the racial and ethnic composition of the class (as well as of residency and gender), "sugges[t] there was no further attempt at individual review save for race itself" during the final stages of the admissions process. See post, at 392 (dissenting opinion). To the contrary, the Law School's admissions officers testified without contradiction that they never gave race any more or less weight based on the information contained in these reports. Brief for Respondent Bollinger et al. 43, n. 70 (citing App. in Nos. 01-1447 and 01-1516 (CA6), p. 7336). Moreover, as Justice Kennedy concedes, see post, at 390, between 1993 and 1998, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota.

    273

            THE CHIEF JUSTICE believes that the Law School's policy conceals an attempt to achieve racial balancing, and cites admissions data to contend that the Law School discriminates among different groups within the critical mass. Post, at 380-386 (dissenting opinion). But, as THE CHIEF JUSTICE concedes, the number of underrepresented minority students who ultimately enroll in the Law School differs substantially from their representation in the applicant pool and varies considerably for each group from year to year. See post, at 385 (dissenting opinion).

    275

            That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a "plus"

    277

    [539 U.S. 337]

    279

    factor in university admissions, a university's admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. See Bakke, 438 U. S., at 318, n. 52 (opinion of Powell, J.) (identifying the "denial... of th[e] right to individualized consideration" as the "principal evil" of the medical school's admissions program).

    281

            Here, the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single "soft" variable. Unlike the program at issue in Gratz v. Bollinger, ante, p. 244, the Law School awards no mechanical, predetermined diversity "bonuses" based on race or ethnicity. See ante, at 271-272 (distinguishing a race-conscious admissions program that automatically awards 20 points based on race from the Harvard plan, which considered race but "did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity"). Like the Harvard plan, the Law School's admissions policy "is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Bakke, supra, at 317 (opinion of Powell, J.).

    283

            We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School's race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect

    285

    [539 U.S. 338]

    287

    to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences. See App. 120.

    289

            The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear "[t]here are many possible bases for diversity admissions," and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields. Id., at 118-119. The Law School seriously considers each "applicant's promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic—e. g., an unusual intellectual achievement, employment experience, nonacademic performance, or personal background." Id., at 83-84. All applicants have the opportunity to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.

    291

            What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. See Brief for Respondent Bollinger et al. 10; App. 121-122. This shows that the Law School seriously weighs many other diversity factors besides race that can make a real and dispositive difference for nonminority applicants as well. By this

    293

    [539 U.S. 339]

    295

    flexible approach, the Law School sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body. JUSTICE KENNEDY speculates that "race is likely outcome determinative for many members of minority groups" who do not fall within the upper range of LSAT scores and grades. Post, at 389 (dissenting opinion). But the same could be said of the Harvard plan discussed approvingly by Justice Powell in Bakke, and indeed of any plan that uses race as one of many factors. See 438 U. S., at 316 ("`When the Committee on Admissions reviews the large middle group of applicants who are "admissible" and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor'").

    297

            Petitioner and the United States argue that the Law School's plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6 (1986) (alternatives must serve the interest "`about as well'"); Richmond v. J. A. Croson Co., 488 U. S., at 509-510 (plurality opinion) (city had a "whole array of race-neutral" alternatives because changing requirements "would have [had] little detrimental effect on the city's interests"). Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks. See id., at 507 (set-aside plan not narrowly tailored where "there does not appear to have been any consideration of the use of race-neutral means"); Wygant v. Jackson Bd. of Ed., supra, at 280, n. 6 (narrow tailoring

    299

    [539 U.S. 340]

    301

    "require[s] consideration" of "lawful alternative and less restrictive means").

    303

            We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral alternatives. The District Court took the Law School to task for failing to consider race-neutral alternatives such as "using a lottery system" or "decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores." App. to Pet. for Cert. 251a. But these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.

    305

            The Law School's current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention every other kind of diversity. So too with the suggestion that the Law School simply lower admissions standards for all students, a drastic remedy that would require the Law School to become a much different institution and sacrifice a vital component of its educational mission. The United States advocates "percentage plans," recently adopted by public undergraduate institutions in Texas, Florida, and California, to guarantee admission to all students above a certain class-rank threshold in every high school in the State. Brief for United States as Amicus Curiae 14-18. The United States does not, however, explain how such plans could work for graduate and professional schools. Moreover, even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university. We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.

    307

    [539 U.S. 341]

    309

            We acknowledge that "there are serious problems of justice connected with the idea of preference itself." Bakke, 438 U. S., at 298 (opinion of Powell, J.). Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally "remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit." Id., at 308. To be narrowly tailored, a race-conscious admissions program must not "unduly burden individuals who are not members of the favored racial and ethnic groups." Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 630 (1990) (O'CONNOR, J., dissenting).

    311

            We are satisfied that the Law School's admissions program does not. Because the Law School considers "all pertinent elements of diversity," it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. See Bakke, supra, at 317 (opinion of Powell, J.). As Justice Powell recognized in Bakke, so long as a race-conscious admissions program uses race as a "plus" factor in the context of individualized consideration, a rejected applicant

    313

            "will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname.... His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment." 438 U. S., at 318.

    315

            We agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants.

    317

            We are mindful, however, that "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." Palmore v. Sidoti,

    319

    [539 U.S. 342]

    321

    466 U. S. 429, 432 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all "race-conscious programs must have reasonable durational limits." Brief for Respondent Bollinger et al. 32.

    323

            In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring) ("[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear").

    325

            The requirement that all race-conscious admissions programs have a termination point "assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." Richmond v. J. A. Croson Co., 488 U. S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools,

    327

    [539 U.S. 343]

    329

    58 Chicago Bar Rec. 282, 293 (May-June 1977) ("It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all").

    331

            We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondent Bollinger et al. 34; Bakke, supra, at 317-318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

    333
    IV
    335

            In summary, the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner's statutory claims based on Title VI and 42 U. S. C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) ("Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment"); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389-391 (1982) (the prohibition against discrimination in § 1981 is co-extensive with the Equal Protection Clause). The judgment

    337

    [539 U.S. 344]

    339

    of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.

    341

            It is so ordered.

    343

    ---------------

    345

    Notes:

    347

    * Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Charlie Crist, Attorney General of Florida, Christopher M. Kise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, and Daniel Woodring; for the Cato Institute by Robert A. Levy, Timothy Lynch, James L. Swanson, and Samuel Estreicher; for the Center for Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the Center for Individual Freedom by Renee L. Giachino; for the Center for New Black Leadership by Clint Bolick, William H. Mellor, and Richard D. Komer; for the Center for the Advancement of Capitalism by David Reed Burton; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Michigan Association of Scholars by William F. Mohrman; for the National Association of Scholars by William H. Allen, Oscar M. Garibaldi, and Keith A. Noreika; for the Pacific Legal Foundation by John H. Findley; for Law Professor Larry Alexander et al. by Erik S. Jaffe; and for the Reason Foundation by Martin S. Kaufman.

    349

            Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Andrew H. Baida, Solicitor General, Mark J. Davis and William F. Brockman, Assistant Attorneys General, Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pandya, Assistant Solicitors General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and Peggy A. Lautenschlager of Wisconsin; for the State of New Jersey by David Samson, Attorney General, Jeffrey Burstein, Assistant Attorney General, and Donna Arons and Anne Marie Kelly, Deputy Attorneys General; for New York City Council Speaker A. Gifford Miller et al. by Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia, Pennsylvania, et al. by Victor A. Bolden and Nelson A. Diaz; for the American Bar Association by Paul M. Dodyk and Rowan D. Wilson; for the American Educational Research Association et al. by Angelo N. Ancheta; for the American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jancik, Jeffrey P. Sinensky, Kara H. Stein, and Richard T. Foltin; for the American Law Deans Association by Samuel Issacharoff; for the American Psychological Association by Paul R. Friedman, William F. Sheehan, and Nathalie F. P. Gilfoyle; for the American Sociological Association et al. by Bill Lann Lee and Deborah J. Merritt; for Amherst College et al. by Charles S. Sims; for the Arizona State University College of Law by Ralph S. Spritzer and Paul Bender; for the Association of American Law Schools by Pamela S. Karlan; for the Association of American Medical Colleges et al. by Robert A. Burgoyne and Joseph A. Keyes, Jr.; for the Bay Mills Indian Community et al. by Vanya S. Hogen; for the Clinical Legal Education Association by Timothy A. Nelsen, Frances P. Kao, and Eric J. Gorman; for Columbia University et al. by Floyd Abrams and Susan Buckley; for the Graduate Management Admission Council et al. by Stephen M. McNabb; for the Harvard Black Law Students Association et al. by George W. Jones, Jr., William J. Jefferson, Theodore V. Wells, Jr., and David W. Brown; for Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey, Beverly Ledbetter, Robert B. Donin, and Wendy S. White; for the Hispanic National Bar Association et al. by Gilbert Paul Carrasco; for Howard University by Janell M. Byrd; for Indiana University by James Fitzpatrick, Lauren K. Robel, and Jeffrey Evans Stake; for the King County Bar Association by John Warner Widell, John H. Chun, and Melissa O'Loughlin White; for the Law School Admission Council by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Lawyers' Committee for Civil Rights Under Law et al. by John S. Skilton, David E. Jones, Barbara R. Arnwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D. Greenberger, and Judith L. Lichtman; for the Leadership Conference on Civil Rights et al. by Robert N. Weiner and William L. Taylor; for the Mexican American Legal Defense and Educational Fund et al. by Antonia Hernandez; for the Michigan Black Law Alumni Society by Christopher J. Wright, Timothy J. Simeone, and Kathleen McCree Lewis; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Theodore M. Shaw, Norman J. Chachkin, Robert H. Stroup, Elise C. Boddie, and Christopher A. Hansen; for the National Center for Fair & Open Testing by John T. Affeldt and Mark Savage; for the National Coalition of Blacks for Reparations in America et al. by Kevin Outterson; for the National Education Association et al. by Robert H. Chanin, John M. West, Elliot Mincberg, Larry P. Weinberg, and John C. Dempsey; for the National Urban League et al. by William A. Norris and Michael C. Small; for the New America Alliance by Thomas R. Julin and D. Patricia Wallace; for the New Mexico Hispanic Bar Association et al. by Edward Benavidez; for the NOW Legal Defense and Educational Fund et al. by Wendy R. Weiser and Martha F. Davis; for the School of Law of the University of North Carolina by John Charles Boger, Julius L. Chambers, and Charles E. Daye; for the Society of American Law Teachers by Michael Selmi and Gabriel J. Chin; for the UCLA School of Law Students of Color by Sonia Mercado; for the United Negro College Fund et al. by Drew S. Days III and Beth S. Brinkmann; for the University of Michigan Asian Pacific American Law Students Association et al. by Jerome S. Hirsch; for the University of Pittsburgh et al. by David C. Frederick and Sean A. Lev; for Judith Areen et al. by Neal Katyal and Kumiki Gibson; for Lieutenant General Julius W. Becton, Jr., et al. by Virginia A. Seitz, Joseph R. Reeder, Robert P. Charrow, and Kevin E. Stern; for Hillary Browne et al. by Gregory Alan Berry; for Senator Thomas A. Daschle et al. by David T. Goldberg and Penny Shane; for the Hayden Family by Roy C. Howell; for Glenn C. Loury by Jeffrey F. Liss and James J. Halpert; and for 13,922 Current Law Students at Accredited American Law Schools by Julie R. O'Sullivan and Peter J. Rubin.

    351

            Briefs of amici curiae were filed for Michigan Governor Jennifer M. Granholm by John D. Pirich and Mark A. Goldsmith; for Members and Former Members of the Pennsylvania General Assembly et al. by Mark B. Cohen and Eric S. Fillman; for the American Council on Education et al. by Martin Michaelson, Alexander E. Dreier, and Sheldon E. Steinbach; for the American Federation of Labor and Congress of Industrial Organizations by Harold Craig Becker, David J. Strom, Jonathan P. Hiatt, and Daniel W. Sherrick; for the Anti-Defamation League by Martin E. Karlinsky and Steven M. Freeman; for the Asian American Legal Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for Banks Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers Association of Greater Chicago, Inc., by Sharon E. Jones; for the Boston Bar Association et al. by Thomas E. Dwyer, Jr., and Joseph L. Kociubes; for the Carnegie Mellon University et al. by W. Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan, and Edward N. Stoner II; for the Coalition for Economic Equity et al. by Eva J. Paterson and Eric K. Yamamoto; for the Committee of Concerned Black Graduates of ABA Accredited Law Schools et al. by Mary Mack Adu; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Equal Employment Advisory Council by Jeffrey A. Norris and Ann Elizabeth Reesman; for Exxon Mobil Corp. by Richard R. Brann; for General Motors Corp. by Kenneth S. Geller, Eileen Penner, and Thomas A. Gottschalk; for Human Rights Advocates et al. by Constance de la Vega; for the Massachusetts Institute of Technology et al. by Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and Stacey J. Mobley; for the Massachusetts School of Law by Lawrence R. Velvel; for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman, Karen K. Narasaki, Vincent A. Eng, and Trang Q. Tran; for the National School Boards Association et al. by Julie Underwood and Naomi Gittins; for the New York State Black and Puerto Rican Legislative Caucus by Victor Goode; for Veterans of the Southern Civil Rights Movement et al. by Mitchell Zimmerman; for 3M et al. by David W. DeBruin, Deanne E. Maynard, Daniel Mach, Russell W. Porter, Jr., Charles R. Wall, Martin J. Barrington, Deval L. Patrick, William J. O'Brien, Gary P. Van Graafeiland, Kathryn A. Oberly, Randall E. Mehrberg, Donald M. Remy, Ben W. Heineman, Jr., Brackett B. Denniston III, Elpidio Villarreal, Wayne A. Budd, J. Richard Smith, Stewart S. Hudnut, John A. Shutkin, Theodore L. Banks, Kenneth C. Frazier, David R. Andrews, Jeffrey B. Kinder, Teresa M. Holland, Charles W. Gerdts III, John L. Sander, Mark P. Klein, and Stephen P. Sawyer; for Ward Connerly by Manuel S. Klausner and Patrick J. Manshardt; for Representative John Conyers, Jr., et al. by Paul J. Lawrence and Anthony R. Miles; and for Representative Richard A. Gephardt et al. by Andrew L. Sandler and Mary L. Smith.

    353

    ---------------

    355

            JUSTICE GINSBURG, with whom JUSTICE BREYER joins, concurring.

    357

            The Court's observation that race-conscious programs "must have a logical end point," ante, at 342, accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, see State Dept., Treaties in Force 422-423 (June 1996), endorses "special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms." Annex to G. A. Res. 2106, 20 U. N. GAOR, 20th Sess., Res. Supp. (No. 14), p. 47, U. N. Doc. A/6014, Art. 2(2) (1965). But such measures, the Convention instructs, "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." Ibid.; see also Art. 1(4) (similarly providing for temporally limited affirmative action); Convention on the Elimination of All Forms of Discrimination against Women, Annex to G. A. Res. 34/180, 34 U. N. GAOR, 34th Sess., Res. Supp. (No. 46), p. 194, U. N. Doc. A/34/46, Art. 4(1) (1979) (authorizing "temporary special measures aimed at accelerating de facto equality" that "shall be discontinued when the objectives of equality of opportunity and treatment have been achieved").

    359

            The Court further observes that "[i]t has been 25 years since Justice Powell [in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978)] first approved the use of race to further an interest in student body diversity in the context of public higher education." Ante, at 343. For at least part of that

    361

    [539 U.S. 345]

    363

    time, however, the law could not fairly be described as "settled," and in some regions of the Nation, overtly race-conscious admissions policies have been proscribed. See Hopwood v. Texas, 78 F. 3d 932 (CA5 1996); cf. Wessmann v. Gittens, 160 F. 3d 790 (CA1 1998); Tuttle v. Arlington Cty. School Bd., 195 F. 3d 698 (CA4 1999); Johnson v. Board of Regents of Univ. of Ga., 263 F. 3d 1234 (CA11 2001). Moreover, it was only 25 years before Bakke that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery. See Brown v. Board of Education, 347 U. S. 483 (1954); cf. Cooper v. Aaron, 358 U. S. 1 (1958).

    365

            It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals. See, e. g., Gratz v. Bollinger, ante, at 298-301 (GINSBURG, J., dissenting); Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 272-274 (1995) (GINSBURG, J., dissenting); Krieger, Civil Rights Perestroika: Intergroup Relations after Affirmative Action, 86 Calif. L. Rev. 1251, 1276-1291, 1303 (1998). As to public education, data for the years 2000-2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. See E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? p. 4 (Jan. 2003), http://www.civilrightsproject.harvard.edu/research/ reseg03/AreWeLosingtheDream.pdf (as visited June 16, 2003, and available in Clerk of Court's case file). And schools in predominantly minority communities lag far behind others measured by the educational resources available to them. See id., at 11; Brief for National Urban League et al. as Amici Curiae 11-12 (citing General Accounting Office, Per-Pupil Spending Differences Between Selected Inner City and Suburban Schools Varied by Metropolitan Area 17 (2002)).

    367

    [539 U.S. 346]

    369

            However strong the public's desire for improved education systems may be, see P. Hart & R. Teeter, A National Priority: Americans Speak on Teacher Quality 2, 11 (2002) (public opinion research conducted for Educational Testing Service); No Child Left Behind Act of 2001, Pub. L. 107-110, 115 Stat. 1806, 20 U. S. C. § 7231 (2000 ed., Supp. I), it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country's finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.*

    371

    ---------------

    373

    Notes:

    375

    * As the Court explains, the admissions policy challenged here survives review under the standards stated in Adarand Constructors, Inc. v. Peña, 515 U. S. 200 (1995), Richmond v. J. A. Croson Co., 488 U. S. 469 (1989), and Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). This case therefore does not require the Court to revisit whether all governmental classifications by race, whether designed to benefit or to burden a historically disadvantaged group, should be subject to the same standard of judicial review. Cf. Gratz, ante, at 301-302 (GINSBURG, J., dissenting); Adarand, 515 U. S., at 274, n. 8 (GINSBURG, J., dissenting). Nor does this case necessitate reconsideration whether interests other than "student body diversity," ante, at 325, rank as sufficiently important to justify a race-conscious government program. Cf. Gratz, ante, at 301-302 (GINSBURG, J., dissenting); Adarand, 515 U. S., at 273-274 (GINSBURG, J., dissenting).

    377

    ---------------

    379

            JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and dissenting in part.

    381

            I join the opinion of THE CHIEF JUSTICE. As he demonstrates, the University of Michigan Law School's mystical

    383

    [539 U.S. 347]

    385

    "critical mass" justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.

    387

            I also join Parts I through VII of JUSTICE THOMAS's opinion.* I find particularly unanswerable his central point: that the allegedly "compelling state interest" at issue here is not the incremental "educational benefit" that emanates from the fabled "critical mass" of minority students, but rather Michigan's interest in maintaining a "prestige" law school whose normal admissions standards disproportionately exclude blacks and other minorities. If that is a compelling state interest, everything is.

    389

            I add the following: The "educational benefit" that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of "`cross-racial understanding,'" ante, at 330, and "`better prepar[ation of] students for an increasingly diverse workforce and society,'" ibid., all of which is necessary not only for work, but also for good "citizenship," ante, at 331. This is not, of course, an "educational benefit" on which students will be graded on their law school transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and 20 years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an "educational benefit" at all, it is surely not one that is either uniquely relevant to law school or uniquely "teachable" in a formal educational setting. And therefore: If it is appropriate for the University

    391

    [539 U.S. 348]

    393

    of Michigan Law School to use racial discrimination for the purpose of putting together a "critical mass" that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate—indeed, particularly appropriate —for the civil service system of the State of Michigan to do so. There, also, those exposed to "critical masses" of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized—indeed, should be praised— if they also "teach" good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.

    395

            Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant "as an individual," ante, at 337, and sufficiently avoids "separate admissions tracks," ante, at 334, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a "`good-faith effort'" and has so zealously pursued its "critical mass" as to make it an unconstitutional de facto quota system, rather than merely "`a permissible goal.'" Ante, at 335 (quoting Sheet Metal Workers v. EEOC, 478 U. S. 421, 495 (1986) (O'CONNOR, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords "a degree of deference to a university's academic decisions," ante, at 328, "deference does not imply

    397

    [539 U.S. 349]

    399

    abandonment or abdication of judicial review," Miller-El v. Cockrell, 537 U. S. 322, 340 (2003).) Still other suits may challenge the bona fides of the institution's expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses—through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution's racial preferences have gone below or above the mystical Grutter-approved "critical mass." Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution's composition of its generic minority "critical mass." I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

    401

    ---------------

    403

    Notes:

    405

    * Part VII of JUSTICE THOMAS's opinion describes those portions of the Court's opinion in which I concur. See post, at 374-378 (opinion concurring in part and dissenting in part).

    407

    ---------------

    409

            JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Parts I-VII, concurring in part and dissenting in part.

    411

            Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today's majority:

    413

            "[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of

    415

    [539 U.S. 350]

    417

    their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him positive injury." What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).

    419

            Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of "strict scrutiny."

    421

            No one would argue that a university could set up a lower general admissions standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admissions standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

    423

            The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only

    425

    [539 U.S. 351]

    427

    one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. See ante, at 343 (stating that racial discrimination will no longer be narrowly tailored, or "necessary to further" a compelling state interest, in 25 years). I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months.

    429
    I
    431

            The majority agrees that the Law School's racial discrimination should be subjected to strict scrutiny. Ante, at 326. Before applying that standard to this case, I will briefly revisit the Court's treatment of racial classifications.

    433

            The strict scrutiny standard that the Court purports to apply in this case was first enunciated in Korematsu v. United States, 323 U. S. 214 (1944). There the Court held that "[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can." Id., at 216. This standard of "pressing public necessity" has more frequently been termed "compelling governmental interest,"1 see, e. g., Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 299 (1978) (opinion of Powell, J.). A majority of the Court has validated only two circumstances where "pressing public necessity" or a "compelling state interest" can possibly justify racial discrimination by state actors. First, the lesson of Korematsu is that national security constitutes a "pressing public necessity," though the government's use of race to advance that objective must be narrowly tailored. Second, the Court has recognized as a compelling state interest a government's effort to remedy

    435

    [539 U.S. 352]

    437

    past discrimination for which it is responsible. Richmond v. J. A. Croson Co., 488 U. S. 469, 504 (1989).

    439

            The contours of "pressing public necessity" can be further discerned from those interests the Court has rejected as bases for racial discrimination. For example, Wygant v. Jackson Bd. of Ed., 476 U. S. 267 (1986), found unconstitutional a collective-bargaining agreement between a school board and a teachers' union that favored certain minority races. The school board defended the policy on the grounds that minority teachers provided "role models" for minority students and that a racially "diverse" faculty would improve the education of all students. See Brief for Respondents, O. T. 1984, No. 84-1340, pp. 27-28; 476 U. S., at 315 (STEVENS, J., dissenting) ("[A]n integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty"). Nevertheless, the Court found that the use of race violated the Equal Protection Clause, deeming both asserted state interests insufficiently compelling. Id., at 275-276 (plurality opinion); id., at 295 (White, J., concurring in judgment) ("None of the interests asserted by the [school board] . . . justify this racially discriminatory layoff policy").2

    441

            An even greater governmental interest involves the sensitive role of courts in child custody determinations. In Palmore v. Sidoti, 466 U. S. 429 (1984), the Court held that even the best interests of a child did not constitute a compelling state interest that would allow a state court to award custody to the father because the mother was in a mixed-race marriage. Id., at 433 (finding the interest "substantial" but

    443

    [539 U.S. 353]

    445

    holding the custody decision could not be based on the race of the mother's new husband).

    447

            Finally, the Court has rejected an interest in remedying general societal discrimination as a justification for race discrimination. See Wygant, supra, at 276 (plurality opinion); Croson, 488 U. S., at 496-498 (plurality opinion); id., at 520-521 (SCALIA, J., concurring in judgment). "Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy" because a "court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future." Wygant, supra, at 276 (plurality opinion). But see Gratz v. Bollinger, ante, p. 298 (GINSBURG, J., dissenting).

    449

            Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a "pressing public necessity." Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra, at 521 (SCALIA, J., concurring in judgment) ("At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb . . . can justify [racial discrimination]").

    451

            The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. "Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that such classifications ultimately have a destructive impact on the individual and our society."

    453

    [539 U.S. 354]

    455

    Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 240 (1995) (THOMAS, J., concurring in part and concurring in judgment).

    457
    II
    459

            Unlike the majority, I seek to define with precision the interest being asserted by the Law School before determining whether that interest is so compelling as to justify racial discrimination. The Law School maintains that it wishes to obtain "educational benefits that flow from student body diversity," Brief for Respondent Bollinger et al. 14. This statement must be evaluated carefully, because it implies that both "diversity" and "educational benefits" are components of the Law School's compelling state interest. Additionally, the Law School's refusal to entertain certain changes in its admissions process and status indicates that the compelling state interest it seeks to validate is actually broader than might appear at first glance.

    461

            Undoubtedly there are other ways to "better" the education of law students aside from ensuring that the student body contains a "critical mass" of underrepresented minority students. Attaining "diversity," whatever it means,3 is the

    463

    [539 U.S. 355]

    465

    mechanism by which the Law School obtains educational benefits, not an end of itself. The Law School, however, apparently believes that only a racially mixed student body can lead to the educational benefits it seeks. How, then, is the Law School's interest in these allegedly unique educational "benefits" not simply the forbidden interest in "racial balancing," ante, at 330, that the majority expressly rejects?

    467

            A distinction between these two ideas (unique educational benefits based on racial aesthetics and race for its own sake) is purely sophistic—so much so that the majority uses them interchangeably. Compare ante, at 328 ("[T]he Law School has a compelling interest in attaining a diverse student body"), with ante, at 333 (referring to the "compelling interest in securing the educational benefits of a diverse student body" (emphasis added)). The Law School's argument, as facile as it is, can only be understood in one way: Classroom aesthetics yields educational benefits, racially discriminatory admissions policies are required to achieve the right racial mix, and therefore the policies are required to achieve the educational benefits. It is the educational benefits that are the end, or allegedly compelling state interest, not "diversity." But see ante, at 332 (citing the need for "openness and integrity of the educational institutions that provide [legal] training" without reference to any consequential educational benefits).

    469

            One must also consider the Law School's refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce "academic selectivity," which would in turn "require the Law School to become a very different institution, and to sacrifice a core part of its educational mission." Brief for Respondent Bollinger et al. 33-36. In other words, the Law School seeks to improve marginally the education it offers

    471

    [539 U.S. 356]

    473

    without sacrificing too much of its exclusivity and elite status.4

    475

            The proffered interest that the majority vindicates today, then, is not simply "diversity." Instead the Court upholds the use of racial discrimination as a tool to advance the Law School's interest in offering a marginally superior education while maintaining an elite institution. Unless each constituent part of this state interest is of pressing public necessity, the Law School's use of race is unconstitutional. I find each of them to fall far short of this standard.

    477
    III
    479
    A
    481

            A close reading of the Court's opinion reveals that all of its legal work is done through one conclusory statement: The Law School has a "compelling interest in securing the educational benefits of a diverse student body." Ante, at 333. No serious effort is made to explain how these benefits fit with the state interests the Court has recognized (or rejected) as compelling, see Part I, supra, or to place any theoretical constraints on an enterprising court's desire to discover still more justifications for racial discrimination. In the absence of any explanation, one might expect the Court to fall back on the judicial policy of stare decisis. But the Court eschews even this weak defense of its holding, shunning an analysis of the extent to which Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978),

    483

    [539 U.S. 357]

    485

    is binding, ante, at 325, in favor of an unfounded wholesale adoption of it.

    487

            Justice Powell's opinion in Bakke and the Court's decision today rest on the fundamentally flawed proposition that racial discrimination can be contextualized so that a goal, such as classroom aesthetics, can be compelling in one context but not in another. This "we know it when we see it" approach to evaluating state interests is not capable of judicial application. Today, the Court insists on radically expanding the range of permissible uses of race to something as trivial (by comparison) as the assembling of a law school class. I can only presume that the majority's failure to justify its decision by reference to any principle arises from the absence of any such principle. See Part VI, infra.

    489
    B
    491

            Under the proper standard, there is no pressing public necessity in maintaining a public law school at all and, it follows, certainly not an elite law school. Likewise, marginal improvements in legal education do not qualify as a compelling state interest.

    493
    1
    495

            While legal education at a public university may be good policy or otherwise laudable, it is obviously not a pressing public necessity when the correct legal standard is applied. Additionally, circumstantial evidence as to whether a state activity is of pressing public necessity can be obtained by asking whether all States feel compelled to engage in that activity. Evidence that States, in general, engage in a certain activity by no means demonstrates that the activity constitutes a pressing public necessity, given the expansive role of government in today's society. The fact that some fraction of the States reject a particular enterprise, however, creates a presumption that the enterprise itself is not a compelling state interest. In this sense, the absence of a public, American Bar Association (ABA) accredited, law school in

    497

    [539 U.S. 358]

    499

    Alaska, Delaware, Massachusetts, New Hampshire, and Rhode Island, see ABA-LSAC Official Guide to ABA-Approved Law Schools (W. Margolis, B. Gordon, J. Puskarz, & D. Rosenlieb eds. 2004) (hereinafter ABA-LSAC Guide), provides further evidence that Michigan's maintenance of the Law School does not constitute a compelling state interest.

    501
    2
    503

            As the foregoing makes clear, Michigan has no compelling interest in having a law school at all, much less an elite one. Still, even assuming that a State may, under appropriate circumstances, demonstrate a cognizable interest in having an elite law school, Michigan has failed to do so here.

    505

            This Court has limited the scope of equal protection review to interests and activities that occur within that State's jurisdiction. The Court held in Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938), that Missouri could not satisfy the demands of "separate but equal" by paying for legal training of blacks at neighboring state law schools, while maintaining a segregated law school within the State. The equal protection

    507

            "obligation is imposed by the Constitution upon the States severally as governmental entities,—each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system." Id., at 350 (emphasis added).

    509

            The Equal Protection Clause, as interpreted by the Court in Gaines, does not permit States to justify racial discrimination on the basis of what the rest of the Nation "may do or fail to do." The only interests that can satisfy the Equal

    511

    [539 U.S. 359]

    513

    Protection Clause's demands are those found within a State's jurisdiction.

    515

            The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State's citizens and the training of that State's lawyers. James Campbell's address at the opening of the Law Department at the University of Michigan on October 3, 1859, makes this clear:

    517

            "It not only concerns the State that every one should have all reasonable facilities for preparing himself for any honest position in life to which he may aspire, but it also concerns the community that the Law should be taught and understood. . . . There is not an office in the State in which serious legal inquiries may not frequently arise. . . . In all these matters, public and private rights are constantly involved and discussed, and ignorance of the Law has frequently led to results deplorable and alarming. . . . [I]n the history of this State, in more than one instance, that ignorance has led to unlawful violence, and the shedding of innocent blood." E. Brown, Legal Education at Michigan 1859-1959, pp. 404-406 (1959) (emphasis added).

    519

            The Law School today, however, does precious little training of those attorneys who will serve the citizens of Michigan. In 2002, graduates of the Law School made up less than 6% of applicants to the Michigan bar, Michigan Lawyers Weekly, available at http://www.michiganlawyersweekly.com/ barpassers0202.cfm,barpassers0702 .cfm (all Internet materials as visited June 13, 2003, and available in Clerk of Court's case file), even though the Law School's graduates constitute nearly 30% of all law students graduating in Michigan. Ibid. Less than 16% of the Law School's graduating class elects to stay in Michigan after law school. ABA-LSAC Guide 427. Thus, while a mere 27% of the Law School's 2002 entering class is from Michigan, see University of

    521

    [539 U.S. 360]

    523

    Michigan Law School Website, available at http://www.law. umich.edu/prospectivestudents/Admissions/index.htm, only half of these, it appears, will stay in Michigan.

    525

            In sum, the Law School trains few Michigan residents and overwhelmingly serves students, who, as lawyers, leave the State of Michigan. By contrast, Michigan's other public law school, Wayne State University Law School, sends 88% of its graduates on to serve the people of Michigan. ABA-LSAC Guide 775. It does not take a social scientist to conclude that it is precisely the Law School's status as an elite institution that causes it to be a waystation for the rest of the country's lawyers, rather than a training ground for those who will remain in Michigan. The Law School's decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan.

    527

            Again, the fact that few States choose to maintain elite law schools raises a strong inference that there is nothing compelling about elite status. Arguably, only the public law schools of the University of Texas, the University of California, Berkeley (Boalt Hall), and the University of Virginia maintain the same reputation for excellence as the Law School.5 Two of these States, Texas and California, are so large that they could reasonably be expected to provide elite legal training at a separate law school to students who will, in fact, stay in the State and provide legal services to its citizens. And these two schools far outshine the Law School in producing in-state lawyers. The University of Texas, for example, sends over three-fourths of its graduates on to work in the State of Texas, vindicating the State's interest (compelling or not) in training Texas' lawyers. Id., at 691.

    529

    [539 U.S. 361]

    531
    3
    533

            Finally, even if the Law School's racial tinkering produces tangible educational benefits, a marginal improvement in legal education cannot justify racial discrimination where the Law School has no compelling interest either in its existence or in its current educational and admissions policies.

    535
    IV
    537

            The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions "standards" that, in turn, create the Law School's "need" to discriminate on the basis of race. The Court validates these admissions standards by concluding that alternatives that would require "a dramatic sacrifice of . . . the academic quality of all admitted students," ante, at 340, need not be considered before racial discrimination can be employed.6 In the majority's view, such methods are not required by the "narrow tailoring" prong of strict scrutiny because that inquiry demands, in this context, that any race-neutral alternative work "`about as well.'" Ante, at 339 (quoting Wygant, 476 U. S., at 280, n. 6). The majority errs, however, because race-neutral alternatives must only be "workable," ante, at 339, and do "about as well" in vindicating the compelling state interest. The Court never explicitly holds that the Law School's desire to retain the status quo in "academic selectivity" is itself a compelling state interest, and, as I have demonstrated, it is not. See Part III-B, supra. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system—it cannot have it both ways.

    539

            With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications,

    541

    [539 U.S. 362]

    543

    see Brief for United States as Amicus Curiae 13-14, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination. The Law School concedes this, but the Court holds, implicitly and under the guise of narrow tailoring, that the Law School has a compelling state interest in doing what it wants to do. I cannot agree. First, under strict scrutiny, the Law School's assessment of the benefits of racial discrimination and devotion to the admissions status quo are not entitled to any sort of deference, grounded in the First Amendment or anywhere else. Second, even if its "academic selectivity" must be maintained at all costs along with racial discrimination, the Court ignores the fact that other top law schools have succeeded in meeting their aesthetic demands without racial discrimination.

    545
    A
    547

            The Court bases its unprecedented deference to the Law School—a deference antithetical to strict scrutiny—on an idea of "educational autonomy" grounded in the First Amendment. Ante, at 329. In my view, there is no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause.

    549

            The constitutionalization of "academic freedom" began with the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire, 354 U. S. 234 (1957). Sweezy, a Marxist economist, was investigated by the Attorney General of New Hampshire on suspicion of being a subversive. The prosecution sought, inter alia, the contents of a lecture Sweezy had given at the University of New Hampshire. The Court held that the investigation violated due process. Id., at 254.

    551

            Justice Frankfurter went further, however, reasoning that the First Amendment created a right of academic freedom that prohibited the investigation. Id., at 256-267 (opinion concurring in result). Much of the rhetoric in Justice Frankfurter's opinion was devoted to the personal right of Sweezy to free speech. See, e. g., id., at 265 ("For a citizen to be

    553

    [539 U.S. 363]

    555

    made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling"). Still, claiming that the United States Reports "need not be burdened with proof," Justice Frankfurter also asserted that a "free society" depends on "free universities" and "[t]his means the exclusion of governmental intervention in the intellectual life of a university." Id., at 262. According to Justice Frankfurter: "It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail `the four essential freedoms' of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Id., at 263 (citation omitted).

    557

            In my view, "[i]t is the business" of this Court to explain itself when it cites provisions of the Constitution to invent new doctrines—including the idea that the First Amendment authorizes a public university to do what would otherwise violate the Equal Protection Clause. The majority fails in its summary effort to prove this point. The only source for the Court's conclusion that public universities are entitled to deference even within the confines of strict scrutiny is Justice Powell's opinion in Bakke. Justice Powell, for his part, relied only on Justice Frankfurter's opinion in Sweezy and the Court's decision in Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967), to support his view that the First Amendment somehow protected a public university's use of race in admissions. Bakke, 438 U. S., at 312. Keyishian provides no answer to the question whether the Fourteenth Amendment's restrictions are relaxed when applied to public universities. In that case, the Court held that state statutes and regulations designed to prevent the "appointment or retention of `subversive' persons in state employment," 385 U. S., at 592, violated the First Amendment for vagueness. The statutes covered all public employees and were not invalidated only as applied to university

    559

    [539 U.S. 364]

    561

    faculty members, although the Court appeared sympathetic to the notion of academic freedom, calling it a "special concern of the First Amendment." Id., at 603. Again, however, the Court did not relax any independent constitutional restrictions on public universities.

    563

            I doubt that when Justice Frankfurter spoke of governmental intrusions into the independence of universities, he was thinking of the Constitution's ban on racial discrimination. The majority's broad deference to both the Law School's judgment that racial aesthetics leads to educational benefits and its stubborn refusal to alter the status quo in admissions methods finds no basis in the Constitution or decisions of this Court.

    565
    B
    567
    1
    569

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

    571

    [539 U.S. 365]

    573

    Outcomes at Predominantly White and Historically Black Public Colleges and Universities, 62 Harv. Educ. Rev. 26, 35 (1992) (finding that black students attending HBCs report higher academic achievement than those attending predominantly white colleges).

    575

            At oral argument in Gratz v. Bollinger, ante, p. 244, counsel for respondents stated that "most every single one of [the HBCs] do have diverse student bodies." Tr. of Oral Arg. in No. 02-516, p. 52. What precisely counsel meant by "diverse" is indeterminate, but it is reported that in 2000 at Morehouse College, one of the most distinguished HBCs in the Nation, only 0.1% of the student body was white, and only 0.2% was Hispanic. College Admissions Data Handbook 2002-2003, p. 613 (43d ed. 2002) (hereinafter College Admissions Data Handbook). And at Mississippi Valley State University, a public HBC, only 1.1% of the freshman class in 2001 was white. Id., at 603. If there is a "critical mass" of whites at these institutions, then "critical mass" is indeed a very small proportion.

    577

            The majority grants deference to the Law School's "assessment that diversity will, in fact, yield educational benefits," ante, at 328. It follows, therefore, that an HBC's assessment that racial homogeneity will yield educational benefits would similarly be given deference.7 An HBC's rejection of white applicants in order to maintain racial homogeneity seems permissible, therefore, under the majority's view of the Equal Protection Clause. But see United States v. Fordice, 505 U. S. 717, 748 (1992) (THOMAS, J., concurring) ("Obviously, a State cannot maintain . . . traditions by closing particular institutions, historically white or historically black, to particular racial groups"). Contained within today's majority opinion is the seed of a new constitutional

    579

    [539 U.S. 366]

    581

    justification for a concept I thought long and rightly rejected—racial segregation.

    583
    2
    585

            Moreover one would think, in light of the Court's decision in United States v. Virginia, 518 U. S. 515 (1996), that before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character. In Virginia, a majority of the Court, without a word about academic freedom, accepted the all-male Virginia Military Institute's (VMI) representation that some changes in its "adversative" method of education would be required with the admission of women, id., at 540, but did not defer to VMI's judgment that these changes would be too great. Instead, the Court concluded that they were "manageable." Id., at 551, n. 19. That case involved sex discrimination, which is subjected to intermediate, not strict, scrutiny. Id., at 533; Craig v. Boren, 429 U. S. 190, 197 (1976). So in Virginia, where the standard of review dictated that greater flexibility be granted to VMI's educational policies than the Law School deserves here, this Court gave no deference. Apparently where the status quo being defended is that of the elite establishment—here the Law School—rather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard.

    587
    C
    589

            Virginia is also notable for the fact that the Court relied on the "experience" of formerly single-sex institutions, such as the service academies, to conclude that admission of women to VMI would be "manageable." 518 U. S., at 544-545. Today, however, the majority ignores the "experience" of those institutions that have been forced to abandon explicit racial discrimination in admissions.

    591

    [539 U.S. 367]

    593

            The sky has not fallen at Boalt Hall at the University of California, Berkeley, for example. Prior to Proposition 209's adoption of Cal. Const., Art. 1, § 31(a), which bars the State from "grant[ing] preferential treatment . . . on the basis of race . . . in the operation of . . . public education,"8 Boalt Hall enrolled 20 blacks and 28 Hispanics in its first-year class for 1996. In 2002, without deploying express racial discrimination in admissions, Boalt's entering class enrolled 14 blacks and 36 Hispanics.9 University of California Law and Medical School Enrollments, available at http://www.ucop.edu/ acadadv/datamgmt/lawmed/law-enrolls-eth2.html. Total underrepresented minority student enrollment at Boalt Hall now exceeds 1996 levels. Apparently the Law School cannot be counted on to be as resourceful. The Court is willfully blind to the very real experience in California and elsewhere, which raises the inference that institutions with "reputation[s] for excellence," ante, at 339, rivaling the Law School's have satisfied their sense of mission without resorting to prohibited racial discrimination.

    595
    V
    597

            Putting aside the absence of any legal support for the majority's reflexive deference, there is much to be said for the view that the use of tests and other measures to "predict" academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law. The rallying cry that in the absence of racial discrimination in admissions there would be a true

    599

    [539 U.S. 368]

    601

    meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to "merit." For example, in the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called "legacy" preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a "true" meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation's universities. The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot.10 I will not twist the Constitution to invalidate legacy preferences or otherwise impose my vision of higher education admissions on the Nation. The majority should similarly stay its impulse to validate faddish racial discrimination the Constitution clearly forbids.

    603

            In any event, there is nothing ancient, honorable, or constitutionally protected about "selective" admissions. The University of Michigan should be well aware that alternative methods have historically been used for the admission of students, for it brought to this country the German certificate system in the late-19th century. See H. Wechsler, The Qualified Student 16-39 (1977) (hereinafter Qualified Student). Under this system, a secondary school was certified by a university so that any graduate who completed the course offered by the school was offered admission to the university. The certification regime supplemented, and later virtually replaced (at least in the Midwest), the prior regime of rigorous

    605

    [539 U.S. 369]

    607

    subject-matter entrance examinations. Id., at 57-58. The facially race-neutral "percent plans" now used in Texas, California, and Florida, see ante, at 340, are in many ways the descendents of the certificate system.

    609

            Certification was replaced by selective admissions in the beginning of the 20th century, as universities sought to exercise more control over the composition of their student bodies. Since its inception, selective admissions has been the vehicle for racial, ethnic, and religious tinkering and experimentation by university administrators. The initial driving force for the relocation of the selective function from the high school to the universities was the same desire to select racial winners and losers that the Law School exhibits today. Columbia, Harvard, and others infamously determined that they had "too many" Jews, just as today the Law School argues it would have "too many" whites if it could not discriminate in its admissions process. See Qualified Student 155-168 (Columbia); H. Broun & G. Britt, Christians Only: A Study in Prejudice 53-54 (1931) (Harvard).

    611

            Columbia employed intelligence tests precisely because Jewish applicants, who were predominantly immigrants, scored worse on such tests. Thus, Columbia could claim (falsely) that "`[w]e have not eliminated boys because they were Jews and do not propose to do so. We have honestly attempted to eliminate the lowest grade of applicant [through the use of intelligence testing] and it turns out that a good many of the low grade men are New York City Jews.'" Letter from Herbert E. Hawkes, dean of Columbia College, to E. B. Wilson, June 16, 1922 (reprinted in Qualified Student 160-161). In other words, the tests were adopted with full knowledge of their disparate impact. Cf. DeFunis v. Odegaard, 416 U. S. 312, 335 (1974) (per curiam) (Douglas, J., dissenting).

    613

            Similarly no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admission Test (LSAT). Nevertheless, law schools

    615

    [539 U.S. 370]

    617

    continue to use the test and then attempt to "correct" for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body. The Law School's continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court. See Part IV, supra. The Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test. See App. 156-203 (showing that, between 1995 and 2000, the Law School admitted 37 students—27 of whom were black; 31 of whom were "underrepresented minorities"—with LSAT scores of 150 or lower). And the Law School's amici cannot seem to agree on the fundamental question whether the test itself is useful. Compare Brief for Law School Admission Council as Amicus Curiae 12 ("LSAT scores . . . are an effective predictor of students' performance in law school") with Brief for Harvard Black Law Students Association et al. as Amici Curiae 27 ("Whether [the LSAT] measure[s] objective merit . . . is certainly questionable").

    619

            Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination. An infinite variety of admissions methods are available to the Law School. Considering all of the radical thinking that has historically occurred at this country's universities, the Law School's intractable approach toward admissions is striking.

    621

            The Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution. And the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes

    623

    [539 U.S. 371]

    625

    rather than principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination.

    627
    VI
    629

            The absence of any articulated legal principle supporting the majority's principal holding suggests another rationale. I believe what lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, see Adarand, 515 U. S., at 239 (SCALIA, J., concurring in part and concurring in judgment), and that racial discrimination is necessary to remedy general societal ills. This Court's precedents supposedly settled both issues, but clearly the majority still cannot commit to the principle that racial classifications are per se harmful and that almost no amount of benefit in the eye of the beholder can justify such classifications.

    631

            Putting aside what I take to be the Court's implicit rejection of Adarand's holding that beneficial and burdensome racial classifications are equally invalid, I must contest the notion that the Law School's discrimination benefits those admitted as a result of it. The Court spends considerable time discussing the impressive display of amicus support for the Law School in this case from all corners of society. Ante, at 330-331. But nowhere in any of the filings in this Court is any evidence that the purported "beneficiaries" of this racial discrimination prove themselves by performing at (or even near) the same level as those students who receive no preferences. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev. 1583, 1605-1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its "beneficiaries" are underperforming in the classroom).

    633

            The silence in this case is deafening to those of us who view higher education's purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp,

    635

    [539 U.S. 372]

    637

    credentialing process. The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law. The Law School seeks only a facade—it is sufficient that the class looks right, even if it does not perform right.

    639

            The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. See T. Sowell, Race and Culture 176-177 (1994) ("Even if most minority students are able to meet the normal standards at the `average' range of colleges and universities, the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education"). Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue— in selection for the Michigan Law Review, see University of Michigan Law School Student Handbook 2002-2003, pp. 39-40 (noting the presence of a "diversity plan" for admission to the review), and in hiring at law firms and for judicial clerkships—until the "beneficiaries" are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less "elite" law school for which they were better prepared. And the aestheticists will never address the real problems facing "underrepresented minorities,"11 instead continuing their social experiments on other people's children.

    641

    [539 U.S. 373]

    643

            Beyond the harm the Law School's racial discrimination visits upon its test subjects, no social science has disproved the notion that this discrimination "engender[s] attitudes of superiority or, alternatively, provoke[s] resentment among those who believe that they have been wronged by the government's use of race." Adarand, 515 U. S., at 241 (THOMAS, J., concurring in part and concurring in judgment). "These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are `entitled' to preferences." Ibid.

    645

            It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. See Brief for Respondent Bollinger et al. 6. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the "beneficiaries" of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed "otherwise unqualified," or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by "visibly open"? Ante, at 332.

    647

            Finally, the Court's disturbing reference to the importance of the country's law schools as training grounds meant to cultivate "a set of leaders with legitimacy in the eyes of the citizenry," ibid., through the use of racial discrimination deserves discussion. As noted earlier, the Court has soundly

    649

    [539 U.S. 374]

    651

    rejected the remedying of societal discrimination as a justification for governmental use of race. Wygant, 476 U. S., at 276 (plurality opinion); Croson, 488 U. S., at 497 (plurality opinion); id., at 520-521 (SCALIA, J., concurring in judgment). For those who believe that every racial disproportionality in our society is caused by some kind of racial discrimination, there can be no distinction between remedying societal discrimination and erasing racial disproportionalities in the country's leadership caste. And if the lack of proportional racial representation among our leaders is not caused by societal discrimination, then "fixing" it is even less of a pressing public necessity.

    653

            The Court's civics lesson presents yet another example of judicial selection of a theory of political representation based on skin color—an endeavor I have previously rejected. See Holder v. Hall, 512 U. S. 874, 899 (1994) (THOMAS, J., concurring in judgment). The majority appears to believe that broader utopian goals justify the Law School's use of race, but "[t]he Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized." DeFunis, 416 U. S., at 342 (Douglas, J., dissenting).

    655
    VII
    657

            As the foregoing makes clear, I believe the Court's opinion to be, in most respects, erroneous. I do, however, find two points on which I agree.

    659
    A
    661

            First, I note that the issue of unconstitutional racial discrimination among the groups the Law School prefers is not presented in this case, because petitioner has never argued that the Law School engages in such a practice, and the Law School maintains that it does not. See Brief for Respondent Bollinger et al. 32, n. 50, and 6-7, n. 7. I join the Court's opinion insofar as it confirms that this type of racial discrimination remains unlawful. Ante, at 326-327. Under today's

    663

    [539 U.S. 375]

    665

    decision, it is still the case that racial discrimination that does not help a university to enroll an unspecified number, or "critical mass," of underrepresented minority students is unconstitutional. Thus, the Law School may not discriminate in admissions between similarly situated blacks and Hispanics, or between whites and Asians. This is so because preferring black to Hispanic applicants, for instance, does nothing to further the interest recognized by the majority today.12 Indeed, the majority describes such racial balancing as "patently unconstitutional." Ante, at 330. Like the Court, ante, at 336, I express no opinion as to whether the Law School's current admissions program runs afoul of this prohibition.

    667
    B
    669

            The Court also holds that racial discrimination in admissions should be given another 25 years before it is deemed no longer narrowly tailored to the Law School's fabricated compelling state interest. Ante, at 343. While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now. The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white

    671

    [539 U.S. 376]

    673

    students is shrinking or will be gone in that timeframe.13 In recent years there has been virtually no change, for example, in the proportion of law school applicants with LSAT scores of 165 and higher who are black.14 In 1993 blacks constituted 1.1% of law school applicants in that score range, though they represented 11.1% of all applicants. Law School Admission Council, National Statistical Report (1994) (hereinafter LSAC Statistical Report). In 2000 the comparable numbers were 1.0% and 11.3%. LSAC Statistical Report (2001). No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court's holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time.15

    675

    [539 U.S. 377]

    677

            Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant's LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker's behavior is responsive to the Law School's admissions policies.16 Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance—just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society.

    679

            I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School's educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to "`eliminat[e]

    681

    [539 U.S. 378]

    683

    the [perceived] need for any racial or ethnic'" discrimination because the academic credentials gap will still be there. Ante, at 343 (quoting Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May-June 1977)). The Court defines this time limit in terms of narrow tailoring, see ante, at 343, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court.

    685
    * * *
    687

            For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to "[d]o nothing with us!" and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court's opinion and the judgment.

    689

    ---------------

    691

    Notes:

    693

    1. Throughout I will use the two phrases interchangeably.

    695

    2. The Court's refusal to address Wygant's rejection of a state interest virtually indistinguishable from that presented by the Law School is perplexing. If the Court defers to the Law School's judgment that a racially mixed student body confers educational benefits to all, then why would the Wygant Court not defer to the school board's judgment with respect to the benefits a racially mixed faculty confers?

    697

    3. "[D]iversity," for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one's skin constitutionally irrelevant to the Law School's mission, I refer to the Law School's interest as an "aesthetic." That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them.

    699

            I also use the term "aesthetic" because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. Cf. Orr v. Orr, 440 U. S. 268, 283 (1979) (noting that suspect classifications are especially impermissible when "the choice made by the State appears to redound . . . to the benefit of those without need for special solicitude"). It must be remembered that the Law School's racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation.

    701

    4. The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of "diversity" are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School's reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.

    703

    5. Cf. U. S. News & World Report, America's Best Graduate Schools 28 (2004 ed.) (placing these schools in the uppermost 15 in the Nation).

    705

    6. The Court refers to this component of the Law School's compelling state interest variously as "academic quality," avoiding "sacrifice [of] a vital component of its educational mission," and "academic selectivity." Ante, at 340.

    707

    7. For example, North Carolina A&T State University, which is currently 5.4% white, College Admissions Data Handbook 643, could seek to reduce the representation of whites in order to gain additional educational benefits.

    709

    8. Cal. Const., Art. 1, § 31(a), states in full:

    711

            "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (CA9 1997).

    713

    9. Given the incredible deference the Law School receives from the Court, I think it appropriate to indulge in the presumption that Boalt Hall operates without violating California law.

    715

    10. Were this Court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular—a possibility not lost, I am certain, on the elites(both individual and institutional)supporting the Law School in this case.

    717

    11. For example, there is no recognition by the Law School in this case that even with their racial discrimination in place, black men are "underrepresented" at the Law School. See ABA-LSAC Guide 426 (reporting that the Law School has 46 black women and 28 black men). Why does the Law School not also discriminate in favor of black men over black women, given this underrepresentation? The answer is, again, that all the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance.

    719

    12. That interest depends on enrolling a "critical mass" of underrepresented minority students, as the majority repeatedly states. Ante, at 316, 318, 319, 330, 333, 335, 340; cf. ante, at 333 (referring to the unique experience of being a "racial minority," as opposed to being black, or Native American); ante, at 335-336 (rejecting argument that the Law School maintains a disguised quota by referring to the total number of enrolled underrepresented minority students, not specific races). As it relates to the Law School's racial discrimination, the Court clearly approves of only one use of race—the distinction between underrepresented minority applicants and those of all other races. A relative preference awarded to a black applicant over, for example, a similarly situated Native American applicant, does not lead to the enrollment of even one more underrepresented minority student, but only balances the races within the "critical mass."

    721

    13. I agree with JUSTICE GINSBURG that the Court's holding that racial discrimination in admissions will be illegal in 25 years is not based upon a "forecast," post, at 346 (concurring opinion). I do not agree with JUSTICE GINSBURG'S characterization of the Court's holding as an expression of "hope." Ibid.

    723

    14. I use a score of 165 as the benchmark here because the Law School feels it is the relevant score range for applicant consideration (absent race discrimination). See Brief for Respondent Bollinger et al. 5; App. to Pet. for Cert. 309a (showing that the median LSAT score for all accepted applicants from 1995-1998 was 168); id., at 310a-311a (showing the median LSAT score for accepted applicants was 167 for the years 1999 and 2000); University of Michigan Law School Website, available at http://www. law.umich.edu/prospectivestudents/Admissions/index.htm (showing that the median LSAT score for accepted applicants in 2002 was 166).

    725

    15. The majority's non sequitur observation that since 1978 the number of blacks that have scored in these upper ranges on the LSAT has grown, ante, at 343, says nothing about current trends. First, black participation in the LSAT until the early 1990's lagged behind black representation in the general population. For instance, in 1984 only 7.3% of law school applicants were black, whereas in 2000 11.3% of law school applicants were black. See LSAC Statistical Reports (1984 and 2000). Today, however, unless blacks were to begin applying to law school in proportions greater than their representation in the general population, the growth in absolute numbers of high scoring blacks should be expected to plateau, and it has. In 1992, 63 black applicants to law school had LSAT scores above 165. In 2000, that number was 65. See LSAC Statistical Reports (1992 and 2000).

    727

    16. I use the LSAT as an example, but the same incentive structure is in place for any admissions criteria, including undergraduate grades, on which minorities are consistently admitted at thresholds significantly lower than whites.

    729

    ---------------

    731

            CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, dissenting.

    733

            I agree with the Court that, "in the limited circumstance when drawing racial distinctions is permissible," the government must ensure that its means are narrowly tailored to achieve a compelling state interest. Ante, at 333; see also Fullilove v. Klutznick, 448 U. S. 448, 498 (1980) (Powell, J., concurring) ("[E]ven if the government proffers a compelling interest to support reliance upon a suspect classification, the means selected must be narrowly drawn to fulfill the governmental

    735

    [539 U.S. 379]

    737

    purpose"). I do not believe, however, that the University of Michigan Law School's (Law School) means are narrowly tailored to the interest it asserts. The Law School claims it must take the steps it does to achieve a "`critical mass'" of underrepresented minority students. Brief for Respondent Bollinger et al. 13. But its actual program bears no relation to this asserted goal. Stripped of its "critical mass" veil, the Law School's program is revealed as a naked effort to achieve racial balancing.

    739

            As we have explained many times, "`"[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination."'" Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 223 (1995) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273 (1986) (plurality opinion of Powell, J.)). Our cases establish that, in order to withstand this demanding inquiry, respondents must demonstrate that their methods of using race "`fit'" a compelling state interest "with greater precision than any alternative means." Id., at 280, n. 6; Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 299 (1978) (opinion of Powell, J.) ("When [political judgments] touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest").

    741

            Before the Court's decision today, we consistently applied the same strict scrutiny analysis regardless of the government's purported reason for using race and regardless of the setting in which race was being used. We rejected calls to use more lenient review in the face of claims that race was being used in "good faith" because "`[m]ore than good motives should be required when government seeks to allocate its resources by way of an explicit racial classification system.'" Adarand, supra, at 226; Fullilove, supra, at 537 (STEVENS, J., dissenting) ("Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification"). We likewise rejected

    743

    [539 U.S. 380]

    745

    calls to apply more lenient review based on the particular setting in which race is being used. Indeed, even in the specific context of higher education, we emphasized that "constitutional limitations protecting individual rights may not be disregarded." Bakke, supra, at 314.

    747

            Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.

    749

            Respondents' asserted justification for the Law School's use of race in the admissions process is "obtaining `the educational benefits that flow from a diverse student body.'" Ante, at 328 (quoting Brief for Respondent Bollinger et al. i). They contend that a "critical mass" of underrepresented minorities is necessary to further that interest. Ante, at 330. Respondents and school administrators explain generally that "critical mass" means a sufficient number of underrepresented minority students to achieve several objectives: To ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. See App. to Pet. for Cert. 211a; Brief for Respondent Bollinger et al. 26. These objectives indicate that "critical mass" relates to the size of the student body. Id., at 5 (claiming that the Law School has enrolled "critical mass," or "enough minority students to provide meaningful integration of its classrooms and residence halls"). Respondents further claim that the Law School is achieving "critical mass." Id., at 4 (noting that the Law School's goals have been "greatly furthered by the presence of . . . a `critical mass' of" minority students in the student body).

    751

            In practice, the Law School's program bears little or no relation to its asserted goal of achieving "critical mass." Respondents explain that the Law School seeks to accumulate a "critical mass" of each underrepresented minority

    753

    [539 U.S. 381]

    755

    group. See, e. g., id., at 49, n. 79 ("The Law School's . . . current policy . . . provide[s] a special commitment to enrolling a `critical mass' of `Hispanics'"). But the record demonstrates that the Law School's admissions practices with respect to these groups differ dramatically and cannot be defended under any consistent use of the term "critical mass."

    757

            From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-American, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve "critical mass," thereby preventing African-American students from feeling "isolated or like spokespersons for their race," one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case,* how can this possibly constitute a "critical mass" of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School's explanation of "critical mass," one would have to believe that the objectives of "critical mass" offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving "critical mass," without any explanation of why that concept is applied differently among the three underrepresented minority groups.

    759

    [539 U.S. 382]

    761

            These different numbers, moreover, come only as a result of substantially different treatment among the three under-represented minority groups, as is apparent in an example offered by the Law School and highlighted by the Court: The school asserts that it "frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected." Ante, at 338 (citing Brief for Respondent Bollinger et al. 10). Specifically, the Law School states that "[s]ixty-nine minority applicants were rejected between 1995 and 2000 with at least a 3.5 [Grade Point Average (GPA)] and a [score of] 159 or higher on the [Law School Admission Test (LSAT)]" while a number of Caucasian and Asian-American applicants with similar or lower scores were admitted. Ibid.

    763

            Review of the record reveals only 67 such individuals. Of these 67 individuals, 56 were Hispanic, while only 6 were African-American, and only 5 were Native American. This discrepancy reflects a consistent practice. For example, in 2000, 12 Hispanics who scored between a 159-160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. App. 200-201. Meanwhile, 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted. Id., at 198. Likewise, that same year, 16 Hispanics who scored between a 151-153 on the LSAT and earned a 3.00 or higher applied for admission and only 1 of those applicants was admitted. Id., at 200-201. Twenty-three similarly qualified African-Americans applied for admission and 14 were admitted. Id., at 198.

    765

            These statistics have a significant bearing on petitioner's case. Respondents have never offered any race-specific arguments explaining why significantly more individuals from one underrepresented minority group are needed in order to achieve "critical mass" or further student body diversity. They certainly have not explained why Hispanics, who they

    767

    [539 U.S. 383]

    769

    have said are among "the groups most isolated by racial barriers in our country," should have their admission capped out in this manner. Brief for Respondent Bollinger et al. 50. True, petitioner is neither Hispanic nor Native American. But the Law School's disparate admissions practices with respect to these minority groups demonstrate that its alleged goal of "critical mass" is simply a sham. Petitioner may use these statistics to expose this sham, which is the basis for the Law School's admission of less qualified underrepresented minorities in preference to her. Surely strict scrutiny cannot permit these sorts of disparities without at least some explanation.

    771

            Only when the "critical mass" label is discarded does a likely explanation for these numbers emerge. The Court states that the Law School's goal of attaining a "critical mass" of underrepresented minority students is not an interest in merely "`assur[ing] within its student body some specified percentage of a particular group merely because of its race or ethnic origin.'" Ante, at 329 (quoting Bakke, 438 U. S., at 307 (opinion of Powell, J.)). The Court recognizes that such an interest "would amount to outright racial balancing, which is patently unconstitutional." Ante, at 330. The Court concludes, however, that the Law School's use of race in admissions, consistent with Justice Powell's opinion in Bakke, only pays "`[s]ome attention to numbers.'" Ante, at 336 (quoting Bakke, supra, at 323).

    773

            But the correlation between the percentage of the Law School's pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying "some attention to [the] numbers." As the tables below show, from 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school's applicant pool who were from the same groups.

    775

    [539 U.S. 384]

    777
          --------------------------------------------------------------------------------------------------------------
         |                                                   Table 1                                                    |
         |--------------------------------------------------------------------------------------------------------------|
         |                 |              |                |               |                |              |    % of    |
         |                 |              |                |     % of      |   Number of    |   Number of  |  admitted  |
         |                 |              |    Number of   |   applicants  |   applicants   |   African-   | applicants |
         |                 | Number of    |    African-    |    who were   |    admitted    |   American   |  who were  |
         |                 | law school   |    American    |    African-   |   by the law   |   applicants |  African-  |
         |         Year    | applicants   |    applicants  |    American   |    school      |   admitted   |  American  |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1995    |   4147       |       404      |     9.7%      |    1130        |     106      |   9.4%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1996    |   3677       |       342      |     9.3%      |    1170        |     108      |   9.2%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1997    |   3429       |       320      |     9.3%      |    1218        |     101      |   8.3%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1998    |   3537       |       304      |     8.6%      |    1310        |     103      |   7.9%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1999    |   3400       |       247      |     7.3%      |    1280        |      91      |   7.1%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         2000    |   3432       |       259      |     7.5%      |    1249        |      91      |   7.3%     |
         --------------------------------------------------------------------------------------------------------------
    
    
    
          --------------------------------------------------------------------------------------------------------------
         |                                                   Table 2                                                    |
         |--------------------------------------------------------------------------------------------------------------|
         |                 |              |                |               |    Number of   |              |   % of     |
         |                 |              |                |      % of     |   applicants   |   Number of  | admitted   |
         |                 | Number of    |     Number of  |   applicants  |    admitted    |   Hispanic   | applicants |
         |                 | law school   |     Hispanic   |    who were   |   by the law   |   applicants | who were   |
         |         Year    | applicants   |     applicants |    Hispanic   |    school      |   admitted   | Hispanic   |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1995    |    4147      |        213     |     5.1%      |    1130        |      56      |   5.0%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1996    |    3677      |        186     |     5.1%      |    1170        |      54      |   4.6%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1997    |    3429      |        163     |     4.8%      |    1218        |      47      |   3.9%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1998    |    3537      |        150     |     4.2%      |    1310        |      55      |   4.2%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1999    |    3400      |        152     |     4.5%      |    1280        |      48      |   3.8%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         2000    |    3432      |        168     |     4.9%      |    1249        |      53      |   4.2%     |
          --------------------------------------------------------------------------------------------------------------
    
    
    
          --------------------------------------------------------------------------------------------------------------
         |                                                   Table 3                                                    |
         |--------------------------------------------------------------------------------------------------------------|
         |                 |              |                |               |                |              |   % of     |
         |                 |              |                |     % of      |    Number of   |   Number of  | admitted   |
         |                 |              |     Number of  |   applicants  |   applicants   |    Native    | applicants |
         |                 | Number of    |      Native    |    who were   |    admitted    |   American   |  who were  |
         |                 | law school   |     American   |    Native     |   by the law   |   applicants |   Native   |
         |         Year    | applicants   |     applicants |    American   |     school     |    admitted  |  American  |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1995    |    4147      |        45      |     1.1%      |    1130        |      14      |   1.2%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1996    |    3677      |        31      |     0.8%      |    1170        |      13      |   1.1%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1997    |    3429      |        37      |     1.1%      |    1218        |      19      |   1.6%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1998    |    3537      |        40      |     1.1%      |    1310        |      18      |   1.4%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         1999    |    3400      |        25      |     0.7%      |    1280        |      13      |   1.0%     |
         |-----------------|--------------|----------------|---------------|----------------|--------------|------------|
         |         2000    |    3432      |        35      |     1.0%      |    1249        |      14      |   1.1%     |
          --------------------------------------------------------------------------------------------------------------
    
    779

    [539 U.S. 385]

    781

            For example, in 1995, when 9.7% of the applicant pool was African-American, 9.4% of the admitted class was African-American. By 2000, only 7.5% of the applicant pool was African-American, and 7.3% of the admitted class was African-American. This correlation is striking. Respondents themselves emphasize that the number of underrepresented minority students admitted to the Law School would be significantly smaller if the race of each applicant were not considered. See App. to Pet. for Cert. 223a; Brief for Respondent Bollinger et al. 6 (quoting App. to Pet. for Cert. 299a). But, as the examples above illustrate, the measure of the decrease would differ dramatically among the groups. The tight correlation between the percentage of applicants and admittees of a given race, therefore, must result from careful race based planning by the Law School. It suggests a formula for admission based on the aspirational assumption that all applicants are equally qualified academically, and therefore that the proportion of each group admitted should be the same as the proportion of that group in the applicant pool. See Brief for Respondent Bollinger et al. 43, n. 70 (discussing admissions officers' use of "periodic reports" to track "the racial composition of the developing class").

    783

            Not only do respondents fail to explain this phenomenon, they attempt to obscure it. See id., at 32, n. 50 ("The Law School's minority enrollment percentages . . . diverged from the percentages in the applicant pool by as much as 17.7% from 1995-2000"). But the divergence between the percentages of underrepresented minorities in the applicant pool and in the enrolled classes is not the only relevant comparison. In fact, it may not be the most relevant comparison. The Law School cannot precisely control which of its admitted applicants decide to attend the university. But it can and, as the numbers demonstrate, clearly does employ racial preferences in extending offers of admission. Indeed, the ostensibly flexible nature of the Law School's admissions program

    785

    [539 U.S. 386]

    787

    that the Court finds appealing, see ante, at 337-338, appears to be, in practice, a carefully managed program designed to ensure proportionate representation of applicants from selected minority groups.

    789

            I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a "critical mass," but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls "patently unconstitutional." Ante, at 330.

    791

            Finally, I believe that the Law School's program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School's use of race in admissions. We have emphasized that we will consider "the planned duration of the remedy" in determining whether a race-conscious program is constitutional. Fullilove, 448 U. S., at 510 (Powell, J., concurring); see also United States v. Paradise, 480 U. S. 149, 171 (1987) ("In determining whether race-conscious remedies are appropriate, we look to several factors, including the . . . duration of the relief"). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

    793

            The Court suggests a possible 25-year limitation on the Law School's current program. See ante, at 343. Respondents, on the other hand, remain more ambiguous, explaining that "[t]he Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School's resolve to cease considering race when genuine race-neutral alternatives become available." Brief for Respondent Bollinger et al. 32. These discussions of a time

    795

    [539 U.S. 387]

    797

    limit are the vaguest of assurances. In truth, they permit the Law School's use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny—that a program be limited in time—is casually subverted.

    799

            The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School's program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of "fit" between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.

    801

    ---------------

    803

    Notes:

    805

    * Indeed, during this 5-year time period, enrollment of Native American students dropped to as low as three such students. Any assertion that such a small group constituted a "critical mass" of Native Americans is simply absurd.

    807

    ---------------

    809

            JUSTICE KENNEDY, dissenting.

    811

            The separate opinion by Justice Powell in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 289-291, 315-318 (1978), is based on the principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary. This is a unitary formulation. If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way. The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.

    813

            Justice Powell's approval of the use of race in university admissions reflected a tradition, grounded in the First Amendment, of acknowledging a university's conception of its educational mission. Id., at 312-314; ante, at 329. Our precedents provide a basis for the Court's acceptance of a university's considered judgment that racial diversity among

    815

    [539 U.S. 388]

    817

    students can further its educational task, when supported by empirical evidence. Ante, at 329-331.

    819

            It is unfortunate, however, that the Court takes the first part of Justice Powell's rule but abandons the second. Having approved the use of race as a factor in the admissions process, the majority proceeds to nullify the essential safeguard Justice Powell insisted upon as the precondition of the approval. The safeguard was rigorous judicial review, with strict scrutiny as the controlling standard. Bakke, supra, at 291 ("Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination"). This Court has reaffirmed, subsequent to Bakke, the absolute necessity of strict scrutiny when the State uses race as an operative category. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995) ("[A]ny person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny"); Richmond v. J. A. Croson Co., 488 U. S. 469, 493-494 (1989); see id., at 519 (KENNEDY, J., concurring in part and concurring in judgment) ("[A]ny racial preference must face the most rigorous scrutiny by the courts"). The Court confuses deference to a university's definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued. Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality. The majority today refuses to be faithful to the settled principle of strict review designed to reflect these concerns.

    821

            The Court, in a review that is nothing short of perfunctory, accepts the University of Michigan Law School's (Law

    823

    [539 U.S. 389]

    825

    School) assurances that its admissions process meets with constitutional requirements. The majority fails to confront the reality of how the Law School's admissions policy is implemented. The dissenting opinion by THE CHIEF JUSTICE, which I join in full, demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas. An effort to achieve racial balance among the minorities the school seeks to attract is, by the Court's own admission, "patently unconstitutional." Ante, at 330; see also Bakke, supra, at 307 (opinion of Powell, J.). It remains to point out how critical mass becomes inconsistent with individual consideration in some more specific aspects of the admissions process.

    827

            About 80% to 85% of the places in the entering class are given to applicants in the upper range of Law School Admissions Test scores and grades. An applicant with these credentials likely will be admitted without consideration of race or ethnicity. With respect to the remaining 15% to 20% of the seats, race is likely outcome determinative for many members of minority groups. That is where the competition becomes tight and where any given applicant's chance of admission is far smaller if he or she lacks minority status. At this point the numerical concept of critical mass has the real potential to compromise individual review.

    829

            The Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass. In fact the evidence shows otherwise. There was little deviation among admitted minority students during the years from 1995 to 1998. The percentage of enrolled minorities fluctuated only by 0.3%, from 13.5% to 13.8%. The number of minority students to whom offers were extended varied by just a slightly greater magnitude of 2.2%, from the high of 15.6% in 1995 to the low of 13.4% in 1998.

    831

    [539 U.S. 390]

    833

            The District Court relied on this uncontested fact to draw an inference that the Law School's pursuit of critical mass mutated into the equivalent of a quota. 137 F. Supp. 2d 821, 851 (ED Mich. 2001). Admittedly, there were greater fluctuations among enrolled minorities in the preceding years, 1987-1994, by as much as 5% or 6%. The percentage of minority offers, however, at no point fell below 12%, historically defined by the Law School as the bottom of its critical mass range. The greater variance during the earlier years, in any event, does not dispel suspicion that the school engaged in racial balancing. The data would be consistent with an inference that the Law School modified its target only twice, in 1991 (from 13% to 19%), and then again in 1995 (back from 20% to 13%). The intervening year, 1993, when the percentage dropped to 14.5%, could be an aberration, caused by the school's miscalculation as to how many applicants with offers would accept or by its redefinition, made in April 1992, of which minority groups were entitled to race-based preference. See Brief for Respondent Bollinger et al. 49, n. 79.

    835
             ------------------------------------
            |                  |    Percentage   |
            |                  |    of enrolled  |
            |                  |     minority    |
            |     Year         |     students    |
            |------------------|-----------------|
            |     1987         |       12.3%     |
            |------------------|-----------------|
            |     1988         |       13.6%     |
            |------------------|-----------------|
            |     1989         |       14.4%     |
            |------------------|-----------------|
            |     1990         |       13.4%     |
            |------------------|-----------------|
            |     1991         |       19.1%     |
            |------------------|-----------------|
            |     1992         |       19.8%     |
            |------------------|-----------------|
            |     1993         |       14.5%     |
            |------------------|-----------------|
            |     1994         |       20.1%     |
            |------------------|-----------------|
            |     1995         |       13.5%     |
            |------------------|-----------------|
            |     1996         |       13.8%     |
            |------------------|-----------------|
            |     1997         |       13.6%     |
            |------------------|-----------------|
            |     1998         |       13.8%     |
             ------------------------------------
    
    837

            The narrow fluctuation band raises an inference that the Law School subverted individual determination, and strict

    839

    [539 U.S. 391]

    841

    scrutiny requires the Law School to overcome the inference. Whether the objective of critical mass "is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status," and so risks compromising individual assessment. Bakke, 438 U. S., at 289 (opinion of Powell, J.). In this respect the Law School program compares unfavorably with the experience of Little Ivy League colleges. Amicus Amherst College, for example, informs us that the offers it extended to students of African-American background during the period from 1993 to 2002 ranged between 81 and 125 out of 950 offers total, resulting in a fluctuation from 24 to 49 matriculated students in a class of about 425. See Brief for Amherst College et al. as Amici Curiae 10-11. The Law School insisted upon a much smaller fluctuation, both in the offers extended and in the students who eventually enrolled, despite having a comparable class size.

    843

            The Law School has the burden of proving, in conformance with the standard of strict scrutiny, that it did not utilize race in an unconstitutional way. Adarand Constructors, 515 U. S., at 224. At the very least, the constancy of admitted minority students and the close correlation between the racial breakdown of admitted minorities and the composition of the applicant pool, discussed by THE CHIEF JUSTICE, ante, at 380-386, require the Law School either to produce a convincing explanation or to show it has taken adequate steps to ensure individual assessment. The Law School does neither.

    845

            The obvious tension between the pursuit of critical mass and the requirement of individual review increased by the end of the admissions season. Most of the decisions where race may decide the outcome are made during this period. See supra, at 389. The admissions officers consulted the daily reports which indicated the composition of the incoming class along racial lines. As Dennis Shields, Director of Admissions from 1991 to 1996, stated, "the further [he] went into the [admissions] season the more frequently [he] would

    847

    [539 U.S. 392]

    849

    want to look at these [reports] and see the change from day-to-day." These reports would "track exactly where [the Law School] st[ood] at any given time in assembling the class," and so would tell the admissions personnel whether they were short of assembling a critical mass of minority students. Shields generated these reports because the Law School's admissions policy told him the racial makeup of the entering class was "something [he] need[ed] to be concerned about," and so he had "to find a way of tracking what's going on." Deposition of Dennis Shields in Civ. Action No. 97-75928, pp. 129-130, 141 (ED Mich., Dec. 7, 1998).

    851

            The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself. The admissions officers could use the reports to recalibrate the plus factor given to race depending on how close they were to achieving the Law School's goal of critical mass. The bonus factor of race would then become divorced from individual review; it would be premised instead on the numerical objective set by the Law School.

    853

            The Law School made no effort to guard against this danger. It provided no guidelines to its admissions personnel on how to reconcile individual assessment with the directive to admit a critical mass of minority students. The admissions program could have been structured to eliminate at least some of the risk that the promise of individual evaluation was not being kept. The daily consideration of racial breakdown of admitted students is not a feature of affirmative-action programs used by other institutions of higher learning. The Little Ivy League colleges, for instance, do not keep ongoing tallies of racial or ethnic composition of their entering students. See Brief for Amherst College et al. as Amici Curiae 10.

    855

            To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of

    857

    [539 U.S. 393]

    859

    considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny.

    861

            The Court's refusal to apply meaningful strict scrutiny will lead to serious consequences. By deferring to the law schools' choice of minority admissions programs, the courts will lose the talents and resources of the faculties and administrators in devising new and fairer ways to ensure individual consideration. Constant and rigorous judicial review forces the law school faculties to undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution. Dean Allan Stillwagon, who directed the Law School's Office of Admissions from 1979 to 1990, explained the difficulties he encountered in defining racial groups entitled to benefit under the Law School's affirmative action policy. He testified that faculty members were "breathtakingly cynical" in deciding who would qualify as a member of underrepresented minorities. An example he offered was faculty debate as to whether Cubans should be counted as Hispanics: One professor objected on the grounds that Cubans were Republicans. Many academics at other law schools who are "affirmative action's more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds." Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U. Pa. J. Const. L. 573, 577-578 (2000); Rubenfeld, Affirmative Action, 107 Yale L. J. 427, 471 (1997)). This is not to suggest the faculty at Michigan or other law schools do not pursue aspirations they consider laudable and consistent with our constitutional

    863

    [539 U.S. 394]

    865

    traditions. It is but further evidence of the necessity for scrutiny that is real, not feigned, where the corrosive category of race is a factor in decisionmaking. Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation.

    867

            It is difficult to assess the Court's pronouncement that race-conscious admissions programs will be unnecessary 25 years from now. Ante, at 341-343. If it is intended to mitigate the damage the Court does to the concept of strict scrutiny, neither petitioner nor other rejected law school applicants will find solace in knowing the basic protection put in place by Justice Powell will be suspended for a full quarter of a century. Deference is antithetical to strict scrutiny, not consistent with it.

    869

            As to the interpretation that the opinion contains its own self-destruct mechanism, the majority's abandonment of strict scrutiny undermines this objective. Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School's profession of its own good faith. The majority admits as much: "We take the Law School at its word that it would `like nothing better than to find a race-neutral admissions formula' and will terminate its race-conscious admissions program as soon as practicable." Ante, at 343 (quoting Brief for Respondent Bollinger et al. 34).

    871

            If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in

    873

    [539 U.S. 395]

    875

    bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.

    877

            It is regrettable the Court's important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.

  • 12 Gratz v. Bollinger

    1
    539 U.S. 244
    3
    GRATZ ET AL.
    v.
    BOLLINGER ET AL.
    5
    No. 02-516.
    7
    Supreme Court of United States.
    9
    Argued April 1, 2003.
    11
    Decided June 23, 2003.
    13

            Petitioners Gratz and Hamacher, both of whom are Michigan residents and Caucasian, applied for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) in 1995 and 1997, respectively. Although the LSA considered Gratz to be well qualified and Hamacher to be within the qualified range, both were denied early admission and were ultimately denied admission. In order to promote consistency in the review of the many applications received, the University's Office of Undergraduate Admissions (OUA) uses written guidelines for each academic year. The guidelines have changed a number of times during the period relevant to this litigation. The OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, leadership, and race. During all relevant periods, the University has considered African-Americans, Hispanics, and Native Americans to be "underrepresented minorities," and it is undisputed that the University admits virtually every qualified applicant from these groups. The current guidelines use a selection method under which every applicant from an underrepresented racial or ethnic minority group is automatically awarded 20 points of the 100 needed to guarantee admission.

    15

            Petitioners filed this class action alleging that the University's use of racial preferences in undergraduate admissions violated the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U. S. C. § 1981. They sought compensatory and punitive damages for past violations, declaratory relief finding that respondents violated their rights to nondiscriminatory treatment, an injunction prohibiting respondents from continuing to discriminate on the basis of race, and an order requiring the LSA to offer Hamacher admission as a transfer student. The District Court granted petitioners' motion to certify a class consisting of individuals who applied for and were denied admission to the LSA for academic year 1995 and forward and who are members of racial or ethnic groups that respondents treated less favorably on the basis of race. Hamacher, whose claim was found to challenge racial discrimination on a classwide basis, was designated as the class representative. On cross-motions for summary judgment, respondents relied on Justice Powell's principal opinion in Regents of

    17

    [539 U.S. 245]

    19

    Univ. of Cal. v. Bakke, 438 U. S. 265, 317, which expressed the view that the consideration of race as a factor in admissions might in some cases serve a compelling government interest. Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. The court agreed with respondents as to the LSA's current admissions guidelines and granted them summary judgment in that respect. However, the court also found that the LSA's admissions guidelines for 1995 through 1998 operated as the functional equivalent of a quota running afoul of Justice Powell's Bakke opinion, and thus granted petitioners summary judgment with respect to respondents' admissions programs for those years. While interlocutory appeals were pending in the Sixth Circuit, that court issued an opinion in Grutter v. Bollinger, post, p. 306, upholding the admissions program used by the University's Law School. This Court granted certiorari in both cases, even though the Sixth Circuit had not yet rendered judgment in this one.

    21

            Held:

    23

            1. Petitioners have standing to seek declaratory and injunctive relief. The Court rejects Justice Stevens' contention that, because Hamacher did not actually apply for admission as a transfer student, his future injury claim is at best conjectural or hypothetical rather than real and immediate. The "injury in fact" necessary to establish standing in this type of case is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666. In the face of such a barrier, to establish standing, a party need only demonstrate that it is able and ready to perform and that a discriminatory policy prevents it from doing so on an equal basis. Ibid. In bringing his equal protection challenge against the University's use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. Hamacher was denied admission to the University as a freshman applicant even though an underrepresented minority applicant with his qualifications would have been admitted. After being denied admission, Hamacher demonstrated that he was "able and ready" to apply as a transfer student should the University cease to use race in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University's continued use of race. Also rejected is Justice Stevens' contention that such use in undergraduate transfer admissions differs from the University's use of race in undergraduate freshman admissions, so that Hamacher lacks standing to represent absent class members challenging the latter. Each year the OUA produces a document setting forth

    25

    [539 U.S. 246]

    27

    guidelines for those seeking admission to the LSA, including freshman and transfer applicants. The transfer applicant guidelines specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to diversity are identical to those used to evaluate freshman applicants. The only difference is that all underrepresented minority freshman applicants receive 20 points and "virtually" all who are minimally qualified are admitted, while "generally" all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners' standing to challenge the University's use of race in undergraduate admissions and its assertion that diversity is a compelling state interest justifying its consideration of the race of its undergraduate applicants. See General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 159; Blum v. Yaretsky, 457 U. S. 991, distinguished. The District Court's carefully considered decision to certify this class action is correct. Cf. Coopers & Lybrand v. Livesay, 437 U. S. 463, 469. Hamacher's personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrates that he may maintain the action. Pp. 260-268.

    29

            2. Because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted interest in diversity, the policy violates the Equal Protection Clause. For the reasons set forth in Grutter v. Bollinger, post, at 327-333, the Court has today rejected petitioners' argument that diversity cannot constitute a compelling state interest. However, the Court finds that the University's current policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race, is not narrowly tailored to achieve educational diversity. In Bakke, Justice Powell explained his view that it would be permissible for a university to employ an admissions program in which "race or ethnic background may be deemed a `plus' in a particular applicant's file." 438 U. S., at 317. He emphasized, however, the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See id., at 315. The current LSA policy does not provide the individualized consideration Justice Powell contemplated. The only consideration that accompanies the 20-point automatic distribution to all applicants from underrepresented minorities is a factual review to determine whether an individual is a member

    31

    [539 U.S. 247]

    33

    of one of these minority groups. Moreover, unlike Justice Powell's example, where the race of a "particular black applicant" could be considered without being decisive, see id., at 317, the LSA's 20-point distribution has the effect of making "the factor of race... decisive" for virtually every minimally qualified underrepresented minority applicant, ibid. The fact that the LSA has created the possibility of an applicant's file being flagged for individualized consideration only emphasizes the flaws of the University's system as a whole when compared to that described by Justice Powell. The record does not reveal precisely how many applications are flagged, but it is undisputed that such consideration is the exception and not the rule in the LSA's program. Also, this individualized review is only provided after admissions counselors automatically distribute the University's version of a "plus" that makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant. The Court rejects respondents' contention that the volume of applications and the presentation of applicant information make it impractical for the LSA to use the admissions system upheld today in Grutter. The fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See, e. g., Richmond v. J. A. Croson Co., 488 U. S. 469, 508. Nothing in Justice Powell's Bakke opinion signaled that a university may employ whatever means it desires to achieve diversity without regard to the limits imposed by strict scrutiny. Pp. 268-275.

    35

            3. Because the University's use of race in its current freshman admissions policy violates the Equal Protection Clause, it also violates Title VI and § 1981. See, e. g., Alexander v. Sandoval, 532 U. S. 275, 281; General Building Contractors Assn. v. Pennsylvania, 458 U. S. 375, 389-390. Accordingly, the Court reverses that portion of the District Court's decision granting respondents summary judgment with respect to liability. Pp. 275-276.

    37

            Reversed in part and remanded.

    39

            REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a concurring opinion, in which BREYER, J., joined in part, post, p. 276. THOMAS, J., filed a concurring opinion, post, p. 281. BREYER, J., filed an opinion concurring in the judgment, post, p. 281. Stevens, J., filed a dissenting opinion, in which SOUTER, J., joined, post, p. 282. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined as to Part II, post, p. 291. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined, and in which BREYER, J., joined as to Part I, post, p. 298.

    41

    [539 U.S. 248]

    43

            CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

    45

            Kirk O. Kolbo argued the cause for petitioners. With him on the briefs were David F. Herr, R. Lawrence Purdy, Michael C. McCarthy, Michael E. Rosman, Hans Bader, and Kerry L. Morgan.

    47

            Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Boyd and Deputy Solicitor General Clement.

    49

            John Payton argued the cause for respondents. With him on the brief for respondent Bollinger et al. were John H. Pickering, Brigida Benitez, Craig Goldblatt, Terry A. Maroney, Maureen E. Mahoney, Marvin Krislov, Jonathan Alger, Jeffrey Lehman, Evan Caminker, Philip J. Kessler, and Leonard M. Niehoff. Theodore M. Shaw, Norman J. Chachkin, James L. Cott, Melissa S. Woods, Christopher A. Hansen, Brent E. Simmons, Michael J. Steinberg, Antonia Hernandez, Patricia Mendoza, Godfrey J. Dillard, and Milton R. Henry filed a brief for respondent Patterson et al.*

    51

    [539 U.S. 249]

    53

            CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

    55

            We granted certiorari in this case to decide whether "the University of Michigan's use of racial preferences in undergraduate

    57

    [539 U.S. 250]

    59

    admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U. S. C. § 2000d), or 42 U. S. C. § 1981." Brief

    61

    [539 U.S. 251]

    63

    for Petitioners i. Because we find that the manner in which the University considers the race of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Court's decision upholding the guidelines.

    65
    I
    67
    A
    69

            Petitioners Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) as residents of the State of Michigan. Both petitioners are Caucasian. Gratz, who applied for admission for the fall of 1995, was notified in January of that year that a final decision regarding her admission had been delayed until April. This delay was based upon the University's determination that, although Gratz was "`well qualified,'" she was "`less competitive than the students who ha[d] been admitted on first review.'" App. to Pet. for Cert. 109a. Gratz was notified in April that the LSA was unable to offer her admission. She enrolled in the University of Michigan at Dearborn, from which she graduated in the spring of 1999.

    71

            Hamacher applied for admission to the LSA for the fall of 1997. A final decision as to his application was also postponed because, though his "`academic credentials [were] in the qualified range, they [were] not at the level needed for first review admission.'" Ibid. Hamacher's application was subsequently denied in April 1997, and he enrolled at Michigan State University.1

    73

    [539 U.S. 252]

    75

            In October 1997, Gratz and Hamacher filed a lawsuit in the United States District Court for the Eastern District of Michigan against the University, the LSA,2 James Duderstadt, and Lee Bollinger.3 Petitioners' complaint was a class-action suit alleging "violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment . . ., and for racial discrimination in violation of 42 U. S. C. §§ 1981, 1983 and 2000d et seq." App. 33. Petitioners sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that respondents violated petitioners' "rights to nondiscriminatory treatment," an injunction prohibiting respondents from "continuing to discriminate on the basis of race in violation of the Fourteenth Amendment," and an order requiring the LSA to offer Hamacher admission as a transfer student.4 Id., at 40.

    77

            The District Court granted petitioners' motion for class certification after determining that a class action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2). The certified class consisted of "those individuals who applied for and were not granted admission to the College of

    79

    [539 U.S. 253]

    81

    Literature, Science & the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treat[ed] less favorably on the basis of race in considering their application for admission." App. 70-71. And Hamacher, whose claim the District Court found to challenge a "`practice of racial discrimination pervasively applied on a classwide basis,'" was designated as the class representative. Id., at 67, 70. The court also granted petitioners' motion to bifurcate the proceedings into a liability and damages phase. Id., at 71. The liability phase was to determine "whether [respondents'] use of race as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution." Id., at 70.5

    83
    B
    85

            The University has changed its admissions guidelines a number of times during the period relevant to this litigation, and we summarize the most significant of these changes briefly. The University's Office of Undergraduate Admissions (OUA) oversees the LSA admissions process.6 In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines for each academic year. Admissions counselors make admissions decisions in accordance with these guidelines.

    87

            OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and leadership. OUA also considers race. During all periods relevant to this litigation, the University

    89

    [539 U.S. 254]

    91

    has considered African-Americans, Hispanics, and Native Americans to be "underrepresented minorities," and it is undisputed that the University admits "virtually every qualified . . . applicant" from these groups. App. to Pet. for Cert. 111a.

    93

            During 1995 and 1996, OUA counselors evaluated applications according to grade point average combined with what were referred to as the "SCUGA" factors. These factors included the quality of an applicant's high school (S), the strength of an applicant's high school curriculum (C), an applicant's unusual circumstances (U), an applicant's geographical residence (G), and an applicant's alumni relationships (A). After these scores were combined to produce an applicant's "GPA 2" score, the reviewing admissions counselors referenced a set of "Guidelines" tables, which listed GPA 2 ranges on the vertical axis, and American College Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each table was divided into cells that included one or more courses of action to be taken, including admit, reject, delay for additional information, or postpone for reconsideration.

    95

            In both years, applicants with the same GPA 2 score and ACT/SAT score were subject to different admissions outcomes based upon their racial or ethnic status.7 For example, as a Caucasian in-state applicant, Gratz's GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratz's scores would have fallen within a cell calling for admission.

    97

    [539 U.S. 255]

    99

            In 1997, the University modified its admissions procedure. Specifically, the formula for calculating an applicant's GPA 2 score was restructured to include additional point values under the "U" category in the SCUGA factors. Under this new system, applicants could receive points for underrepresented minority status, socioeconomic disadvantage, or attendance at a high school with a predominantly underrepresented minority population, or underrepresentation in the unit to which the student was applying (for example, men who sought to pursue a career in nursing). Under the 1997 procedures, Hamacher's GPA 2 score and ACT score placed him in a cell on the in-state applicant table calling for postponement of a final admissions decision. An underrepresented minority applicant placed in the same cell would generally have been admitted.

    101

            Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a "selection index," on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows: 100-150 (admit); 95-99 (admit or postpone); 90-94 (postpone or admit); 75-89 (delay or postpone); 74 and below (delay or reject).

    103

            Each application received points based on high school grade point average, standardized test scores, academic quality of an applicant's high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. Of particular significance here, under a "miscellaneous" category, an applicant was entitled to 20 points based upon his or her membership in an underrepresented racial or ethnic minority group. The University explained that the "`development of the selection index for admissions in 1998 changed only the mechanics, not the substance, of how race and ethnicity [were] considered in admissions.'" App. to Pet. for Cert. 116a.

    105

    [539 U.S. 256]

    107

            In all application years from 1995 to 1998, the guidelines provided that qualified applicants from underrepresented minority groups be admitted as soon as possible in light of the University's belief that such applicants were more likely to enroll if promptly notified of their admission. Also from 1995 through 1998, the University carefully managed its rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of "protected seats." Specific groups—including athletes, foreign students, ROTC candidates, and underrepresented minorities—were "protected categories" eligible for these seats. A committee called the Enrollment Working Group (EWG) projected how many applicants from each of these protected categories the University was likely to receive after a given date and then paced admissions decisions to permit full consideration of expected applications from these groups. If this space was not filled by qualified candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates remaining in the applicant pool, including those on the waiting list.

    109

            During 1999 and 2000, the OUA used the selection index, under which every applicant from an underrepresented racial or ethnic minority group was awarded 20 points. Starting in 1999, however, the University established an Admissions Review Committee (ARC), to provide an additional level of consideration for some applications. Under the new system, counselors may, in their discretion, "flag" an application for the ARC to review after determining that the applicant (1) is academically prepared to succeed at the University,8 (2) has achieved a minimum selection index score, and (3) possesses a quality or characteristic important to the University's composition

    111

    [539 U.S. 257]

    113

    of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented race, ethnicity, or geography. After reviewing "flagged" applications, the ARC determines whether to admit, defer, or deny each applicant.

    115
    C
    117

            The parties filed cross-motions for summary judgment with respect to liability. Petitioners asserted that the LSA's use of race as a factor in admissions violates Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d, and the Equal Protection Clause of the Fourteenth Amendment. Respondents relied on Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), to respond to petitioners' arguments. As discussed in greater detail in the Court's opinion in Grutter v. Bollinger, post, at 323-325, Justice Powell, in Bakke, expressed the view that the consideration of race as a factor in admissions might in some cases serve a compelling government interest. See 438 U. S., at 317. Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. Respondent-intervenors asserted that the LSA had a compelling interest in remedying the University's past and current discrimination against minorities.9

    119

    [539 U.S. 258]

    121

            The District Court began its analysis by reviewing this Court's decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED Mich. 2000). Although the court acknowledged that no decision from this Court since Bakke has explicitly accepted the diversity rationale discussed by Justice Powell, see 122 F. Supp. 2d, at 820-821, it also concluded that this Court had not, in the years since Bakke, ruled out such a justification for the use of race, 122 F. Supp. 2d, at 820-821. The District Court concluded that respondents and their amici curiae had presented "solid evidence" that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See id., at 822-824.

    123

            The court next considered whether the LSA's admissions guidelines were narrowly tailored to achieve that interest. See id., at 824. Again relying on Justice Powell's opinion in Bakke, the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the University's interest in the educational benefits that flow from a racially and ethnically diverse student body. See 122 F. Supp. 2d, at 827. The court emphasized that the LSA's current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See ibid. The award of 20 points for membership in an underrepresented minority group, in the District Court's view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See id., at 828. Likewise, the court rejected the assertion that the LSA's program operates like the two-track system Justice Powell found objectionable in Bakke on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, at 828-829. The court also dismissed petitioners' assertion that the LSA's current system is nothing more than a means by which to achieve racial balancing. See id., at 831. The court explained that the LSA does not seek to

    125

    [539 U.S. 259]

    127

    achieve a certain proportion of minority students, let alone a proportion that represents the community. See ibid.

    129

            The District Court found the admissions guidelines the LSA used from 1995 through 1998 to be more problematic. In the court's view, the University's prior practice of "protecting" or "reserving" seats for underrepresented minority applicants effectively kept nonprotected applicants from competing for those slots. See id., at 832. This system, the court concluded, operated as the functional equivalent of a quota and ran afoul of Justice Powell's opinion in Bakke.10 See 122 F. Supp. 2d, at 832.

    131

            Based on these findings, the court granted petitioners' motion for summary judgment with respect to the LSA's admissions programs in existence from 1995 through 1998, and respondents' motion with respect to the LSA's admissions programs for 1999 and 2000. See id., at 833. Accordingly, the District Court denied petitioners' request for injunctive relief. See id., at 814.

    133

            The District Court issued an order consistent with its rulings and certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U. S. C. § 1292(b). Both parties appealed aspects of the District Court's rulings, and the Court of Appeals heard the case en banc on the same day as Grutter v. Bollinger. The Sixth Circuit later issued an opinion in Grutter, upholding the admissions program used by the University of Michigan Law School, and the petitioner in that case sought a writ of certiorari from this Court. Petitioners asked this Court to grant certiorari in this case as

    135

    [539 U.S. 260]

    137

    well, despite the fact that the Court of Appeals had not yet rendered a judgment, so that this Court could address the constitutionality of the consideration of race in university admissions in a wider range of circumstances. We did so. See 537 U. S. 1044 (2002).

    139
    II
    141

            As they have throughout the course of this litigation, petitioners contend that the University's consideration of race in its undergraduate admissions decisions violates § 1 of the Equal Protection Clause of the Fourteenth Amendment,11 Title VI,12 and 42 U. S. C. § 1981.13 We consider first whether petitioners have standing to seek declaratory and injunctive relief, and, finding that they do, we next consider the merits of their claims.

    143
    A
    145

            Although no party has raised the issue, Justice Stevens argues that petitioners lack Article III standing to seek injunctive relief with respect to the University's use of race in undergraduate admissions. He first contends that because Hamacher did not "actually appl[y] for admission as a transfer student[,] [h]is claim of future injury is at best `conjectural or hypothetical' rather than `real and immediate.'" Post, at 285 (dissenting opinion). But whether Hamacher "actually applied" for admission as a transfer student is not

    147

    [539 U.S. 261]

    149

    determinative of his ability to seek injunctive relief in this case. If Hamacher had submitted a transfer application and been rejected, he would still need to allege an intent to apply again in order to seek prospective relief. If Justice Stevens means that because Hamacher did not apply to transfer, he must never really have intended to do so, that conclusion directly conflicts with the finding of fact entered by the District Court that Hamacher "intends to transfer to the University of Michigan when defendants cease the use of race as an admissions preference." App. 67.14

    151

            It is well established that intent may be relevant to standing in an equal protection challenge. In Clements v. Fashing, 457 U. S. 957 (1982), for example, we considered a challenge to a provision of the Texas Constitution requiring the immediate resignation of certain state officeholders upon their announcement of candidacy for another office. We concluded that the plaintiff officeholders had Article III standing because they had alleged that they would have announced their candidacy for other offices were it not for the "automatic resignation" provision they were challenging. Id., at 962; accord, Turner v. Fouche, 396 U. S. 346, 361-362, n. 23 (1970) (plaintiff who did not own property had standing to challenge property ownership requirement for membership on school board even though there was no evidence that plaintiff had applied and been rejected); Quinn v. Millsap, 491 U. S. 95, 103, n. 8 (1989) (plaintiffs who did not own property had standing to challenge property ownership requirement for membership on government board even though they lacked standing to challenge the requirement "as applied"). Likewise, in Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656 (1993), we considered whether an association challenging an ordinance that gave preferential treatment to certain

    153

    [539 U.S. 262]

    155

    minority-owned businesses in the award of city contracts needed to show that one of its members would have received a contract absent the ordinance in order to establish standing. In finding that no such showing was necessary, we explained that "[t]he `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. . . . And in the context of a challenge to a set-aside program, the `injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of contract." Id., at 666. We concluded that in the face of such a barrier, "[t]o establish standing . . ., a party challenging a set-aside program like Jacksonville's need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis." Ibid.

    157

            In bringing his equal protection challenge against the University's use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Hamacher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been admitted. See App. to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated that he was "able and ready" to apply as a transfer student should the University cease to use race in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University's continued use of race in undergraduate admissions.

    159

            JUSTICE STEVENS raises a second argument as to standing. He contends that the University's use of race in undergraduate transfer admissions differs from its use of race in undergraduate freshman admissions, and that therefore Hamacher lacks standing to represent absent class members challenging the latter. Post, at 286-287 (dissenting opinion).

    161

    [539 U.S. 263]

    163

    As an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.15

    165

            From the time petitioners filed their original complaint through their brief on the merits in this Court, they have consistently challenged the University's use of race in undergraduate admissions and its asserted justification of promoting "diversity." See, e. g., App. 38; Brief for Petitioners 13. Consistent with this challenge, petitioners requested injunctive relief prohibiting respondents "from continuing to discriminate on the basis of race." App. 40. They sought to certify a class consisting of all individuals who were not members of an underrepresented minority group who either had applied for admission to the LSA and been rejected or who intended to apply for admission to the LSA, for all academic years from 1995 forward. Id., at 35-36. The District Court determined that the proposed class satisfied the requirements of the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality, and typicality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court further concluded that Hamacher was an adequate representative

    167

    [539 U.S. 264]

    169

    for the class in the pursuit of compensatory and injunctive relief for purposes of Rule 23(a)(4), see id., at 61-69, and found "the record utterly devoid of the presence of . . . antagonism between the interests of . . . Hamacher, and the members of the class which [he] seek[s] to represent," id., at 61. Finally, the District Court concluded that petitioners' claim was appropriate for class treatment because the University's "`practice of racial discrimination pervasively applied on a classwide basis.'" Id., at 67. The court certified the class pursuant to Federal Rule of Civil Procedure 23(b)(2), and designated Hamacher as the class representative. App. 70.

    171

            JUSTICE STEVENS cites Blum v. Yaretsky, 457 U. S. 991 (1982), in arguing that the District Court erred. Post, at 289. In Blum, we considered a class-action suit brought by Medicaid beneficiaries. The named representatives in Blum challenged decisions by the State's Medicaid Utilization Review Committee (URC) to transfer them to lower levels of care without, in their view, sufficient procedural safeguards. After a class was certified, the plaintiffs obtained an order expanding class certification to include challenges to URC decisions to transfer patients to higher levels of care as well. The defendants argued that the named representatives could not represent absent class members challenging transfers to higher levels of care because they had not been threatened with such transfers. We agreed. We noted that "[n]othing in the record . . . suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers." 457 U. S., at 1001. And we found that transfers to lower levels of care involved a number of fundamentally different concerns than did transfers to higher ones. Id., at 1001-1002 (noting, for example, that transfers to lower levels of care implicated beneficiaries' property interests given the concomitant decrease in Medicaid benefits, while transfers to higher levels of care did not).

    173

    [539 U.S. 265]

    175

            In the present case, the University's use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions. Respondents challenged Hamacher's standing at the certification stage, but never did so on the grounds that the University's use of race in undergraduate transfer admissions involves a different set of concerns than does its use of race in freshman admissions. Respondents' failure to allege any such difference is simply consistent with the fact that no such difference exists. Each year the OUA produces a document entitled "COLLEGE OF LITERATURE, SCIENCE AND THE ARTS GUIDELINES FOR ALL TERMS," which sets forth guidelines for all individuals seeking admission to the LSA, including freshman applicants, transfer applicants, international student applicants, and the like. See, e. g., 2 App. in No. 01-1333 etc. (CA6), pp. 507-542. The guidelines used to evaluate transfer applicants specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to the University's stated goal of diversity are identical to that used to evaluate freshman applicants. For example, in 1997, when the class was certified and the District Court found that Hamacher had standing to represent the class, the transfer guidelines contained a separate section entitled "CONTRIBUTION TO A DIVERSE STUDENT BODY." 2 id., at 531. This section explained that any transfer applicant who could "contribut[e] to a diverse student body" should "generally be admitted" even with substantially lower qualifications than those required of other transfer applicants. Ibid. (emphasis added). To determine whether a transfer applicant was capable of "contribut[ing] to a diverse student body," admissions counselors were instructed to determine whether that transfer applicant met the "criteria as defined in Section IV of the `U' category of [the] SCUGA" factors used to assess

    177

    [539 U.S. 266]

    179

    freshman applicants. Ibid. Section IV of the "U" category, entitled "Contribution to a Diverse Class," explained that "[t]he University is committed to a rich educational experience for its students. A diverse, as opposed to a homogenous, student population enhances the educational experience for all students. To insure a diverse class, significant weight will be given in the admissions process to indicators of students contribution to a diverse class." 1 id., at 432. These indicators, used in evaluating freshman and transfer applicants alike, list being a member of an underrepresented minority group as establishing an applicant's contribution to diversity. See 3 id., at 1133-1134, 1153-1154. Indeed, the only difference between the University's use of race in considering freshman and transfer applicants is that all underrepresented minority freshman applicants receive 20 points and "virtually" all who are minimally qualified are admitted, while "generally" all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners' standing to challenge the University's use of race in undergraduate admissions and its assertion that diversity is a compelling state interest that justifies its consideration of the race of its undergraduate applicants.16

    181

    [539 U.S. 267]

    183

            Particularly instructive here is our statement in General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), that "[i]f [defendant-employer] used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the . . . requirements of Rule 23(a)." Id., at 159, n. 15 (emphasis added). Here, the District Court found that the sole rationale the University had provided for any of its race-based preferences in undergraduate admissions was the interest in "the educational benefits that result from having a diverse student body." App. to Pet. for Cert. 8a. And petitioners argue that an interest in "diversity" is not a compelling state interest that is ever capable of justifying the use of race in undergraduate admissions. See, e. g., Brief for Petitioners 11-13. In sum, the same set of concerns is implicated by the University's use of race in evaluating all undergraduate admissions applications under the guidelines.17 We therefore agree with the District Court's

    185

    [539 U.S. 268]

    187

    carefully considered decision to certify this class-action challenge to the University's consideration of race in undergraduate admissions. See App. 67 ("`It is a singular policy... applied on a classwide basis'"); cf. Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978) ("[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action" (internal quotation marks omitted)). Indeed, class-action treatment was particularly important in this case because "the claims of the individual students run the risk of becoming moot" and the "[t]he class action vehicle . . . provides a mechanism for ensuring that a justiciable claim is before the Court." App. 69. Thus, we think it clear that Hamacher's personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrates that he may maintain this class-action challenge to the University's use of race in undergraduate admissions.

    189
    B
    191

            Petitioners argue, first and foremost, that the University's use of race in undergraduate admissions violates the Fourteenth Amendment. Specifically, they contend that this Court has only sanctioned the use of racial classifications to remedy identified discrimination, a justification on which respondents have never relied. Brief for Petitioners 15-16. Petitioners further argue that "diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute a compelling interest capable of supporting narrowly-tailored means." Id., at 17-18, 40-41. But for the reasons set forth today in Grutter v. Bollinger, post, at 327-333, the Court has rejected these arguments of petitioners.

    193

    [539 U.S. 269]

    195

            Petitioners alternatively argue that even if the University's interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the University's use of race in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not "remotely resemble the kind of consideration of race and ethnicity that Justice Powell endorsed in Bakke." Brief for Petitioners 18. Respondents reply that the University's current admissions program is narrowly tailored and avoids the problems of the Medical School of the University of California at Davis program (U. C. Davis) rejected by Justice Powell.18 They claim that their program "hews closely" to both the admissions program described by Justice Powell as well as the Harvard College admissions program that he endorsed. Brief for Respondent Bollinger et al. 32. Specifically, respondents contend that the LSA's policy provides the individualized consideration that "Justice Powell considered a hallmark of a constitutionally appropriate admissions program." Id., at 35. For the reasons set out below, we do not agree.

    197

    [539 U.S. 270]

    199

            It is by now well established that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995). This "`standard of review. .. is not dependent on the race of those burdened or benefited by a particular classification.' " Ibid. (quoting Richmond v. J. A. Croson Co., 488 U. S. 469, 494 (1989) (plurality opinion)). Thus, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny." Adarand, 515 U. S., at 224.

    201

            To withstand our strict scrutiny analysis, respondents must demonstrate that the University's use of race in its current admissions program employs "narrowly tailored measures that further compelling governmental interests." Id., at 227. Because "[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification," Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting), our review of whether such requirements have been met must entail "`a most searching examination.' " Adarand, supra, at 223 (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273 (1986) (plurality opinion of Powell, J.)). We find that the University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.

    203

            In Bakke, Justice Powell reiterated that "[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake." 438 U. S., at 307. He then explained, however, that in his view it would be permissible for a university to employ an admissions program in which "race or ethnic background may be

    205

    [539 U.S. 271]

    207

    deemed a `plus' in a particular applicant's file." Id., at 317. He explained that such a program might allow for "[t]he file of a particular black applicant [to] be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism." Ibid. Such a system, in Justice Powell's view, would be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant." Ibid.

    209

            Justice Powell's opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See id., at 315. See also Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 618 (1990) (O'Connor, J., dissenting) (concluding that the Federal Communications Commission's policy, which "embodie[d] the related notions . . . that a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants because [the applicant is] `likely to provide [a] distinct perspective,'" "impermissibly value[d] individuals" based on a presumption that "persons think in a manner associated with their race"). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant's entire application.

    211

            The current LSA policy does not provide such individualized consideration. The LSA's policy automatically distributes 20 points to every single applicant from an "underrepresented minority" group, as defined by the University. The only consideration that accompanies this distribution of

    213

    [539 U.S. 272]

    215

    points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the race of a "particular black applicant" could be considered without being decisive, see Bakke, 438 U. S., at 317, the LSA's automatic distribution of 20 points has the effect of making "the factor of race.. . decisive" for virtually every minimally qualified underrepresented minority applicant. Ibid.19

    217

            Also instructive in our consideration of the LSA's system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in Bakke. The example was included to "illustrate the kind of significance attached to race" under the Harvard College program. Id., at 324. It provided as follows:

    219

            "The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently-abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent

    221

    [539 U.S. 273]

    223

    upon race but sometimes associated with it." Ibid. (emphasis added).

    225

            This example further demonstrates the problematic nature of the LSA's admissions system. Even if student C's "extraordinary artistic talent" rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSA's system. See App. 234-235. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA's system does not offer applicants the individualized selection process described in Harvard's example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his "extraordinary talent."20

    227

            Respondents emphasize the fact that the LSA has created the possibility of an applicant's file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the University's system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted. Student A, an applicant "with promise of superior academic performance," would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the University

    229

    [539 U.S. 274]

    231

    would never consider student A's individual background, experiences, and characteristics to assess his individual "potential contribution to diversity," Bakke, supra, at 317. Instead, every applicant like student A would simply be admitted.

    233

            It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the "review committee can look at the applications individually and ignore the points," once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA's admissions program. See App. to Pet. for Cert. 117a ("The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG").21 Additionally, this individualized review is only provided after admissions counselors automatically distribute the University's version of a "plus" that makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant.

    235

    [539 U.S. 275]

    237

            Respondents contend that "[t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use the . . . admissions system" upheld by the Court today in Grutter. Brief for Respondent Bollinger et al. 6, n. 8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J. A. Croson Co., 488 U. S., at 508 (citing Frontiero v. Richardson, 411 U. S. 677, 690 (1973) (plurality opinion of Brennan, J.) (rejecting "`administrative convenience' " as a determinant of constitutionality in the face of a suspect classification)). Nothing in Justice Powell's opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.

    239

            We conclude, therefore, that because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.22 We further find that the admissions policy also violates Title VI and

    241

    [539 U.S. 276]

    243

    42 U. S. C. § 1981.23 Accordingly, we reverse that portion of the District Court's decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion.

    245

            It is so ordered.

    247

    ---------------

    249

    Notes:

    251

    * Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Charlie Crist, Attorney General of Florida, Christopher M. Kise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, and Daniel Woodring; for the Cato Institute by Robert A. Levy, Timothy Lynch, James L. Swanson, and Samuel Estreicher; for the Center for Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the Center for Individual Freedom by Renee L. Giachino; for the Center for New Black Leadership by Clint Bolick, William H. Mellor, and Richard D. Komer; for the Center for the Advancement of Capitalism by David Reed Burton; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Michigan Association of Scholars by William F. Mohrman; for the National Association of Scholars by William H. Allen, Oscar M. Garibaldi, and Keith A. Noreika; for the Pacific Legal Foundation by John H. Findley; and for the Reason Foundation by Martin S. Kaufman.

    253

            Briefs of amici curiae urging affirmance were filed for Members of the United States Congress by Leslie T. Thornton and Steven M. Schneebaum; for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Andrew H. Baida, Solicitor General, Mark J. Davis and William F. Brockman, Assistant Attorneys General, Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pandya, Assistant Solicitors General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and Peggy A. Lautenschlager of Wisconsin; for the State of New Jersey by David Samson, Attorney General, Jeffrey Burstein, Assistant Attorney General, and Donna Arons and Anne Marie Kelly, Deputy Attorneys General; for New York City Council Speaker A. Gifford Miller et al. by Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia, Pennsylvania, et al. by Victor A. Bolden and Nelson A. Diaz; for the American Educational Research Association et al. by Angelo N. Ancheta; for the American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jancik, Jeffrey P. Sinensky, Kara H. Stein, and Richard T. Foltin; for the American Psychological Association by Paul R. Friedman, William F. Sheehan, and Nathalie F. P. Gilfoyle; for Amherst College et al. by Charles S. Sims; for the Authors of the Texas Ten Percent Plan by Rolando L. Rios; for the Bay Mills Indian Community et al. by Vanya S. Hogen; for the College Board by Janet Pitterle Holt; for Columbia University et al. by Floyd Abrams, Susan Buckley, and James J. Mingle; for Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey, Beverly Ledbetter, Robert B. Donin, and Wendy S. White; for Howard University by Janell M. Byrd; for the Lawyers' Committee for Civil Rights Under Law et al. by John S. Skilton, Barbara R. Arnwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D. Greenberger, Judith L. Lichtman, and Jocelyn C. Frye; for the Leadership Conference on Civil Rights et al. by Robert N. Weiner and William L. Taylor; for the National Coalition of Blacks for Reparations in America et al. by Kevin Outterson; for the National Education Association et al. by Robert H. Chanin, John M. West, Elliot Mincberg, Larry P. Weinberg, and John C. Dempsey; for the National Urban League et al. by William A. Norris and Michael C. Small; for the New America Alliance by Thomas R. Julin and D. Patricia Wallace; for Northeastern University by Daryl J. Lapp and Lisa A. Sinclair; for the NOW Legal Defense and Education Fund et al. by Wendy R. Weiser and Martha F. Davis; for the United Negro College Fund et al. by Drew S. Days III and Beth S. Brinkmann; for the University of Pittsburgh et al. by David C. Frederick and Sean A. Lev; for Lieutenant General Julius W. Becton, Jr., et al. by Virginia A. Seitz, Joseph R. Reeder, Robert P. Charrow, and Kevin E. Stern; for Senator Thomas A. Daschle et al. by David T. Goldberg and Penny Shane; for the Hayden Family by Roy C. Howell; and for Glenn C. Loury et al. by Jeffrey F. Liss and James J. Halpert.

    255

            Briefs of amici curiae were filed for Michigan Governor Jennifer M. Granholm by John D. Pirich and Mark A. Goldsmith; for the American Federation of Labor and Congress of Industrial Organizations by Harold Craig Becker, David J. Strom, Jonathan P. Hiatt, and Daniel W. Sherrick; for the Asian American Legal Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for the Anti-Defamation League by Martin E. Karlinsky and Steven M. Freeman; for Banks Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers Association of Greater Chicago, Inc., by Sharon E. Jones; for Carnegie Mellon University et al. by W. Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan, and Edward N. Stoner II; for the Equal Employment Advisory Council by Jeffrey A. Norris and Ann Elizabeth Reesman; for Exxon Mobil Corp. by Richard R. Brann; for General Motors Corp. by Kenneth S. Geller, Eileen Penner, and Thomas A. Gottschalk; for Human Rights Advocates et al. by Constance de la Vega; for the Massachusetts Institute of Technology et al. by Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and Stacey J. Mobley; for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman, Jonathan M. Cohen, Karen K. Narasaki, Vincent A. Eng, and Trang Q. Tran; for the National Council of La Raza et al. by Vilma S. Martinez and Jeffrey L. Bleich; for the National School Boards Association et al. by Julie Underwood and Naomi Gittins; for 3M et al. by David W. DeBruin, Deanne E. Maynard, Daniel Mach, Russell W. Porter, Jr., Charles R. Wall, Martin J. Barrington, Deval L. Patrick, John R. Parker, Jr., William J. O'Brien, Gary P. Van Graafeiland, Kathryn A. Oberly, Randall E. Mehrberg, Donald M. Remy, Ben W. Heineman, Jr., Brackett B. Denniston III, Elpidio Villarreal, Wayne A. Budd, J. Richard Smith, Stewart S. Hudnut, John A. Shutkin, Theodore L. Banks, Kenneth C. Frazier, David R. Andrews, Jeffrey B. Kindler, Teresa M. Holland, Charles W. Gerdts III, John L. Sander, Mark P. Klein, and Stephen P. Sawyer; for Representative John Conyers, Jr., et al. by Paul J. Lawrence and Anthony R. Miles; for Duane C. Ellison, by Mr. Ellison, pro se, and Carl V. Angelis; and for Representative Richard A. Gephardt et al. by Andrew L. Sandler and Mary L. Smith.

    257

    1. Although Hamacher indicated that he "intend[ed] to apply to transfer ifthe [LSA's] discriminatory admissions system [is] eliminated," he has since graduated from Michigan State University. App. 34.

    259

    2. The University of Michigan Board of Regents was subsequently named as the proper defendant in place of the University and the LSA. See id., at 17.

    261

    3. Duderstadt was the president of the University during the time that Gratz's application was under consideration. He has been sued in his individual capacity. Bollinger was the president of the University when Hamacher applied for admission. He was originally sued in both his individual and official capacities, but he is no longer the president of the University. Id., at 35.

    263

    4. A group of African-American and Latino students who applied for, or intended to apply for, admission to the University, as well as the Citizens for Affirmative Action's Preservation, a nonprofit organization in Michigan, sought to intervene pursuant to Federal Rule of Civil Procedure 24. See App. 13-14. The District Court originally denied this request, see id., at 14-15, but the Sixth Circuit reversed that decision. See Gratz v. Bollinger, 188 F. 3d 394 (1999).

    265

    5. The District Court decided also to consider petitioners' request for injunctive and declaratory relief during the liability phase of the proceedings. App. 71.

    267

    6. Our description is taken, in large part, from the "Joint Proposed Summary of Undisputed Facts Regarding Admissions Process" filed by the parties in the District Court. App. to Pet. for Cert. 108a-117a.

    269

    7. In 1995, counselors used four such tables for different groups of applicants: (1) in-state, nonminority applicants; (2) out-of-state, nonminority applicants; (3) in-state, minority applicants; and (4) out-of-state, minority applicants. In 1996, only two tables were used, one for in-state applicants and one for out-of-state applicants. But each cell on these two tables contained separate courses of action for minority applicants and nonminority applicants whose GPA 2 scores and ACT/SAT scores placed them in that cell.

    271

    8. LSA applicants who are Michigan residents must accumulate 80 points from the selection index criteria to be flagged, while out-of-state applicants need to accumulate 75 points to be eligible for such consideration. See App. 257.

    273

    9. The District Court considered and rejected respondent-intervenors' arguments in a supplemental opinion and order. See 135 F. Supp. 2d 790 (ED Mich. 2001). The court explained that respondent-intervenors "failed to present any evidence that the discrimination alleged by them, or the continuing effects of such discrimination, was the real justification for the LSA's race-conscious admissions programs." Id., at 795. We agree, and to the extent respondent-intervenors reassert this justification, a justification the University has never asserted throughout the course of this litigation, we affirm the District Court's disposition of the issue.

    275

    10. The District Court determined that respondents Bollinger and Duderstadt, who were sued in their individual capacities under Rev. Stat. § 1979, 42 U. S. C. § 1983, were entitled to summary judgment based on the doctrine of qualified immunity. See 122 F. Supp. 2d, at 833-834. Petitioners have not asked this Court to review this aspect of the District Court's decision. The District Court denied the Board of Regents' motion for summary judgment with respect to petitioners' Title VI claim on Eleventh Amendment immunity grounds. See id., at 834-836. Respondents have not asked this Court to review this aspect of the District Court's decision.

    277

    11. The Equal Protection Clause of the Fourteenth Amendment explains that "[n]o State shall. .. deny to any person within its jurisdiction the equal protection of the laws."

    279

    12. Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U. S. C. § 2000d.

    281

    13. Section 1981(a) provides:

    283

            "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens."

    285

    14. This finding is further corroborated by Hamacher's request that the District Court "[r]equir[e] the LSA College to offer [him] admission as a transfer student." App. 40.

    287

    15. Although we do not resolve here whether such an inquiry in this case is appropriately addressed under the rubric of standing or adequacy, we note that there is tension in our prior cases in this regard. See, e. g., Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22 U. C. D. L. Rev. 1239, 1240-1241 (1989); General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 149 (1982) (Mexican-American plaintiff alleging that he was passed over for a promotion because of race was not an adequate representative to "maintain a class action on behalf of Mexican-American applicants" who were not hired by the same employer); Blum v. Yaretsky, 457 U. S. 991 (1982) (class representatives who had been transferred to lower levels of medical care lacked standing to challenge transfers to higher levels of care).

    289

    16. Because the University's guidelines concededly use race in evaluating both freshman and transfer applications, and because petitioners have challenged any use of race by the University in undergraduate admissions, the transfer admissions policy is very much before this Court. Although petitioners did not raise a narrow tailoring challenge to the transfer policy, as counsel for petitioners repeatedly explained, the transfer policy is before this Court in that petitioners challenged any use of race by the University to promote diversity, including through the transfer policy. See Tr. of Oral Arg. 4 ("[T]he [transfer]policy isessentially the same with respect to the consideration of race"); id., at 5 ("The transfer policy considers race"); id., at 6 (same); id., at 7 ("[T]he transfer policy and the [freshman] admissions policy are fundamentally the same in the respect that they both consider race in the admissions process in a way that is discriminatory"); id., at 7-8 ("[T]he University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor").

    291

    17. Indeed, as the litigation history of this case demonstrates, "the class-action device save[d] the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion." Califano v. Yamasaki, 442 U. S. 682, 701 (1979). This case was therefore quite unlike General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), in which we found that the named representative, who had been passed over for a promotion, was not an adequate representative for absent class members who were never hired in the first instance. As we explained, the plaintiff's "evidentiary approaches to the individual and class claims were entirely different. He attempted to sustain his individual claim by proving intentional discrimination. He tried to prove the class claims through statistical evidence of disparate impact. . . . It is clear that the maintenance of respondent's action as a class action did not advance `the efficiency and economy of litigation which is a principal purpose of the procedure.' " Id., at 159 (quoting American Pipe & Constr. Co. v. Utah, 414 U. S. 538, 553 (1974)).

    293

    18. U.C. Davis set aside 16 of the 100 seatsavailable in its first year medical school program for "economically and/or educationally disadvantaged" applicants who were also members of designated "minority groups" as defined by the university. "To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, ratherthan the 100 open to minority applicants." Regents of Univ.ofCal. v. Bakke, 438 U. S. 265, 274, 289 (1978) (principal opinion). Justice Powell found that the program employed an impermissible two-track system that "disregard[ed] .. . individual rights as guaranteed by the Fourteenth Amendment." Id., at 320. He reached this conclusion even though the university argued that "the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups" was "the only effective means of serving the interest of diversity." Id., at 315. Justice Powell concluded that such arguments misunderstood the very nature of the diversity he found to be compelling. See ibid.

    295

    19. Justice Souter recognizes that the LSA's use of race is decisive in practice, but he attempts to avoid that fact through unsupported speculation about the self-selection of minorities in the applicant pool. See post, at 296 (dissenting opinion).

    297

    20. Justice Souter is therefore wrong when he contends that "applicants to the undergraduate college are [not] denied individualized consideration." Post, at 295. As Justice O'Connor explains in her concurrence, the LSA's program "ensures that the diversity contributions of applicants cannot be individually assessed." Post, at 279.

    299

    21. Justice Souter is mistaken in his assertion that the Court "take[s] it upon itself to apply a newly-formulated legal standard to an undeveloped record." Post, at 297, n. 3. He ignores the fact that respondents have told us all that is necessary to decide this case. As explained above, respondents concede that only a portion of the applications are reviewed by the ARC and that the "bulk of admissions decisions" are based on the point system. It should be readily apparent that the availability of this review, which comes after the automatic distribution of points, is far more limited than the individualized review given to the "large middle group of applicants" discussed by Justice Powell and described by the Harvard plan in Bakke. 438 U. S., at 316 (internal quotation marks omitted).

    301

    22. Justice Ginsburg in her dissent observes that "[o]ne can reasonably anticipate . . . that colleges and universities will seek tomaintain their minority enrollment. . . whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue." Post, at 304. She goes on to say that "[i]f honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises." Post, at 305. These observations are remarkable for two reasons. First, they suggest that universities—to whose academic judgment we are told in Grutter v. Bollinger, post, at 328, we should defer— will pursue their affirmative-action programs whether or not they violate the United States Constitution. Second, they recommend that these violations should be dealt with, not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities.

    303

    23. We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v. Sandoval, 532 U. S. 275, 281 (2001); United States v. Fordice, 505 U. S. 717, 732, n. 7 (1992); Alexander v. Choate, 469 U. S. 287, 293 (1985). Likewise, with respect to § 1981, we have explained that the provision was "meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race." McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 295-296 (1976). Furthermore, we have explained that a contract for educational services is a "contract" for purposes of § 1981. See Runyon v. McCrary, 427 U. S. 160, 172 (1976). Finally, purposeful discrimination that violates the Equal Protection Clause of the Fourteenth Amendment will also violate § 1981. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389-390 (1982).

    305

    ---------------

    307

            JUSTICE O'CONNOR, concurring.*

    309
    I
    311

            Unlike the law school admissions policy the Court upholds today in Grutter v. Bollinger, post, p. 306, the procedures employed by the University of Michigan's (University) Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants. Cf. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978) (principal opinion of Powell, J.). The law school considers the various diversity qualifications of each applicant, including race, on a case-by-case basis. See Grutter v. Bollinger, post, at 337-339. By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or

    313

    [539 U.S. 277]

    315

    qualities of each individual applicant. Cf. ante, at 271-272, 273. And this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant. The selection index thus precludes admissions counselors from conducting the type of individualized consideration the Court's opinion in Grutter, post, at 334, requires: consideration of each applicant's individualized qualifications, including the contribution each individual's race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups. Cf. ante, at 272-273 (citing Bakke, supra, at 324).

    317

            On cross-motions for summary judgment, the District Court held that the admissions policy the University instituted in 1999 and continues to use today passed constitutional muster. See 122 F. Supp. 2d 811, 827 (ED Mich. 2000). In their proposed summary of undisputed facts, the parties jointly stipulated to the admission policy's mechanics. App. to Pet. for Cert. 116a-118a. When the University receives an application for admission to its incoming class, an admissions counselor turns to a Selection Index Worksheet to calculate the applicant's selection index score out of 150 maximum possible points—a procedure the University began using in 1998. App. 256. Applicants with a score of over 100 are automatically admitted; applicants with scores of 95 to 99 are categorized as "admit or postpone"; applicants with 90-94 points are postponed or admitted; applicants with 75-89 points are delayed or postponed; and applicants with 74 points or fewer are delayed or rejected. The Office of Undergraduate Admissions extends offers of admission on a rolling basis and acts upon the applications it has received through periodic "[m]ass [a]ction[s]." Ibid.

    319

            In calculating an applicant's selection index score, counselors assign numerical values to a broad range of academic factors, as well as to other variables the University considers important to assembling a diverse student body, including race. Up to 110 points can be assigned for academic performance,

    321

    [539 U.S. 278]

    323

    and up to 40 points can be assigned for the other, nonacademic factors. Michigan residents, for example, receive 10 points, and children of alumni receive 4. Counselors may assign an outstanding essay up to 3 points and may award up to 5 points for an applicant's personal achievement, leadership, or public service. Most importantly for this case, an applicant automatically receives a 20 point bonus if he or she possesses any one of the following "miscellaneous" factors: membership in an underrepresented minority group; attendance at a predominantly minority or disadvantaged high school; or recruitment for athletics.

    325

            In 1999, the University added another layer of review to its admissions process. After an admissions counselor has tabulated an applicant's selection index score, he or she may "flag" an application for further consideration by an Admissions Review Committee, which is composed of members of the Office of Undergraduate Admissions and the Office of the Provost. App. to Pet. for Cert. 117a. The review committee meets periodically to discuss the files of "flagged" applicants not already admitted based on the selection index parameters. App. 275. After discussing each flagged application, the committee decides whether to admit, defer, or deny the applicant. Ibid.

    327

            Counselors may flag an applicant for review by the committee if he or she is academically prepared, has a selection index score of at least 75 (for non-Michigan residents) or 80 (for Michigan residents), and possesses one of several qualities valued by the University. These qualities include "high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and under-represented race, ethnicity, or geography." App. to Pet. for Cert. 117a. Counselors also have the discretion to flag an application if, notwithstanding a high selection index score, something in the applicant's file suggests that the applicant may not be suitable for admission. App. 274. Finally, in "rare circumstances," an admissions counselor

    329

    [539 U.S. 279]

    331

    may flag an applicant with a selection index score below the designated levels if the counselor has reason to believe from reading the entire file that the score does not reflect the applicant's true promise. Ibid.

    333
    II
    335

            Although the Office of Undergraduate Admissions does assign 20 points to some "soft" variables other than race, the points available for other diversity contributions, such as leadership and service, personal achievement, and geographic diversity, are capped at much lower levels. Even the most outstanding national high school leader could never receive more than five points for his or her accomplishments—a mere quarter of the points automatically assigned to an underrepresented minority solely based on the fact of his or her race. Of course, as Justice Powell made clear in Bakke, a university need not "necessarily accor[d]" all diversity factors "the same weight," 438 U. S., at 317, and the "weight attributed to a particular quality may vary from year to year depending upon the `mix' both of the student body and the applicants for the incoming class," id., at 317-318. But the selection index, by setting up automatic, predetermined point allocations for the soft variables, ensures that the diversity contributions of applicants cannot be individually assessed. This policy stands in sharp contrast to the law school's admissions plan, which enables admissions officers to make nuanced judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class. See Grutter v. Bollinger, post, at 337 ("[T]he Law School's race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions").

    337

            The only potential source of individualized consideration appears to be the Admissions Review Committee. The evidence in the record, however, reveals very little about how

    339

    [539 U.S. 280]

    341

    the review committee actually functions. And what evidence there is indicates that the committee is a kind of afterthought, rather than an integral component of a system of individualized review. As the Court points out, it is undisputed that the "`[committee] reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the [Enrollment Working Group].' " Ante, at 274 (quoting App. to Pet. for Cert. 117a). Review by the committee thus represents a necessarily limited exception to the Office of Undergraduate Admissions' general reliance on the selection index. Indeed, the record does not reveal how many applications admissions counselors send to the review committee each year, and the University has not pointed to evidence demonstrating that a meaningful percentage of applicants receives this level of discretionary review. In addition, eligibility for consideration by the committee is itself based on automatic cutoff levels determined with reference to selection index scores. And there is no evidence of how the decisions are actually made—what type of individualized consideration is or is not used. Given these circumstances, the addition of the Admissions Review Committee to the admissions process cannot offset the apparent absence of individualized consideration from the Office of Undergraduate Admissions' general practices.

    343

            For these reasons, the record before us does not support the conclusion that the University's admissions program for its College of Literature, Science, and the Arts—to the extent that it considers race—provides the necessary individualized consideration. The University, of course, remains free to modify its system so that it does so. Cf. Grutter v. Bollinger, post, p. 306. But the current system, as I understand it, is a nonindividualized, mechanical one. As a result, I join the Court's opinion reversing the decision of the District Court.

    345

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    347

    Notes:

    349

    * Justice Breyer joins this opinion, except for the last sentence.

    351

    ---------------

    353

    [539 U.S. 281]

    355

            JUSTICE THOMAS, concurring.

    357

            I join the Court's opinion because I believe it correctly applies our precedents, including today's decision in Grutter v. Bollinger, post, p. 306. For similar reasons to those given in my separate opinion in that case, see post, p. 349 (opinion concurring in part and dissenting in part), however, I would hold that a State's use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause.

    359

            I make only one further observation. The University of Michigan's College of Literature, Science, and the Arts (LSA) admissions policy that the Court today invalidates does not suffer from the additional constitutional defect of allowing racial "discriminat[ion] among [the] groups" included within its definition of underrepresented minorities, Grutter, post, at 336 (opinion of the Court); post, at 374 (THOMAS, J., concurring in part and dissenting in part), because it awards all underrepresented minorities the same racial preference. The LSA policy falls, however, because it does not sufficiently allow for the consideration of non-racial distinctions among underrepresented minority applicants. Under today's decisions, a university may not racially discriminate between the groups constituting the critical mass. See post, at 374-375; Grutter, post, at 329-330 (opinion of the Court) (stating that such "racial balancing ... is patently unconstitutional"). An admissions policy, however, must allow for consideration of these nonracial distinctions among applicants on both sides of the single permitted racial classification. See ante, at 272-273 (opinion of the Court); ante, at 276-277 (O'CONNOR, J., concurring).

    361

            JUSTICE BREYER, concurring in the judgment.

    363

            I concur in the judgment of the Court though I do not join its opinion. I join JUSTICE O'CONNOR'S opinion except insofar as it joins that of the Court. I join Part I of JUSTICE GINSBURG'S dissenting opinion, but I do not dissent from the

    365

    [539 U.S. 282]

    367

    Court's reversal of the District Court's decision. I agree with JUSTICE GINSBURG that, in implementing the Constitution's equality instruction, government decisionmakers may properly distinguish between policies of inclusion and exclusion, post, at 301, for the former are more likely to prove consistent with the basic constitutional obligation that the law respect each individual equally, see U. S. Const., Amdt. 14.

    369

            JUSTICE STEVENS, with whom JUSTICE SOUTER joins, dissenting.

    371

            Petitioners seek forward-looking relief enjoining the University of Michigan from continuing to use its current raceconscious freshman admissions policy. Yet unlike the plaintiff in Grutter v. Bollinger, post, p. 306,1 the petitioners in this case had already enrolled at other schools before they filed their class-action complaint in this case. Neither petitioner was in the process of reapplying to Michigan through the freshman admissions process at the time this suit was filed, and neither has done so since. There is a total absence of evidence that either petitioner would receive any benefit from the prospective relief sought by their lawyer. While some unidentified members of the class may very well have standing to seek prospective relief, it is clear that neither petitioner does. Our precedents therefore require dismissal of the action.

    373
    I
    375

            Petitioner Jennifer Gratz applied in 1994 for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) as an undergraduate for the 1995-1996 freshman class. After the University delayed action on her application and then placed her name on an extended waiting list, Gratz decided to attend the University of Michigan at Dearborn instead; she graduated in 1999.

    377

    [539 U.S. 283]

    379

    Petitioner Patrick Hamacher applied for admission to LSA as an undergraduate for the 1997-1998 freshman class. After the University postponed decision on his application and then placed his name on an extended waiting list, he attended Michigan State University, graduating in 2001. In the complaint that petitioners filed on October 14, 1997, Hamacher alleged that "[h]e intends to apply to transfer [to the University of Michigan] if the discriminatory admissions system described herein is eliminated." App. 34.

    381

            At the class certification stage, petitioners sought to have Hamacher represent a class pursuant to Federal Rule of Civil Procedure 23(b)(2).2 See App. 71, n. 3. In response, Michigan contended that "Hamacher lacks standing to represent a class seeking declaratory and injunctive relief." Id., at 63. Michigan submitted that Hamacher suffered "`no threat of imminent future injury' " given that he had already enrolled at another undergraduate institution.3 Id., at 64. The District Court rejected Michigan's contention, concluding that Hamacher had standing to seek injunctive relief because the complaint alleged that he intended to apply to Michigan as a transfer student. See id., at 67 ("To the extent that plaintiff Hamacher reapplies to the University of Michigan, he will again face the same `harm' in that race will continue to be a factor in admissions"). The District Court, accordingly, certified Hamacher as the sole class representative and limited the claims of the class to injunctive and declaratory relief. See id., at 70-71.

    383

            In subsequent proceedings, the District Court held that the 1995-1998 admissions system, which was in effect when both petitioners' applications were denied, was unlawful but

    385

    [539 U.S. 284]

    387

    that Michigan's new 1999-2000 admissions system was lawful. When petitioners sought certiorari from this Court, Michigan did not cross-petition for review of the District Court's judgment concerning the admissions policies that Michigan had in place when Gratz and Hamacher applied for admission in 1994 and 1996 respectively. See Brief for Respondent Bollinger et al. 5, n. 7. Accordingly, we have before us only that portion of the District Court's judgment that upheld Michigan's new freshman admissions policy.

    389
    II
    391

            Both Hamacher and Gratz, of course, have standing to seek damages as compensation for the alleged wrongful denial of their respective applications under Michigan's old freshman admissions system. However, like the plaintiff in Los Angeles v. Lyons, 461 U. S. 95 (1983), who had standing to recover damages caused by "chokeholds" administered by the police in the past but had no standing to seek injunctive relief preventing future chokeholds, petitioners' past injuries do not give them standing to obtain injunctive relief to protect third parties from similar harms. See id., at 102 ("`[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects'" (quoting O'Shea v. Littleton, 414 U. S. 488, 495-496 (1974))). To seek forward-looking, injunctive relief, petitioners must show that they face an imminent threat of future injury. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 210-211 (1995). This they cannot do given that when this suit was filed, neither faced an impending threat of future injury based on Michigan's new freshman admissions policy.4

    393

    [539 U.S. 285]

    395

            Even though there is not a scintilla of evidence that the freshman admissions program now being administered by respondents will ever have any impact on either Hamacher or Gratz, petitioners nonetheless argue that Hamacher has a personal stake in this suit because at the time the complaint was filed, Hamacher intended to apply to transfer to Michigan once certain admission policy changes occurred.5 See App. 34; see also Tr. of Oral Arg. 4-5. Petitioners' attempt to base Hamacher's standing in this suit on a hypothetical transfer application fails for several reasons. First, there is no evidence that Hamacher ever actually applied for admission as a transfer student at Michigan. His claim of future injury is at best "conjectural or hypothetical" rather than "real and immediate." O'Shea v. Littleton, 414 U. S., at 494

    397

    [539 U.S. 286]

    399

    (internal quotation marks omitted); see also Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).

    401

            Second, as petitioners' counsel conceded at oral argument, the transfer policy is not before this Court and was not addressed by the District Court. See Tr. of Oral Arg. 4-5 (admitting that "[t]he transfer admissions policy itself is not before you—the Court"). Unlike the University's freshman policy, which is detailed at great length in the Joint Appendix filed with this Court, the specifics of the transfer policy are conspicuously missing from the Joint Appendix filed with this Court. Furthermore, the transfer policy is not discussed anywhere in the parties' briefs. Nor is it ever even referenced in the District Court's Dec. 13, 2000, opinion that upheld Michigan's new freshman admissions policy and struck down Michigan's old policy. Nonetheless, evidence filed with the District Court by Michigan demonstrates that the criteria used to evaluate transfer applications at Michigan differ significantly from the criteria used to evaluate freshman undergraduate applications. Of special significance, Michigan's 2000 freshman admissions policy, for example, provides for 20 points to be added to the selection index scores of minority applicants. See ante, at 271. In contrast, Michigan does not use points in its transfer policy; some applicants, including minority and socioeconomically disadvantaged applicants, "will generally be admitted" if they possess certain qualifications, including a 2.5 undergraduate grade point average (GPA), sophomore standing, and a 3.0 high school GPA. 10 Record 16 (Exh. C). Because of these differences, Hamacher cannot base his right to complain about the freshman admissions policy on his hypothetical injury under a wholly separate transfer policy. For "[i]f the right to complain of one administrative deficiency automatically conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one respect could bring the whole structure of state administration before the courts for review." Lewis v. Casey, 518 U. S. 343,

    403

    [539 U.S. 287]

    405

    358-359, n. 6 (1996) (emphasis in original); see also Blum v. Yaretsky, 457 U. S. 991, 999 (1982) ("[A] plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar").6

    407

            Third, the differences between the freshman and the transfer admissions policies make it extremely unlikely, at best, that an injunction requiring respondents to modify the freshman admissions program would have any impact on Michigan's transfer policy. See Allen v. Wright, 468 U. S. 737, 751 (1984) ("[R]elief from the injury must be `likely' to follow from a favorable decision"); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 222 (1974) ("[T]he discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts to which the court's ruling would be applied"). This is especially true in light of petitioners' unequivocal disavowal of any request for equitable relief that would totally preclude the use of race in the processing of all admissions applications. See Tr. of Oral Arg. 14-15.

    409

            The majority asserts that petitioners "have challenged any use of race by the University in undergraduate admissions" —freshman and transfer alike. Ante, at 266, n. 16 (emphasis in original). Yet when questioned at oral argument about whether petitioners' challenge would impact both private and public universities, petitioners' counsel stated: "Your Honor, I want to be clear about what it is that we're arguing for here today. We are not suggesting an absolute

    411

    [539 U.S. 288]

    413

    rule forbidding any use of race under any circumstances. What we are arguing is that the interest asserted here by the University, this amorphous, ill-defined, unlimited interest in diversity is not a compelling interest." Tr. of Oral Arg. 14 (emphasis added). In addition, when asked whether petitioners took the position that the only permissible use of race is as a remedy for past discrimination, petitioners' lawyer stated: "I would not go that far. . . . [T]here may be other reasons. I think they would have to be extraordinary and rare...." Id., at 15. Consistent with these statements, petitioners' briefs filed with this Court attack the University's asserted interest in "diversity" but acknowledge that race could be considered for remedial reasons. See, e. g., Brief for Petitioners 16-17.

    415

            Because Michigan's transfer policy was not challenged by petitioners and is not before this Court, see supra, at 286, we do not know whether Michigan would defend its transfer policy on diversity grounds, or whether it might try to justify its transfer policy on other grounds, such as a remedial interest. Petitioners' counsel was therefore incorrect in asserting at oral argument that if the University's asserted interest in "diversity" were to be "struck down as a rationale, then the law would be [the] same with respect to the transfer policy as with respect to the original [freshman admissions] policy." Tr. of Oral Arg. 7-8. And the majority is likewise mistaken in assuming that "the University's use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions." Ante, at 265. Because the transfer policy has never been the subject of this suit, we simply do not know (1) whether Michigan would defend its transfer policy on "diversity" grounds or some other grounds, or (2) how the absence of a point system in the transfer policy might impact a narrow tailoring analysis of that policy.

    417

    [539 U.S. 289]

    419

            At bottom, petitioners' interest in obtaining an injunction for the benefit of younger third parties is comparable to that of the unemancipated minor who had no standing to litigate on behalf of older women in H. L. v. Matheson, 450 U. S. 398, 406-407 (1981), or that of the Medicaid patients transferred to less intensive care who had no standing to litigate on behalf of patients objecting to transfers to more intensive care facilities in Blum v. Yaretsky, 457 U. S., at 1001. To have standing, it is elementary that the petitioners' own interests must be implicated. Because neither petitioner has a personal stake in this suit for prospective relief, neither has standing.

    421
    III
    423

            It is true that the petitioners' complaint was filed as a class action and that Hamacher has been certified as the representative of a class, some of whose members may well have standing to challenge the LSA freshman admissions program that is presently in effect. But the fact that "a suit may be a class action. . . adds nothing to the question of standing, for even named plaintiffs who represent a class `must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40, n. 20 (1976) (quoting Warth v. Seldin, 422 U. S. 490, 502 (1975)); see also 1 A. Conte & H. Newberg, Class Actions § 2:5 (4th ed. 2002) ("[O]ne cannot acquire individual standing by virtue of bringing a class action").7 Thus, in Blum, we squarely held that the interests of members of the class could not satisfy the requirement that the class representatives have a personal interest in obtaining the particular equitable relief being sought. The class in

    425

    [539 U.S. 290]

    427

    Blum included patients who wanted a hearing before being transferred to facilities where they would receive more intensive care. The class representatives, however, were in the category of patients threatened with a transfer to less intensive care facilities. In explaining why the named class representatives could not base their standing to sue on the injury suffered by other members of the class, we stated:

    429

            "Respondents suggest that members of the class they represent have been transferred to higher levels of care as a result of [utilization review committee] decisions. Respondents, however, `must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.' Warth v. Seldin, 422 U. S. 490, 502 (1975). Unless these individuals `can thus demonstrate the requisite case or controversy between themselves personally and [petitioners], "none may seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U. S. 488, 494 (1974).' Ibid." 457 U. S., at 1001, n. 13.

    431

            Much like the class representatives in Blum, Hamacher— the sole class representative in this case—cannot meet Article III's threshold personal-stake requirement. While unidentified members of the class he represents may well have standing to challenge Michigan's current freshman admissions policy, Hamacher cannot base his standing to sue on injuries suffered by other members of the class.

    433
    IV
    435

            As this case comes to us, our precedents leave us no alternative but to dismiss the writ for lack of jurisdiction. Neither petitioner has a personal stake in the outcome of the case, and neither has standing to seek prospective relief on behalf of unidentified class members who may or may not

    437

    [539 U.S. 291]

    439

    have standing to litigate on behalf of themselves. Accordingly, I respectfully dissent.

    441

    ---------------

    443

    Notes:

    445

    1. In challenging the use of race in admissions at Michigan's law school, Barbara Grutter alleged in her complaint that she "has not attended any other law school" and that she "still desires to attend the Law School and become a lawyer." App. in No. 02-241, p. 30.

    447

    2. Petitioners did not seek to have Gratz represent the class pursuant to Federal Rule of Civil Procedure 23(b)(2). See App. 71, n. 3.

    449

    3. In arguing that Hamacher lacked standing, Michigan also asserted that Hamacher "would need to achieve a 3.0 grade point average to attempt to transfer to the University of Michigan." Id., at 64, n. 2. The District Court rejected this argument, concluding that "Hamacher's present grades are not a factor to be considered at this time." Id., at 67.

    451

    4. In responding to questions about petitioners' standing at oral argument, petitioners' counsel alluded to the fact that Michigan might continually change the details of its admissions policy. See Tr. of Oral Arg. 9. The change in Michigan's freshman admissions policy, however, is not the reason why petitioners cannot establish standing to seek prospective relief. Rather, the reason they lack standing to seek forward-looking relief is that when this suit was filed, neither faced a "`real and immediate threat' " of future injury under Michigan's freshman admissions policy given that they had both already enrolled at other institutions. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 210-211 (1995) (quoting Los Angeles v. Lyons, 461 U. S. 95, 105 (1983)). Their decision to obtain a college education elsewhere distinguishes this case from Allan Bakke's single-minded pursuit of a medical education from the University of California at Davis. See Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978); cf. DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam).

    453

    5. Hamacher clearly can no longer claim an intent to transfer into Michigan's undergraduate program given that he graduated from college in 2001. However, this fact alone is not necessarily fatal to the instant class action because we have recognized that, if a named class representative has standing at the time a suit is initiated, class actions may proceed in some instances following mootness of the named class representative's claim. See, e. g., Sosna v. Iowa, 419 U. S. 393, 402 (1975) (holding that the requisite Article III "case or controversy" may exist "between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot"); Franks v. Bowman Transp. Co., 424 U. S. 747 (1976). The problem in this case is that neither Gratz nor Hamacher had standing to assert a forward-looking, injunctive claim in federal court at the time this suit was initiated.

    455

    6. Under the majority's view of standing, there would be no end to Hamacher's ability to challenge any use of race by the University in a variety of programs. For if Hamacher's right to complain about the transfer policy gives him standing to challenge the freshman policy, presumably his ability to complain about the transfer policy likewise would enable him to challenge Michigan's law school admissions policy, as well as any other race-based admissions policy used by Michigan.

    457

    7. Of course, the injury to Hamacher would give him standing to claim damages for past harm on behalf of class members, but he was certified as the class representative for the limited purpose of seeking injunctive and declaratory relief.

    459

    ---------------

    461

            JUSTICE SOUTER, with whom JUSTICE GINSBURG joins as to Part II, dissenting.

    463

            I agree with JUSTICE STEVENS that Patrick Hamacher has no standing to seek declaratory or injunctive relief against a freshman admissions policy that will never cause him any harm. I write separately to note that even the Court's new gloss on the law of standing should not permit it to reach the issue it decides today. And because a majority of the Court has chosen to address the merits, I also add a word to say that even if the merits were reachable, I would dissent from the Court's judgment.

    465
    I
    467

            The Court's finding of Article III standing rests on two propositions: first, that both the University of Michigan's undergraduate college's transfer policy and its freshman admissions policy seek to achieve student body diversity through the "use of race," ante, at 261-263, 265-269, and second, that Hamacher has standing to challenge the transfer policy on the grounds that diversity can never be a "compelling state interest" justifying the use of race in any admissions decision, freshman or transfer, ante, at 269. The Court concludes that, because Hamacher's argument, if successful, would seal the fate of both policies, his standing to challenge the transfer policy also allows him to attack the freshman admissions policy. Ante, at 266, n. 16 ("[P]etitioners challenged any use of race by the University to promote diversity, including through the transfer policy"); ante, at 267, n. 16 ("`[T]he University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor' " (quoting Tr. of Oral Arg. 7-8)). I agree with JUSTICE STEVENS'S critique

    469

    [539 U.S. 292]

    471

    that the Court thus ignores the basic principle of Article III standing that a plaintiff cannot challenge a government program that does not apply to him. See ante, at 286-287, and n. 6 (dissenting opinion).1

    473

            But even on the Court's indulgent standing theory, the decision should not go beyond a recognition that diversity can serve as a compelling state interest justifying race-conscious decisions in education. Ante, at 268 (citing Grutter v. Bollinger, post, at 327-333). Since, as the Court says, "petitioners did not raise a narrow tailoring challenge to the transfer policy," ante, at 266, n. 16, our decision in Grutter is fatal to Hamacher's sole attack upon the transfer policy, which is the only policy before this Court that he claims aggrieved him. Hamacher's challenge to that policy having failed, his standing is presumably spent. The further question whether the freshman admissions plan is narrowly tailored to achieving student body diversity remains legally irrelevant to Hamacher and should await a plaintiff who is actually hurt by it.2

    475

    [539 U.S. 293]

    477
    II
    479

            The cases now contain two pointers toward the line between the valid and the unconstitutional in race-conscious admissions schemes. Grutter reaffirms the permissibility of individualized consideration of race to achieve a diversity of students, at least where race is not assigned a preordained value in all cases. On the other hand, Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class. Although the freshman admissions system here is subject to argument on the merits, I think it is closer to what Grutter approves than to what Bakke condemns, and should not be held unconstitutional on the current record.

    481

            The record does not describe a system with a quota like the one struck down in Bakke, which "insulate[d]" all non-minority candidates from competition from certain seats. Bakke, supra, at 317 (opinion of Powell, J.); see also Richmond v. J. A. Croson Co., 488 U. S. 469, 496 (1989) (plurality opinion) (stating that Bakke invalidated "a plan that completely eliminated nonminorities from consideration for a specified percentage of opportunities"). The Bakke plan "focused solely on ethnic diversity" and effectively told nonminority applicants that "[n]o matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the [set-aside] special admissions seats." Bakke, supra, at 315, 319 (opinion of Powell, J.) (emphasis in original).

    483

            The plan here, in contrast, lets all applicants compete for all places and values an applicant's offering for any place not only on grounds of race, but on grades, test scores, strength of high school, quality of course of study, residence, alumni relationships, leadership, personal character, socioeconomic

    485

    [539 U.S. 294]

    487

    disadvantage, athletic ability, and quality of a personal essay. Ante, at 255. A nonminority applicant who scores highly in these other categories can readily garner a selection index exceeding that of a minority applicant who gets the 20-point bonus. Cf. Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 638 (1987) (upholding a program in which gender "was but one of numerous factors [taken] into account in arriving at [a] decision" because "[n]o persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants" (emphasis deleted)).

    489

            Subject to one qualification to be taken up below, this scheme of considering, through the selection index system, all of the characteristics that the college thinks relevant to student diversity for every one of the student places to be filled fits Justice Powell's description of a constitutionally acceptable program: one that considers "all pertinent elements of diversity in light of the particular qualifications of each applicant" and places each element "on the same footing for consideration, although not necessarily according them the same weight." Bakke, supra, at 317. In the Court's own words, "each characteristic of a particular applicant [is] considered in assessing the applicant's entire application." Ante, at 271. An unsuccessful nonminority applicant cannot complain that he was rejected "simply because he was not the right color"; an applicant who is rejected because "his combined qualifications . . . did not outweigh those of the other applicant" has been given an opportunity to compete with all other applicants. Bakke, supra, at 318 (opinion of Powell, J.).

    491

            The one qualification to this description of the admissions process is that membership in an underrepresented minority is given a weight of 20 points on the 150-point scale. On the face of things, however, this assignment of specific points does not set race apart from all other weighted considerations. Nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a socioeconomically

    493

    [539 U.S. 295]

    495

    disadvantaged or predominantly minority high school, or at the Provost's discretion; they may also receive 10 points for being residents of Michigan, 6 for residence in an underrepresented Michigan county, 5 for leadership and service, and so on.

    497

            The Court nonetheless finds fault with a scheme that "automatically" distributes 20 points to minority applicants because "[t]he only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups." Ante, at 271-272. The objection goes to the use of points to quantify and compare characteristics, or to the number of points awarded due to race, but on either reading the objection is mistaken.

    499

            The very nature of a college's permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants' chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell's plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its "holistic review," Grutter, post, at 337; the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose.

    501

            Nor is it possible to say that the 20 points convert race into a decisive factor comparable to reserving minority places as in Bakke. Of course we can conceive of a point system in which the "plus" factor given to minority applicants would be so extreme as to guarantee every minority applicant a higher rank than every nonminority applicant in the university's admissions system, see 438 U. S., at 319, n. 53 (opinion of Powell, J.). But petitioners do not have a convincing argument

    503

    [539 U.S. 296]

    505

    that the freshman admissions system operates this way. The present record obviously shows that nonminority applicants may achieve higher selection point totals than minority applicants owing to characteristics other than race, and the fact that the university admits "virtually every qualified under-represented minority applicant," App. to Pet. for Cert. 111a, may reflect nothing more than the likelihood that very few qualified minority applicants apply, Brief for Respondent Bollinger et al. 39, as well as the possibility that self-selection results in a strong minority applicant pool. It suffices for me, as it did for the District Court, that there are no Bakke-like set-asides and that consideration of an applicant's whole spectrum of ability is no more ruled out by giving 20 points for race than by giving the same points for athletic ability or socioeconomic disadvantage.

    507

            Any argument that the "tailoring" amounts to a set-aside, then, boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not. But suspicion does not carry petitioners' ultimate burden of persuasion in this constitutional challenge, Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 287-288 (1986) (plurality opinion of Powell, J.),and it surely does not warrant condemning the college's admissions scheme on this record. Because the District Court (correctly, in my view) did not believe that the specific point assignment was constitutionally troubling, it made only limited and general findings on other characteristics of the university's admissions practice, such as the conduct of individualized review by the Admissions Review Committee. 122 F. Supp. 2d 811, 829-830 (ED Mich. 2000). As the Court indicates, we know very little about the actual role of the review committee. Ante, at 274 ("The record does not reveal precisely how many applications are flagged for this individualized consideration [by the committee]"); see also ante, at 279-280 (O'CONNOR, J., concurring) ("The evidence in the record . . . reveals very little about how the review committee actually functions"). The point system cannot operate as a de facto set-aside if the

    509

    [539 U.S. 297]

    511

    greater admissions process, including review by the committee, results in individualized review sufficient to meet the Court's standards. Since the record is quiet, if not silent, on the case-by-case work of the committee, the Court would be on more defensible ground by vacating and remanding for evidence about the committee's specific determinations.3

    513

            Without knowing more about how the Admissions Review Committee actually functions, it seems especially unfair to treat the candor of the admissions plan as an Achilles' heel. In contrast to the college's forthrightness in saying just what plus factor it gives for membership in an underrepresented minority, it is worth considering the character of one alternative thrown up as preferable, because supposedly not based on race. Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. Brief for United States as Amicus Curiae 18; Brief for United States as Amicus Curiae in Grutter v. Bollinger, O. T. 2002, No. 02-241, pp. 13-17. While there is nothing unconstitutional about such a practice, it nonetheless suffers from a serious disadvantage.4 It

    515

    [539 U.S. 298]

    517

    is the disadvantage of deliberate obfuscation. The "percentage plans" are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast, Michigan states its purpose directly and, if this were a doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.

    519
    III
    521

            If this plan were challenged by a plaintiff with proper standing under Article III, I would affirm the judgment of the District Court granting summary judgment to the college. As it is, I would vacate the judgment for lack of jurisdiction, and I respectfully dissent.

    523

    ---------------

    525

    Notes:

    527

    1. The Court's holding arguably exposes a weakness in the rule of Blum v. Yaretsky, 457 U. S. 991 (1982),that Article III standing may not be satisfied by the unnamed members of a duly certified class. But no party has invited us to reconsider Blum, and I follow Justice Stevens in approaching the case on the assumption that Blum is settled law.

    529

    2. For that matter, as the Court suggests, narrow tailoring challenges against the two policies could well have different outcomes. Ante, at 266. The record on the decisionmaking process for transfer applicants is understandably thin, given that petitioners never raised a narrow tailoring challenge against it. Most importantly, however, the transfer policy does not use a points-based "selection index" to evaluate transfer applicants, but rather considers race as one of many factors in making the general determination whether the applicant would make a "`contribution to a diverse student body.'" Ante, at 265 (quoting 2 App. in No. 01-1333 etc. (CA6), p. 531 (capitalization omitted)). This limited glimpse into the transfer policy at least permits the inference that the university engages in a "holistic review" of transfer applications consistent with the program upheld today in Grutter v. Bollinger, post, at 337.

    531

    3. The Court surmises that the committee does not contribute meaningfully to the university's individualized review of applications. Ante, at 273-274. The Court should not take it upon itself to apply a newly formulated legal standard to an undeveloped record. Given the District Court's statement that the committee may examine "any number of applicants, including applicants other than under-represented minority applicants," 122 F. Supp. 2d 811, 830 (ED Mich. 2000), it is quite possible that further factual development would reveal the committee to be a "source of individualized consideration" sufficient to satisfy the Court's rule, ante, at 279 (O'CONNOR, J.,concurring). Determination of that issue in the first instance is a job for the District Court, not for this Court on a record that is admittedly lacking.

    533

    4. Of course it might be pointless in the State of Michigan, where minorities are a much smaller fraction of the population than in California, Florida, or Texas. Brief for Respondents Bollinger et al. 48-49.

    535

    ---------------

    537

            JUSTICE GINSBURG, with whom JUSTICE SOUTER joins, dissenting.*

    539
    I
    541

            Educational institutions, the Court acknowledges, are not barred from any and all consideration of race when making admissions decisions. Ante, at 268; see Grutter v. Bollinger, post, at 326-333. But the Court once again maintains that the same standard of review controls judicial inspection of all official race classifications. Ante, at 270 (quoting Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995); Richmond v. J. A. Croson Co., 488 U. S. 469, 494 (1989) (plurality opinion)). This insistence on "consistency," Adarand, 515 U. S., at 224, would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law, see id., at 274-276, and n. 8 (GINSBURG, J., dissenting). But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.

    543

    [539 U.S. 299]

    545

            In the wake "of a system of racial caste only recently ended," id., at 273 (GINSBURG, J., dissenting), large disparities endure. Unemployment,1 poverty,2 and access to health care3 vary disproportionately by race. Neighborhoods and schools remain racially divided.4 African-American and Hispanic children are all too often educated in poverty-stricken

    547

    [539 U.S. 300]

    549

    and underperforming institutions.5 Adult African-Americans and Hispanics generally earn less than whites with equivalent levels of education.6 Equally credentialed job applicants receive different receptions depending on their race.7 Irrational prejudice is still encountered in real estate markets8 and consumer transactions.9 "Bias both

    551

    [539 U.S. 301]

    553

    conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice." Id., at 274 (GINSBURG, J., dissenting); see generally Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 Calif. L. Rev. 1251, 1276-1291 (1998).

    555

            The Constitution instructs all who act for the government that they may not "deny to any person . . . the equal protection of the laws." Amdt. 14, § 1. In implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 316 (1986) (STEVENS, J., dissenting). Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated. See Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433-434 (1988) ("[T]o say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppressio[n] is to trivialize the lives and deaths of those who have suffered under racism. To pretend ... that the issue presented in [Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978)] was the same as the issue in [Brown v. Board of Education, 347 U. S. 483 (1954)] is to pretend that history never happened and that the present doesn't exist.").

    557

            Our jurisprudence ranks race a "suspect" category, "not because [race] is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality." Norwalk Core v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931-932 (CA2 1968) (footnote omitted). But where race is considered "for the purpose of achieving equality," id., at 932, no automatic proscription is in order.

    559

    [539 U.S. 302]

    561

    For, as insightfully explained: "The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination." United States v. Jefferson County Bd. of Ed., 372 F. 2d 836, 876 (CA5 1966) (Wisdom, J.); see Wechsler, The Nationalization of Civil Liberties and Civil Rights, Supp. to 12 Tex. Q. 10, 23 (1968) (Brown may be seen as disallowing racial classifications that "impl[y] an invidious assessment" while allowing such classifications when "not invidious in implication" but advanced to "correct inequalities"). Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality. See Grutter, post, at 344 (GINSBURG, J., concurring) (citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination against Women).

    563

            The mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection. See Jefferson County, 372 F. 2d, at 876 ("The criterion is the relevancy of color to a legitimate governmental purpose."). Close review is needed "to ferret out classifications in reality malign, but masquerading as benign," Adarand, 515 U. S., at 275 (GINSBURG, J., dissenting), and to "ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups," id., at 276.

    565
    II
    567

            Examining in this light the admissions policy employed by the University of Michigan's College of Literature, Science, and the Arts (College), and for the reasons well stated by

    569

    [539 U.S. 303]

    571

    JUSTICE SOUTER, I see no constitutional infirmity. See ante, at 293-298 (dissenting opinion). Like other topranking institutions, the College has many more applicants for admission than it can accommodate in an entering class. App. to Pet. for Cert. 108a. Every applicant admitted under the current plan, petitioners do not here dispute, is qualified to attend the College. Id., at 111a. The racial and ethnic groups to which the College accords special consideration (African-Americans, Hispanics, and Native-Americans) historically have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day, see supra, at 298-301. There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race. See Brief for Respondent Bollinger et al. 10; Tr. of Oral Arg. 41-42 (in the range between 75 and 100 points, the review committee may look at applications individually and ignore the points). Nor has there been any demonstration that the College's program unduly constricts admissions opportunities for students who do not receive special consideration based on race. Cf. Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1049 (2002) ("In any admissions process where applicants greatly outnumber admittees, and where white applicants greatly outnumber minority applicants, substantial preferences for minority applicants will not significantly diminish the odds of admission facing white applicants.").10

    573

    [539 U.S. 304]

    575

            The stain of generations of racial oppression is still visible in our society, see Krieger, 86 Calif. L. Rev., at 1253, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment—and the networks and opportunities thereby opened to minority graduates—whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers' recommendations may emphasize who a student is as much as what he or she has accomplished. See, e. g., Steinberg, Using Synonyms for Race, College Strives for Diversity,

    577

    [539 U.S. 305]

    579

    N. Y. Times, Dec. 8, 2002, section 1, p. 1, col. 3 (describing admissions process at Rice University); cf. Brief for United States as Amicus Curiae 14-15 (suggesting institutions could consider, inter alia, "a history of overcoming disadvantage," "reputation and location of high school," and "individual outlook as reflected by essays"). If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.11

    581
    * * *
    583

            For the reasons stated, I would affirm the judgment of the District Court.

    585

    ---------------

    587

    Notes:

    589

    * JUSTICE BREYER joins Part I of this opinion.

    591

    1. See, e. g., U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2002, p. 368 (2002) (Table 562) (hereinafter Statistical Abstract) (unemployment rate among whites was 3.7% in 1999, 3.5% in 2000, and 4.2% in 2001; during those years, the unemployment rate among African-Americans was 8.0%, 7.6%, and 8.7%, respectively; among Hispanics, 6.4%, 5.7%, and 6.6%).

    593

    2. See, e. g., U. S. Dept of Commerce, Bureau of Census, Poverty in the United States: 2000, p. 291 (2001) (Table A) (In 2000, 7.5% of non-Hispanic whites, 22.1% of African-Americans, 10.8% of Asian-Americans, and 21.2% of Hispanics were living in poverty.); S. Staveteig & A. Wigton, Racial and Ethnic Disparities: Key Findings from the National Survey of America's Families 1 (Urban Institute Report B-5, Feb. 2000) ("Blacks, Hispanics, and Native Americans . . . each have poverty rates almost twice as high as Asians and almost three times as high as whites.").

    595

    3. See, e. g., U. S. Dept. of Commerce, Bureau of Census, Health Insurance Coverage: 2000, p.391 (2001) (Table A) (In 2000, 9.7% of non-Hispanic whites were without health insurance, as compared to 18.5% of African-Americans, 18.0% of Asian-Americans, and 32.0% of Hispanics.); Waidmann & Rajan, Race and Ethnic Disparities in Health Care Access and Utilization: An Examination of State Variation, 57 Med. Care Res. and Rev. 55, 56 (2000) ("On average, Latinos and African Americans have both worse health and worse access to effective health care than do non-Hispanic whites . . . .").

    597

    4. See, e. g., U. S. Dept. of Commerce, Bureau of Census, Racial and Ethnic Residential Segregation in the United States: 1980-2000 (2002) (documenting residential segregation); E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? 4 (Jan. 2003), http://www.civilrightsproject.harvard.edu/research/reseg03/ AreWeLosingtheDream.pdf (all Internet materials as visited June 2, 2003, and available in Clerk of Court's case file) ("[W]hites are the most segregated group in the nation's public schools; they attend schools, on average, where eighty percent of the student body is white."); id., at 28 ("[A]lmost three-fourths of black and Latino students attend schools that are predominantly minority. . . . More than one in six black children attend a school that is 99-100% minority . . . . One in nine Latino students attend virtually all minority schools.").

    599

    5. See, e. g., Ryan, Schools, Race, and Money, 109 Yale L. J. 249, 273-274 (1999) ("Urban public schools are attended primarily by African-American and Hispanic students"; students who attend such schools are disproportionately poor, score poorly on standardized tests, and are far more likely to drop out than students who attend nonurban schools.).

    601

    6. See, e. g., Statistical Abstract 140 (Table 211).

    603

    7. See, e. g.,Holzer, Career Advancement Prospects and Strategies for Low-Wage Minority Workers, in Low-Wage Workers in the New Economy 228 (R. Kazis & M. Miller eds. 2001) ("[I]n studies that have sent matched pairs of minority and white applicants with apparently equal credentials to apply for jobs, whites routinely get more interviews and job offers than either black or Hispanic applicants."); M. Bertrand & S. Mullainathan, Are Emily and Brendan More Employable than Lakisha and Jamal?: A Field Experiment on Labor Market Discrimination (Nov. 18, 2002), http:// gsb.uchicago.edu/pdf/bertrand.pdf; Mincy, The Urban Institute Audit Studies: Their Research and Policy Context, in Clear and Convincing Evidence: Measurement of Discrimination in America 165-186 (M. Fix & R. Struyk eds. 1993).

    605

    8. See, e. g.,M. Turner et al.,Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000, pp. i, iii (Nov. 2002), http://www.huduser.org/Publications/pdf/Phase1_Report.pdf (paired testing in which "two individuals—one minority and the other white—pose as otherwise identical homeseekers, and visit real estate or rental agents to inquire about the availability of advertised housing units" revealed that "discrimination still persists in both rental and sales markets of large metropolitan areas nationwide"); M. Turner & F. Skidmore, Mortgage Lending Discrimination: A Review of Existing Evidence 2 (1999) (existing research evidence shows that minority homebuyers in the United States "face discrimination from mortgage lending institutions.").

    607

    9. See, e. g., Ayres, Further Evidence of Discrimination in New Car Negotiations and Estimates of its Cause, 94 Mich. L. Rev. 109, 109-110 (1995) (study in which 38 testers negotiated the purchase of more than 400 automobiles confirmed earlier finding "that dealers systematically offer lower prices to white males than to other tester types").

    609

    10. The United States points to the "percentage plans" used in California, Florida, and Texas as one example of a "race-neutral alternativ[e]" that would permit the College to enroll meaningful numbers of minority students. Brief for United States as Amicus Curiae 14; see U. S. Commission on Civil Rights, Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education 1 (Nov. 2002), http://www.usccr.gov/pubs/ percent2/percent2.pdf (percentage plans guarantee admission to state universities for a fixed percentage of the top students from high schools in the State). Calling such 10% or 20% plans "race-neutral" seems to me disingenuous, for they "unquestionably were adopted with the specific purpose of increasing representation of African-Americans and Hispanics in the public higher education system." Brief for Respondent Bollinger et al. 44; see C. Horn & S. Flores, Percent Plans in College Admissions: A Comparative Analysis of Three States' Experiences 14-19 (2003), http://www.civilrightsproject.harvard.edu/research/affirmativeaction/ tristate.pdf. Percentage plans depend for their effectiveness on continued racial segregation at the secondary school level: They can ensure significant minority enrollment in universities only if the majority-minority high school population is large enough to guarantee that, in many schools, most of the students in the top 10% or 20% are minorities. Moreover, because such plans link college admission to a single criterion—high school class rank—they create perverse incentives. They encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point averages. See Selingo, What States Aren't Saying About the `X-Percent Solution,' Chronicle of Higher Education, June 2, 2000, p. A31. And even if percentage plans could boost the sheer numbers of minority enrollees at the undergraduate level, they do not touch enrollment in graduate and professional schools.

    611

    11. Contrary to the Court's contention, I do not suggest "changing the Constitution so that it conforms to the conduct of the universities." Ante, at 275, n. 22. In my view, the Constitution, properly interpreted, permits government officials to respond openly to the continuing importance of race. See supra, at 301-302. Among constitutionally permissible options, those that candidly disclose their consideration of race seem to me preferable to those that conceal it.

    613

    ---------------

  • 13 Parents Involved in Community Schools v. Seattle School Dist

    1

    551 U.S. _ (2007)
    PARENTS INVOLVED IN COMMUNITY SCHOOLS, Petitioner
    v.
    SEATTLE SCHOOL DISTRICT NO. 1 ET AL.
    CRYSTAL D. MEREDITH, CUSTODIAL PARENT AND NEXT FRIEND OF JOSHUA RYAN MCDONALD, Petitioner
    v.
    JEFFERSON COUNTY BOARD OF EDUCATION ET AL.
    No. 05-908.

    Supreme Court of United States.
    Argued December 4, 2006.
    Decided June 28, 2007.[*]

    3

    ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and III-C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III-B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

    5

    CHIEF JUSTICE ROBERTS announced the judgment of the

    7

    Court, and delivered the opinion of the Court with respect to Parts I, II, III-A, and III-C, and an opinion with respect to Parts III-B and IV, in which JUSTICES SCALIA, THOMAS, and ALITO join.

    9

    The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or non-white; the Jefferson County school district as black or “other.” In Seattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests. In each case, the school district relies upon an individual student’s race in assigning that student to a particular school, so that the racial balance at the school falls within a predetermined range based on the racial composition of the school district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection. The Courts of Appeals below upheld the plans. We granted certiorari, and now reverse.

    11

    I

    13

    Both cases present the same underlying legal question— whether a public school that had not operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making school assignments. Although we examine the plans under the same legal framework, the specifics of the two plans, and the circumstances surrounding their adoption, are in some respects quite different.

    15

    A

    17

    Seattle School District No. 1 operates 10 regular public high schools. In 1998, it adopted the plan at issue in this case for assigning students to these schools. App. in No. 05-908, pp. 90a-92a.[1] The plan allows incoming ninth graders to choose from among any of the district’s high schools, ranking however many schools they wish in order of preference.

    19

    Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of “tiebreakers” to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district’s public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. Id., at 38a, 103a.[2] If an oversubscribed school is not within 10 percentage points of the district’s overall white/nonwhite racial balance, it is what the district calls “integration positive,” and the district employs a tiebreaker that selects for assignment students whose race “will serve to bring the school into balance.” Id., at 38a. See Parents Involved VII, 426 F. 3d 1162, 1169-1170 (CA9 2005) (en banc).[3] If it is still necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is the geographic proximity of the school to the student’s residence. App. in No. 05-908, at 38a.

    21

    Seattle has never operated segregated schools—legally separate schools for students of different races—nor has it ever been subject to court-ordered desegregation. It none-theless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments. Most white students live in the northern part of Seattle, most students of other racial backgrounds in the southern part. Parents Involved VII, supra, at 1166. Four of Seattle’s high schools are located in the north—Ballard, Nathan Hale, Ingraham, and Roosevelt—and five in the south—Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin. One school— Garfield—is more or less in the center of Seattle. App. in No. 05-908, at 38a-39a, 45a.

    23

    For the 2000-2001 school year, five of these schools were oversubscribed—Ballard, Nathan Hale, Roosevelt, Garfield, and Franklin—so much so that 82 percent of incoming ninth graders ranked one of these schools as their first choice. Id., at 38a. Three of the oversubscribed schools were “integration positive” because the school’s white enrollment the previous school year was greater than 51 percent—Ballard, Nathan Hale, and Roosevelt. Thus, more nonwhite students (107, 27, and 82, respectively) who selected one of these three schools as a top choice received placement at the school than would have been the case had race not been considered, and proximity been the next tiebreaker. Id., at 39a—40a. Franklin was “integration positive” because its nonwhite enrollment the previous school year was greater than 69 percent; 89 more white students were assigned to Franklin by operation of the racial tiebreaker in the 2000-2001 school year than otherwise would have been. Ibid. Garfield was the only oversubscribed school whose composition during the 1999-2000 school year was within the racial guidelines, although in previous years Garfield’s enrollment had been predominantly nonwhite, and the racial tiebreaker had been used to give preference to white students. Id., at 39a.

    25

    Petitioner Parents Involved in Community Schools (Parents Involved) is a nonprofit corporation comprising the parents of children who have been or may be denied assignment to their chosen high school in the district because of their race. The concerns of Parents Involved are illustrated by Jill Kurfirst, who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High School’s special Biotechnology Career Academy. Andy suffered from attention deficit hyperactivity disorder and dyslexia, but had made good progress with hands-on instruction, and his mother and middle school teachers thought that the smaller biotechnology program held the most promise for his continued success. Andy was accepted into this selective program but, because of the racial tiebreaker, was denied assignment to Ballard High School. Id., at 143a-146a, 152a-160a. Parents Involved commenced this suit in the Western District of Washington, alleging that Seattle’s use of race in assignments violated the Equal Protection Clause of the Fourteenth Amendment,[4] Title VI of the Civil Rights Act of 1964,[5] and the Washington Civil Rights Act.[6] Id., at 28a-35a.

    27

    The District Court granted summary judgment to the school district, finding that state law did not bar the district’s use of the racial tiebreaker and that the plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. 137 F. Supp. 2d 1224, 1240 (WD Wash. 2001) (Parents Involved I). The Ninth Circuit initially reversed based on its interpretation of the Washington Civil Rights Act, 285 F. 3d 1236, 1253 (2002) (Parents Involved II), and enjoined the district’s use of the integration tiebreaker, id., at 1257. Upon realizing that the litigation would not be resolved in time for assignment decisions for the 2002-2003 school year, the Ninth Circuit withdrew its opinion, 294 F. 3d 1084 (2002) (Parents Involved III), vacated the injunction, and, pursuant to Wash. Rev. Code §2.60.020 (2006), certified the state-law question to the Washington Supreme Court, 294 F. 3d 1085, 1087 (2002) (Parents Involved IV).

    29

    The Washington Supreme Court determined that the State Civil Rights Act bars only preferential treatment programs “where race or gender is used by government to select a less qualified applicant over a more qualified applicant,” and not ”[p]rograms which are racially neutral, such as the [district’s] open choice plan.” Parents Involved in Community Schools v. Seattle School Dist., No. 1, 149 Wash. 2d 660, 689-690, 663, 72 P. 3d 151, 166, 153 (2003) (en banc) (Parents Involved V). The state court returned the case to the Ninth Circuit for further proceedings. Id., at 690, 72 P. 3d, at 167.

    31

    A panel of the Ninth Circuit then again reversed the District Court, this time ruling on the federal constitutional question. Parents Involved VI, 377 F. 3d 949 (2004). The panel determined that while achieving racial diversity and avoiding racial isolation are compelling government interests, id., at 964, Seattle’s use of the racial tiebreaker was not narrowly tailored to achieve these interests, id., at 980. The Ninth Circuit granted rehearing en banc, 395 F. 3d 1168 (2005), and overruled the panel decision, affirming the District Court’s determination that Seattle’s plan was narrowly tailored to serve a compelling government interest, Parents Involved VII, 426 F. 3d, at 1192-1193. We granted certiorari. 547 U. S. _ (2006).

    33

    B

    35

    Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson County had maintained a segregated school system, Newburg Area Council, Inc. v. Board of Ed. of Jefferson Cty., 489 F. 2d 925, 932 (CA6), vacated and remanded, 418 U. S. 918, reinstated with modifications, 510 F. 2d 1358, 1359 (CA6 1974), and in 1975 the District Court entered a desegregation decree. See Hampton v. Jefferson Cty. Bd. of Ed., 72 F. Supp. 2d 753, 762-764 (WD Ky. 1999). Jefferson County operated under this decree until 2000, when the District Court dissolved the decree after finding that the district had achieved unitary status by eliminating ”[t]o the greatest extent practicable” the vestiges of its prior policy of segregation. Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 360 (2000). See Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 249-250 (1991); Green v. School Bd. of New Kent Cty., 391 U. S. 430, 435-436 (1968).

    37

    In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment plan at issue in this case. App. in No. 05-915, p. 77. Approximately 34 percent of the district’s 97,000 students are black; most of the remaining 66 percent are white. McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d 834, 839-840, and n. 6 (WD Ky. 2004) (McFarland I). The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent. App. in No. 05-915, at 81; McFarland I, supra, at 842.

    39

    At the elementary school level, based on his or her address, each student is designated a “resides” school to which students within a specific geographic area are assigned; elementary resides schools are “grouped into clusters in order to facilitate integration.” App. in No. 05-915, at 82. The district assigns students to nonmagnet schools in one of two ways: Parents of kindergartners, first-graders, and students new to the district may submit an application indicating a first and second choice among the schools within their cluster; students who do not submit such an application are assigned within the cluster by the district. “Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines in the District’s current student assignment plan.” Id., at 38. If a school has reached the “extremes of the racial guidelines,” a student whose race would contribute to the school’s racial imbalance will not be assigned there. Id., at 38-39, 82. After assignment, students at all grade levels are permitted to apply to transfer between nonmagnet schools in the district. Transfers may be requested for any number of reasons, and may be denied because of lack of available space or on the basis of the racial guidelines. Id., at 43.[7]

    41

    When petitioner Crystal Meredith moved into the school district in August 2002, she sought to enroll her son, Joshua McDonald, in kindergarten for the 2002-2003 school year. His resides school was only a mile from his new home, but it had no available space—assignments had been made in May, and the class was full. Jefferson County assigned Joshua to another elementary school in his cluster, Young Elementary. This school was 10 miles from home, and Meredith sought to transfer Joshua to a school in a different cluster, Bloom Elementary, which—like his resides school—was only a mile from home. See Tr. in McFarland I, pp. 1-49 through 1-54 (Dec. 8, 2003). Space was available at Bloom, and intercluster transfers are allowed, but Joshua’s transfer was nonetheless denied because, in the words of Jefferson County, ”[t]he transfer would have an adverse effect on desegregation compliance” of Young. App. in No. 05-915, at 97.[8]

    43

    Meredith brought suit in the Western District of Kentucky, alleging violations of the Equal Protection Clause of the Fourteenth Amendment. The District Court found that Jefferson County had asserted a compelling interest in maintaining racially diverse schools, and that the assignment plan was (in all relevant respects) narrowly tailored to serve that compelling interest. McFarland I, supra, at 837.[9] The Sixth Circuit affirmed in a per curiam opinion relying upon the reasoning of the District Court, concluding that a written opinion “would serve no useful purpose.” McFarland v. Jefferson Cty. Public Schools, 416 F. 3d 513, 514 (2005) (McFarland II). We granted certiorari. 547 U. S. __ (2006).

    45

    II

    47

    As a threshold matter, we must assure ourselves of our jurisdiction. Seattle argues that Parents Involved lacks standing because none of its current members can claim an imminent injury. Even if the district maintains the current plan and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school and choose an oversubscribed school that is integration positive—too speculative a harm to maintain standing. Brief for Respondents in No. 05-908, pp. 16-17.

    49

    This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, App. in No. 05-908, at 299a-301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05-908, at 30a. The fact that it is possible that children of group members will not be denied admission to a school based on their race-because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage—does not eliminate the injury claimed. Moreover, Parents Involved also asserted an interest in not being “forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions.” Ibid. As we have held, one form of injury under the Equal Protection Clause is being forced to compete in a race-based system that may prejudice the plaintiff, Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993), an injury that the members of Parents Involved can validly claim on behalf of their children.

    51

    In challenging standing, Seattle also notes that it has ceased using the racial tiebreaker pending the outcome of this litigation. Brief for Respondents in No. 05-908, at 16-17. But the district vigorously defends the constitutionality of its race-based program, and nowhere suggests that if this litigation is resolved in its favor it will not resume using race to assign students. Voluntary cessation does not moot a case or controversy unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met.

    53

    Jefferson County does not challenge our jurisdiction, Tr. of Oral Arg. in No. 05-915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). Although apparently Joshua has now been granted a transfer to Bloom, the school to which transfer was denied under the racial guidelines, Tr. of Oral Arg. in No. 05-915, at 45, the racial guidelines apply at all grade levels. Upon Joshua’s enrollment in middle school, he may again be subject to assignment based on his race. In addition, Meredith sought damages in her complaint, which is sufficient to preserve our ability to consider the question. Los Angeles v. Lyons, 461 U. S. 95, 109 (1983).

    55

    III

    57

    A

    59

    It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Johnson v. California, 543 U. S. 499, 505-506 (2005); Grutter v. Bollinger, 539 U. S. 306, 326 (2003); Adarand, supra, at 224. As the Court recently reaffirmed, ”`racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’” Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (quoting Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (STEVENS, J., dissenting); brackets omitted). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand, supra, at 227.

    61

    Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. See Freeman v. Pitts, 503 U. S. 467, 494 (1992). Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees. The Jefferson County public schools were previously segregated by law and were subject to a desegregation decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson County had “eliminated the vestiges associated with the former policy of segregation and its pernicious effects,” and thus had achieved “unitary” status. Hampton, 102 F. Supp. 2d, at 360. Jefferson County accordingly does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students. See Tr. of Oral Arg. in No. 05-915, at 38.

    63

    Nor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that “the Constitution is not violated by racial imbalance in the schools, without more.” Milliken v. Bradley, 433 U. S. 267, 280, n. 14 (1977). See also Freeman, supra, at 495-496; Dowell, 498 U. S., at 248; Milliken v. Bradley, 418 U. S. 717, 746 (1974). Once Jefferson County achieved unitary status, it had remedied the constitutional wrong that allowed racebased assignments. Any continued use of race must be justified on some other basis.[10]

    65

    The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter, 539 U. S., at 328. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” Ibid. The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” Id., at 337. We described the various types of diversity that the law school sought:

    67

    The Court quoted the articulation of diversity from Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U. S. 265 (1978), noting that “it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race.” Grutter, supra, at 324-325 (citing and quoting Bakke, supra, at 314-315 (opinion of Powell, J.); brackets and internal quotation marks omitted). Instead, what was upheld in Grutter was consideration of “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” 539 U. S., at 325 (quoting Bakke, supra, at 315 (opinion of Powell, J.); internal quotation marks omitted).

    69

    The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review,” 539 U. S., at 337. As the Court explained, ”[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” Ibid. The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.” Id., at 330.

    71

    In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” ibid.; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz, 539 U. S., at 275, the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way. Id., at 276, 280 (O’Connor, J., concurring).

    73

    Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/”other” terms in Jefferson County.[11] But see Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 610 (1990) (“We are a Nation not of black and white alone, but one teeming with divergent communities knitted together with various traditions and carried forth, above all, by individuals”) (O’Connor, J., dissenting). The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in ”[p]roviding students the opportunity to attend schools with diverse student enrollment,” App. in No. 05-908, at 128a, 129a. But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is ”`broadly diverse,’” Grutter, supra, at 329.

    75

    Prior to Grutter, the courts of appeals rejected as unconstitutional attempts to implement race-based assignment plans-such as the plans at issue here—in primary and secondary schools. See, e.g., Eisenberg v. Montgomery Cty. Public Schools, 197 F. 3d 123, 133 (CA4 1999); Tuttle v. Arlington Cty. School Bd., 195 F. 3d 698, 701 (CA4 1999); Wessman v. Gittens, 160 F. 3d 790, 809 (CA1 1998). See also Ho v. San Francisco Unified School Dist., 147 F. 3d 854, 865 (CA9 1998). After Grutter, however, the two Courts of Appeals in these cases, and one other, found that race-based assignments were permissible at the elementary and secondary level, largely in reliance on that case. See Parents Involved VII, 426 F. 3d, at 1166; McFarland II, 416 F. 3d, at 514; Comfort v. Lynn School Comm., 418 F. 3d 1, 13 (CA1 2005).

    77

    In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” 539 U. S., at 329. See also Bakke, supra, at 312, 313 (opinion of Powell, J.). The Court explained that ”[c]ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” Grutter, supra, at 327, 328, 334. The Court in Grutter expressly articulated key limitations on its holding— defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter.

    79

    B

    81

    Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Brief for Respondents in No. 05-908, at 19. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment.” App. in No. 05-915, at 22.[12] Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contends that because the diversity they seek is racial diversity— not the broader diversity at issue in Grutter—it makes sense to promote that interest directly by relying on race alone.

    83

    The parties and their amici dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits. The debate is not one we need to resolve, however, because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.

    85

    The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. In Seattle, the district seeks white enrollment of between 31 and 51 percent (within 10 percent of “the district white average” of 41 percent), and nonwhite enrollment of between 49 and 69 percent (within 10 percent of “the district minority average” of 59 percent). App. in No. 05-908, at 103a. In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or more than 50 percent, a range designed to be “equally above and below Black student enrollment systemwide,” McFarland I, 330 F. Supp. 2d, at 842, based on the objective of achieving at “all schools . . . an African-American enrollment equivalent to the average district-wide African-American enrollment” of 34 percent. App. in No. 05-915, at 81. In Seattle, then, the benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at least 50 percent. There must be at least 15 percent nonwhite students under Jefferson County’s plan; in Seattle, more than three times that figure. This comparison makes clear that the racial demographics in each district—whatever they happen to be— drive the required “diversity” numbers. The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and Demographics, to “the goal established by the school board of attaining a level of diversity within the schools that approximates the district’s overall demographics.” App. in No. 05-908, at 42a.

    87

    The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective school districts—or rather the white/nonwhite or black/”other” balance of the districts, since that is the only diversity addressed by the plans. Indeed, in its brief Seattle simply assumes that the educational benefits track the racial breakdown of the district. See Brief for Respondents in No. 05—908, at 36 (“For Seattle, `racial balance’ is clearly not an end in itself but rather a measure of the extent to which the educational goals the plan was designed to foster are likely to be achieved”). When asked for “a range of percentage that would be diverse,” however, Seattle’s expert said it was important to have “sufficient numbers so as to avoid students feeling any kind of specter of exceptionality.” App. in No. 05-908, at 276a. The district did not attempt to defend the proposition that anything outside its range posed the “specter of exceptionality.” Nor did it demonstrate in any way how the educational and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent AsianA-merican, which would qualify as diverse under Seattle’s plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattle’s definition would be racially concentrated.

    89

    Similarly, Jefferson County’s expert referred to the importance of having “at least 20 percent” minority group representation for the group “to be visible enough to make a difference,” and noted that “small isolated minority groups in a school are not likely to have a strong effect on the overall school.” App. in No. 05-915, at 159, 147. The Jefferson County plan, however, is based on a goal of replicating at each school “an African-American enrollment equivalent to the average district-wide AfricanA-merican enrollment.” Id., at 81. Joshua McDonald’s requested transfer was denied because his race was listed as “other” rather than black, and allowing the transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the school he sought to leave. Id., at 21. At the time, however, Young Elementary was 46.8 percent black. Id., at 73. The transfer might have had an adverse effect on the effort to approach district-wide racial proportionality at Young, but it had nothing to do with preventing either the black or “other” group from becoming “small” or “isolated” at Young.

    91

    In fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve the stated goals, even as defined by the districts. For example, at Franklin High School in Seattle, the racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming ninth-grade class in 2000-2001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent NativeA-merican, and 40.5 percent Caucasian. Without the racial tiebreaker, the class would have been 39.6 percent AsianA-merican, 30.2 percent African-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. See App. in No. 05-908, at 308a. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity.[13]

    93

    In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body. 539 U. S., at 316, 335-336. Although the matter was the subject of disagreement on the Court, see id., at 346-347 (SCALIA, J., concurring in part and dissenting in part); id., at 382-383 (Rehnquist, C. J., dissenting); id., at 388-392 (KENNEDY, J., dissenting), the majority concluded that the law school did not count back from its applicant pool to arrive at the “meaningful number” it regarded as necessary to diversify its student body. Id., at 335-336. Here the racial balance the districts seek is a defined range set solely by reference to the demographics of the respective school districts.

    95

    This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that ”[r]acial balance is not to be achieved for its own sake.” Freeman, 503 U. S., at 494. See also Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989); Bakke, 438 U. S., at 307 (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U. S., at 330.

    97

    Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ”[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.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U. S., at 602 (O’Connor, J., dissenting); internal quotation marks omitted).[14] Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the `ultimate goal’ of `eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra, at 495 (plurality opinion of O’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 320 (1986) (STEVENS, J., dissenting), in turn quoting Fullilove, 448 U. S., at 547 (STEVENS, J., dissenting); brackets and citation omitted). An interest “linked to nothing other than proportional representation of various races . . . would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’Connor, J., dissenting).

    99

    The validity of our concern that racial balancing has “no logical stopping point,” Croson, supra, at 498 (quoting Wygant, supra, at 275 (plurality opinion); internal quotation marks omitted); see also Grutter, supra, at 343, is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the districts’ demographics shift, so too will their definition of racial diversity. See App. in No. 05-908, at 103a (describing application of racial tiebreaker based on “current white percentage” of 41 percent and “current minority percentage” of 59 percent (emphasis added)).

    101

    The Ninth Circuit below stated that it “share[d] in the hope” expressed in Grutter that in 25 years racial preferences would no longer be necessary to further the interest identified in that case. Parents Involved VII, 426 F. 3d, at 1192. But in Seattle the plans are defended as necessary to address the consequences of racially identifiable housing patterns. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. See, e.g., Shaw v. Hunt, 517 U. S. 899, 909-910 (1996) (”[A]n effort to alleviate the effects of societal discrimination is not a compelling interest”); Croson, supra, at 498-499; Wygant, 476 U. S., at 276 (plurality opinion) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy”); id., at 288 (O’Connor, J., concurring in part and concurring in judgment) (”[A] governmental agency’s interest in remedying `societal’ discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster”).

    103

    The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration— they offer no definition of the interest that suggests it differs from racial balance. See, e.g., App. in No. 05-908, at 257a (“Q. What’s your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that”); id., at 228a-229a (“I don’t think we’ve ever sat down and said, `Define racially concentrated school exactly on point in quantitative terms.’ I don’t think we’ve ever had that conversation”); Tr. in McFarland I, at 1-90 (Dec. 8, 2003) (“Q. How does the Jefferson County School Board define diversity . . . ?” “A. Well, we want to have the schools that make up the percentage of students of the population”).

    105

    Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U. S., at 280, n. 14 (”[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is . . . infirm as a matter of law” (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 24 (1971) (“The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole”), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system.

    107

    The en banc Ninth Circuit declared that “when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution.” Parents Involved VII, supra, at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled “racial diversity” or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end.

    109

    C

    111

    The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Approximately 307 student assignments were affected by the racial tie-breaker in 2000-2001; the district was able to track the enrollment status of 293 of these students. App. in No. 05-908, at 162a. Of these, 209 were assigned to a school that was one of their choices, 87 of whom were assigned to the same school to which they would have been assigned without the racial tiebreaker. Eighty-four students were assigned to schools that they did not list as a choice, but 29 of those students would have been assigned to their respective school without the racial tiebreaker, and 3 were able to attend one of the oversubscribed schools due to waitlist and capacity adjustments. Id., at 162a-163a. In over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned.

    113

    As the panel majority in Parents Involved VI concluded:

    115

    Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students. Elementary school students are assigned to their first- or second-choice school 95 percent of the time, and transfers, which account for roughly 5 percent of assignments, are only denied 35 percent of the time—and presumably an even smaller percentage are denied on the basis of the racial guidelines, given that other factors may lead to a denial. McFarland I, 330 F. Supp. 2d, at 844-845, nn. 16, 18. Jefferson County estimates that the racial guidelines account for only 3 percent of assignments. Brief in Opposition in No. 05-915, p. 7, n. 4; Tr. of Oral Arg. in No. 05-915, at 46. As Jefferson County explains, “the racial guidelines have minimal impact in this process, because they `mostly influence student assignment in subtle and indirect ways.’” Brief for Respondents in No. 05-915, pp. 8-9.

    117

    While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law schoolfrom 4 to 14.5 percent. See 539 U. S., at 320. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they `provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15-50% range.’” Brief in Opposition in No. 05-915, at 7 (quoting McFarland I, supra, at 842). Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it.

    119

    The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” Grutter, supra, at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. See, e.g., App. in No. 05-908, at 224a-225a, 253a-259a, 307a. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Brief for Respondents in No. 05-915, at 8-9. Compare Croson, 488 U. S., at 519 (KENNEDY, J., concurring in part and concurring in judgment) (racial classifications permitted only “as a last resort”).

    120

    IV

    122

    JUSTICE BREYER’s dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision. To begin with, JUSTICE BREYER seeks to justify the plans at issue under our precedents recognizing the compelling interest in remedying past intentional discrimination. See post, at 18-24. Not even the school districts go this far, and for good reason. The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations. See, e.g., Milliken, 433 U. S., at 280, n. 14; Freeman, 503 U. S., at 495-496 (“Where resegregation is a product not of state action but of private choices, it does not have constitutional implications”). The dissent elides this distinction between de jure and de facto segregation, casually intimates that Seattle’s school attendance patterns reflect illegal segregation, post, at 5, 18, 23,[15] and fails to credit the judicial determination—under the most rigorous standard—that Jefferson County had eliminated the vestiges of prior segregation. The dissent thus alters in fundamental ways not only the facts presented here but the established law.

    124

    JUSTICE BREYER’s reliance on McDaniel v. Barresi, 402 U. S. 39 (1971), post, at 23-24, 29-30, highlights how far removed the discussion in the dissent is from the question actually presented in these cases. McDaniel concerned a Georgia school system that had been segregated by law. There was no doubt that the county had operated a “dual school system,” McDaniel, supra, at 41, and no one questions that the obligation to disestablish a school system segregated by law can include race-conscious remedies— whether or not a court had issued an order to that effect. See supra, at 12. The present cases are before us, how-ever, because the Seattle school district was never segregated by law, and the Jefferson County district has been found to be unitary, having eliminated the vestiges of its prior dual status. The justification for race-conscious remedies in McDaniel is therefore not applicable here. The dissent’s persistent refusal to accept this distinction— its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, “devised to overcome a history of segregated public schools,” post, at 47—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.

    126

    JUSTICE BREYER’s dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S., at 16-far more heavily than the school districts themselves. Compare post, at 3, 22-28, with Brief for Respondents in No. 05-908, at 19-20; Brief for Respondents in No. 05-915, at 31. The dissent acknowledges that the two-sentence discussion in Swann was pure dicta, post, at 22, but nonetheless asserts that it demonstrates a “basic principle of constitutional law” that provides “authoritative legal guidance.” Post, at 22, 30. Initially, as the Court explained just last Term, “we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.” Central Va. Community College v. Katz, 546 U. S. 356, 363 (2006). That is particularly true given that, when Swann was decided, this Court had not yet confirmed that strict scrutiny applies to racial classifications like those before us. See n. 16, infra. There is nothing “technical” or “theoretical,” post, at 30, about our approach to such dicta. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 399-400 (1821) (Marshall, C. J.) (explaining why dicta is not binding).

    128

    JUSTICE BREYER would not only put such extraordinary weight on admitted dicta, but relies on the statement for something it does not remotely say. Swann addresses only a possible state objective; it says nothing of the permissible means—race conscious or otherwise—that a school district might employ to achieve that objective. The reason for this omission is clear enough, since the case did not involve any voluntary means adopted by a school district. The dissent’s characterization of Swann as recognizing that “the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals” is—at best—a dubious inference. Post, at 22. Even if the dicta from Swann were entitled to the weight the dissent would give it, and no dicta is, it not only did not address the question presented in Swann, it also does not address the question presented in these cases—whether the school districts’ use of racial classifications to achieve their stated goals is permissible.

    130

    Further, for all the lower court cases JUSTICE BREYER cites as evidence of the “prevailing legal assumption” embodied by Swann, very few are pertinent. Most are not. For example, the dissent features Tometz v. Board of Ed., Waukegan City School Dist. No. 61, 39 Ill. 2d 593, 596-598, 237 N. E. 2d 498, 500-502 (1968), an Illinois decision, as evidence that “state and federal courts had considered the matter settled and uncontroversial.” Post, at 25. But Tometz addressed a challenge to a statute requiring race-consciousness in drawing school attendance boundaries-an issue well beyond the scope of the question presented in these cases. Importantly, it considered that issue only under rational-basis review, 39 Ill. 2d, at 600, 237 N. E. 2d, at 502 (“The test of any legislative classification essentially is one of reasonableness”), which even the dissent grudgingly recognizes is an improper standard for evaluating express racial classifications. Other cases cited are similarly inapplicable. See, e.g., Citizens for Better Ed. v. Goose Creek Consol. Independent School Dist., 719 S. W. 2d 350, 352-353 (Tex. App. 1986) (upholding rezoning plan under rational-basis review).[16]

    132

    JUSTICE BREYER’s dissent next looks for authority to a footnote in Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 472, n. 15 (1982), post, at 56-57, but there this Court expressly noted that it was not passing on the propriety of race-conscious student assignments in the absence of a finding of de jure segregation. Similarly, the citation of Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527 (1982), post, at 24, in which a state referendum prohibiting a race-based assignment plan was challenged, is inapposite—in Crawford the Court again expressly reserved the question presented by these cases. 458 U. S., at 535, n. 11. Such reservations and preliminary analyses of course did not decide the merits of this question—as evidenced by the disagreement among the lower courts on this issue. Compare Eisenberg, 197 F. 3d, at 133, with Comfort, 418 F. 3d, at 13.

    134

    JUSTICE BREYER’s dissent also asserts that these cases are controlled by Grutter, claiming that the existence of a compelling interest in these cases “follows a fortiori” from Grutter, post, at 41, 64-66, and accusing us of tacitly overruling that case, see post, at 64-66. The dissent overreads Grutter, however, in suggesting that it renders pure racial balancing a constitutionally compelling interest; Grutter itself recognized that using race simply to achieve racial balance would be “patently unconstitutional,” 539 U. S., at 330. The Court was exceedingly careful in describing the interest furthered in Grutter as “not an interest in simple ethnic diversity” but rather a “far broader array of qualifications and characteristics” in which race was but a single element. 539 U. S., at 324-325 (internal quotation marks omitted). We take the Grutter Court at its word. We simply do not understand how JUSTICE

    136

    BREYER can maintain that classifying every schoolchild as black or white, and using that classification as a determinative factor in assigning children to achieve pure racial balance, can be regarded as “less burdensome, and hence more narrowly tailored” than the consideration of race in Grutter, post, at 47, when the Court in Grutter stated that ”[t]he importance of . . . individualized consideration” in the program was “paramount,” and consideration of race was one factor in a “highly individualized, holistic review.” 539 U. S., at 337. Certainly if the constitutionality of the stark use of race in these cases were as established as the dissent would have it, there would have been no need for the extensive analysis undertaken in Grutter. In light of the foregoing, JUSTICE BREYER’s appeal to stare decisis rings particularly hollow. See post, at 65-66.

    138

    At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, JUSTICE BREYER’s dissent candidly dismisses the significance of this Court’s repeated holdings that all racial classifications must be reviewed under strict scrutiny, see post, at 31-33, 35-36, arguing that a different standard of review should be applied because the districts use race for beneficent rather than malicious purposes, see post, at 31-36.

    140

    This Court has recently reiterated, however, that ”`all racial classifications [imposed by government] . . . must be analyzed by a reviewing court under strict scrutiny.’ ” Johnson, 543 U. S., at 505 (quoting Adarand, 515 U. S., at 227; emphasis added by Johnson Court). See also Grutter, supra, at 326 (”[G]overnmental action based on race — a group classification long recognized as in most circum-stances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry” (internal quotation marks and emphasis omitted)). JUSTICE BREYER nonetheless relies on the good intentions and motives of the school districts, stating that he has found “no case that . . . repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races.” Post, at 29 (emphasis in original). We have found many. Our cases clearly reject the argument that motives affect the strict scrutiny analysis. See Johnson, supra, at 505 (“We have insisted on strict scrutiny in every context, even for so-called `benign’ racial classifications”); Adarand, 515 U. S., at 227 (rejecting idea that ”`benign’” racial classifications may be held to “different standard”); Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”).

    142

    This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz, 539 U. S., at 282 (BREYER, J., concurring in judgment); id., at 301 (GINSBURG, J., dissenting); Adarand, supra, at 243 (STEVENS, J., dissenting); Wygant, 476 U. S., at 316-317 (STEVENS, J., dissenting), and has been repeatedly rejected. See also Bakke, 438 U. S., at 289-291 (opinion of Powell, J.) (rejecting argument that strict scrutiny should be applied only to classifications that disadvantage minorities, stating ”[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination”).

    144

    The reasons for rejecting a motives test for racial classifications are clear enough. “The Court’s emphasis on `benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility.. . . `[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro Broadcasting, 497 U. S., at 609-610 (O’Connor, J., dissenting). See also Adarand, supra, at 226 (”`[I]t may not always be clear that a so-called preference is in fact benign’” (quoting Bakke, supra, at 298 (opinion of Powell, J.))). Accepting JUSTICE BREYER’s approach would “do no more than move us from `separate but equal’ to `unequal but benign.’” Metro Broadcasting, supra, at 638 (KENN-EDY, J., dissenting).

    146

    JUSTICE BREYER speaks of bringing “the races” together (putting aside the purely black-and-white nature of the plans), as the justification for excluding individuals on the basis of their race. See post, at 28-29. Again, this approach to racial classifications is fundamentally at odds with our precedent, which makes clear that the Equal Protection Clause “protect[s] persons, not groups,” Adarand, 515 U. S., at 227 (emphasis in original). See ibid. (”[A]ll governmental action based on race—a group classification long recognized as `in most circumstances irrelevant and therefore prohibited,’ Hirabayashi [v. United States, 320 U. S. 81, 100 (1943)]—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed” (first emphasis in original); Metro Broadcasting, supra, at 636 (”[O]ur Constitution protects each citizen as an individual, not as a member of a group” (KENNEDY, J., dissenting)); Bakke, supra, at 289 (opinion of Powell, J.) (Fourteenth Amendment creates rights “guaranteed to the individual. The rights established are personal rights”). This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) (“At stake is the personal interest of the plaintiffs in admission to public schools . . . on a nondiscriminatory basis” (emphasis added)). For the dissent, in contrast, ”`individualized scrutiny’ is simply beside the point.” Post, at 55.

    148

    JUSTICE BREYER’s position comes down to a familiar claim: The end justifies the means. He admits that “there is a cost in applying `a state-mandated racial label,’” post, at 67, but he is confident that the cost is worth paying. Our established strict scrutiny test for racial classifications, however, insists on “detailed examination, both as to ends and as to means.” Adarand, supra, at 236 (emphasis added). Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny.

    150

    Despite his argument that these cases should be evaluated under a “standard of review that is not `strict’ in the traditional sense of that word,” post, at 36, JUSTICE

    152

    BREYER still purports to apply strict scrutiny to these cases. See post, at 37. It is evident, however, that JUSTICE BREYER’s brand of narrow tailoring is quite unlike anything found in our precedents. Without any detailed discussion of the operation of the plans, the students who are affected, or the districts’ failure to consider race-neutral alternatives, the dissent concludes that the districts have shown that these racial classifications are necessary to achieve the districts’ stated goals. This conclusion is divorced from any evaluation of the actual impact of the plans at issue in these cases—other than to note that the plans “often have no effect.” Post, at 46.[17] Instead, the dissent suggests that some combination of the development of these plans over time, the difficulty of the endeavor, and the good faith of the districts suffices to demonstrate that these stark and controlling racial classifications are constitutional. The Constitution and our precedents require more.

    154

    In keeping with his view that strict scrutiny should not apply, JUSTICE BREYER repeatedly urges deference to local school boards on these issues. See, e.g., post, at 21, 48-49, 66. Such deference “is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified.” Johnson, 543 U. S., at 506, n. 1. See Croson, 488 U. S., at 501 (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 637 (1943) (“The Fourteenth Amendment . . . protects the citizen against the State itself and all of its creatures—Boards of Education not excepted”).

    156

    JUSTICE BREYER’s dissent ends on an unjustified note of alarm. It predicts that today’s decision “threaten[s]” the validity of ”[h]undreds of state and federal statutes and regulations.” Post, at 61; see also post, at 27-28. But the examples the dissent mentions—for example, a provision of the No Child Left Behind Act that requires States to set measurable objectives to track the achievement of students from major racial and ethnic groups, 20 U. S. C. §6311(b)(2)(C)(v)—have nothing to do with the pertinent issues in these cases.

    158

    JUSTICE BREYER also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. Post, at 58-62. These other means—e.g., where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools—implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity—not even in dicta. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissent’s cataclysmic concerns. Under that approach, the school districts have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosen—classifying individual students on the basis of their race and discriminating among them on that basis.

    160

    If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. ”[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand, 515 U. S., at 214 (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U. S. 630, 657 (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Metro Broadcasting, 497 U. S., at 603 (O’Connor, J., dissenting). As the Court explained in Rice v. Cayetano, 528 U. S. 495, 517 (2000), ”[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”

    162

    All this is true enough in the contexts in which these statements were made—government contracting, voting districts, allocation of broadcast licenses, and electing state officers—but when it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. Id., at 493-494. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. See id., at 494 (”`The impact [of segregation] is greater when it has the sanction of the law’ ”). The next Term, we accordingly stated that “full compliance” with Brown I required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown II, 349 U. S., at 300-301 (emphasis added).

    164

    The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: ”[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O. T. 1953, p. 15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was ”[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a non-racial basis.” Brown II, supra, at 300-301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?

    166

    Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U. S., at 300-301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

    168

    The judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are remanded for further proceedings.

    170

    It is so ordered.

    172

    JUSTICE THOMAS, concurring.

    174

    Today, the Court holds that state entities may not experiment with race-based means to achieve ends they deem socially desirable. I wholly concur in THE CHIEF JUSTICE’s opinion. I write separately to address several of the contentions in JUSTICE BREYER’s dissent (hereinafter the dissent). Contrary to the dissent’s arguments, reseg-regation is not occurring in Seattle or Louisville; these school boards have no present interest in remedying past segregation; and these race-based student-assignment programs do not serve any compelling state interest. Accordingly, the plans are unconstitutional. Disfavoring a color-blind interpretation of the Constitution, the dissent would give school boards a free hand to make decisions on the basis of race—an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education, 347 U. S 483 (1954). This approach is just as wrong today as it was a half-century ago. The Constitution and our cases require us to be much more demanding before permitting local school boards to make decisions based on race.

    176

    I

    178

    The dissent repeatedly claims that the school districts are threatened with resegregation and that they will succumb to that threat if these plans are declared unconstitutional. It also argues that these plans can be justified as part of the school boards’ attempts to “eradicat[e] earlier school segregation.” See, e.g., post, at 4. Contrary to the dissent’s rhetoric, neither of these school districts is threatened with resegregation, and neither is constitutionally compelled or permitted to undertake race-based remediation. Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.

    180

    A

    182

    Because this Court has authorized and required race-based remedial measures to address de jure segregation, it is important to define segregation clearly and to distinguish it from racial imbalance. In the context of public schooling, segregation is the deliberate operation of a school system to “carry out a governmental policy to separate pupils in schools solely on the basis of race.” Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 6 (1971); see also Monroe v. Board of Comm’rs of Jackson, 391 U. S. 450, 452 (1968). In Brown, this Court declared that segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Swann, supra, at 6; see also Green v. School Bd. of New Kent Cty., 391 U. S. 430, 435 (1968) (”[T]he State, acting through the local school board and school officials, organized and operated a dual system, part `white’ and part `Negro.’ It was such dual systems that 14 years ago Brown I[, 347 U. S. 483,] held unconstitutional and a year later Brown II[, 349 U. S. 294 (1955)] held must be abolished”).[1]

    184

    Racial imbalance is the failure of a school district’s individual schools to match or approximate the demographic makeup of the student population at large. Cf. Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 460 (1982). Racial imbalance is not segregation.[2] Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. See Swann, supra, at 25-26; Missouri v. Jenkins, 515 U. S. 70, 116 (1995) (THOMAS, J., concurring). Because racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself. Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 413 (1977); Dayton Bd. of Ed. v. Brinkman, 443 U. S. 526, 531, n. 5 (1979) (“Racial imbalance. . . is not per se a constitutional violation”); Freeman v. Pitts, 503 U. S. 467, 494 (1992); see also Swann, supra, at 31-32; cf. Milliken v. Bradley, 418 U. S. 717, 740-741, and n. 19 (1974).

    186

    Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race. The statistics cited in Appendix A to the dissent are not to the contrary. See post, at 69-72. At most, those statistics show a national trend toward classroom racial imbalance. However, racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.[3]

    188

    B

    190

    Just as the school districts lack an interest in preventing resegregation, they also have no present interest in remedying past segregation. The Constitution generally prohibits government race-based decisionmaking, but this Court has authorized the use of race-based measures for remedial purposes in two narrowly defined circumstances. First, in schools that were formerly segregated by law, race-based measures are sometimes constitutionally compelled to remedy prior school segregation. Second, in Croson, the Court appeared willing to authorize a government unit to remedy past discrimination for which it was responsible. Richmond v. J. A. Croson Co., 488 U. S. 469, 504 (1989). Without explicitly resting on either of these strands of doctrine, the dissent repeatedly invokes the school districts’ supposed interests in remedying past segregation. Properly analyzed, though, these plans do not fall within either existing category of permissible racebased remediation.

    192

    1

    194

    The Constitution does not permit race-based government decisionmaking simply because a school district claims a remedial purpose and proceeds in good faith with arguably pure motives. Grutter v. Bollinger, 539 U. S. 306, 371 (2003) (THOMAS, J., concurring in part and dissenting in part) (citing Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 239 (1995) (SCALIA, J., concurring in part and concurring in judgment)). Rather, race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest. Grutter, supra, at 326; see also Part II-A, infra. This exacting scrutiny “has proven automatically fatal” in most cases. Jenkins, supra, at 121 (THOMAS, J., concurring); cf. Hirabayashi v. United States, 320 U. S. 81, 100 (1943) (”[R]acial discriminations are in most circumstances irrelevant and therefore prohibited”). And appropriately so. “The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Grutter, supra, at 353 (opinion of THOMAS, J.). Therefore, as a general rule, all race-based government decisionmaking—regardless of context—is unconstitutional.

    196

    2

    198

    This Court has carved out a narrow exception to that general rule for cases in which a school district has a “history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race.”[4] See Swann, 402 U. S., at 5-6. In such cases, race-based remedial measures are sometimes required.[5] Green, 391 U. S., at 437-438; cf. United States v. Fordice, 505 U. S. 717, 745 (1992) (THOMAS, J., concurring).[6] But without a history of state-enforced racial separation, a school district has no affirmative legal obligation to take race-based remedial measures to eliminate segregation and its vestiges.

    200

    Neither of the programs before us today is compelled as a remedial measure, and no one makes such a claim. Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle’s plan.[7] Although Louisville once operated a segregated school system and was subject to a Federal District Court’s desegregation decree, see ante, at 7; Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 376-377 (WD Ky. 2000), that decree was dissolved in 2000, id., at 360. Since then, no race-based remedial measures have been required in Louisville. Thus, the race-based student-assignment plan at issue here, which was instituted the year after the dissolution of the desegregation decree, was not even arguably required by the Constitution.

    202

    3

    204

    Aside from constitutionally compelled remediation in schools, this Court has permitted government units to remedy prior racial discrimination only in narrow circumstances. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277 (1986) (plurality opinion). Regardless of the constitutional validity of such remediation, see Croson, supra, at 524-525 (SCALIA, J., concurring in judgment), it does not apply here. Again, neither school board asserts that its race-based actions were taken to remedy prior discrimination. Seattle provides three forward-looking—as opposed to remedial—justifications for its race-based assignment plan. Brief for Respondents in No. 05-908, pp. 24-34. Louisville asserts several similar forward-looking interests, Brief for Respondents in No. 05-915, pp. 24-29, and at oral argument, counsel for Louisville disavowed any claim that Louisville’s argument “depend[ed] in any way on the prior de jure segregation,” Tr. of Oral Arg. in No. 05-915, p. 38.

    206

    Furthermore, for a government unit to remedy past discrimination for which it was responsible, the Court has required it to demonstrate “a `strong basis in evidence for its conclusion that remedial action was necessary.’” Croson, 488 U. S., at 500 (quoting Wygant, supra, at 277 (plurality opinion)). Establishing a “strong basis in evidence” requires proper findings regarding the extent of the government unit’s past racial discrimination. Croson, 488 U. S., at 504. The findings should “define the scope of any injury [and] the necessary remedy,” id., at 505, and must be more than “inherently unmeasurable claims of past wrongs,” id., at 506. Assertions of general societal discrimination are plainly insufficient. Id., at 499, 504; Wygant, supra, at 274 (plurality opinion); cf. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 310 (1978) (opinion of Powell, J.). Neither school district has made any such specific findings. For Seattle, the dissent attempts to make up for this failing by adverting to allegations made in past complaints filed against the Seattle school district. However, allegations in complaints cannot substitute for specific findings of prior discrimination—even when those allegations lead to settlements with complaining parties. Cf. Croson, supra, at 505; Wygant, supra, at 279, n. 5 (plurality opinion). As for Louisville, its slate was cleared by the District Court’s 2000 dissolution decree, which effectively declared that there were no longer any effects of de jure discrimination in need of remediation.[8]

    208

    Despite the dissent’s repeated intimation of a remedial purpose, neither of the programs in question qualifies as a permissible race-based remedial measure. Thus, the programs are subject to the general rule that government race-based decisionmaking is unconstitutional.

    210

    C

    212

    As the foregoing demonstrates, racial balancing is some-times a constitutionally permissible remedy for the discrete legal wrong of de jure segregation, and when directed to that end, racial balancing is an exception to the general rule that government race-based decisionmaking is unconstitutional. Perhaps for this reason, the dissent conflates the concepts of segregation and racial imbalance: If racial imbalance equates to segregation, then it must also be constitutionally acceptable to use racial balancing to remedy racial imbalance.

    214

    For at least two reasons, however, it is wrong to place the remediation of segregation on the same plane as the remediation of racial imbalance. First, as demonstrated above, the two concepts are distinct. Although racial imbalance can result from de jure segregation, it does not necessarily, and the further we get from the era of state — sponsored racial separation, the less likely it is that racial imbalance has a traceable connection to any prior segregation. See Freeman, 503 U. S., at 496; Jenkins, 515 U. S., at 118 (THOMAS, J., concurring).

    216

    Second, a school cannot “remedy” racial imbalance in the same way that it can remedy segregation. Remediation of past de jure segregation is a one-time process involving the redress of a discrete legal injury inflicted by an identified entity. At some point, the discrete injury will be remedied, and the school district will be declared unitary. See Swann, 402 U. S., at 31. Unlike de jure segregation, there is no ultimate remedy for racial imbalance. Individual schools will fall in and out of balance in the natural course, and the appropriate balance itself will shift with a school district’s changing demographics. Thus, racial balancing will have to take place on an indefinite basis—a continuous process with no identifiable culpable party and no discernable end point. In part for those reasons, the Court has never permitted outright racial balancing solely for the purpose of achieving a particular racial balance.

    218

    II

    220

    Lacking a cognizable interest in remediation, neither of these plans can survive strict scrutiny because neither plan serves a genuinely compelling state interest. The dissent avoids reaching that conclusion by unquestioningly accepting the assertions of selected social scientists while completely ignoring the fact that those assertions are the subject of fervent debate. Ultimately, the dissent’s entire analysis is corrupted by the considerations that lead it initially to question whether strict scrutiny should apply at all. What emerges is a version of “strict scrutiny” that combines hollow assurances of harmlessness with reflexive acceptance of conventional wisdom. When it comes to government race-based decisionmaking, the Constitution demands more.

    222

    A

    224

    The dissent claims that “the law requires application here of a standard of review that is not `strict’ in the traditional sense of that word.” Post, at 36. This view is informed by dissents in our previous cases and the concurrences of two Court of Appeals judges. Post, at 34-36 (citing 426 F. 3d 1162, 1193-1194 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn School Comm., 418 F. 3d 1, 28-29 (CA1 2005) (Boudin, C. J., concurring)). Those lower court judges reasoned that programs like these are not “aimed at oppressing blacks” and do not “seek to give one racial group an edge over another.” Comfort, supra, at 27 (Boudin, C. J., concurring); 426 F. 3d, at 1193 (Kozinski, J., concurring). They were further persuaded that these plans differed from other race-based programs this Court has considered because they are “certainly more benign than laws that favor or disfavor one race, segregate by race, or create quotas for or against a racial group,” Comfort, 418 F. 3d, at 28 (Boudin, C. J., concurring), and they are “far from the original evils at which the Fourteenth Amendment was addressed,” id., at 29; 426 F. 3d, at 1195 (Kozinski, J., concurring). Instead of strict scrutiny, Judge Kozinski would have analyzed the plans under “robust and realistic rational basis review.” Id., at 1194.

    226

    These arguments are inimical to the Constitution and to this Court’s precedents.[9] We have made it unusually clear that strict scrutiny applies to every racial classification. Adarand, 515 U. S., at 227; Grutter, 539 U. S., at 326; Johnson v. California, 543 U. S. 499, 505 (2005) (“We have insisted on strict scrutiny in every context, even for so-called `benign’ racial classifications”).[10] There are good reasons not to apply a lesser standard to these cases. The constitutional problems with government race-based decisionmaking are not diminished in the slightest by the presence or absence of an intent to oppress any race or by the real or asserted well-meaning motives for the race-based decisionmaking. Adarand, 515 U. S., at 228-229. Purportedly benign race-based decisionmaking suffers the same constitutional infirmity as invidious race-based decisionmaking. Id., at 240 (THOMAS, J., concurring in part and concurring in judgment) (“As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged”).

    228

    Even supposing it mattered to the constitutional analysis, the race-based student assignment programs before us are not as benign as the dissent believes. See post, at 34-35. ”[R]acial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.” Adarand, supra, at 241 (opinion of THOMAS, J.). As these programs demonstrate, every time the government uses racial criteria to “bring the races together,” post, at 29, someone gets excluded, and the person excluded suffers an injury solely because of his or her race. The petitioner in the Louisville case received a letter from the school board informing her that her kindergartener would not be allowed to attend the school of petitioner’s choosing because of the child’s race. App. in No. 05-915, p. 97. Doubtless, hundreds of letters like this went out from both school boards every year these racebased assignment plans were in operation. This type of exclusion, solely on the basis of race, is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and “provoke[s] resentment among those who believe that they have been wronged by the government’s use of race.” Adarand, supra, at 241 (opinion of THOMAS, J.). Accordingly, these plans are simply one more variation on the government race-based decisionmaking we have consistently held must be subjected to strict scrutiny. Grutter, supra, at 326.

    230

    B

    232

    Though the dissent admits to discomfort in applying strict scrutiny to these plans, it claims to have nonetheless applied that exacting standard. But in its search for a compelling interest, the dissent casually accepts even the most tenuous interests asserted on behalf of the plans, grouping them all under the term ”`integration.’” See post, at 37. ”`[I]ntegration,’” we are told, has “three essential elements.” Ibid. None of these elements is compelling. And the combination of the three unsubstantiated elements does not produce an interest any more compelling than that represented by each element independently.

    234

    1

    236

    According to the dissent, integration involves “an interest in setting right the consequences of prior conditions of segregation.” Post, at 37. For the reasons explained above, the records in these cases do not demonstrate that either school board’s plan is supported by an interest in remedying past discrimination. Part I—B, supra. Moreover, the school boards have no interest in remedying the sundry consequences of prior segregation unrelated to schooling, such as “housing patterns, employment practices, economic conditions, and social attitudes.” Post, at 38. General claims that past school segregation affected such varied societal trends are “too amorphous a basis for imposing a racially classified remedy,” Wygant, 476 U. S., at 276 (plurality opinion), because ”[i]