MR. JUSTICE POWELL announced the judgment of the Court.
MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part.
MR. JUSTICE WHITE concurring in the judgment
MR. JUSTICE BLACKMUN. concurring in the judgment
MR. JUSTICE MARSHALL. concurring
in the judgment in part and dissenting in part.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, concurring in the judgment in part and dissenting in part.
The Court today, in reversing in part the
judgment of the Supreme Court of California, affirms the constitutional
power of Federal and State Governments to act affirmatively to
achieve equal opportunity for all. The difficulty of the issue
presented -- whether government may use race-conscious programs
to redress the continuing effects of past discrimination -- and
the mature consideration which each of our Brethren has brought
to it have resulted in many opinions, no single one speaking for
the Court. But this should not and must not mask the central meaning
of today's opinions: Government may take race into account when
it acts not to demean or insult any racial group, but to remedy
disadvantages cast on minorities by past racial prejudice, at
least when appropriate findings have been made by judicial, legislative,
or administrative bodies with competence to act in this area.
THE CHIEF JUSTICE and our Brothers STEWART,
REHNQUIST, and STEVENS, have concluded that Title VI of the Civil
Rights Act of 1964, 78 Stat. 252, as amended, 42 U. S. C. §
2000d et seq., prohibits programs such as that at the Davis Medical
School. On this statutory theory alone, they would hold that respondent
Allan Bakke's rights have been violated and that he must, therefore,
be admitted to the Medical School. Our Brother POWELL, reaching
the Constitution, concludes that, although race may be taken into
account in university admissions, the particular special admissions
program used by petitioner, which resulted in the exclusion of
respondent Bakke, was not shown to be necessary to achieve petitioner's
stated goals. Accordingly, these Members of the Court form a majority
of five affirming the judgment of the Supreme Court of California
insofar as it holds that respondent Bakke "is entitled to
an order that he be admitted to the University." 18 Cal.
3d 34, 64, 553 P. 2d 1152, 1172 (1976).
We agree with MR. JUSTICE POWELL that, as applied
to the case before us, Title VI goes no further in prohibiting
the use of race than the Equal Protection Clause of the Fourteenth
Amendment itself. We also agree that the effect of the California
Supreme Court's affirmance of the judgment of the Superior Court
of California would be to prohibit the University from establishing
in the future affirmative-action programs that take race into
account. See ante, at 271 n. Since we conclude that the affirmative
admissions program at the Davis Medical School is constitutional,
we would reverse the judgment below in all respects. MR. JUSTICE
POWELL agrees that some uses of race in university admissions
are permissible and, therefore, he joins with us to make five
votes reversing the judgment below insofar as it prohibits the
University from establishing race-conscious programs in the future.
1
I
Our Nation was founded on the principle that
"all Men are created equal." Yet candor requires acknowledgment
that the Framers of our Constitution, to forge the 13 Colonies
into one Nation, openly compromised this principle of equality
with its antithesis: slavery. The consequences of this compromise
are well known and have aptly been called our "American Dilemma."
Still, it is well to recount how recent the time has been, if
it has yet come, when the promise of our principles has flowered
into the actuality of equal opportunity for all regardless of
race or color.
The Fourteenth Amendment, the embodiment in
the Constitution of our abiding belief in human equality, has
been the law of our land for only slightly more than half its
200 years. And for half of that half, the Equal Protection Clause
of the Amendment was largely moribund so that, as late as 1927,
Mr. Justice Holmes could sum up the importance of that Clause
by remarking that it was the "last resort of constitutional
arguments." Buck v. Bell, 274 U.S. 200, 208 (1927). Worse
than desuetude, the Clause was early turned against those whom
it was intended to set free, condemning them to a "separate
but equal" 2 status before
the law, a status always separate but seldom equal. Not until
1954 -- only 24 years ago -- was this odious doctrine interred
by our decision in Brown v. Board of Education, 347 U.S. 483 (Brown
I), and its progency, 3 which
proclaimed that separate schools and public facilities of all
sorts were inherently unequal and forbidden under our Constitution.
Even then inequality was not eliminated with "all deliberate
speed." Brown v. Board of Education, 349 U.S. 294, 301 (1955).
In 1968 4 and again in 1971,
5 for example, we were forced
to remind school boards of their obligation to eliminate racial
discrimination root and branch. And a glance at our docket 6
and at dockets of lower courts will show that even today officially
sanctioned discrimination is not a thing of the past.
Against this background, claims that law must
be "colorblind" or that the datum of race is no longer
relevant to public policy must be seen as aspiration rather than
as description of reality. This is not to denigrate aspiration;
for reality rebukes us that race has too often been used by those
who would stigmatize and oppress minorities. Yet we cannot --
and, as we shall demonstrate, need not under our Constitution
or Title VI, which merely extends the constraints of the Fourteenth
Amendment to private parties who receive federal funds -- let
color blindness become myopia which masks the reality that many
"created equal" have been treated within our lifetimes
as inferior both by the law and by their fellow citizens.
II
The threshold question we must decide is whether
Title VI of the Civil Rights Act of 1964 bars recipients of federal
funds from giving preferential consideration to disadvantaged
members of racial minorities as part of a program designed to
enable such individuals to surmount the obstacles imposed by racial
discrimination. 7 We join Parts
I and V-C of our Brother POWELL's opinion and three of us agree
with his conclusion in Part II that this case does not require
us to resolve the question whether there is a private right of
action under Title VI. 8
In our view, Title VI prohibits only those
uses of racial criteria that would violate the Fourteenth Amendment
if employed by a State or its agencies; it does not bar the preferential
treatment of racial minorities as a means of remedying past societal
discrimination to the extent that such action is consistent with
the Fourteenth Amendment. The legislative history of Title VI,
administrative regulations interpreting the statute, subsequent
congressional and executive action, and the prior decisions of
this Court compel this conclusion. None of these sources lends
support to the proposition that Congress intended to bar all race-conscious
efforts to extend the benefits of federally financed programs
to minorities who have been historically excluded from the full
benefits of American life.
A
The history of Title VI -- from President Kennedy's
request that Congress grant executive departments and agencies
authority to cut off federal funds to programs that discriminate
against Negroes through final enactment of legislation incorporating
his proposals -- reveals one fixed purpose: to give the Executive
Branch of Government clear authority to terminate federal funding
of private programs that use race as a means of disadvantaging
minorities in a manner that would be prohibited by the Constitution
if engaged in by government.
This purpose was first expressed in President
Kennedy's June 19, 1963, message to Congress proposing the legislation
that subsequently became the Civil Rights Act of 1964. 9
Representative Celler, the Chairman of the House Judiciary Committee,
and the floor manager of the legislation in the House, introduced
Title VI in words unequivocally expressing the intent to provide
the Federal Government with the means of assuring that its funds
were not used to subsidize racial discrimination inconsistent
with the standards imposed by the Fourteenth and Fifth Amendments
upon state and federal action.
"The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of [higher] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association." 110 Cong. Rec. 1519 (1964).
It was clear to Representative Celler that
Title VI, apart from the fact that it reached all federally funded
activities even in the absence of sufficient state or federal
control to invoke the Fourteenth or Fifth Amendments, was not
placing new substantive limitations upon the use of racial criteria,
but rather was designed to extend to such activities "the
existing right to equal treatment" enjoyed by Negroes under
those Amendments, and he later specifically defined the purpose
of Title VI in this way:
"In general, it seems rather anomalous that the Federal Government should aid and abet discrimination on the basis of race, color, or national origin by granting money and other kinds of financial aid. It seems rather shocking, moreover, that while we have on the one hand the 14th amendment, which is supposed to do away with discrimination since it provides for equal protection of the laws, on the other hand, we have the Federal Government aiding and abetting those who persist in practicing racial discrimination.
"It is for these reasons that we bring forth title VI. The enactment of title VI will serve to override specific provisions of law which contemplate Federal assistance to racially segregated institutions." Id., at 2467.
Representative Celler also filed a memorandum
setting forth the legal basis for the enactment of Title VI which
reiterated the theme of his oral remarks: "In exercising
its authority to fix the terms on which Federal funds will be
disbursed . . . , Congress clearly has power to legislate so as
to insure that the Federal Government does not become involved
in a violation of the Constitution." Id., at 1528.
Other sponsors of the legislation agreed with Representative Celler that the function of Title VI was to end the Federal Government's complicity in conduct, particularly the segregation or exclusion of Negroes, inconsistent with the standards to be found in the antidiscrimination provisions of the Constitution. Representative Lindsay, also a member of the Judiciary Committee, candidly acknowledged, in the course of explaining why Title VI was necessary, that it did not create any new standard of equal treatment beyond that contained in the Constitution:
"Both the Federal Government and the States are under constitutional mandates not to discriminate. Many have raised the question as to whether legislation is required at all. Does not the Executive already have the power in the distribution of Federal funds to apply those conditions which will enable the Federal Government itself to live up to the mandate of the Constitution and to require States and local government entities to live up to the Constitution, most especially the 5th and 14th amendments?" Id., at 2467.
He then explained that legislation was needed
to authorize the termination of funding by the Executive Branch
because existing legislation seemed to contemplate the expenditure
of funds to support racially segregated institutions. Ibid. The
views of Representatives Celler and Lindsay concerning the purpose
and function of Title VI were shared by other sponsors and proponents
of the legislation in the House. 10
Nowhere is there any suggestion that Title VI was intended to
terminate federal funding for any reason other than consideration
of race or national origin by the recipient institution in a manner
inconsistent with the standards incorporated in the Constitution.
The Senate's consideration of Title VI reveals
an identical understanding concerning the purpose and scope of
the legislation. Senator Humphrey, the Senate floor manager, opened
the Senate debate with a section-by-section analysis of the Civil
Rights Act in which he succinctly stated the purpose of Title
VI:
"The purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination. In many instances the practices of segregation or discrimination, which title VI seeks to end, are unconstitutional. This is clearly so wherever Federal funds go to a State agency which engages in racial discrimination. It may also be so where Federal funds go to support private, segregated institutions, under the decision in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (C. A. 4, 1963), [cert. denied, 376 U.S. 938 (1964)]. In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." Id., at 6544.
Senator Humphrey, in words echoing statements
in the House, explained that legislation was needed to accomplish
this objective because it was necessary to eliminate uncertainty
concerning the power of federal agencies to terminate financial
assistance to programs engaging in racial discrimination in the
face of various federal statutes which appeared to authorize grants
to racially segregated institutions. Ibid. Although Senator Humphrey
realized that Title VI reached conduct which, because of insufficient
governmental action, might be beyond the reach of the Constitution,
it was clear to him that the substantive standard imposed by the
statute was that of the Fifth and Fourteenth Amendments.
Senate supporters of Title VI repeatedly expressed
agreement with Senator Humphrey's description of the legislation
as providing the explicit authority and obligation to apply the
standards of the Constitution to all recipients of federal funds.
Senator Ribicoff described the limited function of Title VI:
"Basically, there is a constitutional restriction against discrimination in the use of Federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction." Id., at 13333.
Other strong proponents of the legislation
in the Senate repeatedly expressed their intent to assure that
federal funds would only be spent in accordance with constitutional
standards. See remarks of Senator Pastore, id., at 7057, 7062;
Senator Clark, id., at 5243; Senator Allott, id., at 12675, 12677.
11
Respondent's contention that Congress intended Title VI to bar affirmative-action programs designed to enable minorities disadvantaged by the effects of discrimination to participate in federally financed programs is also refuted by an examination of the type of conduct which Congress thought it was prohibiting by means of Title VI. The debates reveal that the legislation was motivated primarily by a desire to eradicate a very specific evil: federal financial support of programs which disadvantaged Negroes by excluding them from participation or providing them with separate facilities. Again and again supporters of Title VI emphasized that the purpose of the statute was to end segregation in federally funded activities and to end other discriminatory uses of race disadvantaging Negroes. Senator Humphrey set the theme in his speech presenting Title VI to the Senate:
"Large sums of money are contributed by the United States each year for the construction, operation, and maintenance of segregated schools.
. . . .
" Similarly, under the Hill-Burton Act, Federal grants are made to hospitals which admit whites only or Negroes only. . . .
"In higher education also, a substantial part of the Federal grants to colleges, medical schools and so forth, in the South is still going to segregated institutions.
"Nor is this all. In several States, agricultural extension services, supported by Federal funds, maintain racially segregated offices for Negroes and whites. . . .
". . . Vocational training courses, supported with Federal funds, are given in segregated schools and institutions and often limit Negroes to training in less skilled occupations. In particular localities it is reported that Negroes have been cut off from relief rolls, or denied surplus agricultural commodities, or otherwise deprived of the benefit of federally assisted programs, in retaliation for their participation in voter registration drives, sit-in demonstrations and the like." Id., at 6543-6544.
See also the remarks of Senator Pastore (id.,
at 7054-7055); Senator Ribicoff (id., at 7064-7065); Senator Clark
(id., at 5243, 9086); Senator Javits (id., at 6050, 7102). 12
The conclusion to be drawn from the foregoing
is clear. Congress recognized that Negroes, in some cases with
congressional acquiescence, were being discriminated against in
the administration of programs and denied the full benefits of
activities receiving federal financial support. It was aware that
there were many federally funded programs and institutions which
discriminated against minorities in a manner inconsistent with
the standards of the Fifth and Fourteenth Amendments but whose
activities might not involve sufficient state or federal action
so as to be in violation of these Amendments. Moreover, Congress
believed that it was questionable whether the Executive Branch
possessed legal authority to terminate the funding of activities
on the ground that they discriminated racially against Negroes
in a manner violative of the standards contained in the Fourteenth
and Fifth Amendments. Congress' solution was to end the Government's
complicity in constitutionally forbidden racial discrimination
by providing the Executive Branch with the authority and the obligation
to terminate its financial support of any activity which employed
racial criteria in a manner condemned by the Constitution.
Of course, it might be argued that the Congress
which enacted Title VI understood the Constitution to require
strict racial neutrality or color blindness, and then enshrined
that concept as a rule of statutory law. Later interpretation
and clarification of the Constitution to permit remedial use of
race would then not dislodge Title VI's prohibition of race-conscious
action. But there are three compelling reasons to reject such
a hypothesis.
First, no decision of this Court has ever adopted
the proposition that the Constitution must be colorblind. See
infra, at 355-356.
Second, even if it could be argued in 1964
that the Constitution might conceivably require color blindness,
Congress surely would not have chosen to codify such a view unless
the Constitution clearly required it. The legislative history
of Title VI, as well as the statute itself, reveals a desire to
induce voluntary compliance with the requirement of nondiscriminatory
treatment. 13 See §
602 of the Act, 42 U. S. C. § 2000d-1 (no funds shall be
terminated unless and until it has been "determined that
compliance cannot be secured by voluntary means"); H. R.
Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 25 (1963); 110
Cong. Rec. 13700 (1964) (Sen. Pastore); id., at 6546 (Sen. Humphrey).
It is inconceivable that Congress intended to encourage voluntary
efforts to eliminate the evil of racial discrimination while at
the same time forbidding the voluntary use of race-conscious remedies
to cure acknowledged or obvious statutory violations. Yet a reading
of Title VI as prohibiting all action predicated upon race which
adversely affects any individual would require recipients guilty
of discrimination to await the imposition of such remedies by
the Executive Branch. Indeed, such an interpretation of Title
VI would prevent recipients of federal funds from taking race
into account even when necessary to bring their programs into
compliance with federal constitutional requirements. This would
be a remarkable reading of a statute designed to eliminate constitutional
violations, especially in light of judicial decisions holding
that under certain circumstances the remedial use of racial criteria
is not only permissible but is constitutionally required to eradicate
constitutional violations. For example, in Board of Education
v. Swann, 402 U.S. 43 (1971), the Court held that a statute forbidding
the assignment of students on the basis of race was unconstitutional
because it would hinder the implementation of remedies necessary
to accomplish the desegregation of a school system: "Just
as the race of students must be considered in determining whether
a constitutional violation has occurred, so also must race be
considered in formulating a remedy." Id., at 46. Surely Congress
did not intend to prohibit the use of racial criteria when constitutionally
required or to terminate the funding of any entity which implemented
such a remedy. It clearly desired to encourage all remedies, including
the use of race, necessary to eliminate racial discrimination
in violation of the Constitution rather than requiring the recipient
to await a judicial adjudication of unconstitutionality and the
judicial imposition of a racially oriented remedy.
Third, the legislative history shows that Congress
specifically eschewed any static definition of discrimination
in favor of broad language that could be shaped by experience,
administrative necessity, and evolving judicial doctrine. Although
it is clear from the debates that the supporters of Title VI intended
to ban uses of race prohibited by the Constitution and, more specifically,
the maintenance of segregated facilities, they never precisely
defined the term "discrimination," or what constituted
an exclusion from participation or a denial of benefits on the
ground of race. This failure was not lost upon its opponents.
Senator Ervin complained:
"The word 'discrimination,' as used in this reference, has no contextual explanation whatever, other than the provision that the discrimination 'is to be against' individuals participating in or benefiting from federally assisted programs and activities on the ground specified. With this context, the discrimination condemned by this reference occurs only when an individual is treated unequally or unfairly because of his race, color, religion, or national origin. What constitutes unequal or unfair treatment? Section 601 and section 602 of title VI do not say. They leave the determination of that question to the executive department or agencies administering each program, without any guideline whatever to point out what is the congressional intent." 110 Cong. Rec. 5612 (1964).
See also remarks of Representative Abernethy
(id., at 1619); Representative Dowdy (id., at 1632); Senator Talmadge
(id., at 5251); Senator Sparkman (id., at 6052). Despite these
criticisms, the legislation's supporters refused to include in
the statute or even provide in debate a more explicit definition
of what Title VI prohibited.
The explanation for this failure is clear.
Specific definitions were undesirable, in the views of the legislation's
principal backers, because Title VI's standard was that of the
Constitution and one that could and should be administratively
and judicially applied. See remarks of Senator Humphrey (id.,
at 5253, 6553); Senator Ribicoff (id., at 7057, 13333); Senator
Pastore (id., at 7057); Senator Javits (id., at 5606-5607, 6050).
14 Indeed, there was a strong
emphasis throughout Congress' consideration of Title VI on providing
the Executive Branch with considerable flexibility in interpreting
and applying the prohibition against racial discrimination. Attorney
General Robert Kennedy testified that regulations had not been
written into the legislation itself because the rules and regulations
defining discrimination might differ from one program to another
so that the term would assume different meanings in different
contexts. 15 This determination
to preserve flexibility in the administration of Title VI was
shared by the legislation's supporters. When Senator Johnston
offered an amendment that would have expressly authorized federal
grantees to take race into account in placing children in adoptive
and foster homes, Senator Pastore opposed the amendment, which
was ultimately defeated by a 56-29 vote, on the ground that federal
administrators could be trusted to act reasonably and that there
was no danger that they would prohibit the use of racial criteria
under such circumstances. Id., at 13695.
Congress' resolve not to incorporate a static
definition of discrimination into Title VI is not surprising.
In 1963 and 1964, when Title VI was drafted and debated, the courts
had only recently applied the Equal Protection Clause to strike
down public racial discrimination in America, and the scope of
that Clause's nondiscrimination principle was in a state of flux
and rapid evolution. Many questions, such as whether the Fourteenth
Amendment barred only de jure discrimination or in at least some
circumstances reached de facto discrimination, had not yet received
an authoritative judicial resolution. The congressional debate
reflects an awareness of the evolutionary change that constitutional
law in the area of racial discrimination was undergoing in 1964.
16
In sum, Congress' equating of Title VI's prohibition
with the commands of the Fifth and Fourteenth Amendments, its
refusal precisely to define that racial discrimination which it
intended to prohibit, and its expectation that the statute would
be administered in a flexible manner, compel the conclusion that
Congress intended the meaning of the statute's prohibition to
evolve with the interpretation of the commands of the Constitution.
Thus, any claim that the use of racial criteria is barred by the
plain language of the statute must fail in light of the remedial
purpose of Title VI and its legislative history. The cryptic nature
of the language employed in Title VI merely reflects Congress'
concern with the then-prevalent use of racial standards as a means
of excluding or disadvantaging Negroes and its determination to
prohibit absolutely such discrimination. We have recently held
that "'[when] aid to construction of the meaning of words,
as used in the statute, is available, there certainly can be no
"rule of law" which forbids its use, however clear the
words may appear on "superficial examination."'"
Train v. Colorado Public Interest Research Group, 426 U.S. 1,
10 (1976), quoting United States v. American Trucking Assns.,
310 U.S. 534, 543-544 (1940). This is especially so when, as is
the case here, the literal application of what is believed to
be the plain language of the statute, assuming that it is so plain,
would lead to results in direct conflict with Congress' unequivocally
expressed legislative purpose. 17
B
Section 602 of Title VI, 42 U. S. C. §
2000d-1, instructs federal agencies to promulgate regulations
interpreting Title VI. These regulations, which, under the terms
of the statute, require Presidential approval, are entitled to
considerable deference in construing Title VI. See, e. g., Lau
v. Nichols, 414 U.S. 563 (1974); Mourning v. Family Publications
Service, Inc., 411 U.S. 356, 369 (1973); Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 381 (1969). Consequently, it is most
significant that the Department of Health, Education, and Welfare
(HEW), which provides much of the federal assistance to institutions
of higher education, has adopted regulations requiring affirmative
measures designed to enable racial minorities which have been
previously discriminated against by a federally funded institution
or program to overcome the effects of such actions and authorizing
the voluntary undertaking of affirmative-action programs by federally
funded institutions that have not been guilty of prior discrimination
in order to overcome the effects of conditions which have adversely
affected the degree of participation by persons of a particular
race.
Title 45 CFR § 80.3 (b)(6)(i) (1977) provides:
"In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination."
Title 45 CFR § 80.5 (i) (1977) elaborates
upon this requirement:
"In some situations, even though past discriminatory practices attributable to a recipient or applicant have been abandoned, the consequences of such practices continue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 80.6 (d), to provide information as to the availability of the program or activity and the rights of beneficiaries under this regulation, have failed to overcome these consequences, it will become necessary under the requirement stated in (i) of § 80.3 (b)(6) for such applicant or recipient to take additional steps to make the benefits fully available to racial and nationality groups previously subject to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals or making selections which will insure that groups previously subjected to discrimination are adequately served."
These regulations clearly establish that where
there is a need to overcome the effects of past racially discriminatory
or exclusionary practices engaged in by a federally funded institution,
race-conscious action is not only permitted but required to accomplish
the remedial objectives of Title VI. 18
Of course, there is no evidence that the Medical School has been
guilty of past discrimination and consequently these regulations
would not compel it to employ a program of preferential admissions
in behalf of racial minorities. It would be difficult to explain
from the language of Title VI, however, much less from its legislative
history, why the statute compels race-conscious remedies where
a recipient institution has engaged in past discrimination but
prohibits such remedial action where racial minorities, as a result
of the effects of past discrimination imposed by entities other
than the recipient, are excluded from the benefits of federally
funded programs. HEW was fully aware of the incongruous nature
of such an interpretation of Title VI.
Title 45 CFR § 80.3 (b)(6)(ii) (1977)
provides:
"Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin."
An explanatory regulation explicitly states that the affirmative action which § 80.3 (b)(6)(ii) contemplates includes the use of racial preferences:
"Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service." 45 CFR § 80.5 (j) (1977).
This interpretation of Title VI is fully consistent
with the statute's emphasis upon voluntary remedial action and
reflects the views of an agency 19
responsible for achieving its objectives. 20
The Court has recognized that the construction
of a statute by those charged with its execution is particularly
deserving of respect where Congress has directed its attention
to the administrative construction and left it unaltered. Cf.
Red Lion Broadcasting Co. v. FCC, 395 U.S., at 381; Zemel v. Rusk,
381 U.S. 1, 11-12 (1965). Congress recently took just this kind
of action when it considered an amendment to the Departments of
Labor and Health, Education, and Welfare appropriation bill for
1978, which would have restricted significantly the remedial use
of race in programs funded by the appropriation. The amendment,
as originally submitted by Representative Ashbrook, provided that
"[none] of the funds appropriated in this Act may be used
to initiate, carry out or enforce any program of affirmative action
or any other system of quotas or goals in regard to admission
policies or employment practices which encourage or require any
discrimination on the basis of race, creed, religion, sex or age."
123 Cong. Rec. 19715 (1977). In support of the measure, Representative
Ashbrook argued that the 1964 Civil Rights Act never authorized
the imposition of affirmative action and that this was a creation
of the bureaucracy. Id., at 19722. He explicitly stated, however,
that he favored permitting universities to adopt affirmative-action
programs giving consideration to racial identity but opposed the
imposition of such programs by the Government. Id., at 19715.
His amendment was itself amended to reflect this position by only
barring the imposition of race-conscious remedies by HEW:
"None of the funds appropriated in this Act may be obligated or expended in connection with the issuance, implementation, or enforcement of any rule, regulation, standard, guideline, recommendation, or order issued by the Secretary of Health, Education, and Welfare which for purposes of compliance with any ratio, quota, or other numerical requirement related to race, creed, color, national origin, or sex requires any individual or entity to take any action with respect to (1) the hiring or promotion policies or practices of such individual or entity, or (2) the admissions policies or practices of such individual or entity." Id., at 19722.
This amendment was adopted by the House. Ibid.
The Senate bill, however, contained no such restriction upon HEW's
authority to impose race-conscious remedies and the Conference
Committee, upon the urging of the Secretary of HEW, deleted the
House provision from the bill. 21
More significant for present purposes, however, is the fact that
even the proponents of imposing limitations upon HEW's implementation
of Title VI did not challenge the right of federally funded educational
institutions voluntarily to extend preferences to racial minorities.
Finally, congressional action subsequent to
the passage of Title VI eliminates any possible doubt about Congress'
views concerning the permissibility of racial preferences for
the purpose of assisting disadvantaged racial minorities. It confirms
that Congress did not intend to prohibit and does not now believe
that Title VI prohibits the consideration of race as part of a
remedy for societal discrimination even where there is no showing
that the institution extending the preference has been guilty
of past discrimination nor any judicial finding that the particular
beneficiaries of the racial preference have been adversely affected
by societal discrimination.
Just last year Congress enacted legislation
22 explicitly requiring that
no grants shall be made "for any local public works project
unless the applicant gives satisfactory assurance to the Secretary
[of Commerce] that at least 10 per centum of the amount of each
grant shall be expended for minority business enterprises."
The statute defines the term "minority business enterprise"
as "a business, at least 50 per centum of which is owned
by minority group members or, in case of a publicly owned business,
at least 51 per centum of the stock of which is owned by minority
group members." The term "minority group members"
is defined in explicitly racial terms: "citizens of the United
States who are Negroes, Spanish-speaking, Orientals, Indians,
Eskimos, and Aleuts." Although the statute contains an exemption
from this requirement "to the extent that the Secretary determines
otherwise," this escape clause was provided only to deal
with the possibility that certain areas of the country might not
contain sufficient qualified "minority business enterprises"
to permit compliance with the quota provisions of the legislation.
23
The legislative history of this race-conscious
legislation reveals that it represents a deliberate attempt to
deal with the excessive rate of unemployment among minority citizens
and to encourage the development of viable minority controlled
enterprises. 24 It was believed
that such a "set-aside" was required in order to enable
minorities, still "new on the scene" and "relatively
small," to compete with larger and more established companies
which would always be successful in underbidding minority enterprises.
123 Cong. Rec. 5327 (1977) (Rep. Mitchell). What is most significant
about the congressional consideration of the measure is that although
the use of a racial quota or "set-aside" by a recipient
of federal funds would constitute a direct violation of Title
VI if that statute were read to prohibit race-conscious action,
no mention was made during the debates in either the House or
the Senate of even the possibility that the quota provisions for
minority contractors might in any way conflict with or modify
Title VI. It is inconceivable that such a purported conflict would
have escaped congressional attention through an inadvertent failure
to recognize the relevance of Title VI. Indeed, the Act of which
this affirmative-action provision is a part also contains a provision
barring discrimination on the basis of sex which states that this
prohibition "will be enforced through agency provisions and
rules similar to those already established, with respect to racial
and other discrimination under Title VI of the Civil Rights Act
of 1964." 42 U. S. C. § 6709 (1976 ed.). Thus Congress
was fully aware of the applicability of Title VI to the funding
of public works projects. Under these circumstances, the enactment
of the 10% "set-aside" for minority enterprises reflects
a congressional judgment that the remedial use of race is permissible
under Title VI. We have repeatedly recognized that subsequent
legislation reflecting an interpretation of an earlier Act is
entitled to great weight in determining the meaning of the earlier
statute. Red Lion Broadcasting Co. v. FCC, 395 U.S., at 380-381;
Erlenbaugh v. United States, 409 U.S. 239, 243-244 (1972). See
also United States v. Stewart, 311 U.S. 60, 64-65 (1940). 25
C
Prior decisions of this Court also strongly
suggest that Title VI does not prohibit the remedial use of race
where such action is constitutionally permissible. In Lau v. Nichols,
414 U.S. 563 (1974), the Court held that the failure of the San
Francisco school system to provide English-language instruction
to students of Chinese ancestry who do not speak English, or to
provide them with instruction in Chinese, constituted a violation
of Title VI. The Court relied upon an HEW regulation which stipulates
that a recipient of federal funds "may not . . . utilize
criteria or methods of administration which have the effect of
subjecting individuals to discrimination" or have "the
effect of defeating or substantially impairing accomplishment
of the objectives of the program as respect individuals of a particular
race, color, or national origin." 45 CFR § 80.3 (b)(2)
(1977). It interpreted this regulation as requiring San Francisco
to extend the same educational benefits to Chinese-speaking students
as to English-speaking students, even though there was no finding
or allegation that the city's failure to do so was a result of
a purposeful design to discriminate on the basis of race.
Lau is significant in two related respects.
First, it indicates that in at least some circumstances agencies
responsible for the administration of Title VI may require recipients
who have not been guilty of any constitutional violations to depart
from a policy of color blindness and to be cognizant of the impact
of their actions upon racial minorities. Secondly, Lau clearly
requires that institutions receiving federal funds be accorded
considerable latitude in voluntarily undertaking race-conscious
action designed to remedy the exclusion of significant numbers
of minorities from the benefits of federally funded programs.
Although this Court has not yet considered the question, presumably,
by analogy to our decisions construing Title VII, a medical school
would not be in violation of Title VI under Lau because of the
serious underrepresentation of racial minorities in its student
body as long as it could demonstrate that its entrance requirements
correlated sufficiently with the performance of minority students
in medical school and the medical profession. 26
It would be inconsistent with Lau and the emphasis of Title VI
and the HEW regulations on voluntary action, however, to require
that an institution wait to be adjudicated to be in violation
of the law before being permitted to voluntarily undertake corrective
action based upon a good-faith and reasonable belief that the
failure of certain racial minorities to satisfy entrance requirements
is not a measure of their ultimate performance as doctors but
a result of the lingering effects of past societal discrimination.
We recognize that Lau, especially when read
in light of our subsequent decision in Washington v. Davis, 426
U.S. 229 (1976), which rejected the general proposition that governmental
action is unconstitutional solely because it has a racially disproportionate
impact, may be read as being predicated upon the view that, at
least under some circumstances, Title VI proscribes conduct which
might not be prohibited by the Constitution. Since we are now
of the opinion, for the reasons set forth above, that Title VI's
standard, applicable alike to public and private recipients of
federal funds, is no broader than the Constitution's, we have
serious doubts concerning the correctness of what appears to be
the premise of that decision. However, even accepting Lau's implication
that impact alone is in some contexts sufficient to establish
a prima facie violation of Title VI, contrary to our view that
Title VI's definition of racial discrimination is absolutely coextensive
with the Constitution's, this would not assist the respondent
in the least. First, for the reasons discussed supra, at 336-350,
regardless of whether Title VI's prohibitions extend beyond the
Constitution's, the evidence fails to establish, and, indeed,
compels the rejection of, the proposition that Congress intended
to prohibit recipients of federal funds from voluntarily employing
race-conscious measures to eliminate the effects of past societal
discrimination against racial minorities such as Negroes. Secondly,
Lau itself, for the reasons set forth in the immediately preceding
paragraph, strongly supports the view that voluntary race-conscious
remedial action is permissible under Title VI. If discriminatory
racial impact alone is enough to demonstrate at least a prima
facie Title VI violation, it is difficult to believe that the
Title would forbid the Medical School from attempting to correct
the racially exclusionary effects of its initial admissions policy
during the first two years of the School's operation.
The Court has also declined to adopt a "colorblind"
interpretation of other statutes containing nondiscrimination
provisions similar to that contained in Title VI. We have held
under Title VII that where employment requirements have a disproportionate
impact upon racial minorities they constitute a statutory violation,
even in the absence of discriminatory intent, unless the employer
is able to demonstrate that the requirements are sufficiently
related to the needs of the job. 27
More significantly, the Court has required that preferences be
given by employers to members of racial minorities as a remedy
for past violations of Title VII, even where there has been no
finding that the employer has acted with a discriminatory intent.
28 Finally, we have construed
the Voting Rights Act of 1965, 42 U. S. C. § 1973 et seq.
(1970 ed. and Supp. V), which contains a provision barring any
voting procedure or qualification that denies or abridges "the
right of any citizen of the United States to vote on account of
race or color," as permitting States to voluntarily take
race into account in a way that fairly represents the voting strengths
of different racial groups in order to comply with the commands
of the statute, even where the result is a gain for one racial
group at the expense of others. 29
These prior decisions are indicative of the
Court's unwillingness to construe remedial statutes designed to
eliminate discrimination against racial minorities in a manner
which would impede efforts to attain this objective. There is
no justification for departing from this course in the case of
Title VI and frustrating the clear judgment of Congress that race-conscious
remedial action is permissible.
We turn, therefore, to our analysis of the
Equal Protection Clause of the Fourteenth Amendment.
III
A
The assertion of human equality is closely
associated with the proposition that differences in color or creed,
birth or status, are neither significant nor relevant to the way
in which persons should be treated. Nonetheless, the position
that such factors must be "constitutionally an irrelevance,"
Edwards v. California, 314 U.S. 160, 185 (1941) (Jackson, J.,
concurring), summed up by the shorthand phrase "[our] Constitution
is color-blind," Plessy v. Ferguson, 163 U.S. 537, 559 (1896)
(Harlan, J., dissenting), has never been adopted by this Court
as the proper meaning of the Equal Protection Clause. Indeed,
we have expressly rejected this proposition on a number of occasions.
Our cases have always implied that an "overriding
statutory purpose," McLaughlin v. Florida, 379 U.S. 184,
192 (1964), could be found that would justify racial classifications.
See, e. g., ibid.; Loving v. Virginia, 388 U.S. 1, 11 (1967);
Korematsu v. United States, 323 U.S. 214, 216 (1944); Hirabayashi
v. United States, 320 U.S. 81, 100-101 (1943). More recently,
in McDaniel v. Barresi, 402 U.S. 39 (1971), this Court unanimously
reversed the Georgia Supreme Court which had held that a desegregation
plan voluntarily adopted by a local school board, which assigned
students on the basis of race, was per se invalid because it was
not colorblind. And in North Carolina Board of Education v. Swann
we held, again unanimously, that a statute mandating colorblind
school-assignment plans could not stand "against the background
of segregation," since such a limit on remedies would "render
illusory the promise of Brown [I]." 402 U.S., at 45-46.
We conclude, therefore, that racial classifications
are not per se invalid under the Fourteenth Amendment. Accordingly,
we turn to the problem of articulating what our role should be
in reviewing state action that expressly classifies by race.
B
Respondent argues that racial classifications
are always suspect and, consequently, that this Court should weigh
the importance of the objectives served by Davis' special admissions
program to see if they are compelling. In addition, he asserts
that this Court must inquire whether, in its judgment, there are
alternatives to racial classifications which would suit Davis'
purposes. Petitioner, on the other hand, states that our proper
role is simply to accept petitioner's determination that the racial
classifications used by its program are reasonably related to
what it tells us are its benign purposes. We reject petitioner's
view, but, because our prior cases are in many respects inapposite
to that before us now, we find it necessary to define with precision
the meaning of that inexact term, "strict scrutiny."
Unquestionably we have held that a government
practice or statute which restricts "fundamental rights"
or which contains "suspect classifications" is to be
subjected to "strict scrutiny" and can be justified
only if it furthers a compelling government purpose and, even
then, only if no less restrictive alternative is available. 30
See, e. g., San Antonio Independent School District v. Rodriguez,
411 U.S. 1, 16-17 (1973); Dunn v. Blumstein, 405 U.S. 330 (1972).
But no fundamental right is involved here. See San Antonio, supra,
at 29-36. Nor do whites as a class have any of the "traditional
indicia of suspectness: the class is not saddled with such disabilities,
or subjected to such a history of purposeful unequal treatment,
or relegated to such a position of political powerlessness as
to command extraordinary protection from the majoritarian political
process." Id., at 28; see United States v. Carolene Products
Co., 304 U.S. 144, 152 n. 4 (1938). 31
Moreover, if the University's representations
are credited, this is not a case where racial classifications
are "irrelevant and therefore prohibited." Hirabayashi,
supra, at 100. Nor has anyone suggested that the University's
purposes contravene the cardinal principle that racial classifications
that stigmatize -- because they are drawn on the presumption that
one race is inferior to another or because they put the weight
of government behind racial hatred and separatism -- are invalid
without more. See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886);
32 accord, Strauder v. West
Virginia, 100 U.S. 303, 308 (1880); Korematsu v. United States,
supra, at 223; Oyama v. California, 332 U.S. 633, 663 (1948) (Murphy,
J., concurring); Brown I, 347 U.S. 483 (1954); McLaughlin v. Florida,
supra, at 191-192; Loving v. Virginia, supra, at 11-12; Reitman
v. Mulkey, 387 U.S. 369, 375-376 (1967); United Jewish Organizations
v. Carey, 430 U.S. 144, 165 (1977) (UJO) (opinion of WHITE, J.,
joined by REHNQUIST and STEVENS, JJ.); id., at 169 (opinion concurring
in part). 33
On the other hand, the fact that this case
does not fit neatly into our prior analytic framework for race
cases does not mean that it should be analyzed by applying the
very loose rational-basis standard of review that is the very
least that is always applied in equal protection cases. 34
"'[The] mere recitation of a benign, compensatory purpose
is not an automatic shield which protects against any inquiry
into the actual purposes underlying a statutory scheme.'"
Califano v. Webster, 430 U.S. 313, 317 (1977), quoting Weinberger
v. Wiesenfeld, 420 U.S. 636, 648 (1975). Instead, a number of
considerations -- developed in gender-discrimination cases but
which carry even more force when applied to racial classifications
-- lead us to conclude that racial classifications designed to
further remedial purposes "'must serve important governmental
objectives and must be substantially related to achievement of
those objectives.'" Califano v. Webster, supra, at 317, quoting
Craig v. Boren, 429 U.S. 190, 197 (1976). 35
First, race, like, "gender-based classifications
too often [has] been inexcusably utilized to stereotype and stigmatize
politically powerless segments of society." Kahn v. Shevin,
416 U.S. 351, 357 (1974) (dissenting opinion). While a carefully
tailored statute designed to remedy past discrimination could
avoid these vices, see Califano v. Webster, supra; Schlesinger
v. Ballard, 419 U.S. 498 (1975); Kahn v. Shevin, supra, we nonetheless
have recognized that the line between honest and thoughtful appraisal
of the effects of past discrimination and paternalistic stereotyping
is not so clear and that a statute based on the latter is patently
capable of stigmatizing all women with a badge of inferiority.
Cf. Schlesinger v. Ballard, supra, at 508; UJO, supra, at 174,
and n. 3 (opinion concurring in part); Califano v. Goldfarb, 430
U.S. 199, 223 (1977) (STEVENS, J., concurring in judgment). See
also Stanton v. Stanton, 421 U.S. 7, 14-15 (1975). State programs
designed ostensibly to ameliorate the effects of past racial discrimination
obviously create the same hazard of stigma, since they may promote
racial separatism and reinforce the views of those who believe
that members of racial minorities are inherently incapable of
succeeding on their own. See UJO, supra, at 172 (opinion concurring
in part); ante, at 298 (opinion of POWELL, J.).
Second, race, like gender and illegitimacy,
see Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972),
is an immutable characteristic which its possessors are powerless
to escape or set aside. While a classification is not per se invalid
because it divides classes on the basis of an immutable characteristic,
see supra, at 355-356, it is nevertheless true that such divisions
are contrary to our deep belief that "legal burdens should
bear some relationship to individual responsibility or wrongdoing,"
Weber, supra, at 175; Frontiero v. Richardson, 411 U.S. 677, 686
(1973) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.), and that
advancement sanctioned, sponsored, or approved by the State should
ideally be based on individual merit or achievement, or at the
least on factors within the control of an individual. See UJO,
430 U.S., at 173 (opinion concurring in part); Kotch v. Board
of River Port Pilot Comm'rs, 330 U.S. 552, 566 (1947) (Rutledge,
J., dissenting).
Because this principle is so deeply rooted
it might be supposed that it would be considered in the legislative
process and weighed against the benefits of programs preferring
individuals because of their race. But this is not necessarily
so: The "natural consequence of our governing processes [may
well be] that the most 'discrete and insular' of whites . . .
will be called upon to bear the immediate, direct costs of benign
discrimination." UJO, supra, at 174 (opinion concurring in
part). Moreover, it is clear from our cases that there are limits
beyond which majorities may not go when they classify on the basis
of immutable characteristics. See, e. g., Weber, supra. Thus,
even if the concern for individualism is weighed by the political
process, that weighing cannot waive the personal rights of individuals
under the Fourteenth Amendment. See Lucas v. Colorado General
Assembly, 377 U.S. 713, 736 (1964).
In sum, because of the significant risk that
racial classifications established for ostensibly benign purposes
can be misused, causing effects not unlike those created by invidious
classifications, it is inappropriate to inquire only whether there
is any conceivable basis that might sustain such a classification.
Instead, to justify such a classification an important and articulated
purpose for its use must be shown. In addition, any statute must
be stricken that stigmatizes any group or that singles out those
least well represented in the political process to bear the brunt
of a benign program. Thus, our review under the Fourteenth Amendment
should be strict -- not "'strict' in theory and fatal in
fact," 36 because it
is stigma that causes fatality -- but strict and searching nonetheless.
IV
Davis' articulated purpose of remedying the
effects of past societal discrimination is, under our cases, sufficiently
important to justify the use of race-conscious admissions programs
where there is a sound basis for concluding that minority underrepresentation
is substantial and chronic, and that the handicap of past discrimination
is impeding access of minorities to the Medical School.
A
At least since Green v. County School Board,
391 U.S. 430 (1968), it has been clear that a public body which
has itself been adjudged to have engaged in racial discrimination
cannot bring itself into compliance with the Equal Protection
Clause simply by ending its unlawful acts and adopting a neutral
stance. Three years later, Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 (1971), and its companion cases, Davis
v. School Comm'rs of Mobile County, 402 U.S. 33 (1971); McDaniel
v. Barresi, 402 U.S. 39 (1971); and North Carolina Board of Education
v. Swann, 402 U.S. 43 (1971), reiterated that racially neutral
remedies for past discrimination were inadequate where consequences
of past discriminatory acts influence or control present decisions.
See, e. g., Charlotte-Mecklenburg, supra, at 28. And the Court
further held both that courts could enter desegregation orders
which assigned students and faculty by reference to race, Charlotte-Mecklenburg,
supra; Davis, supra; United States v. Montgomery County Board
of Ed., 395 U.S. 225 (1969), and that local school boards could
voluntarily adopt desegregation plans which made express reference
to race if this was necessary to remedy the effects of past discrimination.
McDaniel v. Barresi, supra. Moreover, we stated that school boards,
even in the absence of a judicial finding of past discrimination,
could voluntarily adopt plans which assigned students with the
end of creating racial pluralism by establishing fixed ratios
of black and white students in each school. Charlotte-Mecklenburg,
supra, at 16. In each instance, the creation of unitary school
systems, in which the effects of past discrimination had been
"eliminated root and branch," Green, supra, at 438,
was recognized as a compelling social goal justifying the overt
use of race.
Finally, the conclusion that state educational
institutions may constitutionally adopt admissions programs designed
to avoid exclusion of historically disadvantaged minorities, even
when such programs explicitly take race into account, finds direct
support in our cases construing congressional legislation designed
to overcome the present effects of past discrimination. Congress
can and has outlawed actions which have a disproportionately adverse
and unjustified impact upon members of racial minorities and has
required or authorized race-conscious action to put individuals
disadvantaged by such impact in the position they otherwise might
have enjoyed. See Franks v. Bowman Transportation Co., 424 U.S.
747 (1976); Teamsters v. United States, 431 U.S. 324 (1977). Such
relief does not require as a predicate proof that recipients of
preferential advancement have been individually discriminated
against; it is enough that each recipient is within a general
class of persons likely to have been the victims of discrimination.
See id., at 357-362. Nor is it an objection to such relief that
preference for minorities will upset the settled expectations
of nonminorities. See Franks, supra. In addition, we have held
that Congress, to remove barriers to equal opportunity, can and
has required employers to use test criteria that fairly reflect
the qualifications of minority applicants vis-a-vis nonminority
applicants, even if this means interpreting the qualifications
of an applicant in light of his race. See Albemarle Paper Co.
v. Moody, 422 U.S. 405, 435 (1975). 37
These cases cannot be distinguished simply
by the presence of judicial findings of discrimination, for race-conscious
remedies have been approved where such findings have not been
made. McDaniel v. Barresi, supra; UJO; see Califano v. Webster,
430 U.S. 313 (1977); Schlesinger v. Ballard, 419 U.S. 498 (1975);
Kahn v. Shevin, 416 U.S. 351 (1974). See also Katzenbach v. Morgan,
384 U.S. 641 (1966). Indeed, the requirement of a judicial determination
of a constitutional or statutory violation as a predicate for
race-conscious remedial actions would be self-defeating. Such
a requirement would severely undermine efforts to achieve voluntary
compliance with the requirements of law. And our society and jurisprudence
have always stressed the value of voluntary efforts to further
the objectives of the law. Judicial intervention is a last resort
to achieve cessation of illegal conduct or the remedying of its
effects rather than a prerequisite to action. 38
Nor can our cases be distinguished on the ground
that the entity using explicit racial classifications itself had
violated § 1 of the Fourteenth Amendment or an antidiscrimination
regulation, for again race-conscious remedies have been approved
where this is not the case. See UJO, 430 U.S., at 157 (opinion
of WHITE, J., joined by BRENNAN, BLACKMUN, and STEVENS, JJ.);
39 id., at 167 (opinion of
WHITE, J., joined by REHNQUIST and STEVENS, JJ.); 40
cf. Califano v. Webster, supra, at 317; Kahn v. Shevin, supra.
Moreover, the presence or absence of past discrimination by universities
or employers is largely irrelevant to resolving respondent's constitutional
claims. The claims of those burdened by the race-conscious actions
of a university or employer who has never been adjudged in violation
of an antidiscrimination law are not any more or less entitled
to deference than the claims of the burdened nonminority workers
in Franks v. Bowman Transportation Co., supra, in which the employer
had violated Title VII, for in each case the employees are innocent
of past discrimination. And, although it might be argued that,
where an employer has violated an antidiscrimination law, the
expectations of nonminority workers are themselves products of
discrimination and hence "tainted," see Franks, supra,
at 776, and therefore more easily upset, the same argument can
be made with respect to respondent. If it was reasonable to conclude
-- as we hold that it was -- that the failure of minorities to
qualify for admission at Davis under regular procedures was due
principally to the effects of past discrimination, than there
is a reasonable likelihood that, but for pervasive racial discrimination,
respondent would have failed to qualify for admission even in
the absence of Davis' special admissions program. 41
Thus, our cases under Title VII of the Civil
Rights Act have held that, in order to achieve minority participation
in previously segregated areas of public life, Congress may require
or authorize preferential treatment for those likely disadvantaged
by societal racial discrimination. Such legislation has been sustained
even without a requirement of findings of intentional racial discrimination
by those required or authorized to accord preferential treatment,
or a case-by-case determination that those to be benefited suffered
from racial discrimination. These decisions compel the conclusion
that States also may adopt race-conscious programs designed to
overcome substantial, chronic minority underrepresentation where
there is reason to believe that the evil addressed is a product
of past racial discrimination. 42
Title VII was enacted pursuant to Congress'
power under the Commerce Clause and § 5 of the Fourteenth
Amendment. To the extent that Congress acted under the Commerce
Clause power, it was restricted in the use of race in governmental
decisionmaking by the equal protection component of the Due Process
Clause of the Fifth Amendment precisely to the same extent as
are the States by § 1 of the Fourteenth Amendment. 43
Therefore, to the extent that Title VII rests on the Commerce
Clause power, our decisions such as Franks and Teamsters v. United
States, 431 U.S. 324 (1977), implicitly recognize that the affirmative
use of race is consistent with the equal protection component
of the Fifth Amendment and therefore with the Fourteenth Amendment.
To the extent that Congress acted pursuant to § 5 of the
Fourteenth Amendment, those cases impliedly recognize that Congress
was empowered under that provision to accord preferential treatment
to victims of past discrimination in order to overcome the effects
of segregation, and we see no reason to conclude that the States
cannot voluntarily accomplish under § 1 of the Fourteenth
Amendment what Congress under § 5 of the Fourteenth Amendment
validly may authorize or compel either the States or private persons
to do. A contrary position would conflict with the traditional
understanding recognizing the competence of the States to initiate
measures consistent with federal policy in the absence of congressional
pre-emption of the subject matter. Nothing whatever in the legislative
history of either the Fourteenth Amendment or the Civil Rights
Acts even remotely suggests that the States are foreclosed from
furthering the fundamental purpose of equal opportunity to which
the Amendment and those Acts are addressed. Indeed, voluntary
initiatives by the States to achieve the national goal of equal
opportunity have been recognized to be essential to its attainment.
"To use the Fourteenth Amendment as a sword against such
State power would stultify that Amendment." Railway Mail
Assn. v. Corsi, 326 U.S. 88, 98 (1945) (Frankfurter, J., concurring).
44 We therefore conclude
that Davis' goal of admitting minority students disadvantaged
by the effects of past discrimination is sufficiently important
to justify use of race-conscious admissions criteria.
B
Properly construed, therefore, our prior cases
unequivocally show that a state government may adopt race-conscious
programs if the purpose of such programs is to remove the disparate
racial impact its actions might otherwise have and if there is
reason to believe that the disparate impact is itself the product
of past discrimination, whether its own or that of society at
large. There is no question that Davis' program is valid under
this test.
Certainly, on the basis of the undisputed factual
submissions before this Court, Davis had a sound basis for believing
that the problem of underrepresentation of minorities was substantial
and chronic and that the problem was attributable to handicaps
imposed on minority applicants by past and present racial discrimination.
Until at least 1973, the practice of medicine in this country
was, in fact, if not in law, largely the prerogative of whites.
45 In 1950, for example,
while Negroes constituted 10% of the total population, Negro physicians
constituted only 2.2% of the total number of physicians. 46
The overwhelming majority of these, moreover, were educated in
two predominantly Negro medical schools, Howard and Meharry. 47
By 1970, the gap between the proportion of Negroes in medicine
and their proportion in the population had widened: The number
of Negroes employed in medicine remained frozen at 2.2% 48
while the Negro population had increased to 11.1%. 49
The number of Negro admittees to predominantly white medical schools,
moreover, had declined in absolute numbers during the years 1955
to 1964. Odegaard 19.
Moreover, Davis had very good reason to believe
that the national pattern of underrepresentation of minorities
in medicine would be perpetuated if it retained a single admissions
standard. For example, the entering classes in 1968 and 1969,
the years in which such a standard was used, included only 1 Chicano
and 2 Negroes out of the 50 admittees for each year. Nor is there
any relief from this pattern of underrepresentation in the statistics
for the regular admissions program in later years. 50
Davis clearly could conclude that the serious
and persistent underrepresentation of minorities in medicine depicted
by these statistics is the result of handicaps under which minority
applicants labor as a consequence of a background of deliberate,
purposeful discrimination against minorities in education and
in society generally, as well as in the medical profession. From
the inception of our national life, Negroes have been subjected
to unique legal disabilities impairing access to equal educational
opportunity. Under slavery, penal sanctions were imposed upon
anyone attempting to educate Negroes. 51
After enactment of the Fourteenth Amendment the States continued
to deny Negroes equal educational opportunity, enforcing a strict
policy of segregation that itself stamped Negroes as inferior,
Brown I, 347 U.S. 483 (1954), that relegated minorities to inferior
educational institutions, 52
and that denied them intercourse in the mainstream of professional
life necessary to advancement. See Sweatt v. Painter, 339 U.S.
629 (1950). Segregation was not limited to public facilities,
moreover, but was enforced by criminal penalties against private
action as well. Thus, as late as 1908, this Court enforced a state
criminal conviction against a private college for teaching Negroes
together with whites. Berea College v. Kentucky, 211 U.S. 45.
See also Plessy v. Ferguson, 163 U.S. 537 (1896).
Green v. County School Board, 391 U.S. 430
(1968), gave explicit recognition to the fact that the habit of
discrimination and the cultural tradition of race prejudice cultivated
by centuries of legal slavery and segregation were not immediately
dissipated when Brown I, supra, announced the constitutional principle
that equal educational opportunity and participation in all aspects
of American life could not be denied on the basis of race. Rather,
massive official and private resistance prevented, and to a lesser
extent still prevents, attainment of equal opportunity in education
at all levels and in the professions. The generation of minority
students applying to Davis Medical School since it opened in 1968
-- most of whom were born before or about the time Brown I was
Decided -- clearly have been victims of this discrimination. Judicial
decrees recognizing discrimination in public education in California
testify to the fact of widespread discrimination suffered by California-born
minority applicants; 53 many
minority group members living in California, moreover, were born
and reared in school districts in Southern States segregated by
law. 54 Since separation
of schoolchildren by 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," Brown I,
supra, at 494, the conclusion is inescapable that applicants to
medical school must be few indeed who endured the effects of de
jure segregation, the resistance to Brown I, or the equally debilitating
pervasive private discrimination fostered by our long history
of official discrimination, cf. Reitman v. Mulkey, 387 U.S. 369
(1967), and yet come to the starting line with an education equal
to whites. 55
Moreover, we need not rest solely on our own
conclusion that Davis had sound reason to believe that the effects
of past discrimination were handicapping minority applicants to
the Medical School, because the Department of Health, Education,
and Welfare, the expert agency charged by Congress with promulgating
regulations enforcing Title VI of the Civil Rights Act of 1964,
see supra, at 341-343, has also reached the conclusion that race
may be taken into account in situations where a failure to do
so would limit participation by minorities in federally funded
programs, and regulations promulgated by the Department expressly
contemplate that appropriate race-conscious programs may be adopted
by universities to remedy unequal access to university programs
caused by their own or by past societal discrimination. See supra,
at 344-345, discussing 45 CFR §§ 80.3 (b)(6)(ii) and
80.5 (j) (1977). It cannot be questioned that, in the absence
of the special admissions program, access of minority students
to the Medical School would be severely limited and, accordingly,
race-conscious admissions would be deemed an appropriate response
under these federal regulations. Moreover, the Department's regulatory
policy is not one that has gone unnoticed by Congress. See supra,
at 346-347. Indeed, although an amendment to an appropriations
bill was introduced just last year that would have prevented the
Secretary of Health, Education, and Welfare from mandating race-conscious
programs in university admissions, proponents of this measure,
significantly, did not question the validity of voluntary implementation
of race-conscious admissions criteria. See ibid. In these circumstances,
the conclusion implicit in the regulations -- that the lingering
effects of past discrimination continue to make race-conscious
remedial programs appropriate means for ensuring equal educational
opportunity in universities -- deserves considerable judicial
deference. See, e. g., Katzenbach v. Morgan, 384 U.S. 641 (1966);
UJO, 430 U.S., at 175-178 (opinion concurring in part). 56
C
The second prong of our test -- whether the
Davis program stigmatizes any discrete group or individual and
whether race is reasonably used in light of the program's objectives
-- is clearly satisfied by the Davis program.
It is not even claimed that Davis' program
in any way operates to stigmatize or single out any discrete and
insular, or even any identifiable, nonminority group. Nor will
harm comparable to that imposed upon racial minorities by exclusion
or separation on grounds of race be the likely result of the program.
It does not, for example, establish an exclusive preserve for
minority students apart from and exclusive of whites. Rather,
its purpose is to overcome the effects of segregation by bringing
the races together. True, whites are excluded from participation
in the special admissions program, but this fact only operates
to reduce the number of whites to be admitted in the regular admissions
program in order to permit admission of a reasonable percentage
-- less than their proportion of the California population 57
-- of otherwise underrepresented qualified minority applicants.
58
Nor was Bakke in any sense stamped as inferior
by the Medical School's rejection of him. Indeed, it is conceded
by all that he satisfied those criteria regarded by the school
as generally relevant to academic performance better than most
of the minority members who were admitted. Moreover, there is
absolutely no basis for concluding that Bakke's rejection as a
result of Davis' use of racial preference will affect him throughout
his life in the same way as the segregation of the Negro schoolchildren
in Brown I would have affected them. Unlike discrimination against
racial minorities, the use of racial preferences for remedial
purposes does not inflict a pervasive injury upon individual whites
in the sense that wherever they go or whatever they do there is
a significant likelihood that they will be treated as second-class
citizens because of their color. This distinction does not mean
that the exclusion of a white resulting from the preferential
use of race is not sufficiently serious to require justification;
but it does mean that the injury inflicted by such a policy is
not distinguishable from disadvantages caused by a wide range
of government actions, none of which has ever been thought impermissible
for that reason alone.
In addition, there is simply no evidence that
the Davis program discriminates intentionally or unintentionally
against any minority group which it purports to benefit. The program
does not establish a quota in the invidious sense of a ceiling
on the number of minority applicants to be admitted. Nor can the
program reasonably be regarded as stigmatizing the program's beneficiaries
or their race as inferior. The Davis program does not simply advance
less qualified applicants; rather, it compensates applicants,
who it is uncontested are fully qualified to study medicine, for
educational disadvantages which it was reasonable to conclude
were a product of state-fostered discrimination. Once admitted,
these students must satisfy the same degree requirements as regularly
admitted students; they are taught by the same faculty in the
same classes; and their performance is evaluated by the same standards
by which regularly admitted students are judged. Under these circumstances,
their performance and degrees must be regarded equally with the
regularly admitted students with whom they compete for standing.
Since minority graduates cannot justifiably be regarded as less
well qualified than nonminority graduates by virtue of the special
admissions program, there is no reasonable basis to conclude that
minority graduates at schools using such programs would be stigmatized
as inferior by the existence of such programs.
D
We disagree with the lower courts' conclusion
that the Davis program's use of race was unreasonable in light
of its objectives. First, as petitioner argues, there are no practical
means by which it could achieve its ends in the foreseeable future
without the use of race-conscious measures. With respect to any
factor (such as poverty or family educational background) that
may be used as a substitute for race as an indicator of past discrimination,
whites greatly outnumber racial minorities simply because whites
make up a far larger percentage of the total population and therefore
far outnumber minorities in absolute terms at every socioeconomic
level. 59 For example, of
a class of recent medical school applicants from families with
less than $ 10,000 income, at least 71% were white. 60
Of all 1970 families headed by a person not a high school graduate
which included related children under 18, 80% were white and 20%
were racial minorities. 61
Moreover, while race is positively correlated with differences
in GPA and MCAT scores, economic disadvantage is not. Thus, it
appears that economically disadvantaged whites do not score less
well than economically advantaged whites, while economically advantaged
blacks score less well than do disadvantaged whites. 62
These statistics graphically illustrate that the University's
purpose to integrate its classes by compensating for past discrimination
could not be achieved by a general preference for the economically
disadvantaged or the children of parents of limited education
unless such groups were to make up the entire class.
Second, the Davis admissions program does not
simply equate minority status with disadvantage. Rather, Davis
considers on an individual basis each applicant's personal history
to determine whether he or she has likely been disadvantaged by
racial discrimination. The record makes clear that only minority
applicants likely to have been isolated from the mainstream of
American life are considered in the special program; other minority
applicants are eligible only through the regular admissions program.
True, the procedure by which disadvantage is detected is informal,
but we have never insisted that educators conduct their affairs
through adjudicatory proceedings, and such insistence here is
misplaced. A case-by-case inquiry into the extent to which each
individual applicant has been affected, either directly or indirectly,
by racial discrimination, would seem to be, as a practical matter,
virtually impossible, despite the fact that there are excellent
reasons for concluding that such effects generally exist. When
individual measurement is impossible or extremely impractical,
there is nothing to prevent a State from using categorical means
to achieve its ends, at least where the category is closely related
to the goal. Cf. Gaston County v. United States, 395 U.S. 285,
295-296 (1969); Katzenbach v. Morgan, 384 U.S. 641 (1966). And
it is clear from our cases that specific proof that a person has
been victimized by discrimination is not a necessary predicate
to offering him relief where the probability of victimization
is great. See Teamsters v. United States, 431 U.S. 324 (1977).
E
Finally, Davis' special admissions program
cannot be said to violate the Constitution simply because it has
set aside a predetermined number of places for qualified minority
applicants rather than using minority status as a positive factor
to be considered in evaluating the applications of disadvantaged
minority applicants. For purposes of constitutional adjudication,
there is no difference between the two approaches. In any admissions
program which accords special consideration to disadvantaged racial
minorities, a determination of the degree of preference to be
given is unavoidable, and any given preference that results in
the exclusion of a white candidate is no more or less constitutionally
acceptable than a program such as that at Davis. Furthermore,
the extent of the preference inevitably depends on how many minority
applicants the particular school is seeking to admit in any particular
year so long as the number of qualified minority applicants exceeds
that number. There is no sensible, and certainly no constitutional,
distinction between, for example, adding a set number of points
to the admissions rating of disadvantaged minority applicants
as an expression of the preference with the expectation that this
will result in the admission of an approximately determined number
of qualified minority applicants and setting a fixed number of
places for such applicants as was done here. 63
The "Harvard" program, see ante,
at 316-318, as those employing it readily concede, openly and
successfully employs a racial criterion for the purpose of ensuring
that some of the scarce places in institutions of higher education
are allocated to disadvantaged minority students. That the Harvard
approach does not also make public the extent of the preference
and the precise workings of the system while the Davis program
employs a specific, openly stated number, does not condemn the
latter plan for purposes of Fourteenth Amendment adjudication.
It may be that the Harvard plan is more acceptable to the public
than is the Davis "quota." If it is, any State, including
California, is free to adopt it in preference to a less acceptable
alternative, just as it is generally free, as far as the Constitution
is concerned, to abjure granting any racial preferences in its
admissions program. But there is no basis for preferring a particular
preference program simply because in achieving the same goals
that the Davis Medical School is pursuing, it proceeds in a manner
that is not immediately apparent to the public.
V
Accordingly, we would reverse the judgment of the Supreme Court of California holding the Medical School's special admissions program unconstitutional and directing respondent's admission, as well as that portion of the judgment enjoining the Medical School from according any consideration to race in the admissions process.
---- Begin EndNotes ----
1 We also
agree with MR. JUSTICE POWELL that a plan like the "Harvard"
plan, see ante, at 316-318, is constitutional under our approach,
at least so long as the use of race to achieve an integrated student
body is necessitated by the lingering effects of past discrimination.
2 See Plessy
v. Ferguson, 163 U.S. 537 (1896).
3 New Orleans
City Park Improvement Assn. v. Detiege, 358 U.S. 54 (1958); Muir
v. Louisville Park Theatrical Assn., 347 U.S. 971 (1954); Mayor
of Baltimore v. Dawson, 350 U.S. 877 (1955); Holmes v. Atlanta,
350 U.S. 879 (1955); Gayle v. Browder, 352 U.S. 903 (1956).
4 See Green
v. County School Board, 391 U.S. 430 (1968).
5 See Swann
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971);
Davis v. School Comm'rs of Mobile County, 402 U.S. 33 (1971);
North Carolina Board of Education v. Swann, 402 U.S. 43 (1971).
6 See, e.
g., cases collected in Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 663 n. 5 (1978).
7 Section
601 of Title VI provides:
"No 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.
8 MR. JUSTICE
WHITE believes we should address the private-right-of-action issue.
Accordingly, he has filed a separate opinion stating his view
that there is no private right of action under Title VI. See post,
p. 379.
9 "Simple
justice requires that public funds, to which all taxpayers of
all races contribute, not be spent in any fashion which encourages,
entrenches, subsidizes or results in racial discrimination. Direct
discrimination by Federal, State or local governments is prohibited
by the Constitution. But indirect discrimination, through the
use of Federal funds, is just as invidious; and it should not
be necessary to resort to the courts to prevent each individual
violation. Congress and the Executive have their responsibilities
to uphold the Constitution also . . . .
"Many statutes providing Federal financial
assistance, however, define with such precision both the Administrator's
role and the conditions upon which specified amounts shall be
given to designated recipients that the amount of administrative
discretion remaining -- which might be used to withhold funds
if discrimination were not ended -- is at best questionable. No
administrator has the unlimited authority to invoke the Constitution
in opposition to the mandate of the Congress. Nor would it always
be helpful to require unconditionally -- as is often proposed
-- the withdrawal of all Federal funds from programs urgently
needed by Negroes as well as whites; for this may only penalize
those who least deserve it without ending discrimination.
"Instead of permitting this issue to become
a political device often exploited by those opposed to social
or economic progress, it would be better at this time to pass
a single comprehensive provision making it clear that the Federal
Government is not required, under any statute, to furnish any
kind of financial assistance -- by way of grant, loan, contract,
guaranty, insurance, or otherwise -- to any program or activity
in which racial discrimination occurs. This would not permit the
Federal Government to cut off all Federal aid of all kinds as
a means of punishing an area for the discrimination occurring
therein -- but it would clarify the authority of any administrator
with respect to Federal funds or financial assistance and discriminatory
practices." 109 Cong. Rec. 11161 (1963).
10 See,
e. g., 110 Cong. Rec. 2732 (1964) (Rep. Dawson); id., at 2481-2482
(Rep. Ryan); id., at 2766 (Rep. Matsunaga); id., at 2595 (Rep.
Donahue).
11 There
is also language in 42 U. S. C. § 2000d-5, enacted in 1966,
which supports the conclusion that Title VI's standard is that
of the Constitution. Section 2000d-5 provides that "for the
purpose of determining whether a local educational agency is in
compliance with [Title VI], compliance by such agency with a final
order or judgment of a Federal court for the desegregation of
the school or school system operated by such agency shall be deemed
to be compliance with [Title VI], insofar as the matters covered
in the order or judgment are concerned." This provision was
clearly intended to avoid subjecting local educational agencies
simultaneously to the jurisdiction of the federal courts and the
federal administrative agencies in connection with the imposition
of remedial measures designed to end school segregation. Its inclusion
reflects the congressional judgment that the requirements imposed
by Title VI are identical to those imposed by the Constitution
as interpreted by the federal courts.
12 As
has already been seen, the proponents of Title VI in the House
were motivated by the identical concern. See remarks of Representative
Celler (110 Cong. Rec. 2467 (1964)); Representative Ryan (id.,
at 1643, 2481-2482); H. R. Rep. No. 914, 88th Cong., 1st Sess.,
pt. 2, Additional Views of Seven Representatives 24-25 (1963).
13 See
separate opinion of MR. JUSTICE WHITE, post, at 382-383, n. 2.
14 These
remarks also reflect the expectations of Title VI's proponents
that the application of the Constitution to the conduct at the
core of their concern -- the segregation of Negroes in federally
funded programs and their exclusion from the full benefits of
such programs -- was clear. See supra, at 333-336; infra, at 340-342,
n. 17.
15 Testimony
of Attorney General Kennedy in Hearings before the Senate Committee
on the Judiciary on S. 1731 and S. 1750, 88th Cong., 1st Sess.,
398-399 (1963).
16 See,
e. g., 110 Cong. Rec. 6544, 13820 (1964) (Sen. Humphrey); id.,
at 6050 (Sen. Javits); id., at 12677 (Sen. Allott).
17 Our
Brother STEVENS finds support for a colorblind theory of Title
VI in its legislative history, but his interpretation gives undue
weight to a few isolated passages from among the thousands of
pages of the legislative history of Title VI. See id., at 6547
(Sen. Humphrey); id., at 6047, 7055 (Sen. Pastore); id., at 12675
(Sen. Allott); id., at 6561 (Sen. Kuchel). These fragmentary comments
fall far short of supporting a congressional intent to prohibit
a racially conscious admissions program designed to assist those
who are likely to have suffered injuries from the effects of past
discrimination. In the first place, these statements must be read
in the context in which they were made. The concern of the speakers
was far removed from the incidental injuries which may be inflicted
upon nonminorities by the use of racial preferences. It was rather
with the evil of the segregation of Negroes in federally financed
programs and, in some cases, their arbitrary exclusion on account
of race from the benefits of such programs. Indeed, in this context
there can be no doubt that the Fourteenth Amendment does command
color blindness and forbids the use of racial criteria. No consideration
was given by these legislators, however, to the permissibility
of racial preference designed to redress the effects of injuries
suffered as a result of one's color. Significantly one of the
legislators, Senator Pastore, and perhaps also Senator Kuchel,
who described Title VI as proscribing decisionmaking based upon
skin color, also made it clear that Title VI does not outlaw the
use of racial criteria in all circumstances. See supra, at 339-340;
110 Cong. Rec. 6562 (1964). See also id., at 2494 (Rep. Celler).
Moreover, there are many statements in the legislative history
explicitly indicating that Congress intended neither to require
nor to prohibit the remedial use of racial preferences where not
otherwise required or prohibited by the Constitution. Representative
MacGregor addressed directly the problem of preferential treatment:
"Your mail and mine, your contacts and
mine with our constituents, indicates a great degree of misunderstanding
about this bill. People complain about racial 'balancing' in the
public schools, about open occupancy in housing, about preferential
treatment or quotas in employment. There is a mistaken belief
that Congress is legislating in these areas in this bill. When
we drafted this bill we excluded these issues largely because
the problems raised by these controversial questions are more
properly handled at a governmental level close to the American
people and by communities and individuals themselves. The Senate
has spelled out our intentions more specifically." Id., at
15893.
Other legislators explained that the achievement
of racial balance in elementary and secondary schools where there
had been no segregation by law was not compelled by Title VI but
was rather left to the judgment of state and local communities.
See, e. g., id., at 10920 (Sen. Javits); id., at 5807, 5266 (Sen.
Keating); id., at 13821 (Sens. Humphrey and Saltonstall). See
also, id., at 6562 (Sen. Kuchel); id., at 13695 (Sen. Pastore).
Much the same can be said of the scattered
remarks to be found in the legislative history of Title VII of
the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq.
(1970 ed. and Supp. V), which prohibits employment discrimination
on the basis of race in terms somewhat similar to those contained
in Title VI, see 42 U. S. C. § 2000e-2 (a)(1) (unlawful "to
fail or refuse to hire" any applicant "because of such
individual's race, color, religion, sex, or national origin .
. . ."), to the effect that any deliberate attempt by an
employer to maintain a racial balance is not required by the statute
and might in fact violate it. See, e. g., 110 Cong. Rec. 7214
(1964) (Sens. Clark and Case); id., at 6549 (Sen. Humphrey); id.,
at 2560 (Rep. Goodell). Once again, there is no indication that
Congress intended to bar the voluntary use of racial preferences
to assist minorities to surmount the obstacles imposed by the
remnants of past discrimination. Even assuming that Title VII
prohibits employers from deliberately maintaining a particular
racial composition in their work force as an end in itself, this
does not imply, in the absence of any consideration of the question,
that Congress intended to bar the use of racial preferences as
a tool for achieving the objective of remedying past discrimination
or other compelling ends. The former may well be contrary to the
requirements of the Fourteenth Amendment (where state action is
involved), while the latter presents very different constitutional
considerations. Indeed, as discussed infra, at 353, this Court
has construed Title VII as requiring the use of racial preferences
for the purpose of hiring and advancing those who have been adversely
affected by past discriminatory employment practices, even at
the expense of other employees innocent of discrimination. Franks
v. Bowman Transportation Co., 424 U.S. 747, 767-768 (1976). Although
Title VII clearly does not require employers to take action to
remedy the disadvantages imposed upon racial minorities by hands
other than their own, such an objective is perfectly consistent
with the remedial goals of the statute. See id., at 762-770; Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418 (1975). There is no more
indication in the legislative history of Title VII than in that
of Title VI that Congress desired to prohibit such affirmative
action to the extent that it is permitted by the Constitution,
yet judicial decisions as well as subsequent executive and congressional
action clearly establish that Title VII does not forbid race-conscious
remedial action. See infra, at 353-355, and n. 28.
18 HEW
has stated that the purpose of these regulations is "to specify
that affirmative steps to make services more equitably available
are not prohibited and that such steps are required when necessary
to overcome the consequences of prior discrimination." 36
Fed. Reg. 23494 (1971). Other federal agencies which provide financial
assistance pursuant to Title VI have adopted similar regulations.
See Supplemental Brief for United States as Amicus Curiae 16 n.
14.
19 Moreover,
the President has delegated to the Attorney General responsibility
for coordinating the enforcement of Title VI by federal departments
and agencies and has directed him to "assist the departments
and agencies in accomplishing effective implementation."
Exec. Order No. 11764, 3 CFR 849 (1971-1975 Comp.). Accordingly,
the views of the Solicitor General, as well as those of HEW, that
the use of racial preferences for remedial purposes is consistent
with Title VI are entitled to considerable respect.
20 HEW
administers at least two explicitly race-conscious programs. Details
concerning them may be found in the Office of Management and Budget,
1977 Catalogue of Federal Domestic Assistance 205-206, 401-402.
The first program, No. 13.375, "Minority Biomedical Support,"
has as its objectives:
"To increase the number of ethnic minority
faculty, students, and investigators engaged in biomedical research.
To broaden the opportunities for participation in biomedical research
of ethnic minority faculty, students, and investigators by providing
support for biomedical research programs at eligible institutions."
Eligibility for grants under this program is
limited to (1) four-year colleges, universities, and health professional
schools with over 50% minority enrollments; (2) four-year institutions
with significant but not necessarily over 50% minority enrollment
provided they have a history of encouragement and assistance to
minorities; (3) two-year colleges with 50% minority enrollment;
and (4) American Indian Tribal Councils. Grants made pursuant
to this program are estimated to total $ 9,711,000 for 1977.
The second program, No. 13.880, entitled "Minority
Access To Research Careers," has as its objective to "assist
minority institutions to train greater numbers of scientists and
teachers in health related fields." Grants under this program
are made directly to individuals and to institutions for the purpose
of enabling them to make grants to individuals.
21 H.
R. Conf. Rep. No. 95-538, p. 22 (1977); 123 Cong. Rec. 26188 (1977).
See H. J. Res. 662, 95th Cong., 1st Sess. (1977); Pub. L. 95-205,
91 Stat. 1460.
22 91
Stat. 117, 42 U. S. C. § 6705 (f)(2) (1976 ed.).
23 123
Cong. Rec. 7156 (1977); id., at 5327-5330.
24 See
id., at 7156 (1977) (Sen. Brooke).
25 In
addition to the enactment of the 10% quota provision discussed
supra, Congress has also passed other Acts mandating race-conscious
measures to overcome disadvantages experienced by racial minorities.
Although these statutes have less direct bearing upon the meaning
of Title VI, they do demonstrate that Congress believes race-conscious
remedial measures to be both permissible and desirable under at
least some circumstances. This in turn undercuts the likelihood
that Congress intended to limit voluntary efforts to implement
similar measures. For example, § 7 (a) of the National Science
Foundation Authorization Act, 1977, provides:
"The Director of the National Science
Foundation shall initiate an intensive search for qualified women,
members of minority groups, and handicapped individuals to fill
executive level positions in the National Science Foundation.
In carrying out the requirement of this subsection, the Director
shall work closely with organizations which have been active in
seeking greater recognition and utilization of the scientific
and technical capabilities of minorities, women, and handicapped
individuals. The Director shall improve the representation of
minorities, women, and handicapped individuals on advisory committees,
review panels, and all other mechanisms by which the scientific
community provides assistance to the Foundation." 90 Stat.
2056, note following 42 U. S. C. § 1873 (1976 ed.).
Perhaps more importantly, the Act also authorizes the funding of Minority Centers for Graduate Education. Section 7 (c)(2) of the Act, 90 Stat. 2056, requires that these Centers:
"(A) have substantial minority student enrollment;
"(B) are geographically located near minority population centers;
"(C) demonstrate a commitment to encouraging and assisting minority students, researchers, and faculty;
. . . .
"(F) will serve as a regional resource in science and engineering for the minority community which the Center is designed to serve; and
"(G) will develop joint educational programs with nearby undergraduate institutions of higher education which have a substantial minority student enrollment."
Once again, there is no indication in the legislative history of this Act or elsewhere that Congress saw any inconsistency between the race-conscious nature of such legislation and the meaning of Title VI. And, once again, it is unlikely in the extreme that a Congress which believed that it had commanded recipients of federal funds to be absolutely colorblind would itself expend federal funds in such a race-conscious manner. See also the Railroad Revitalization and Regulatory Reform Act of 1976, 45 U. S. C. § 801 et seq. (1976 ed.), 49 U. S. C. § 1657a et seq. (1976 ed.); the Emergency School Aid Act, 20 U. S. C. § 1601 et seq. (1976 ed.).
26 Cf.
Griggs v. Duke Power Co., 401 U.S. 424 (1971).
27 Ibid.;
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).
28 Franks
v. Bowman Transportation Co., 424 U.S. 747 (1976); Teamsters v.
United States, 431 U.S. 324 (1977). Executive, judicial, and congressional
action subsequent to the passage of Title VII conclusively established
that the Title did not bar the remedial use of race. Prior to
the 1972 amendments to Title VII (Equal Employment Opportunity
Act of 1972, 86 Stat. 103) a number of Courts of Appeals approved
race-conscious action to remedy the effects of employment discrimination.
See, e. g., Heat & Frost Insulators & Asbestos Workers
v. Vogler, 407 F.2d 1047 (CA5 1969); United States v. Electrical
Workers, 428 F.2d 144, 149-150 (CA6), cert. denied, 400 U.S. 943
(1970); United States v. Sheetmetal Workers, 416 F.2d 123 (CA8
1969). In 1965, the President issued Exec. Order No. 11246, 3
CFR 339 (1964-1965 Comp.), which as amended by Exec. Order No.
11375, 3 CFR 684 (1966-1970 Comp.), required federal contractors
to take affirmative action to remedy the disproportionately low
employment of racial minorities in the construction industry.
The Attorney General issued an opinion concluding that the race
consciousness required by Exec. Order No. 11246 did not conflict
with Title VII:
"It is not correct to say that Title VII
prohibits employers from making race or national origin a factor
for consideration at any stage in the process of obtaining employees.
The legal definition of discrimination is an evolving one, but
it is now well recognized in judicial opinions that the obligation
of nondiscrimination, whether imposed by statute or by the Constitution,
does not require and, in some circumstances, may not permit obliviousness
or indifference to the racial consequences of alternative courses
of action which involve the application of outwardly neutral criteria."
42 Op. Atty. Gen. 405, 411 (1969).
The federal courts agreed. See, e. g., Contractors
Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (CA3),
cert. denied, 404 U.S. 854 (1971) (which also held, 442 F.2d,
at 173, that race-conscious affirmative action was permissible
under Title VI); Southern Illinois Builders Assn. v. Ogilvie,
471 F.2d 680 (CA7 1972). Moreover, Congress, in enacting the 1972
amendments to Title VII, explicitly considered and rejected proposals
to alter Exec. Order No. 11246 and the prevailing judicial interpretations
of Title VII as permitting, and in some circumstances requiring,
race-conscious action. See Comment, The Philadelphia Plan: A Study
in the Dynamics of Executive Power, 39 U. Chi. L. Rev. 723, 747-757
(1972). The section-by-section analysis of the 1972 amendments
to Title VII undertaken by the Conference Committee Report on
H. R. 1746 reveals a resolve to accept the then (as now) prevailing
judicial interpretations of the scope of Title VII:
"In any area where the new law does not
address itself, or in any areas where a specific contrary intent
is not indicated, it was assumed that the present case law as
developed by the courts would continue to govern the applicability
and construction of Title VII." Legislative History of the
Equal Employment Opportunity Act of 1972, p. 1844 (Comm. Print
1972).
29 United
Jewish Organizations v. Carey, 430 U.S. 144 (1977). See also id.,
at 167-168 (opinion of WHITE, J.).
30 We
do not pause to debate whether our cases establish a "two-tier"
analysis, a "sliding scale" analysis, or something else
altogether. It is enough for present purposes that strict scrutiny
is applied at least in some cases.
31 Of
course, the fact that whites constitute a political majority in
our Nation does not necessarily mean that active judicial scrutiny
of racial classifications that disadvantage whites is inappropriate.
Cf. Castaneda v. Partida, 430 U.S. 482, 499-500 (1977); id., at
501 (MARSHALL, J., concurring).
32 "[The]
conclusion cannot be resisted, that no reason for [the refusal
to issue permits to Chinese] exists except hostility to the race
and nationality to which the petitioners belong . . . . The discrimination
is, therefore, illegal . . . ."
33 Indeed,
even in Plessy v. Ferguson the Court recognized that a classification
by race that presumed one race to be inferior to another would
have to be condemned. See 163 U.S., at 544-551.
34 Paradoxically, petitioner's argument is supported by the cases generally thought to establish the "strict scrutiny" standard in race cases, Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S. 214 (1944). In Hirabayashi, for example, the Court, responding to a claim that a racial classification was rational, sustained a racial classification solely on the basis of a conclusion in the double negative that it could not say that facts which might have been available "could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States." 320 U.S., at 101. A similar mode of analysis was followed in Korematsu, see 323 U.S., at 224, even though the Court stated there that racial classifications were "immediately suspect" and should be subject to "the most rigid scrutiny." Id., at 216.
35 We
disagree with our Brother POWELL's suggestion, ante, at 303, that
the presence of "rival groups which can claim that they,
too, are entitled to preferential treatment" distinguishes
the gender cases or is relevant to the question of scope of judicial
review of race classifications. We are not asked to determine
whether groups other than those favored by the Davis program should
similarly be favored. All we are asked to do is to pronounce the
constitutionality of what Davis has done.
But, were we asked to decide whether any given
rival group -- German-Americans for example -- must constitutionally
be accorded preferential treatment, we do have a "principled
basis," ante, at 296, for deciding this question, one that
is well established in our cases: The Davis program expressly
sets out four classes which receive preferred status. Ante, at
274. The program clearly distinguishes whites, but one cannot
reason from this a conclusion that German-Americans, as a national
group, are singled out for invidious treatment. And even if the
Davis program had a differential impact on German-Americans, they
would have no constitutional claim unless they could prove that
Davis intended invidiously to discriminate against German-Americans.
See Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U.S. 252, 264-265 (1977); Washington v. Davis, 426 U.S. 229, 238-241
(1976). If this could not be shown, then "the principle that
calls for the closest scrutiny of distinctions in laws denying
fundamental rights . . . is inapplicable," Katzenbach v.
Morgan, 384 U.S. 641, 657 (1966), and the only question is whether
it was rational for Davis to conclude that the groups it preferred
had a greater claim to compensation than the groups it excluded.
See ibid.; San Antonio Independent School District v. Rodriguez,
411 U.S. 1, 38-39 (1973) (applying Katzenbach test to state action
intended to remove discrimination in educational opportunity).
Thus, claims of rival groups, although they may create thorny
political problems, create relatively simple problems for the
courts.
36 Gunther,
The Supreme Court, 1971 Term -- Foreword: In Search of Evolving
Doctrine on a Changing Court: A Model for a Newer Equal Protection,
86 Harv. L. Rev. 1, 8 (1972).
37 In
Albemarle, we approved "differential validation" of
employment tests. See 422 U.S., at 435. That procedure requires
that an employer must ensure that a test score of, for example,
50 for a minority job applicant means the same thing as a score
of 50 for a nonminority applicant. By implication, were it determined
that a test score of 50 for a minority corresponded in "potential
for employment" to a 60 for whites, the test could not be
used consistently with Title VII unless the employer hired minorities
with scores of 50 even though he might not hire nonminority applicants
with scores above 50 but below 60. Thus, it is clear that employers,
to ensure equal opportunity, may have to adopt race-conscious
hiring practices.
38 Indeed,
Titles VI and VII of the Civil Rights Act of 1964 put great emphasis
on voluntarism in remedial action. See supra, at 336-338. And,
significantly, the Equal Employment Opportunity Commission has
recently proposed guidelines authorizing employers to adopt racial
preferences as a remedial measure where they have a reasonable
basis for believing that they might otherwise be held in violation
of Title VII. See 42 Fed. Reg. 64826 (1977).
39 "[The]
[Voting Rights] Act's prohibition . . . is not dependent upon
proving past unconstitutional apportionments . . . ."
40 "[The]
State is [not] powerless to minimize the consequences of racial
discrimination by voters when it is regularly practiced at the
polls."
41 Our
cases cannot be distinguished by suggesting, as our Brother POWELL
does, that in none of them was anyone deprived of "the relevant
benefit." Ante, at 304. Our school cases have deprived whites
of the neighborhood school of their choice; our Title VII cases
have deprived nondiscriminating employees of their settled seniority
expectations; and UJO deprived the Hassidim of bloc-voting strength.
Each of these injuries was constitutionally cognizable as is respondent's
here.
42 We
do not understand MR. JUSTICE POWELL to disagree that providing
a remedy for past racial prejudice can constitute a compelling
purpose sufficient to meet strict scrutiny. See ante, at 305.
Yet, because petitioner is a corporation administering a university,
he would not allow it to exercise such power in the absence of
"judicial, legislative, or administrative findings of constitutional
or statutory violations." Ante, at 307. While we agree that
reversal in this case would follow a fortiori had Davis been guilty
of invidious racial discrimination or if a federal statute mandated
that universities refrain from applying any admissions policy
that had a disparate and unjustified racial impact, see, e. g.,
McDaniel v. Barresi, 402 U.S. 39 (1971); Franks v. Bowman Transportation
Co., 424 U.S. 747 (1976), we do not think it of constitutional
significance that Davis has not been so adjudged.
Generally, the manner in which a State chooses
to delegate governmental functions is for it to decide. Cf. Sweezy
v. New Hampshire, 354 U.S. 234, 256 (1957) (Frankfurter, J., concurring
in result). California, by constitutional provision, has chosen
to place authority over the operation of the University of California
in the Board of Regents. See Cal. Const., Art. 9, § 9 (a).
Control over the University is to be found not in the legislature,
but rather in the Regents who have been vested with full legislative
(including policymaking), administrative, and adjudicative powers
by the citizens of California. See ibid.; Ishimatsu v. Regents,
266 Cal. App. 2d 854, 863-864, 72 Cal. Rptr. 756, 762-763 (1968);
Goldberg v. Regents, 248 Cal. App. 2d 867, 874, 57 Cal. Rptr.
463, 468 (1967); 30 Op. Cal. Atty. Gen. 162, 166 (1957) ("The
Regents, not the legislature, have the general rule-making or
policy-making power in regard to the University"). This is
certainly a permissible choice, see Sweezy, supra, and we, unlike
our Brother POWELL, find nothing in the Equal Protection Clause
that requires us to depart from established principle by limiting
the scope of power the Regents may exercise more narrowly than
the powers that may constitutionally be wielded by the Assembly.
Because the Regents can exercise plenary legislative
and administrative power, it elevates form over substance to insist
that Davis could not use race-conscious remedial programs until
it had been adjudged in violation of the Constitution or an antidiscrimination
statute. For, if the Equal Protection Clause required such a violation
as a predicate, the Regents could simply have promulgated a regulation
prohibiting disparate treatment not justified by the need to admit
only qualified students, and could have declared Davis to have
been in violation of such a regulation on the basis of the exclusionary
effect of the admissions policy applied during the first two years
of its operation. See infra, at 370.
43 "Equal
protection analysis in the Fifth Amendment area is the same as
that under the Fourteenth Amendment." Buckley v. Valeo, 424
U.S. 1, 93 (1976) (per curiam), citing Weinberger v. Wiesenfeld,
420 U.S. 636, 638 n. 2 (1975).
44 Railway
Mail Assn. held that a state statute forbidding racial discrimination
by certain labor organizations did not abridge the Association's
due process rights secured by the Fourteenth Amendment because
that result "would be a distortion of the policy manifested
in that amendment, which was adopted to prevent state legislation
designed to perpetuate discrimination on the basis of race or
color." 326 U.S., at 94. That case thus established the principle
that a State voluntarily could go beyond what the Fourteenth Amendment
required in eliminating private racial discrimination.
45 According
to 89 schools responding to a questionnaire sent to 112 medical
schools (all of the then-accredited medical schools in the United
States except Howard and Meharry), substantial efforts to admit
minority students did not begin until 1968. That year was the
earliest year of involvement for 34% of the schools; an additional
66% became involved during the years 1969 to 1973. See C. Odegaard,
Minorities in Medicine: From Receptive Passivity to Positive Action,
1966-1976, p. 19 (1977) (hereinafter Odegaard). These efforts
were reflected in a significant increase in the percentage of
minority M. D. graduates. The number of American Negro graduates
increased from 2.2% in 1970 to 3.3% in 1973 and 5.0% in 1975.
Significant percentage increases in the number of Mexican-American,
American Indian, and mainland Puerto Rican graduates were also
recorded during those years. Id., at 40.
The statistical information cited in this and
the following notes was compiled by Government officials or medical
educators, and has been brought to our attention in many of the
briefs. Neither the parties nor the amici challenge the validity
of the statistics alluded to in our discussion.
46 D.
Reitzes, Negroes and Medicine, pp. xxvii, 3 (1958).
47 Between
1955 and 1964, for example, the percentage of Negro physicians
graduated in the United States who were trained at these schools
ranged from 69.0% to 75.8%. See Odegaard 19.
48 U.S.
Dept. of Health, Education, and Welfare, Minorities and Women
in the Health Fields 7 (Pub. No. (HRA) 75-22, May 1974).
49 U.S.
Dept. of Commerce, Bureau of the Census, 1970 Census, vol. 1,
pt. 1, Table 60 (1973).
50 See
ante, at 276 n. 6 (opinion of POWELL, J.).
51 See,
e. g., R. Wade, Slavery in the Cities: The South 1820-1860, pp.
90-91 (1964).
52 For
an example of unequal facilities in California schools, see Soria
v. Oxnard School Dist. Board, 386 F.Supp. 539, 542 (CD Cal. 1974).
See also R. Kluger, Simple Justice (1976).
53 See, e. g., Crawford v. Board of Education, 17 Cal. 3d 280, 551 P. 2d 28