It is always important at the outset to focus
precisely on the controversy before the Court.
1 It is
particularly important to do so in this case because correct identification of
the issues will determine whether it is necessary or appropriate to express any
opinion about the legal status of any admissions program other than
This is not a class action. The controversy is
between two specific litigants. Allan Bakke challenged petitioner's special
admissions program, claiming that it denied him a place in medical school
because of his race in violation of the Federal and California Constitutions and
of Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq. The
California Supreme Court upheld his challenge and ordered him admitted. If the
state court was correct in its view that the University's special program was
illegal, and that Bakke was therefore unlawfully excluded from the Medical
School because of his race, we should affirm its judgment, regardless of our
views about the legality of admissions programs that are not now before the
The judgment as originally entered by the trial
court contained four separate paragraphs, two of which are of critical
Paragraph 3 declared that the University's special admissions program violated
the Fourteenth Amendment, the State Constitution, and Title VI. The trial court
did not order the University to admit Bakke because it concluded that Bakke had
not shown that he would have been admitted if there had been no special program.
Instead, in paragraph 2 of its judgment it ordered the University to consider
Bakke's application for admission without regard to his race or the race of any
other applicant. The order did not include any broad prohibition against any use
of race in the admissions process; its terms were clearly limited to the
University's consideration of Bakke's application.
3 Because the
University has since been ordered to admit Bakke, paragraph 2 of the trial
court's order no longer has any significance.
The California Supreme Court, in a holding that
is not challenged, ruled that the trial court incorrectly placed the burden on
Bakke of showing that he would have been admitted in the absence of
discrimination. The University then conceded "that it [could] not meet the
burden of proving that the special admissions program did not result in Mr.
Bakke's failure to be admitted."
Accordingly, the California Supreme Court directed the trial court to enter
judgment ordering Bakke's admission.
5 Since that
order superseded paragraph 2 of the trial court's judgment, there is no
outstanding injunction forbidding any consideration of racial criteria in
It is therefore perfectly clear that the question
whether race can ever be used as a factor in an admissions decision is not an
issue in this case, and that discussion of that issue is inappropriate.
Both petitioner and respondent have asked us to
determine the legality of the University's special admissions program by
reference to the Constitution. Our settled practice, however, is to avoid the
decision of a constitutional issue if a case can be fairly decided on a
statutory ground. "If there is one doctrine more deeply rooted than any other in
the process of constitutional adjudication, it is that we ought not to pass on
questions of constitutionality . . . unless such adjudication is unavoidable."
Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105.
7 The more
important the issue, the more force there is to this doctrine.
8 In this
case, we are presented with a constitutional question of undoubted and unusual
importance. Since, however, a dispositive statutory claim was raised at the very
inception of this case, and squarely decided in the portion of the trial court
judgment affirmed by the California Supreme Court, it is our plain duty to
confront it. Only if petitioner should prevail on the statutory issue would it
be necessary to decide whether the University's admissions program violated the
Equal Protection Clause of the Fourteenth Amendment.
Section 601 of the Civil Rights Act of 1964, 78
Stat. 252, 42 U. S. C. § 2000d, 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."
The University, through its special admissions
policy, excluded Bakke from participation in its program of medical education
because of his race. The University also acknowledges that it was, and still is,
receiving federal financial assistance.
9 The plain
language of the statute therefore requires affirmance of the judgment below. A
different result cannot be justified unless that language misstates the actual
intent of the Congress that enacted the statute or the statute is not
enforceable in a private action. Neither conclusion is warranted.
Title VI is an integral part of the far-reaching
Civil Rights Act of 1964. No doubt, when this legislation was being debated,
Congress was not directly concerned with the legality of "reverse
discrimination" or "affirmative action" programs. Its attention was focused on
the problem at hand, the "glaring . . . discrimination against Negroes which
exists throughout our Nation,"
10 and, with
respect to Title VI, the federal funding of segregated facilities.
genesis of the legislation, however, did not limit the breadth of the solution
adopted. Just as Congress responded to the problem of employment discrimination
by enacting a provision that protects all races, see McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 279,
12 so, too,
its answer to the problem of federal funding of segregated facilities stands as
a broad prohibition against the exclusion of any individual from a federally
funded program "on the ground of race." In the words of the House Report, Title
VI stands for "the general principle that no person . . . be excluded from
participation . . . on the ground of race, color, or national origin under any
program or activity receiving Federal financial assistance." H. R. Rep. No. 914,
88th Cong., 1st Sess., pt. 1, p. 25 (1963) (emphasis added). This same broad
view of Title VI and § 601 was echoed throughout the congressional debate and
was stressed by every one of the major spokesmen for the Act.
Petitioner contends, however, that exclusion of
applicants on the basis of race does not violate Title VI if the exclusion
carries with it no racial stigma. No such qualification or limitation of § 601's
categorical prohibition of "exclusion" is justified by the statute or its
history. The language of the entire section is perfectly clear; the words that
follow "excluded from" do not modify or qualify the explicit outlawing of any
exclusion on the stated grounds.
The legislative history reinforces this reading.
The only suggestion that § 601 would allow exclusion of nonminority applicants
came from opponents of the legislation and then only by way of a discussion of
the meaning of the word "discrimination."
opponents feared that the term "discrimination" would be read as mandating
racial quotas and "racially balanced" colleges and universities, and they
pressed for a specific definition of the term in order to avoid this
In response, the proponents of the legislation gave repeated assurances that the
Act would be "colorblind" in its application.
Humphrey, the Senate floor manager for the Act, expressed this position as
"[The] word 'discrimination' has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . .
"The answer to this question [what was meant by 'discrimination'] is that if race is not a factor, we do not have to worry about discrimination because of race. . . . The Internal Revenue Code does not provide that colored people do not have to pay taxes, or that they can pay their taxes 6 months later than everyone else." 110 Cong. Rec. 5864 (1964).
"[If] we started to treat Americans as Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green ones, yellow ones, or white ones, but as Americans. If we did that we would not need to worry about discrimination." Id., at 5866.
In giving answers such as these, it seems clear
that the proponents of Title VI assumed that the Constitution itself required a
colorblind standard on the part of government,
17 but that
does not mean that the legislation only codifies an existing constitutional
prohibition. The statutory prohibition against discrimination in federally
funded projects contained in § 601 is more than a simple paraphrasing of what
the Fifth or Fourteenth Amendment would require. The Act's proponents plainly
considered Title VI consistent with their view of the Constitution and they
sought to provide an effective weapon to implement that view.
18 As a
distillation of what the supporters of the Act believed the Constitution
demanded of State and Federal Governments, § 601 has independent force, with
language and emphasis in addition to that found in the Constitution.
As with other provisions of the Civil Rights Act,
Congress' expression of its policy to end racial discrimination may
independently proscribe conduct that the Constitution does not.
we need not decide the congruence -- or lack of congruence -- of the controlling
statute and the Constitution since the meaning of the Title VI ban on exclusion
is crystal clear: Race cannot be the basis of excluding anyone from
participation in a federally funded program.
In short, nothing in the legislative history justifies the conclusion that the broad language of § 601 should not be given its natural meaning. We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage. 21 In unmistakable terms the Act prohibits the exclusion of individuals from federally funded programs because of their race. 22 As succinctly phrased during the Senate debate, under Title VI it is not "permissible to say 'yes' to one person; but to say 'no' to another person, only because of the color of his skin." 23
Belatedly, however, petitioner argues that Title
VI cannot be enforced by a private litigant. The claim is unpersuasive in the
context of this case. Bakke requested injunctive and declaratory relief under
Title VI; petitioner itself then joined issue on the question of the legality of
its program under Title VI by asking for a declaratory judgment that it was in
compliance with the statute.
24 Its view
during state-court litigation was that a private cause of action does exist
under Title VI. Because petitioner questions the availability of a private cause
of action for the first time in this Court, the question is not properly before
us. See McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434,
Even if it were, petitioner's original assumption is in accord with the federal
courts' consistent interpretation of the Act. To date, the courts, including
this Court, have unanimously concluded or assumed that a private action may be
maintained under Title VI.
United States has taken the same position; in its amicus curiae brief directed
to this specific issue, it concluded that such a remedy is clearly available,
Congress has repeatedly enacted legislation predicated on the assumption that
Title VI may be enforced in a private action.
conclusion that an individual may maintain a private cause of action is amply
supported in the legislative history of Title VI itself.
28 In short,
a fair consideration of petitioner's tardy attack on the propriety of Bakke's
suit under Title VI requires that it be rejected.
The University's special admissions program
violated Title VI of the Civil Rights Act of 1964 by excluding Bakke from the
Medical School because of his race. It is therefore our duty to affirm the
judgment ordering Bakke admitted to the University.
Accordingly, I concur in the Court's judgment insofar as it affirms the judgment of the Supreme Court of California. To the extent that it purports to do anything else, I respectfully dissent.