UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE 31

The school desegregation cases are inapposite. Each involved remedies for clearly determined constitutional violations. E. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); Green v. County School Board, 391 U. S. 430 (1968). Racial classifications thus were designed as remedies for the vindication of constitutional entitlement.39 Moreover, the scope of the remedies was not permitted to exceed the extent of the violations. E. g., Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Milliken v. Bradley, 418 U. S. 717 (1974); see Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976). See also Austin Indep. School Dist. v. United States, 429 U. S. 990, 991-995 (1976) (POWELL, J., concurring). Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification.

39 Petitioner cites three lower court decisions allegedly deviating from this general rule in school desegregation cases: Offermann v. Nitkowski, 378 F. 2d 22 (CA2 1967); Wanner v. County School Board, 357 F. 2d 452 (CA4 1966); Springfield School Committee v. Barksdale, 348 F. 2d 261 (CA1 1965). Of these, Wanner involved a school system held to have been de jure segregated and enjoined from maintaining segregation; racial districting was deemed necessary. 357 F. 2d, at 454. Cf. United Jewish Organizations v. Carey, 430 U. S. 144 (1977). In Barksdale and Offermann, courts did approve voluntary districting designed to eliminate discriminatory attendance patterns. In neither, however, was there any showing that the school board planned extensive pupil transportation that might threaten liberty or privacy interests. See Keyes v. School District No. 1, 413 U. S. 189, 240-250 (1973) (POWELL, J., concurring in part and dissenting in part). Nor were white students deprived of an equal opportunity for education.

Respondent's position is wholly dissimilar to that of a pupil bused from his neighborhood school to a comparable school in another neighborhood in compliance with a desegregation decree. Petitioner did not arrange for respondent to attend a different medical school in order to desegregate Davis Medical School; instead, it denied him admission and may have deprived him altogether of a medical education.

32

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The employment discrimination cases also do not advance petitioner's cause. For example, in Franks v. Bowman Transportation Co., 424 U. S. 747 (1975), we approved a retroactive award of seniority to a class of Negro truck drivers who had been the victims of discrimination-not just by society at large, but by the respondent in that case. While this relief imposed some burdens on other employees, it was held necessary "to make [the victims] whole for injuries suffered on account of unlawful employment discrimination.'" Id., at 771, quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975). The courts of appeals have fashioned various types of racial preferences as remedies for constitutional or statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. E. g., Bridgeport Guardians, Inc. v. Civil Service Commission, 482 F. 2d 1333 (CA2 1973); Carter v. Gallagher, 452 F. 2d 315, modified on rehearing en banc, 452 F. 2d 327 (CA8 1972). Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. E. g., Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F. 2d 159 (CA3), cert. denied, 404 U. S. 954 (1971); 40 Associated General Contractors of Massachusetts, Inc. v. Altschuler, 490

40 Every decision upholding the requirement of preferential hiring under the authority of Executive Order 11246 has emphasized the existence of previous discrimination as a predicate for the imposition of a preferential remedy. Contractors Association, supra; Southern Illinois Builders Assn. v. Ogilvie, 471 F. 2d 680 (CA7 1972); Joyce v. McCrane, 320 F. Supp. 1284 (N. J. 1970); Weiner v. Cuyahoga Community College District, 19 Ohio 2d 35, 249 N. E. 907, cert. denied, 396 U. S. 1004 (1970). See also Rosetti Contr. Co. v. Brennan, 408 F. 2d 1039, 1041 (CA7 1975); Associated General Contractors of Massachusetts, Inc. v. Altschuler, 490 F. 2d 9 (CA1 1973), cert. denied, 416 U. S. 957 (1974); Northeast Const. Co. v. Romney, 157 U. S. App. D. C. 381, 485 F. 2d 752, 754, 761 (1973).

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F.2d 9 (CA1 1973), cert. denied, 416 U. S. 957 (1974); cf. Katzenbach v. Morgan, 384 U. S. 641 (1966). But we have never approved preferential classifications in the absence of proven constitutional or statutory violations.

41

Nor is petitioner's view as to the applicable standard supported by the fact that gender-based classifications are not subjected to this level of scrutiny. E. g., Califano v. Webster, 430 U. S. 313, 316–317 (1977); e. g., Craig v. Boren, 429 U. S. 190, 211 n.* (1976) (PowELL, J., concurring). Gender-based distinctions are less likely to create the analytical and practical problems present in preferential programs premised on racial or ethnic criteria. With respect to gender there are only two possible classifications. The incidence of the burdens imposed by preferential classifications is clear. There are no rival groups who can claim that they, too, are entitled to preferential treatment. Classwide questions as to the group suffering previous injury and groups which fairly can be burdened are relatively manageable for reviewing courts. See, e. g., Califano v. Goldfarb, 430 U. S. 199, 212-217 (1977);

41 This case does not call into question congressionally authorized administrative actions, such as consent decrees under Title VII or approval of reapportionment plans under § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c. In such cases, there has been detailed legislative consideration of the various indicia of previous constitutional or statutory violations, e. g., South Carolina v. Katzenbach, 383 U. S. 301, 308-310 (1966) (§ 5), and particular administrative bodies have been charged with monitoring various activities in order to detect such violations and formulate appropriate remedies. See Hampton v. Mow Sun Wong, 426 U. S. 88, 103 (1976). Furthermore, we are not here presented with an occasion to review legislation by Congress pursuant to its powers under § 2 of the Thirteenth Amendment and § 5 of the Fourteenth Amendment to remedy the effects of prior discrimination. Katzenbach v. Morgan, 384 U. S. 641 (1966); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). We have previously recognized the special competence of Congress to make findings with respect to the effects of identified past discrimination and its discretionary authority to take appropriate remedial measures.

84-280 0-83-72

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Weinberger v. Wiesenfeld, 420 U. S. 636, 645 (1975). The resolution of these same questions in the context of racial and ethnic preferences presents far more complex and intractable problems than gender-based classifications. More importantly, the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share. In sum, the Court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal-protection analysis.

Petitioner also cites Lau v. Nichols, 414 U. S. 563 (1974), in support of the proposition that discrimination favoring racial or ethnic minorities has received judicial approval without the exacting inquiry ordinarily accorded "suspect" classifications. In Lau, we held that the failure of the San Francisco school system to provide remedial English instruction for some 1,800 students of oriental ancestry who spoke no English amounted to a violation of Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d, and the regulations promulgated thereunder. Those regulations required remedial instruction where inability to understand English excluded children of foreign ancestry from participation in educational programs. Id., at 568. Because we found that the students in Lau were denied "a meaningful opportunity to participate in the educational program," ibid., we remanded for the fashioning of a remedial order.

The

Lau provides little support for petitioner's argument. decision rested solely on the statute, which had been construed by the responsible administrative agency to reach educational practices "which have the effect of subjecting individuals to discrimination," id., at 568. We stated: "Under these stateimposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers and curriculum; for students who do not understand

UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE 35

English are effectively foreclosed from any meaningful education." Id., at 566. Moreover, the "preference" approved did not result in the denial of the relevant benefit—“meaningful participation in the educational program"-to anyone else. No other student was deprived by that preference of the ability to participate in San Francisco's school system, and the applicable regulations required similar assistance for all students who suffered similar linguistic. deficiencies. Id., at 570571 (STEWART, J., concurring).

In a similar vein,12 petitioner contends that our recent decision in United Jewish Organizations v. Carey, 430 U. S. 144 (1977), indicates a willingness to approve racial classifications designed to benefit certain minorities, without denominating the classifications as "suspect." The State of New York had redrawn its reapportionment plan to meet objections of the Department of Justice under § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c. Specifically, voting districts were redrawn to enhance the electoral power of certain "nonwhite" voters found to have been the victims of unlawful "dilution" under the original reapportionment plan. United Jewish Organizations, like Lau, properly is viewed as a case in which the remedy for an administrative finding of discrimination encompassed measures to improve the previously disadvantaged group's ability to participate, without excluding individuals belonging to any other group from enjoyment of the

42 Petitioner also cites our decision in Morton v. Mancari, 417 U. S. 535 (1974), for the proposition that the State may prefer members of traditionally disadvantaged groups. In Mancari, we approved a hiring preference for qualified Indians in the Bureau of Indian Affairs of the Department of the Interior (BIA). We observed in that case, however, that the legal status of BIA is sui generis. Id., at 554. Indeed, we found that the preference was not racial at all, but "an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to groups [,] . . . whose lives are governed by the BIA in a unique fashion." Ibid.