UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE 11

ticular 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.2 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." 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.

21 As explained by Senator Humphrey, § 601 expresses a principle imbedded in the constitutional and moral understanding of the times.

"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. . . . 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." 110 Cong. Rec. 6544 (emphasis added).

22 Petitioner's attempt to rely on regulations issued by HEW for a contrary reading of the statute is unpersuasive. Where no discriminatory policy was in effect, HEW's example of permissible "affirmative action" refers to "special recruitment policies." 45 CFR § 80.5 (j). This regulation, which was adopted in 1973, sheds no light on the legality of the admissions program that excluded Bakke in this case.

23 110 Cong. Rec. 6047 (remarks of Sen. Pastore). 24 Record, at 30-31.

12

UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE

Campagnie 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.25 The 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,"

25 See, e. g., Lau v. Nichols, 414 U. S. 563; Bossier Parish School Board v. Lemon, 370 F. 2d 847 (CA5 1967), cert. denied, 388 U. S. 911; Uzzell v. Friday, 547 F. 2d 801 (CA4 1977), opinion on rehearing en banc, 558 F.2d 727, cert. filed -; Serna v. Portales, 499 F. 2d 1147 (CA10 1974); cf. Chambers v. Omaha Public School District, 536 F. 2d 222, 225 n. 2 (CA8 1976) (indicating doubt over whether a money judgment can be obtained under Title VI). Indeed, the government's brief in Lau v. Nichols, supra, succinctly expressed this common assumption: "It is settled that petitioners . . . have standing to enforce Section 601 . . . Brief of the United States as Amicus Curiae, at 13 n. 5.

26 Supplemental Brief for the United States as Amicus Curiae, at 24–34. The government's supplemental brief also suggests that there may be a difference between a private cause of action brought to end a particular discriminatory practice and such an action brought to cut off federal funds. Id., at 28-30. Section 601 is specifically addressed to personal rights, while § 602-the fund cut-off provision-establishes "an elaborate mechanism for governmental enforcement by federal agencies." Id., at 28 (emphasis added). Arguably, private enforcement of this "elaborate mechanism" would not fit within the congressional scheme, see separate opinion of MR. JUSTICE WHITE, ante. But Bakke did not seek to cut off the University's federal funding; he sought admission to medical school. The difference between these two courses of action is clear and significant. As the Government itself states:

"[T]he grant of an injunction or a declaratory judgment in a private action would not be inconsistent with the administrative program established by Section 602 . . . . A declaratory judgment or injunction against future discrimination would not raise the possibility that funds would be terminated, and it would not involve bringing the forces of the Executive Branch to bear on state programs; it therefore would not implicate the concern that led to the limitations contained in Section 602." Supplemental Brief, supra, at 30 n. 25.

The notion that a private action seeking injunctive or declaratory judg

UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE 13

27

and Congress has repeatedly enacted legislation predicated on the assumption that Title VI may be enforced in a private action. The 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

ment relief is inconsistent with a federal statute that authorizes termination of funds has clearly been rejected by this Court in prior cases. See Rosado v. Wyman, 397 U. S. 397, 420.

27 See 29 U. S. C. § 794 (the Rehabilitation Act of 1973) (in particular, the legislative history discussed in Lloyd v. Regional Transportation Authority, 548 F. 2d 1277, 1285–1286 (CA7 1977)); 20 U. S. C. § 1617 (attorney fees under the Emergency School Aid Act); and 31 U. S. C. § 1244 (private action under the Financial Assistance Act). Of course, none of these subsequent legislative enactments is necessarily reliable evidence of Congress' intent in 1964 in enacting Title VI, and the legislation was not intended to change the existing status of Title VI.

28 Framing the analysis in terms of the four-part Cort v. Ash test, see 422 U. S. 66, 78, it is clear that all four parts of the test are satisfied. (1) Bakke's status as a potential beneficiary of a federally funded program definitely brings him within the "class for whose especial benefit the statute was enacted," ibid. (emphasis in original). (2) A cause of action based on race discrimination has not been "traditionally relegated to state law." Ibid. (3) While a few excerpts from the voluminous legislative history suggest that Congress did not intend to create a private cause of action, see opinion of MR. JUSTICE POWELL, ante, at 14 n. 18, an examination of the entire legislative history makes it clear that Congress had no intention to foreclose a private right of action. (4) There is ample evidence that Congress considered private causes of action to be consistent with, if not essential to, the legislative scheme. See, e. g., remarks of Senator Ribicoff:

"We come then to the crux of the dispute-how this right [to participate in federally funded programs without discrimination] should be protected. And even this issue becomes clear upon the most elementary analysis. If Federal funds are to be dispensed on a nondiscriminatory basis, the only possible remedies must fall into one of two categories: First, action to end discrimination; or second, action to end the payment of funds. Obviously action to end discrimination is preferable since that reaches the objective of extending the funds on a nondiscriminatory basis. But if the discrimination persists and cannot be effectively terminated, how else can the principle of nondiscrimination be vindicated except by nonpayment of

14

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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.

funds?" 110 Cong. Rec. 7065. See also id., at 5090, 6543, 6544 (remarks of Sen. Humphrey); id., at 7103, 12719 (remarks of Sen. Javits); id., at 7062, 7063 (remarks of Sen. Pastore).

The congressional debates thus show a clear understanding that the principle embodied in § 601 involves personal Federal rights that administrative procedures would not, for the most part, be able to protect. The analogy to the Voting Rights Act of 1965, 79 Stat. 437, is clear. Both that Act and Title VI are broadly phrased in terms of personal rights ("no person shall be denied . . ."); both Acts were drafted with broad remedial purposes in mind; and the effectiveness of both Acts would be "severely hampered" without the existence of a private remedy to supplement administrative procedures. See Allen v. State Board of Elections, 393 U. S. 544, 556. In Allen, of course, this Court implied a private right of action under the Voting Rights Act.

STEELWORKERS v. WEBER

Syllabus

193

UNITED STEELWORKERS OF AMERICA, AFL-CIOCLC v. WEBER ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

No. 78-432. Argued March 28, 1979-Decided June 27, 1979*

MR. JUSTICE BRENNAN delivered the opinion of the Court. Challenged here is the legality of an affirmative action plan-collectively bargained by an employer and a unionthat reserves for black employees 50% of the openings in an in-plant craft-training program until the percentage of black craftworkers in the plant is commensurate with the percentage of blacks in the local labor force. The question for decision is whether Congress, in Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., left employers and unions in the private sector free to take such race-conscious steps to eliminate manifest racial imbalances in traditionally segregated job categories. We hold that Title VII does not prohibit such race-conscious affirmative action plans.

I

In 1974, petitioner United Steelworkers of America (USWA) and petitioner Kaiser Aluminum & Chemical Corp. (Kaiser)