Cite as: 532 U. S. 275 (2001)
Stevens, J., dissenting
Such an approach builds into the law flexibility, an ability to make nuanced assessments of complex social realities, and an admirable willingness to credit the possibility of progress.
The "effects" regulations at issue in this case represent the considered judgment of the relevant agencies that discrimination on the basis of race, ethnicity, and national origin by federal contractees are significant social problems that might be remedied, or at least ameliorated, by the application of a broad prophylactic rule. Given the judgment underlying them, the regulations are inspired by, at the service of, and inseparably intertwined with § 601's antidiscrimination mandate. Contrary to the majority's suggestion, they "appl[y]" § 601's prohibition on discrimination just as surely as the intentional discrimination regulations the majority concedes are privately enforceable. Ante, at 284.
To the extent that our prior cases mischaracterize the relationship between §§ 601 and 602, they err on the side of underestimating, not overestimating, the connection between the two provisions. While our cases have explicitly adopted an understanding of § 601's scope that is somewhat narrower than the reach of the regulations,14 they have done so in an unorthodox and somewhat haphazard fashion.
Our conclusion that the legislation only encompasses intentional discrimination was never the subject of thorough consideration by a Court focused on that question. In Bakke, five Members of this Court concluded that § 601 only prohibits race-based affirmative-action programs in situations where the Equal Protection Clause would impose a similar ban. 438 U. S., at 287 (principal opinion of Powell, J.); id., at
simply accords the agencies the power to decide whether or not to credit such evidence.
14 See, e. g., Alexander v. Choate, 469 U. S. 287, 293 (1985) (stating, in dicta, "Title VI itself directly reach[es] only instances of intentional discrimination"); Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U. S. 582 (1983) (in separate opinions, seven Justices indicate that § 601 on its face bars only intentional discrimination).
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