308
Stevens, J., dissenting
325, 328, 352 (Brennan, J., joined by White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part).15 In Guardians, the majority of the Court held that the analysis of those five Justices in Bakke compelled as a matter of stare decisis the conclusion that § 601 does not on its own terms reach disparate-impact cases. 463 U. S., at 610-611 (Powell, J., concurring in judgment); id., at 612 (O'Connor, J., concurring in judgment); id., at 642 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting). However, the opinions adopting that conclusion did not engage in any independent analysis of the reach of § 601. Indeed, the only writing on this subject came from two of the five Members of the Bakke "majority," each of whom wrote separately to reject the remaining Justices' understanding of their opinions in Bakke and to insist that § 601 does in fact reach some instances of unintentional discrimination. 463 U. S., at 589-590 (White, J.); id., at 623-624 (Marshall, J., dissenting).16 The Court's occasional rote invocation of this Guardians majority in later cases ought not obscure the fact that the question whether § 601 applies to disparate-impact claims has never been analyzed by this Court on the merits.17
15 Of course, those five Justices divided over the application of the Equal Protection Clause—and by extension Title VI—to affirmative action cases. Therefore, it is somewhat strange to treat the opinions of those five Justices in Bakke as constituting a majority for any particular substantive interpretation of Title VI.
16 The fact that Justices Marshall and White both felt that the opinion they coauthored in Bakke did not resolve the question whether Title VI on its face reaches disparate-impact claims belies the majority's assertion that Bakke "had drawn precisely that distinction," ante, at 283, n. 2, much less its implication that it would have been "absurd" to think otherwise, ibid.
17 In this context, it is worth noting that in a variety of other settings the Court has interpreted similarly ambiguous civil rights provisions to prohibit some policies based on their disparate impact on a protected group. See, e. g., Griggs v. Duke Power Co., 401 U. S. 424, 432 (1971) (Title VII); City of Rome v. United States, 446 U. S. 156, 172-173 (1980) (§ 5 of the Voting Rights Act); cf. Alexander v. Choate, 469 U. S., at 292-296
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