Gratz v. Bollinger, 539 U.S. 244, 49 (2003)

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292

GRATZ v. BOLLINGER

Souter, J., dissenting

tique that the Court thus ignores the basic principle of Article III standing that a plaintiff cannot challenge a government program that does not apply to him. See ante, at 286-287, and n. 6 (dissenting opinion).1

But even on the Court's indulgent standing theory, the decision should not go beyond a recognition that diversity can serve as a compelling state interest justifying race-conscious decisions in education. Ante, at 268 (citing Grutter v. Bol-linger, post, at 327-333). Since, as the Court says, "petitioners did not raise a narrow tailoring challenge to the transfer policy," ante, at 266, n. 16, our decision in Grutter is fatal to Hamacher's sole attack upon the transfer policy, which is the only policy before this Court that he claims aggrieved him. Hamacher's challenge to that policy having failed, his standing is presumably spent. The further question whether the freshman admissions plan is narrowly tailored to achieving student body diversity remains legally irrelevant to Hamacher and should await a plaintiff who is actually hurt by it.2

1 The Court's holding arguably exposes a weakness in the rule of Blum v. Yaretsky, 457 U. S. 991 (1982), that Article III standing may not be satisfied by the unnamed members of a duly certified class. But no party has invited us to reconsider Blum, and I follow Justice Stevens in approaching the case on the assumption that Blum is settled law.

2 For that matter, as the Court suggests, narrow tailoring challenges against the two policies could well have different outcomes. Ante, at 266. The record on the decisionmaking process for transfer applicants is understandably thin, given that petitioners never raised a narrow tailoring challenge against it. Most importantly, however, the transfer policy does not use a points-based "selection index" to evaluate transfer applicants, but rather considers race as one of many factors in making the general determination whether the applicant would make a " 'contribution to a diverse student body.' " Ante, at 265 (quoting 2 App. in No. 01-1333 etc. (CA6), p. 531 (capitalization omitted)). This limited glimpse into the transfer policy at least permits the inference that the university engages in a "holistic review" of transfer applications consistent with the program upheld today in Grutter v. Bollinger, post, at 337.

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