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Case Nos. 01-1333, 01-1416 and 01-1418
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT__________________
Jennifer Gratz and Patrick Hamacher,
For themselves and all others similarly situated,
Plaintiff's — Appellants (01-1333 and 01-1418)
Plaintiffs — Appellees (01-1416)
v.
Lee Bollinger; James J. Duderstadt;
The Board of Regents of the University of Michigan,
Defendants — Appellees (01-1333 and 01-1418)
Defendants — Appellants (01-1416)
Ebony Patterson, et al.,
Defendants — Appellees (01-1333)
Intervening Defendants (01-1416)
Intervening Defendants — Appellees (01-1418)
______________________
On Appeal from the United States District Court
for the Eastern District of Michigan
______________________
PROOF BRIEF OF APPELLANTS (Nos. 01-1333 and 01-1418)
AND APPELLEES (No. 01-1416)
________________________
MASLON EDELMAN BORMAN &
BRAND,LLP
Kirk O. Kolbo
David F. Herr
R. Lawrence Purdy
Michael C. McCarthy
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
(612) 672-8200CENTER FOR INDIVIDUAL RIGHTS
Michael E. Rosman
Michael P. McDonald
1233-20th Street, N.W.
Suite 300
Washington, D.C. 20036
(202) 833-8400
Attorneys for Plaintiffs Jennifer
Gratz and Patrick Hamacher
Statement of Corporation Affiliations and Financial Interest
Pursuant to 6th Cir. R. 26.1, Plaintiffs Jennifer Gratz and Patrick Hamacher
make the following disclosure:
- 1. Are said parties a subsidiary or affiliate of a publicly owned
corporation? No.If the answer is YES, list below the identity of the parent corporation
or affiliate and the relationship between it and the named party:
- 2. Is there a publicly-owned corporation, not a party to the appeal, that
has a financial interest in the outcome? No.
____________________
Kirk O. Kolbo
Dated: May 7, 2001
Table of Contents
Statement of Corporate Affiliations and Financial Interest … … … … i
Table of Cases, Citations and Authorities … … … … … … … … … v
Statement in Support of Oral Argument … … … … … … … … … … x
Statement of Subject-Matter and Appellate Jurisdiction … … … … … 1
Statement of The Issues … … … … … … … … … … … … … … … 2
Statement of The Case … … … … … … … … … … … … … … … 3
Statement of the Facts … … … … … … … … … … … … … … … 5
I. Plaintiffs… … … … … … … … … … … … … … … 5
A. Jennifer Gratz… … … … … … … … … … … … 5
B. Patrick Hamacher… … … … … … … … … … … 6
II. Defendants… … … … … … … … … … … … … … 7
III. Defendants' Admission Policies and Practices… … … 8
A. Overview… … … … … … … … … … … … 8
B. 1995-1997 Guidelines… … … … … … … … 10
C. 1998-2000 Guidelines… … … … … … … … 15
D. Illustrative Admissions Data… … … … … … … 18
Summary of Argument… … … … … … … … … … … 20
Standard of Review… … … … … … … … … … … … 23
Argument … … … … … … … … … … … … … … … … … 24
I. Defendants' Admission Policies Are Not Narrowly
Tailored To Achieve the Interests In "Academic Freedom"
And "Diversity" Recognized By Justice Powell in Bakke. … … … 24A. A Review Of Bakke and Justice Powell's Opinion … … … 25
B. Defendants' Admissions System Does Not Meet the
Requirements of Justice Powell's Analysis in Bakke … … … … 27C. Defendants' Admission System Does Not Meet the
Traditional Requirements of Narrow Tailoring Required
By Strict Scrutiny … … … … … … … … … … … … … … … 34II. The District Court Erred In Not Enjoining The Illegal Aspects of
Defendants' Admissions Policies … … … … … … … … … … … 39III. The District Court Erred in Disregarding Established Summary
Judgment Standards and Burdens And In Granting Defendants'
Motion for Summary Judgment On The 1999-2000 Admissions
Systems … … … … … … … … … … … … … … … … … … … 41IV. The District Court Erred In Determining That "Diversity" Is A
Compelling State Interest Justifying Racial Preferences … … … … 48A. A Review Of The Brennan Group Opinion In Bakke … … … 50
B. Justice Powell's "Academic Freedom" Rationale Was Not
The Rationale For the Holding Of The Court In Bakke … … … … … 50C. Cases Both Before And After Bakke Cast Doubt On
Justice Powell's Analysis … … … … … … … … … … … … … … 56
V. The District Court Erred In Granting The Individual
Defendants' Motion for Summary Judgment on Grounds
Of Qualified Immunity … … … … … … … … … … … … … 60Conclusion … … … … … … … … … … … … … … … … … 64
Certificate of Compliance
Certificate of Service
Designation of Joint Appendix Contents … … … … … … … … A1
Table of Authorities
Federal Cases
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) … … … 50, 60, 62
Alexander v. Sandoval, No. 99-1908, 2001 U.S. LEXIS 3367
(U.S. April 24, 2001) … … … … … … … … … … … … … … … 26, 62Bernal v. Fainter, 467 U.S. 216 (1984) … … … … … … … … … 35
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) … … 42
City of Richmond v. J.A. Croson, Co., 488 U.S. 469 (1989) … … … 36, 38, 39, 56, 60, 61
Dixie Fuel Co. v. Commissioner of Social Security,
171 F. 3d 1052 (6th Cir. 1999) … … … … … … … … … … … … … 42Fullilove v. Klutznick, 448 U.S. 448 (1980) … … … … … … … … … 40, 62
Grutter v. Bollinger, 188 F. 3d 394 (6th Cir. 1999) … … … … … … 4
Hanover Insurance Co. v. American Engineering Co.,
33 F.3d 727 (6th Cir. 1994) … … … … … … … … … … … … … … 43Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) … … … … 53, 56, 60, 62
Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000) … … … … 54, 57, 58
J.Z.G. Resources, Inc. v. Shelby Insurance Co.,
84 F.3d 211 (6th Cir. 1996) … … … … … … … … … … … … … 24Johnson v. Board of Regents of University System of Georgia,
106 F. Supp.2d 1362 (S.D. Ga. 2000) … … … … … … … … … … 56Johnson v. United States Postal Service,
64 F.3d 233 (6th Cir. 1995) … … … … … … … … … … … … … 24Linton by Arnold v. Commissioner of Health & Environment,
30 F.3d 55 (6th Cir. 1994) … … … … … … … … … … … … … 42Marks v. United States, 430 U.S. 188 (1977) … … … … … … … 57
Middleton v. City of Flint, 92 F.3d 396 (6th Cir. 1996) … … … … 35, 36, 38
Miller v. Johnson, 515 U.S. 900 (1995) … … … … … … … … … 35
Muir v. Alabama Education Television Commission,
688 F.2d 1033 (5th Cir. 1982) … … … … … … … … … … … … 60N.A.A.C.P. v. Hunt, 891 F.2d 1555 (11th Cir. 1990) … … … … … 63
Noble v. Schmitt, 87 F.3d 157 (6th Cir. 1996) … … … … … … … 63
Plyler v. Doe, 457 U.S. 202 (1982) … … … … … … … … … … 35
Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988) … … … … … … … 66
Rafferty v. City of Youngstown, 54 F.3d 278 (6th Cir. 1995) … … … 24
Regents of the University of California v. Bakke,
438 U.S. 265 (1978) … … … … … … … … … … … … … … … passimRoberts v. United States Jaycees, 468 U.S. 609 (1984 … … … … … 59
Runyon v. McCrary, 427 U.S. 160 (1976) … … … … … … … … 59
SEC v. Fehn, 97 F.3d 1276 (9th Cir. 1996) … … … … … … … … 41
SEC v. Lorin, 76 F.3d 458 (2d Cir. 1996) … … … … … … … … 42
SEC v. Manor Nursing Ctrs., Inc.,
458 F.2d 1082 (2d Cir. 1972) … … … … … … … … … … … … 41San Antonio Independent Sch. District v. Rodriguez,
411 U.S. 1 (1973) … … … … … … … … … … … … … … … 35Shaw v. Hunt, 517 U.S. 899 (1996) … … … … … … … … … … 26
Smith v. Hudson, 600 F.2d 60 (6th Cir. 1979) … … … … … … 43
Smith v. University of Washington Law Sch.,
233 F.3d 1188 (9th Cir. 2000) … … … … … … … … … … … 55, 58South Central power Co. v. International Brotherhood of
Electric Workers, Local Union 2359, 186 F.3d 733
(6th Cir. 1999) … … … … … … … … … … … … … … … … … 24Student Government Association v. Board of Trustees of
University of Massachusetts, 868 F.2d 473 (1st Cir. 1989) … … … 60Sweezy v. New Hampshire, 354 U.S. 234 (1957) … … … … … … 29, 30
Taylor v. Michigan Department of Corrections,
69 F.3d 76 (6th Cir. 1995) … … … … … … … … … … … … … … 25Tompkins v. Vickers, 26 F.3d 603 (5Th Cir. 1994) … … … … … … 66
Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994) … … 57
United States v. Fordice, 505 U.S. 717 (1992) … … … … … … … 26
United States v. Paradise, 480 U.S. 149 (1987) … … … … … … 36
United States v. W.T. Grant Co., 345 U.S. 629 (1953) … … … … .42
Walling v. Helmerich & Payne, 323 U.S. 37 (1944) … … … … … 41
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) … … 37
Young v. Crystal Evangelical Free Church, 82 F.3d 1407
(8th Cir. 1996) … … … … … … … … … … … … … … … … … 50Federal Statutes
28 U.S. C. § 1291 … … … … … … … … … … … … … … … 241
28 U.S.C. § 1292(b) … … … … … … … … … … … … … … … 241
28 U.S.C. §§ 1331 and 1343 … … … … … … … … … … … … 1
42 U.S. C. §§ 1981, 1983 and 2000d. … … … … … … … … … 1, 3
Fed. R. Civ. P. 23(b)(2) … … … … … … … … … … … … … 244
Fed R. Civ. P. 54(b) … … … … … … … … … … … … … … 242
Fed. R. Civ. P. 56( c ) … … … … … … … … … … … … … … 24
Statement in Support of Oral Argument
Oral argument is requested. This class action involves issues of great public
importance affecting the named plaintiffs and thousands of individuals similarly
situated who have a constitutional right to have their applications for admission to
colleges and universities considered without discrimination on the basis of race or
ethnicity.Statement of Subject-Matter and Appellate Jurisdiction
The complaint (the "Complaint") asserts claims under 42 U.S.C. §§ 1981,
1983 & 2000d et al. The district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343. (R. 1 Complaint, pg. 7-8, Joint Appendix ("JA")-___)This brief addresses issues raised in three appeals, consolidated pursuant to
this Court's order, filed April 6, 2001. The appeals arise from the same district
Court case: Gratz v. Bollinger, E.D. Mich. (Civil Action No. 97-75231). In an
Order dated March 26, 2001, this Court granted defendants' timely petition, filed
February 9, 2001, and plaintiffs' timely cross-petition, filed February 16, 2001, for
permission to appeal, pursuant to 28 U.S.C. § 1292(b), the district Court's order
dated January 30, 2001. (R. 207 Order, JA-___) These appeals are docketed as
Appeal Nos. 01-1416, and 01-1418.Appeal No. 01-1333 has two jurisdictional bases. First, plaintiffs appeal as
of right, pursuant to 28 U.S.C. § 1292 (a), from the dismissal by the district court
of plaintiffs' request for injunctive relief in its order filed January 30, 2001.
Second, plaintiffs appeal as of right, pursuant to 28 U.S.C. § 1291, from the
district court's final judgment, filed February 9, 2001, dismissing their claims against
the individual defendants in their individual capacities on grounds of "qualified
immunity." (R. 206 Opinion, JA-__) The district court ordered the
entry of that judgment pursuant to Fed. R. Civ. P. 54(b). The notice of appeal was
filed on February 26, 2001.There is also a fourth appeal before this Court, Appeal No. 01-1438, which
was filed by the Intervenor Defendants ("Intervenors"). This brief does not
address the issues presented by that appeal, as it is the subject of a separate
briefing schedule.Statement of The Issues
1. Should the district court have granted plaintiffs' motion for summary
judgment seeking to enjoin use of defendants' 1999-2000 admission policies,
which grant a fixed, predetermined racial preference in favor of applicants from
select racial minority groups, and which must be reviewed under the strict-scrutiny
standard applicable to all racial classifications?2. Should the district court have entered an injunction regarding the
features of the 1995-1998 admissions policies that it declared illegal when
defendants failed to demonstrate, and the district court failed to find, that there
was no reasonable possibility of future violations?3. Viewing the evidence in the light most favorable to plaintiffs, did the
District court err in concluding that the defendants had met their burden of
demonstrating the absence of genuine issues with respect to any fact material to
defendants' summary judgment motion?:4. Did the district court err in deciding that there is a compelling
governmental interest in achieving "diversity" that can justify the use of racial
preferences in university admissions?5. Since systematic exclusion on the basis of race and "reversed" places in
the class for racial minorities have been clearly illegal at least since the decision of
the Supreme Court in Regents of the University of California v. Bakke, 438 U.S.
438 U.S. 265 (1978), how can the individual defendants be entitled to qualified
immunity for engaging in those same prohibited practices?:Statement of The Case
This action commenced in October 1997. The Complaint alleged that
Defendants operated an admissions system in the College of Literature, Science
and the Arts ("LS&Amp;A") within the University of Michigan ("University") that
illegally discriminated on the basis of race in violation of 42 U.S.C. §§ 1981,
1983, and 2000d. (R. 1 Complaint, pg.__, JA-__) Plaintiff sought, among other
things, declaratory and injunctive relief, and damages. (R. 1 Complaint, pg. 8-9,
JA-__)
The district court certified a class of plaintiffs, pursuant to Fed. R. Civ . P.
23(b)(2), in an opinion and order filed December 23, 1998. (R. 63 Memorandum
Opinion and Oder, JA-__; R. 62 Order, JA-__)Intervenors were made parties to this case following an order of this
Court reversing the district court's orders denying intervention. See Grutter v.
Bollinger, 188 F. 3d 394 (6th Cir. 1999). (R. 102 Slip Opinion, JA-__)The district court heard the parties' motions for summary judgment on
November 16, 2000. In an opinion filed on December 13, 2000, and order filed on
January 30, 2001, the district court granted plaintiffs' motion for summary
judgment with respect to declaring defendants' admissions system for years 1995-
1998 unlawful; granted defendants' motion for summary judgment with respect to
defendants' admissions systems for 1999 and 2000; denied plaintiffs' motion for
injunctive relief; granted the motion for defendants Bollinger and Duderstadt for
summary judgment on grounds of qualified immunity; and denied defendant Board
of Regents' motion for summary judgment on grounds of Eleventh Amendment
immunity. (R. 206 Opinion, JA-__) In a separate opinion filed on February 26,
2001 and order filed on March 21, 2001, the district court rejected the arguments
of the intervening defendants. (R. 210 Opinion, JA-__); R. 218 Order, JA-__)
Statement of Facts
I. Plaintiffs
A. Jennifer Gratz
Plaintiffs Jennifer Gratz and Patrick Hamacher were white residents of the
state of Michigan who applies for admission to, and were rejected by, the LS&A
in 1995 and 1997, respectively. (R. 205 Joint Summary Undisputed Facts, pg. 1,
JA-__)Jennifer Gratz applied with a 3.8 grade point average and an ACT score of
25. (R. 79 Affidavit, Exhibits Volume II, Exhibit BB, U of M Admission System
Transaction: Application Information Retrieve 10/28/97 — Jennifer Gratz, JA-__)
She was notified by letter dated January 19, 1995, that the LS&A had "delayed" a
final decision on her application until early to mid-April. The letter also informed
Gratz that her application "was classified as well qualified, but less competitive
than the students who have been admitted on first review." (R. 205 Joint
Summary Undisputed Facts, pg. 1 JA-__; R. 78 Affidavit, Exhibits Volume I,
Exh. B, January 19, 1995 letter, JA-__)By letter dated April 24, 1995, the University wrote to Ms. Gratz that "all of
the applications have now been reviewed and [the University] regret[s] to inform
you that we are unable to offer you admission." (R. 205 Joint Summary
Undisputed Facts, pg. 1-2, JA-__); R. 78 Affidavit, Exhibits Volume I, Exh. C,
April 24, 1995 letter, JA-__) The University invited Ms. Gratz to place her name
on an "extended waiting list, " but went on to state that "we expect to take very few
students from the Extended Waiting List, and recommend students make
alternative plans to attend another institution." (R. 205 Joint Summary
Undisputed Facts, pg. 1-2, JA-__; R. 78 Affidavit, Exhibits Volume I, Exh. C,
April 24, 1995 letter, JA-__) As a result of the denial of her admission to the
LS&A, Ms. Gratz accepted an offer for admission into the freshman class of
another institution, the University of Michigan at Dearborn, where she enrolled in
the fall of 1995. (R. 205 Joint Summary Undisputed Facts, pg. 1-2, JA-__; R. 78
Affidavit, Exhibits Volume I, Exh. A, Jennifer Gratz depo. pg. 8, 142-144, JA-__)B. Patrick Hamacher
Plaintiff Patrick Hamacher applied in 1996 for admission into the fall 1997
freshman class of the LS&A. (R. 205 Joint Summary Undisputed Facts, pg. 1-2,
JA-__) He applied with a 3.32 high school grade point average and a 28 ACT
Score. (R. 78 Affidavit, Exhibits Volume I, Exh. F, Hamacher application file, JA-
__) By letter dated November 19, 1996, the University informed Mr. Hamacher
that it "must postpone" a decision on his application until "mid-April." (R. 205
Joint Summary Undisputed Facts, pg. 2, JA-__; R. 78 Affidavit, Exhibits Volume
I, Exh. E November 19, 1996 letter, JA-__) The letter stated further that
"[a]lthough your academic credentials are in the qualified range, they are not at the
level needed for first review admission" to the LS&A. (R. 205 Joint Summary
Undisputed Facts, pg. 2, JA-__; R. 78 Affidavit, Exhibits Volume I, Exh. E,
November 19, 1996 letter, JA-__)On or about April 8, 1997, the University informed Mr. Hamacher that after
further review, it was unable to offer him admission to the LS&A. (R. 205 Joint
Summary Undisputed Facts, pg. 2, JA-__) As a result of the denial of his
admission into the freshman class of the LS&A, Mr. Hamacher accepted
admission into another institution, Michigan State University, where he enrolled in
the fall of 1997. (R. 205 Joint Summary Undisputed Facts, pg. 2, JA-__; R. 78
Affidavit, Exhibits Volume I, Exh. D, Patrick Hamacher depo. Pg. 74-76, JA-__)II. Defendants
Defendant Board of Regents of the University of Michigan is the legal
entity responsible for the control and operation of the LS&A. (R. 6 Answer, pg. 1,
JA-__)Defendant Lee Bollinger is president of the University of Michigan,
Defendant James Duderstadt was Bollinger's predecessor as president of
the University. (R. 6 Answer, pg. 4, JA-__)
Defendant-Intervenors are a group of individuals and organizations who
argue in support of the university defendants' use of racial preferences, although
They assert justifications for these preferences not used or relied upon by the
university defendants.
III. Defendants' Admission Policies and Practices
A. Overview
Defendants admit that they use race as a factor in making admissions
decisions and that the race of plaintiffs Gratz and Hamacher was not a factor that
"enhanced" the consideration of their applications. (R. 6 Answer, pg. 5, JA-__)
Defendants also admit that the University is the recipient of federal funds. (R. 6,
Answer, pg. 5, JA-__)Defendants justify the use of race as a factor in the admissions process on
one ground only: that it serves a "compelling interest in achieving diversity
among its student body." (R. 78 Affidavit, Exhibits Volume I, Exh. H,
Defendants' Objections and Responses to Interrogatories, pg. 17, JA-__)
Admission to the university is selective, meaning that many more students apply
each year than can be admitted, and the university rejects many qualified
applicants. (R. 205 Joint Summary Undisputed Facts, pg. 1 JA-__) Defendants,
however, have a policy to admit all qualified applicants who are members of one
of three select racial minority groups; African American, Hispanic, and Native
American.
[M]inority guidelines are set to admit all students who qualify and(R. 78 Affidavit, Exhibits Volume I, Exh. S, Admission Policy for Minority
meet the standards set by the unit liaison with each academic unit,
while majority guidelines are set to manage the number of admissions
granted to satisfy the various targets set by the colleges and schools.
…
…Thus, the significant difference between our evaluation of
underrepresented minority groups and majority students is the
difference between meeting qualifications to predict graduation rather
than selecting qualified students one over another due to the large
applicant pool.
Students, pg. 2, JA-__; R. 78 Affidavit, Exhibits Volume I, Exh. T, Executive
Summary, pg. 2, JA-__; R. 78 Affidavit, Exhibits Volume I, Exh. J, Marilyn
McKinney depo. Pg. 56-58, 81-82, 87-89, 103, JA-__, __, __, __; Exh. K,
Theodore Spencer depo. pg. 83-87, 119-20, 154-55, JA-__, __, __;Exh. L, James
VanHecke depo, pg. 36-39, JA-__)Defendants acknowledge that their consideration of race in the admissions
process had the effect of admitting virtually every qualified applicant from any of
the designated underrepresented minority groups. (R. 205 Joint Summary
Undisputed Facts, pg. 3, JA-__) The University generally defines a "qualified"
applicant as one who could be expected, on the basis of the information contained
in his or her application, to achieve passing grades as a student in the school to
which the applicant has applied to admission. (R. 78 Affidavit, Exhibits Volume
I, Exh. J, McKinney depo. pg. 56-58, JA-__; Exh. K, Spencer depo, pg. 82-87, JA-
__; Exh. L, VanHecke depo. pg. 36-41, JA-__)The defendants' Office of Undergraduate Admissions ("OUA") oversees
and implements the LS&A admissions process. OUA uses written guidelines in
effect for each academic year. (R. 205 Joint Summary Undisputed Facts, pg. 3,
JA-__) Admission counselors are generally expected to make admissions
decisions in accord with the guidelines, although there is some discretion to depart
from them and counselors are expected to discuss any departures with a
supervisor. (R. 205 Joint Summary Undisputed Facts, pg. 3, JA-__; R. 78
Affidavit, Exhibits Volume I, Exh. J, McKinney depo. pg. 24-25, 29-30, 64-66,
JA-__, __, __; Exh. K, Spencer depo. Pg. 55-57, JA-__) The guidelines in effect
for each of the years at issue are discussed below.C. 1995-1997 Guidelines
Written "Guidelines" for all LS&A classes commencing in 1995, 1996, and
1997 have in common the use of grids or tables that are divided into cells
representing different combinations of small ranges of adjusted high school grade
point averages and scores on ACT or SAT tests. (R. 205 Joint Summary
Undisputed Facts, pg. 5-7 JA-__; R. 78 Affidavit, Exhibits Volume I, Exh. Y,
LS&A — Guidelines for 1995, pg. 1-4, JA-__; Exh. Z, LS&A — Guidelines for
1996, pg. 1-2, JA-__; R. 79 Affidavit, Exhibits Volume II, Exh. AA,
LS&A — Guidelines for 1997, pg. 1-2, JA-__) The grade point averages are
adjusted first by clerical employees and second by admissions counselors. The
adjustments made by the admission counselors are based on application of
separate written "SCUGA" guidelines, which result in a score on a four-point
scale ("GPA 2") that is represented in the tables for each year. The SCUGA
guidelines call for addition or subtraction of points based on the quality of an
applicant's high school ("S"), strength of curriculum ("C"), unusual circumstances
("U"), geographic factors ("G"), and alumni relationships ("A"). (R. 78 Affidavit,
Exhibits Volume I, Exh. V, Guidelines-SCUGA 1995, pg. 1-4, JA-__; Exh. W,
Guidelines-SCUGA 1996, pg. 1-4, JA-__; Exh. X, Guidelines — SCUGA 1997, pg.
1-4, JA-__)Each cell in the Guidelines tables includes one or more possible actions for
consideration by the admissions counselor reviewing an applicant's file.
Generally, the Guidelines actions fall into one of the following categories:
admission, rejection, delay, or postpone. The Guidelines for applicants in 1995
(which included Jennifer Gratz) have four separate tables, one for each of the
following groups of applicants: in-state non-minority students; out-of-state non-
minority students; in-state minority students; and out-of-state minority students.
(R. 78 Affidavit, Exhibits Volume I, Exh. Y, LS&A — Guidelines for 1995, pg. 1-
4, JA-__) For applicants for the 1996 and 1997 classes (which included Patrick
Hamacher), there are two tables — for-in-state and out-of-state applicants — and
minority and non-minority action codes are provided for separately in each of the
individual cells, with the top row of the cell representing the Guidelines action for
non-minority students and the bottom two rows for minority applicants and
disadvantaged or other students designated as underrepresented. (R. 78 Affidavit,
Exhibits Volume I, Exh. Z, LS&A — Guidelines for 1996, pg. 1-2, Ja-__; R. 79
Affidavit, Exhibits Volume II, Exh. AA, LS&A — Guidelines for 1997, pg. 1-2,
JA-__) The addition of a new "SCUGA" factor for underrepresented minority
status in 1997 had another consequence: underrepresented minorities, solely
based on their race, had one-half point(.5) added to their grade point average
calculation used in the already discriminatory Guidelines tables. (R. 78 Affidavit,
Exhibits Volume I, Exh. X, "Guidelines-SCUGA 1997," pg. 3, JA-__; Exh, K,
Spencer depo. pg. 127-30, JA-__)
The Guidelines tables commonly reflect different guideline courses of
action for minority applicants and non-minority applicants in the same cell.
Generally, the Guidelines action for "admission" is found in cells representing
relatively higher combinations of adjusted grade points ("GPA 2" or "Selection
Index") and test scores than in cells providing for delay, postpone, or rejection.
The Guidelines reflect that admission decisions are generally more competitive for
out-of-state than in-state applicants. The Guidelines also establish that admission
decisions for non-minorities are generally more selective, requiring higher GPA 2
and test scores for admission than admission decisions for minority applicants. (R.
78 Affidavit, Exhibits Volume I, Exh. Y, LS&A—Guidelines for 1995, pg. 1-4,
JA-__; Exh. Z, LS&A—Guidelines for 1996, pg. 1-2, JA-__; R. 79 Affidavit,
Exhibits Volume II, Exh. AA, LS&A—Guidelines for 1997, pg. 1-2, JA-__; R. 78
Affidavit, Exhibits Volume I, Exh. K, Spencer depo. pg. 105-06, JA-__) For
example, in 1995, minority Guidelines called for admission or delay decisions for
students with combinations of adjusted grade point averages at or above 2.6 and
ACT/SAT scores at or above 18 and 820, respectively. (R. 78 Affidavit, Exhibits
Volume I, Exh. Y, LS&A—Guidelines for 1995, pg. 3-4, JA-__) For non-
minority in-state students that year, the Guidelines generally called for rejection of
applicants with adjusted grade point averages below 3.2 and ACT/SAT scores
below 23 and 950, respectively.1In the case of Jennifer Gratz, her adjusted high school grade point average
("GPA2") of 3.8 and ACT score of 25 placed her in a cell that called for a
"postpone" on the first review under the 1995 Guidelines, which was the first
action taken with respect to her. (R. 79 Affidavit, Exhibits Volume II, Exh. BB, U
of M Admission System Transaction: Application Information Retrieve
10/28/97—Jennifer Gratz, JA-__; R. 78 Affidavit, Exhibits Volume I, Exh. Y,
LS&A—Guidelines for 1995, pg. 1 JA-__) For a minority applicant (in-state or
out-of-state) with the same combination of "GPA2" and test score, the Guidelines
called for a decision to "Admit." (R. 78 Affidavit, Exhibits Volume I, Exh., Y,
LS&A—Guidelines for 1995, pg. 1, JA-__)Patrick Hamacher had an adjusted grade point average ("Selection Index")
of 3.0 and an ACT score of 28, which placed him in a cell in the 1997 Guidelines
that called for postponement of non-minority students and delay or admission of
minority students. (R. 79 Affidavit, Exhibits Volume II, Exh. CC, Admission___________________________
1In some cases, the Guidelines called for automatic rejection based on low
grades or test scores. Underrepresented minorities, however, were never rejected
automatically. (R. 78 Affidavit, Exhibits Volume I, Exh. J, McKinney depo. pg.
41, 97-98, JA-__; Exh. K, Spencer depo. pg. 105, JA-__)
Application Information Retrieve— Patrick Hamacher, JA-__; R. 78 Affidavit,
Exhibits Volume I, Exh. F, Patrick Hamacher application file, JA___; R. 79,
Affidavit, Exhibits Volume II, Exh. AA, LS&A—Guidelines for 1997, pg. 1, JA-
__)D. 1998-2000 Guidelines
The LS&A Guidelines for fall 1998 freshman enrollments dispensed with
the tables and cells used in prior years. The new guidelines used a "Selection Index"
calculated on a variety of factors and scored on a scale of up to 150 points.
(R. 205 Joint Summary Undisputed Facts, pg. 7-8, JA-__) For example, the 1998
Guidelines actions to be taken on an application are divided linearly as follows;
100 to 150 points (admit); 95-99 points (admit or postpone); 90-94 points
(postpone or admit); 75-89 points (delay or postpone); 74 points and below (delay
or reject). (R. 79 Affidavit, Exhibits Volume II, Exh. DD, LS&A—Guidelines for
1998, pg. __, JA-__)The factors used to calculate an applicant's "Selection Index" under the
1998 Guidelines are similar to factors used in prior years. Up to 80 points can be
based on high school grade point average (e.g. , 40 points for a 2.0 GPA; 60 points
for a 3.0; and 80 points for a 4.0). (R. 79 Affidavit, Exhibits Volume II, Exh. EE,
1998 Guidelines for Calculation of Selection Index, pg. 9, JA-__) Up to 12 points,
representing a perfect ACT/SAT score, can be earned for performance on either of
the two standardized tests; up to 10 points for quality of school; from 8 to -4
points for strength or weakness of high school curriculum; 10 points for in-state
residency; 4 points for alumni relationships; 1 point for an outstanding essay
(changed to 3 points beginning in 1999); and 5 points for personal achievement or
leadership on the national level. Under a "miscellaneous" category, 20 points are
added for one of several factors, including an applicant's membership in an
underrepresented racial or ethnic minority group. (R. 79 Affidavit, Exhibits
Volume II, Exh. EE, 1998 Guidelines for Calculation of Selction Index; R. 78
Affidavit, Exhibits Volume I, Exh. J, McKinney depo. Pg. 93-96, JA-__; Exh. K,
Spencer depo. pg. 156-59, 163-67, JA-__, __)The University adopted the 1998 Guidelines witg the intent to admit and
enroll the same composition of class as had been admitted and enrolled under the
previous Guidelines. (R. 78 Affidavit, Exhibits Volume I, Exh. J, McKinney
depo. pg. 77-78, JA-__; Exh. K, Spencer depo. pg. 143-45, 152-53, 205, JA-__,
__, __; R. 99 Affidavit, Exhibits in Opposition, Exh. C, 1998 Guidelines Training,
pg. 1, JA-__); R. 83 Defendants' Appendix Volume II, David Hunter depo. pg.
76-82, JA-__) In adopting the 1998 Guidelines, defendants did not intend to
increase or decrease from prior years the extent to which it considers race and
ethnicity in the admissions process. (R. 78 Affidavit, Exhibits Volume I, Exh. J,
McKinney depo. pg. 103, JA-__; Exh. K, Spencer depo. pg. 144 JA-__) The
parties have stipulated that the change from the tables to the selection index did
not constitute a substantive change in the way that race and ethnicity were
considered in the admissions process. (R. 205 Joint Summary Undisputed Facts,
pg. 8, JA-__) Defendants continued to use the 150-point Selection Index system
for years 1999-2000. (R. 156 Motion, Affidavit, Exh. A, LS&A—Guidelines for
1999, pg. 2, JA-__; Exh. B, 1999 Guidelines for Calculation for Selection Index,
pg. 7, JA-__; Exh. C, LS&A—Guidelines for 2000, pg. 2, JA-__; Exh. D, 2000
Guidelines for Calculation of Selection Index, JA-__)For years 1995-1998, defendants admitted all qualified applicants from the
"underrepresented" minority groups as soon as possible, without deferring or
postponing (waitlisting) their applications. (R. 205 Joint Summary Undisputed
Facts, pg. 5, JA-__) Students from other racial groups, like Jennifer Gratz
and Patrick Hamacher, could have their applications deferred or postponed. Beginning
in 1999, defendants abandoned their approach of "immediately" admitting all
qualified underrepresented minority students. Instead, admissions counselors
were permitted to "flag" for later consideration a file that fell into certain
established classifications. (R. 205 Joint Summary Undisputed Facts, pg. 9, JA-
__) One of those classifications consisted of qualified underrepresented minority
students meeting a designated selection index score. (R. 205 Joint Summary
Undisputed Facts, pg. 8-9, JA-__)For years 1995-1998, defendants also "reserved" or "protected" spaces in
the class for members of certain groups of students, including students from one of
the three underrepresented minority groups. (R. 205 Joint Summary Undisputed
Facts, pg. 6-7, JA-__) According to defendants, "as applicants from a particular
group are admitted over the course of the admissions season, the protected spaces
reserved for that group are used." (R. 78 Affidavit, Exhibits Volume I, Exh. I,
Defendants' Reply Memorandum on Reassignment Motion, pg. 3 n.2, JA-__; Exh.
H, Defendants' Objections and Responses to Interrogatories, pg. 13, JA-__) If the
pool of qualified applicants from these underrepresented minority groups never
reached the number of "protected spaces," those slots "opened up": and could be
filled by students who were not members of one of the underrepresented racial
groups. (R. 78 Affidavit, Exhibits Volume I, Exh. H, Defendants' Objections and
Responses to Interrogatories, pg. 13, JA-__)E. Illustrative Admissions Data
Admissions data illustrate the consequences of defendants' race-conscious
admissions policies. For example, in the Fall 1995 term, 46 underrepresented
minorities applied with an adjusted grade point average ("GPA2") of 3.80 to 3.99
And ACT/SAT test scores between 24-25(ACT) or 1000-1090(SAT), and all 46
received offers of admission. (R. 79 Affidavit, Exhibits Volume II, Exh. FF,
Profile—Fall 1995--Underrepresented Minorities, JA-__) For that same combination
of scores, which is where Jennifer Gratz's scores are located, 378
"Not Underrepresented Minorities" applied, and only 121 received offers of
admission. (R. 79 Affidavit, Exhibits Volume II, Exh. GG, Profile—Fall
1995--Not Underrepresented Minorities, JA-__) The 1995 data show that for
almost every combination of GPA2 and test scores at or above 3.0 (GPA2) and
20-21(ACT)/800-890(SAT), the admission rate for underrepresented minorities
was at or above 90%. In more than half of those cells (28 out of 48), the
admission rate was 100%. In another 11 cells, the admission rate for
underrepresented minorities was between 90% and 99%. In comparison, a 90% or
better acceptance rate for the "Not-Underrepresented Minority" group is found
only with high combinations of GPA 2 and test scores (generally GPA 2 of at least
3.60 and/or minimum test scores of 29(ACT) or 1200(SAT)). In many of the cells
with 90 % admission rate for underrepresented minorities, the "Not
Underrepresented Minority" group has an admission rate ranging between 0% to
less than 50%. (R. 79 Affidavit and Exhibits Volume II, Exh. FF, Profile—Fall
1995—Underrepresented Minorities, JA-__; Exh. GG, Profile—Fall 1995—Not
Underrepresented Minorities, JA-__)The 1996 data convey similar information. For the Spring-Fall 1996 term,
there was at least a 90% acceptance rate for underrepresented minorities with
minimum combinations of a 2.8 (GPA 2) and test scores of 20-21 (ACT)/830-
1000(SAT). (R. 79 Affidavit, Exhibits Volume II, Exh. LL, Profile—Spring-Fall
1996—Underrepresented Minorities, JA-__) For the "Not Underrepresented"
group, a 90% or greater acceptance rate is again found only in cells with high
grades and test scores (minimum GPA 2 of 3.8 and/or minimum test scores of
27(ACT) and 1200 (SAT). (R. Affidavit, Exhibits Volume II, Exh. MM,
Profile—Spring-Fall 1996—Not Underrepresented Minorites, JA-__)Summary of Argument
Plaintiffs advanced two principle arguments in the district court: (1) that
neither "diversity" nor "academic freedom" constitute compelling interests
sufficient to justify the use of racial preferences in admissions; and (2) that even if
diversity is compelling, the defendants' use of racial preferences from 1995 to the
present is not narrowly tailored to achieve that interest. The district court ruled
that diversity is a compelling interest, but found that the admissions policies used
from 1995 to 1998 were not narrowly tailored to achieve that interest. The district
court also found that defendants' 1999-2000 admissions policies were narrowly
tailored and therefore survived strict scrutiny. In so doing, the district court made
distinctions that have never been made by defendants, who have stipulated that no
substantive difference was intended by the changes made to their admissions
policies.The district court should be reversed on a number of separate, but related,
grounds. By making what appears to be a factual finding that diversity is a
compelling interest sufficient to justify use of racial preferences, the district court
erred procedurally and legally. Whether diversity is a compelling interest is a
legal issue, and neither this Court nor the Supreme Court has ever ruled that it is.Although defendants and the district court look to Justice Powell's opinion
for himself in Regents of the University of California v. Bakke, 438 U.S. 265
(1978), even Justice Powell expressly rejected preferences that are based solely on
ethnic or racial diversity (as opposed to viewpoint diversity, which is the interest
found compelling by Justice Powell—and only by Justice Powell). This Court
could and should reverse the district court on this ground alone.Significantly, even if the Court rules that diversity is compelling—despite
the absence of any authority and over plaintiffs' arguments to the contrary—it
must still reverse the district court's finding that the 1999-200 admissions policy
is narrowly tailored. That policy suffers from the very same shortcomings as does
the 1995-1998 policy. Both policies include fixed, predetermined, purely racial
preferences, and both therefore violate the Constitution.Two important procedural holdings should follow from defendants' failure
to establish that either the 1995-1998 or 1999-2000 admission policies are
narrowly tailored. Despite finding the 1995-1998 policy unconstitutional, the
district court did not enjoin its use by defendants, and that ruling should be
reversed. Similarly, the district court's finding on a motion for summary judgment
that the 1999-2000 policy is narrowly tailored must be reversed if for no other
reason than that the district court misapplied the summary-judgment standard.
Although on the present record the district court could readily find that the
defendants had not carried their burden of establishing that either policy was
narrowly tailored as a matter of law, it is inconceivable that a contrary finding
could be made, consistent with the rules of procedure, without a trial.Finally, the district court's ruling that the individual defendants are entitled
to qualified immunity for having violated plaintiffs' constitutional rights should be
reversed. At least since 1978, it has been abundantly clear that a state actor may
not discriminate based on race using "reserved" places in the class or fixed,
predetermined preferences that are the functional equivalent of quotas—yet that is
precisely what defendants did. Individuals who engage in such actions are not
entitle to any immunity-based defense.Standard of Review
These appeals present issues of law arising from the district court's rulings
on summary judgment. This Court should review the propriety of summary
judgment de novo under the same standard that was applicable in the district court.
See, e.g., Rafferty v. City of Youngstown, 54 F.3d 278, 279 (6th Cir. 1995);
Johnson v. United States Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995).
Summary judgment is appropriate where the record discloses "that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56 ( c); J.Z.G. Resources, Inc. v. Shelby Ins. Co., 84 F. 3d
211, 213 (6th Cir. 1996).A district court's legal conclusions for its decision to grant or deny a
permanent injunction are reviewed de novo. South Cent. Power Co. v.
International Bhd. of Elec. Workers, Local Union 2359, 186 F.3d 733, 737 (6th
Cir. 1999). Because the district court denied permanent injunctive relief and did
so on motions for summary judgment, the standard of review for findings of fact
(clearly erroneous), id., and the scope of injunctive relief (abuse of discretion), id.,
are not applicable on these appeals.
A district court's decision to grant summary judgment on a defendants'
affirmative defense based on qualified immunity is reviewed de novo. Taylor v.
Michigan Dep't of Corrections, 69 F.3d 76, 79 (6th Cir. 1995).Argument
I. Defendants' Admission Policies Are Not Narrowly Tailored
To Achieve the Interests In "Academic Freedom" And
"Diversity" Recognized By Justice Powell in Bakke.Defendants undisputedly consider race in the admissions process, and they
purport to do so for the purpose of achieving an ostensible compelling
governmental interest in "diversity" under the rationale articulated by Justice
Powell in Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
As discussed separately below, diversity is not a compelling interest that can
justify racial preferences. The district court erred, therefore, in denying plaintiffs'
request for injunctive relief. But even if diversity were a compelling interest,
defendants' admissions policies for all the years at issue are well outside the
bounds of what Justice Powell approved in Bakke when he wrote about "academic
freedom" and "diversity."Racial classifications are antithetical to the Fourteenth Amendment, the
central purpose of which was to eliminate racial discrimination by the States and
State officials. Shaw v. Hunt, 517 U.S. 899, 907 (1996). As a general rule, the
Fourteenth Amendment subjects any consideration of race by a state actor to
"strict scrutiny." Id. "Strict scrutiny" required both a compelling governmental
interest and narrowly tailored means to achieve that compelling interest. Id. At
908. The Supreme Court has held that Title VI prohibits the same intentional
conduct as the Equal Protection Clause. Alexander v. Sandoval, No. 99-1908.
2001 U.S. LEXIS 3367, at *11 (U.S. April 24, 2001); United States v. Fordice,
505 U.S. 717, 732 n. 7 (1992). Defendants' large, mechanical racial preferences
fail any plausible narrow-tailoring analysis.A. A Review Of Bakke and Justice Powell's Opinion
In Bakke, the Court found that the admissions program of the University of
California Medical School at Davis, which protected 16% of the places for
incoming students from educationally or economically disadvantaged minorities,
was illegal. Five justices, including Justice Powell, held that the Davis program
unlawfully considered race in the admissions process. Another group of five
Justices, also including Justice Powell, reversed the judgment of the California
Supreme Court enjoining Davis from using race under any circumstances. No one
theory, though, explained why that was so.
The Davis program struck down in Bakke operated on a "rolling"
admissions basis. 438 U. S. at 275. The reserved 16 % of spaces in the class were
for economically or educationally disadvantaged students from one of four
specified racial groups: "Blacks," "Chicanos," "Asians," and "Americans Indians."
Id. The reserved places in the class were available only to "qualified" members of
the designated minority racial groups. Most minority applicants for the reserved
spaces were rejected. Id. at 275-76 & n. 5. The program was "flexible" insofar as
there was not "floor" or "ceiling" on the total number of minority applicants to be
admitted. Id. at 288 n. 26. That is, like defendants "reserved" places, Davis did
not use all reserved seats for disadvantaged minority students if there were an
insufficient number of such applicants who qualified. Id. at 289 n. 26.Justice Powell, in an opinion only for himself, applied strict scrutiny to the
Davis program. He dismissed as "beside the point" any "semantic distinction"
about whether the program amounted to "goals" or "quotas" for minority
admission. Id. at 288-89. He then considered four objectives of the program
offered by Davis and found only one to be sufficiently compelling: an interest in
"academic freedom" derived from the First Amendment. Justice Powell concluded
that "academic freedom," although not a specifically enumerated Constitutional
right, was a "special concern" of the First Amendment and thus a sufficiently
compelling interest to meet strict scrutiny. Bakke, 438 U.S. at 312 (Powell. J.).
"Academic freedom" included the freedom to determine who would be allowed to
study at a state university. Id. The Regents specifically wanted their institutions
to select a group of students who would contribute to a robust exchange of ideas,
and argued that "ethnic diversity" was a means of achieving that goal. Id. at
313-15. While rejecting the argument that Davis's specific program of reserving
spaces for disadvantaged minorities was necessary to achieve the robust exchange
of ideas that the Regents allegedly wanted, Justice Powell did state that race and
ethnicity could be considered as "plus" factors by universities seeking to achieve
that goal. Justice Powell opined that a state interest in a robust exchange of ideas
would not justify the consideration of race to achieve the ethnic diversity
promoted by Davis, but could justify its consideration to achieve a diversity which
"encompasses a far broader array of qualifications and characteristics of which
racial or ethnic origin is but a single though important element." Id. at 315.B. Defendants' Admissions System Does Not Meet the Requirements
of Justice Powell's Analysis in BakkeIt bears keeping in mind that although Justice Powell concluded that
"academic freedom" was an interest sufficiently compelling to justify race as a
factor in admissions, his opinion contains much in the nature of proscriptions on
the manner of using race for what he considered compelling purposes.
Enough so, of course, that he voted with the majority of the Court in finding the
race-conscious program at Davis unlawful. Unless his reasoning is limited to the
facts in Bakke, or unless much of what he actually wrote in describing the
academic freedom rationale is selectively and arbitrarily interpreted, defendants'
admission policies are well outside of what he approved.First, defendants fundamentally misapprehend the interest that Justice
Powell found compelling. He did not conclude that there was a compelling
interest in attaining racial and ethnic diversity. He specifically rejected the notion
that there was a compelling interest in "simple ethnic diversity." 438 U.S. at 315.
Instead, Justice Powell wrote approvingly about intellectual, viewpoint diversity:
"the right to select those students who will contribute the most to the 'robust
exchange of ideas'" and the "atmosphere of 'speculation, experiment and
creation'—so essential to the quality of higher education." Id. at 312-13 (quoting
Sweezy v. New Hampshire, 354 US. 234, 263 (1957)). It was in the contest of
discussing a state interest in the freedom to select a student body that would
contribute to the intellectual vitality of the student body that Justice Powell
concluded "ethnic diversity…is only one element in a range of factors a
university properly may consider in attaining the goal of a heterogeneous student
body." Id. at 314. Yet Defendants have relentlessly misused Justice Powell's
opinion to suggest that he recognized a compelling interest in racial and ethnic
diversity as itself an end:
MR.PAYTON: … Now Justice Powell and Bakke. I don't(R. 204 TR 39-41, 49, JA-__, __)
think that there's any question but that what Justice Powell is talking
about in Bakke is racial and ethnic diversity, not viewpoint diversity.
COURT: I am sorry. Say that again?
MR. PAYTON:… I don't think there is any question but that
Justice Powell is talking about racial and ethnic diversity in Bakke
and that there is no other conclusion.
…
MR. PAYTON: … [T]here is no doubt he [Justice Powell] is
talking only about race and admissions.
…
MR. PAYTON:… Bakke is not about viewpoint diversity.
It's about racial and ethnic diversity. It's just not about viewpoint
diversity or academic diversity and that's why I walked through that
in some detail. That's not what it's about.
What defendants can ignore but cannot escape is that Justice Powell wrote
nothing about the educational value of racial and ethnic diversity alone, much less
about whether white students benefit from attending classes that contain a "critial
mass" of students from designated racial minority groups, or whether such a
benefit could ever constitute a compelling interest. Yet defendants' regime of
preferences rests squarely on the pretext that their racial rationale was authored by
Justice Powell.Defendants are just as false to Justice Powell's explanation of the means by
which he believed a university could consider race as a factor in the exercise of
academic freedom. Powell repeatedly made the point that in assembling a diverse
or heterogeneous student body, race or ethnicity was a factor that might be
considered on an individualized, case-by-case basis, rather than in a systematic,
generalized fashion. Thus, he reasoned that "race or ethnic background may be
deemed a 'plus' in a particular applicant's file …The file of a particular black
applicant may be examined for his potential contribution to diversity without the
factor of race being decisive." Id. at 317 (emphasis added). "In short, an
admissions program operated in this way is flexible enough to consider all
pertinent elements of diversity in light of the particular qualifications of each
applicant, and to place them on the same footing for consideration, although not
necessarily according them the same weight." Id. (emphasis added). In Allan
Bakkes' case it was the "denial" of his "right to individualized consideration
without regard to his race" that Justice Powell called "the principal evil" of the
Davis special admissions program. Id. at 318 n. 52 (emphasis added).
The Davis program, it was "evident," was guilty of a "facial intent" to
discriminate. Id. at 318. A "facially nondiscriminatory admissions policy" would
be one "where race or ethnic background is simply one element—to be weighed
fairly against other elements—in the selection process." Id. (emphasis added).
"So long as the university proceeds on an individualized, case-by-case basis, there
is no warrant for judicial interference in the academic process." Id. at 319 n.53
(emphasis added). Even under a facially nondiscriminatory admission policy,
however, an applicant could overcome a presumption of good faith on the part of
the university if the "applicant can establish that the institution does not adhere to
a policy of individual comparisons, or can show that a systematic exclusion of
certain groups results." Id. (emphasis added). Thus, Justice Powell found that the
Davis "dual admission" or "two-track" system, Id. at 314-15, in which a number of
seats in the medical school class were reserved on the basis of an "explicit racial
classification," Id. at 319, violated the Equal Protection Clause, Id. at 319-20.In a number of respects, the defendants' mechanical, automatic, systematic
award of preferences to designated racial minorities is even more egregious than
the Davis program struck down in Bakke. Defendants openly employ separate
guidelines and standards for admission of racial and ethnic minority applicants
versus non-minority applicants. They automatically add a large, fixed, and
predetermined number of points to the application of every member of certain
racial or ethnic minority groups solely on the basis of that minority status. And
defendants' policies have included "reserved" seats in the class for designated
minorities, as well as racially segregated waiting lists. These preferences have
impermissibly focused on one thing only: "simple ethnic diversity." 438 U.S. at
315.The district court's determination that there is a substantive difference
between the admissions policies for 1995-1998 and for 1999-2000 does not
withstand analysis. First, it contradicts the agreed fact that the substance of
defendants' consideration of race has not changed during the years at issue.
(R.205, Joint Summary Undisputed Facts, pg. ____, JA-____) Second, there is
undisputed evidence that the current (1999-2000) policies based on use of
the selection index, were designed with a goal to admit the same class as was admitted
with use of the tables and grids. (R.99 Affidavit, Exhibits in Opposition, Exh. C,
1998 Guidelines Training, pg. 1-2, JA-____) It is not plausible to believe that
Justice Powell's analysis rules out setting aside seats in the class for designated
minorities, while at the same time authorizing a fixed award of points to
accomplish the same objective. Systematic exclusion and the absence of
individual, particularized consideration, are just as much a feature of the
defendants' 1999-2000 system, with its large and statistically predetermined award
of points for skin color, as the earlier admissions programs found unlawful.Clearly, therefore, defendants' statistical transformation of the form of the
preference from the tables or grids used in 1995-1997 to the point-based selection
index used beginning in 1998 cannot prevent the inevitable determination that the
preferences for all years at issue are illegal. This Court has made the same point in
deriding artificial and arbitrary distinctions between mere differences in form of
racial preferences:
[We] note that quotas and preferences are easily transformed fromMiddleton v. City of Flint, 92 F.3d 396, 412-13 (6th Cir. 1996) (invalidating racial
one into the other. Certainly, where the ranking criteria are already
known, the correspondence is exact. In our case, if it were deemed
objectionable to admit that there was a 1:1 quota, exactly the same
result could have been reached by adding 20 points to the score of
each minority applicant…A pre-existing commitment to a fixed
amount of preference…has the result, in any given case, of
determining exactly the proportion of the favored group that will be selected.
preference program in hiring) (citing Bakke, 438 U.S. at 378 (Brennan, J.,
concurring and dissenting)). The district court here completely ignored this
admonition, which contains particularly apt language for this case since the race-
conscious admissions system upheld by the district court includes (among other
things) a "pre-existing commitment to a fixed amount of preference" that "add[s]
20 points to the score" of each underrepresented minority applicants. Middleton,
92 F.3d at 413.C. Defendants' Admission System Does Not Meet the Traditional
Requirements of Narrow Tailoring Required by Strict ScrutinyThe Supreme Court has repeatedly held that once a plaintiff establishes that
governmental action was based on a suspect classification such as race, the
government bears the burden of demonstrating that the classification "has been
structured with 'precision,' and is 'tailored' narrowly" to achieve a compelling
government interest. San Antonio Indep. Schl. Dist. v. Rodriguez, 411 U.S. 1, 16-
17 (1973). The government must show that the challenged practice furthers a
compelling state interest by the "least restrictive means practically available."
Bernal v. Fainter, 467 U.S. 216, 227 (1984). See also, e.g., Miller v. Johnson, 515
U.S. 900, 920 (1995); Plyler v. Doe, 457 U.S. 202, 217 (1982).The Supreme Court and this Court have made clear that a number of factors
should be assessed in determining whether defendants have met their burden on
narrow tailoring. These include (1) whether the defendant has considered race-
neutral means of achieving the compelling interest; (2) the efficacy of less drastic,
alternative possibilities; (3) the flexibility and duration of the remedy (4); the
relationship of the means to the goal; and (5) the impact of the remedy on rights of
third parties. See, e.g., City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 507-
08 (1989); United States v. Paradise, 480 U.S. 149, 171 (1987); Middleton v. City
of Flint, 92 F.3d 396, 409 (6th Cir. 1996).It was on the basis of narrow-tailoring requirements that the district court
found the defendants' 1995-1998 admission programs unlawful. (R. 206
December 13, 2000 Opinion, pg. ____, JA-___) The court erred as a matter of law,
however, in failing to draw the same conclusion for the 1999-2000 admissions
programs. Defendants have not met their burden to demonstrate that they have
considered race-neutral alternatives; gauged the efficacy of less drastic, alternate
possibilities; or employed the least restrictive means practically available. They
drew a pass on these requirements from the district court.Defendants have merely stated in conclusory fashion that their admissions
system was narrowly tailored and that they were "unable" to achieve diversity in
the student body without including race among the factors considered. (R. 78
Affidavit, Exhibits Volume I, Exh. H, Defendants' Objections and Responses to
Interrogatories, pg. 18 JA-___) They have placed nothing in evidence to explain
why educational diversity cannot be achieved through alternatives less drastic and
restrictive than different admissions standards; the fixed, rigid, and automatic
award of 20 points solely for skin color; explicit racial set-asides (protected
spaces); or racially segregated waiting lists. See, e.g., Wygant v. Jackson Bd. of
Education, 476 U.S. 267, 280 n.6 (1986) ("[T]he classification at issue must 'fit'
with greater precision than any alternative means.") (plurality opinion).The mechanical, predetermined, and automatic award of preference for race
is inconsistent also with the requirement that the means be flexible. Why, for
example, are there not less drastic means than a system of preferences that
automatically awards 20 points (the equivalent on the scale to a full grade point) to
the selection index score of every member of one of the preferred minorities?
Why must the practice be, at an otherwise competitive institution, to admit
virtually every qualified member from these minority groups, when many qualified
applicants from the disfavored races are denied admission?Defendants also have failed to place any limits on the duration of the
preferences. Indeed, the district court acknowledged that the diversity rationale is
a "permanent and ongoing interest" that "lives on perpetually." (R.206
December 13, 2000 Opinion, pg. 24, JA-___) Justifying a regime of racial
preferences on a permanent basis defies Supreme Court precedent and one of
the purposes of narrow tailoring, which is to ensure that the racially discriminatory
means employed are temporary. See, e.g., Croson, 488 U.S. at 510 ("Proper
findings . . . defin[ing] both the scope of the injury and the extent of the
remedy … serve to assure all citizens that the deviation from the norm of equal
treatment of all racial and ethnic groups is a temporary matter, a measure taken in
the service of the goal of equality itself.")Another way in which defendants failed to meet their burden on narrow
tailoring is the failure to show a relationship and a closeness of fit between means
and ends. There is nothing in the record disclosing how much diversity is
necessary to reach "critical mass" or to achieve its alleged educational benefits, or
how much preference (how many points?) must be given to get to that undefined
level of diversity/critical mass. See Middleton v. City of Flint, 92 F.3d 396, 412
(6th Cir. 1996) ("It seems obvious that a plan's tailoring is less 'narrow' if it
results in a very large degree of preference for minority group members (and
corresponding disadvantage for non-minority group members) than if the degree
of preference is smaller."The explicit limitation of the racial preferences to three minority groups is
further evidence that the means employed are not closely fit to a goal of attaining
intellectual diversity. The arbitrariness of this assignment of preferences to
favored minority groups is completely irreconcilable with Justice Powell's
opinion, a point which was not even addressed by the district court. It is a
preference that is not closely fit even to an impermissible goal of achieving
"simple ethnic diversity," see Bakke, 438 U.S. at 315 (Powell, J.); it unaccountably
prefers certain select minority groups and excludes others. Ultimately, it
demonstrates that the defendants' real objective is likely to be racial balancing,
i.e., guaranteeing that the three specified groups will be represented in the class in
numbers satisfactory to the defendants. See Croson, 488 U.S. at 510 (absent
proper findings to define the scope of the injury and the extent of the remedy
"there is danger that a racial classification is merely the product of unthinking
stereotypes or a form of racial politics"); Id. at 510-11 ("[I]f there is no duty to
attempt either to measure the recovery by the wrong or to distribute that recovery
within the injured class in an evenhanded way, our history will adequately support
a legislative preference for almost any ethnic, religious, or racial group with the
political strength to negotiate a 'piece of the action' for its members.") (quoting
Fullilove v. Klutznick, 448 U.S. 448, 539 (1980) (Stevens, J., dissenting)).Finally, the impact of defendants' racial preferences on the rights of third
parties is great. Individuals like Jennifer Gratz and Patrick Hamacher and the
thousands of similarly situated class members are precluded, solely because of
their race, from competing under the same admissions standards that are applied to
the preferred minority students.
II. The District Court Erred In Not Enjoining The Illegal Aspects
of Defendants' Admissions Policies.Because defendants' admissions policies for all years at issue fail any
plausible narrow-tailoring analysis, the district court erred in not enjoining
defendants' use of the current (1999-2000) admissions policies. The error was
compounded by the district court's failure to enjoin use of the admissions policies
that it did find illegal. (R. 206 December 13, 2000 Opinion, pg. ____, JA-___)
Defendants had gone so far as to defy the result in Bakke by doing some of the
same things that had been found explicitly illegal in that case: e.g., reserving seats
in the class for students from specified racial groups. The district court failed,
however, to explain why plaintiff was not entitled to an injunction based on the
determination that these admissions policies were illegal. The district court's
determination (even if correct) that the 1999-2000 policies were unlawful cannot by
itself be a reason to deny plaintiffs' request for an injunction. There is no
evidence in the record that defendants either acknowledge the illegality of the
1995-1998 policies or agree not to repeat those illegal practices in the future.Past violations of the law are relevant to the propriety of injunctive relief.
They are relevant even if defendants were now complying with the law. E.g., SEC
v. Fehn, 97 F.3d 1276, 1295 (9th Cir. 1996) ("'The existence of past violations
may give rise to an inference that there will be future violations; and the fact that
the defendant is currently complying with the securities laws does not preclude an
injunction'") (quoting SEC v. Murphy, 626 F.2d 633, 655 (9th Cir. 1980)); SEC v.
Manor Nursing Ctrs., Inc., 458 F.2d 1082, 1100 (2nd Cir. 1972) ("[F]raudulent past
conduct gives rise to an inference of a reasonable expectation of continued
violations"). Defendants' past conduct is particularly relevant where (as here) the
defendants do not concede that their past conduct was illegal. E.g., Walling v.
Helmerich & Payne, 323 U.S. 37, 43 (1944); SEC v. Lorin, 76 F.3d 458, 461 (2d
Cir. 1996).The district court made no determination that plaintiffs' request for an
injunction was moot or that there was no reasonable expectation that defendants
would violate the law in the future. A defendant's voluntary cessation of illegal
activity after a lawsuit is commenced does not moot a request for injunctive relief.
Indeed, litigation-induced changes in behavior are the kind least likely to
demonstrate permanent change that would meet a defendants' burden. See, e.g.,
City of Mesquite v. Aaddin's Castle, Inc., 455 U.S. 283, 289 n. 10 (1982); Linton
by Arnold v. Commissioner of Health & Env't, 30 F.3d 55, 57 (6th Cir. 1994);
Dixie Fuel Co. v. Commissioner of Social Sec., 171 F.3d 1052, 1057 (6th Cir.
1999). Defendants have not met their "heavy" burden of showing that there is "no
reasonable expectation" that they will reinstate the admissions policies that the
district court found to be illegal. United States v. W.T. Grant Co., 345 U.S. 629,
633 (1953). Accordingly, it was error for the district court to deny plaintiffs'
request for an injunction.
III. The District Court Erred in Disregarding Established
Summary Judgment Standards and Burdens And In Granting
Defendants' Motion for Summary Judgment On The 1999-
2000 Admissions Systems.The district court granted summary judgment in favor of defendants
regarding their 1999-2000 admissions policies after weighing the evidence,
resolving doubts and inferences in favor of the moving party (defendants), and
making findings of fact. This was so despite the well known standard on motions
for summary judgment that the court view the evidence in the light most favorable
to the nonmoving party and resolve conflicting inferences and doubts against the
moving party. See Hanover Ins. Co. v. American Eng'g Co., 33 F.3d 727, 731-32
(6th Cir. 1994); Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979). The district
court's disregard of traditional summary judgment standards and burdens is
evident both on the question whether diversity is compelling and on narrow
tailoring.
The district court's analysis on the legal status of the diversity rationale is
confused. If the question whether diversity is compelling is one of law, as
plaintiffs and defendants contend, then empirical evidence on the issue is beside
the point; it is either irrelevant to the extent that the evidence contradicts the
proposition that diversity is compelling, or it is mere surplusage if the evidence
confirms the proposition. If, on the other hand, the question is an evidentiary one,
it cannot be decided on a motion for summary judgment where reasonable doubts
and inferences exist viewing the evidence in the light most favorable to the
nonmoving party. The district court, however, erroneously decided the matter by
focusing instead on its view of the sufficiency of the evidence: "If presented with
sufficient evidence regarding the educational benefits that flow from a diverse
student body, there is nothing barring this Court from determining that such
benefits are compelling." (R.206 December 13, 2000 Opinion, pg. 21, JA-____
(emphasis added))Nowhere have the parties stipulated that there is an evidentiary basis for the
conclusion that diversity has educational value or that it is a compelling interest.
The district court even acknowledged some of the doubts, objections and
inferences raised against the evidence presented by defendants. But it then either
ignored these disputed issues, or proceeded improperly to weigh the conflicting
inferences. For example, the court noted several factual objections to the report of
Patricia Gurin that had been lodged in the amicus brief submitted by the National
Association of Scholars, an "organization comprising professors, graduate
students, administrators, and trustees at accredited institutions of higher education
throughout the United States."" (R. 167 Brief of National Association of Scholars
("NAS", pg. iv., JA-___)The NAS had raised rather fundamental objections, such as that Gurin never
actually measured racial diversity in her studies at the University of Michigan
(R.167, Brief of NAS, pg. 8-9, JA-___); that her assessment of "learning
outcomes" does not measure educational outcomes (R.167 Brief of NAS, pg. 10-
11, JA-___); that her conclusions drawn from another database were actually
contradicted in a published work by the custodian of that database (R. 167, Brief
of NAS, pg. 6-7, JA-___); that even on the face of Gurin's analysis, the effects
purportedly associated with racial diversity were extremely small (R. 167, Brief of
NAS, pg. 11-12 & n. 10, JA-___); and that Gurin had made no effort to ascertain
how much diversity is necessary to achieve the purported educational benefits, or
how educational outcomes would be affected by marginal changes in racial
diversity. (R. 167, pg. 8-9, JA-___) After reciting some of these objections (R.206
December 13, 2000 Opinion, pg. 25, JA-___), the district court did not reject them
as unreasonable or frivolous. Instead, it simply noted that it was "persuaded,
based on the record before it, that a racially and ethnically diverse student body
produces significant educational benefits such that diversity, in the context of
higher education, constitutes a compelling governmental interest under strict
scrutiny." )Id.) This amounted to a process of evidence-weighing inappropriate
on motions for summary judgment.One glaring instance of the district court's departure from the required norm
on this issue is that it based its decision on narrow tailoring for the 1999-2000
admission system on an assertion of fact that was contrary to what the parties had
agreed upon and what the record demonstrated to be undisputed. Defendants
concede that the changes over the years in their admission system relate to "only
the mechanics, not the substance, of how race and ethnicity [were] considered in
admissions." (R. 205 Joint Summary Undisputed Facts, pg. 8, JA-___) This is
borne out further by the undisputed evidence that the point-based selection index
was designed by defendants to produce the same results as the system that the district
court found illegal. (R. 99 Affidavit, Exhibits in Opposition, Exh. C, 1998
Guidelines Training, pg. 1, JA-___) Yet, the district court disregarded the record
and the parties' agreement on this point of fact and substituted its own finding of
fact, concluding that there was a substantive difference between the 1995-1998
and the 1999-2000 admissions systems.On other aspects of narrow tailoring, the district court either placed the
burden on plaintiffs or drew all inferences in favor of defendants' position.
Despite having the burden, defendants made no showing from anyone connected
with their admissions office on consideration of race-neutral or less restrictive
means. The court cited the testimony of admissions officials only for the
proposition that defendants engage in minority recruitment efforts; there was no
testimony from such officials on the consideration of race-neutral or less drastic
alternatives. The two witnesses whose conclusions the court accepted
unquestioningly on these points had nothing to do with defendants' admissions
policies. Defendants' in-house statistical expert, Stephen Raudenbush, performed
statistical analysis on the 1995-1997 data that projected declines in minority admissions
if race were removed from the process, and everything else remained
the same. (R. 26 December 13, 2000 Opinion, pg. ___, JA-___) His report
discloses no effort to consider alternatives that would produce the defendants'
desired level of diversity. Similarly, the district court concluded from defendants'
witness William Bowen "that a system that relied entirely on test scores would…
lead to a rejection of a number of qualified minority applicants." (R. 206
December 13, 2000 Opinion, pg. 37, JA-___) This is a straw man argument.
Plaintiffs have never suggested that the defendants must or should place more,
total, or any reliance on tests of any kind, or that any particular criteria be used in
selecting students.The district court also accepted Bowen's criticism of the "Texas approach,"
under which all students who finish in the top ten percent of their class are
guaranteed admission. (R. 206 December 13, 2000 Opinion, pg. 38, JA-___)
Bowen did not opine that this system was incapable of achieving a diverse student
body or that it was a ruse for racial discrimination. Instead, he criticized it for
accepting students from weaker high schools "while turning down better-prepared
applicants" not in the top ten percent of their class at stronger schools. (R. 206
December 13, 2000 Opinion, pg. 38, JA-__) He also "hypothesize[d]," that such a
plan—"treating all applicants alike" — would provide a "spurious form of equality
that is likely to damage the academic profile of the overall class of students
admitted." (R. 206 December 13, 2000 Opinion, pg. 38, JA-___) The irony is
palpable. Nowhere do Bowen or the district court explain how such equality of
treatment is any worse than automatically treating all members of certain minority
groups alike by, say, automatically tacking 20 points to their applications and
offering admission to virtually every such minority who meets minimum
qualifications, even if that means rejecting many "better prepared applicants" from
other races who plainly would have been admitted had they also been
"underrepresented" minorities. The main point, however is that although
reasonable people can disagree on the merits of any particular admission system, it
was improper for the district court to conclude from Bowen's criticism of one
particular plan used elsewhere that defendants had met their summary judgment
burden of demonstrating conclusively that they had considered race-neutral, or
less restrictive, alternative systems.Plaintiffs also raised genuine issues about whether defendants were
motivated by something other than educational diversity, namely simple racial
diversity or a desire for racial balancing, and whether race was "weighed fairly,"
Bakke, 438 U.S. at 318, in defendants' admission system. (R. 82 Michigan
Mandate ("Exh. D"), pg. v-vii, JA-___; R.99 Affidavit, Exhibits in Opposition,
Exh. A, Kinley Larntz Expert Report, JA ___)As argued above, defendants' failure to carry their burden on narrow
tailoring is one of the reasons that plaintiffs are entitled to summary judgment. At
a minimum, the record demonstrates that the district court did not conduct "the
detailed examination, both as to ends and as to means" that strict scrutiny requires
for all racial classifications. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236
(1995) (emphasis added).IV. The District Court Erred In Determining That "Diversity" Is
A Compelling State Interest Justifying Racial PreferencesThe existence of a "compelling interest" is a question of law. E.g.,Young v.
Crystal Evangelical Free Church, 82 F.3d 1407, 1419 (8th Cir. 1996), vacated on
other grounds, Christians v. Crystal Evangelical Free Church, 521 U.S. 1114
(1997), reinstated, 141 F.3d 854 (8th Cir. 1998). Indeed, Justice Powell relied on
no factual findings to reach his singular legal conclusion that a university's interest
in "diversity" rose to the level of a compelling governmental interest. Defendants
have relied upon the sole opinion of Justice Powell in Bakke to
support their assertion that "diversity" is a compelling interest. They argue that
Powell's diversity rationale constituted the rationale for the holding of the court in
Bakke based on the separate opinion authored by Justice Brennan and joined in by
Justices Marshall, White, and Blackmun ("Brennan group"). But it was not
concurred in explicitly or implicitly by the Brennan group, and the Supreme Court
has never adopted it.
A. A Review Of The Brennan Group Opinion In Bakke
In reviewing the Davis program, the Brennan group seemingly rejected
"strict scrutiny"(Bakke, 438 U.S. at 357 (Brennan, J. concurring in part, dissenting
in part)), although they borrowed a scrutiny level from gender-discrimination
cases that they characterized as "strict and searching." Id. at 362. Specifically,
they required the use of race to serve important governmental objectives and to be
substantially related to achieving those objectives. Id. at 359.The Brennan group concluded that the Davis program met their "strict and
searching" scrutiny analysis because remedying the effects of past societal
discrimination was a sufficiently important governmental objective, and because
the Davis program was, in their view, substantially related to achieving that
objective. In reaching the latter conclusion, the Brennan group stated that
remedies for past discrimination need not be limited to victims identified by
specific proof, but that they should be limited to those "within a general class of
persons likely to have been the victims of discrimination." Id. at 363. In finding
that the Davis program met that requirement, the Brennan group emphasized:
[The] Davis admissions program does not simply equate minority
status with disadvantage. Rather, Davis considers on an individual
basis each applicant's personal history to determine whether he or she
has likely been disadvantaged by racial discrimination. The record
makes clear that only minority applicants likely to have been isolated
from the mainstream of American life are considered in the specialId. at 377-78. Cf. Bakke, 438 U.S. at 275 n.4 (Powell, J.) (noting the admissions
program; other minority applicants are eligible only through the
regular admissions program. . . . [S]pecific proof that a person has
been victimized by discrimination is not a necessary predicate to
offering him relief where the probability of victimization is great.
chairman would confirm "disadvantage" of individual applicants).The Brennan group rejected Justice Powell's argument that the Davis
program was not "narrowly tailored," and found it substantially related to meeting
the goal of remedying past discrimination. Specifically, they rejected any
constitutional difference between a set-aside program and one which gave
minorities a "plus." Id. at 378-79. In their view, the "Harvard" program espoused
by Justice Powell "openly and successfully employs a racial criterion for the
purpose of ensuring that some of the scarce places in institutions of higher
education are allocated to disadvantaged minority students." Id. at 379 (emphasis
added). Thus, among other disagreements, Justice Powell and the Brennan group
apparently could not even agree on what a "Harvard plan" was.B. Justice Powell's "Academic Freedom" Rationale Was Not The
Rationale For the Holding Of The Court In BakkeFor several reasons, Justice Powell's lone opinion, and the "academic
freedom" or "diversity" rationale contained therein, was not the rationale for the
holding of the Court in Bakke. First, the Brennan group did not adopt Powell's
rationale. See Bakke, 438 U.S. at 326 n.1 (Brennan, J., concurring and dissenting)
(a "Harvard" plan "is constitutional under our approach, at least so long as the use
of race to achieve an integrated student body is necessitated by the lingering
effects of past discrimination"). See also Hopwood v. Texas, 78 F.3d 932, 944
(5th Cir. 1996) (the Brennan opinion "implicitly rejected Justice Powell's
position"). Indeed, it is significant that the Brennan group, while recognizing that
no one opinion spoke for the Court, stated:
[T]his should not and must not mask the central meaning of today'sBakke at 325 (emphasis added). This is a plausible combination of the opinions of
opinions: Government may take race into account when it acts not to
demean or insult any racial group, but to remedy disadvantages cast
on minorities by past racial prejudice, at least when appropriate
findings have been made by judicial, legislative, or administrative
bodies with competence to act in this area.
Justice Powell and the Brennan group. Justice Powell had asserted that the State
had a "legitimate and substantial interest in ameliorating … the disabling effects
of identified discrimination," but held that racial classificaitons required "judicial,
legislative, or administrative findings of constitutional or statutory violations."
Bakke, 438 U.S. at 307 (Powell, J.). He concluded that the Davis Medical School
not only had not, but could not, make such findings. Id. at 307-10.
Conspicuously, the Brennan group did not state that the "central meaning"
of the opinions in Bakke was that race could be considered to achieve intellectual
diversity or any other purported goal of a college pursuant to its interest in
academic freedom — again, as in their first footnote, demonstrating that they
rejected that analysis. And in the only portion of Justice Powell's Equal
Protection analysis joined in by the Brennan group, Part V-C, nothing was said
about "diversity" or "academic freedom." Id. at 320.The basis for the district court's conclusion that diversity constitutes a
compelling governmental interest is clouded and contradictory. Cf. Hopwood v.
Texas, 236 F.3d 256, 275 n.69 (5th Cir. 2000) (opinion of Weiner and Stewart, JJ).
(Although inconsistent with earlier Hopwood panel's conclusion regarding
diversity, "Gratz is nevertheless consistent with our position that the [earlier
Hopwood] panel was neither constrained to accept, nor required to reject, diversity
as a compelling state interest under binding Supreme Court precedent."). First, it
stated correctly that "[t]he most that can be garnered from Bakke's splintered
decision is that five Justices reached the same conclusion, i.e., that universities
may take race into account in admissions when done so properly, for separate
unrelated reasons." (R.206, December 13, 2000 Opinion, pg. 15, JA-__ (emphasis
added). The district court next noted that it "does not necessarily agree with the
Ninth Circuit's conclusion that Justice Powell's Bakke 'analysis is the narrowest
footing upon which a race-conscious decisionmaking process could stand.'"
(R. 206 December 13, 2000 Opinion, pg. 15, JA-___ (quoting Smith v. University of
Washington Law Sch., 233 F.3d 1188 (9th Cir. 2000)).The district court went on to state, however, that it reached the "same
ultimate conclusion" as the Ninth Circuit, "i.e., that under Bakke, diversity
constitutes a compelling governmental interest in the context of higher education
justifying the use of race as one factor in the admissions process, albeit through
somewhat different reasoning." (R. 206 December 13, 2000 Opinion, pg. 15, JA-
___) It is unclear, however, precisely what that "different reasoning" is. The
district court made an uncontroversial point on which plaintiffs agree: "neither the
Supreme Court nor the Sixth Circuit have definitively held that diversity can never
be a compelling interest under strict scrutiny." (R. 206 December 13, 2000
Opinion, pg. 15, JA-___) But that hardly answers the question on which defendants
have the burden under strict scrutiny analysis, which is whether diversity is a
compelling interest.The district court expressed its disagreement with other courts that have
found an implicit rejection of the diversity rationale either in the Bakke opinion
itself or subsequent Supreme Court cases. (R. 206 December 13, 2000 Opinion,
pg. at 15-18, JA-__(discussing City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989), Hopwood v. State of Texas, 78 F.2d 932 (5th Cir. 1996), and Johnson v.
Board of Regents of Univ. Sys. of Georgia, 106 F.Supp.2d 1362, 1375 (S.D. Ga.
2000)) Even if the district court's analysis on implicit rejection is correct,
however, there remains for resolution a statement of the legal basis from which it
can be concluded affirmatively that diversity is a compelling governmental
interest. The district court's opinion never develops that point, at least not as a
question of law. Instead, it determined that "if" presented with sufficient evidence
regarding the educational benefits from flow from a diverse student body, there is
nothing barring the Court from determining that such benefits are compelling
under strict scrutiny analysis." (R.206 December 13, 2000 Opinion, pg. 20, JA-__
(emphasis added)) Unlike Justice Powell, or the Ninth Circuit in Smith, therefore,
which both decided the diversity question as a matter of law, the district court in
this case in effect decided the question by impermissibly weighing the evidence on
motions for summary judgment.The district court, as noted, did not rely on the "narrowest footing" analysis,
announced in Marks v. United States, 430 U.S. 188 (1977), although it did cite to
the proposition stated by this Court that "[w]here a Justice or Justices concurring
in the judgment in such a case [where no single rationale explaining the result has
the support of a majority] articulates a legal standard which, when applied, will
necessarily produce results with which a majority of the Court from that case
would agree, that standard is the law of the land." Triplett Grille, Inc. v. City of
Akron, 40 F.2d 129, 134 (6th Cir. 1994). Whether or not relied upon by the
district court, however, the Marks analysis does not yield a conclusion either that the
diversity "rationale" is narrower than the Brennan group remedial rationale or
that the diversity rationale enjoyed the assent of a majority of the Court. Hopwood
v. Texas, 236 F.3d at 275 n.66 (opinion of Weiner and Stewart, JJ.) (rejecting
argument that Powell's rationale was the narrowest under a Marks analysis). The
diversity and remedial rationales are simply different rationales; neither one is a
subset of the other and there is no common denominator between them.Although the district court stated that it did not "necessarily agree" with the
narrowness analysis of the Ninth Circuit in Smith, it suggested that Justice
Brennan's "silence regarding the diversity interest in Bakke was not an implicit
rejection of such an interest, but rather, an implicit approval of such an interest."
(R.206 December 13, 2000 Opinion, pg. 17, JA-___) The district court quoted
from the Ninth Circuit's opinion in Smith on this same point:
True it is that Justice Brennan did not specifically say that "race"
could be used to achieve student body diversity in the absence of any
societal discrimination, but, then, there was no need for him to do so
in light of his view about past societal discrimination. Yet, we can(Id. (quoting Smith, 233 F.3d at 1200)) This reasoning is fallacious. It depends
hardly doubt that he would have embraced that somewhat narrower
principle if need be, for he thought that it was simply an allotrope of
the principle he was propounding.
essentially not on what Justice Brennan actually wrote in Bakke, but instead
on speculation about what he might have "thought," or even more peripherally,
speculation about what he "would have embraced." Smith, 233 F.3d at 1200.As noted, the only portion of Justice Powell's Equal Protection analysis
actually joined in by the Brennan group was Part V-C, which is silent on the
matter of "diversity" and "academic freedom." Part V-C provides no more support
for the proposition that the Brennan group accepted the "diversity" rationale than
it does for the proposition that Justice Powell accepted the remedial rationale
articulated by the Brennan group or that any of the five accepted a "role model"
analysis.C. Cases Both Before And After Bakke Cast Doubt On Justice
Powell's AnalysisGiven the absence of any holding in Bakke, this Court must look to other
Supreme Court authority to determine if defendants' (and Justice Powell's)
proposed governmental interests should be deemed compelling. Cases both before
and after Bakke demonstrate that they are not.
First, Justice Powell's assertion of principles of "academic freedom"
notwithstanding, the Court has never accepted any "right" to consider race or sex
based in the First Amendment. In Runyon v. McCracy, 427 U.S. 160 (1976), the
Court concluded that a private school that wanted to promote segregation could
not exclude racial minorities, despite the obvious difficulty an integrated student
body would present in promoting segregationist beliefs. Id. at 176 (although
"parents have a First Amendment right to send their children to educational
institutions that promote the belief that racial segregation is desirable, … it does
not follow that the practice of excluding racial minorities from such institutions is
also protected by the same principle" (emphasis in original)). Cf. Roberts v.
United States Jaycees, 468 U.S. 609, 623 (1984) (private club's right to associate
for expressive purposes must yield to the State of Minnesota's interest in eradicating
discrimination). A fortiori, a state's interest in First Amendment
freedoms— a far more problematic idea, since the First Amendment is usually
thought of as a souce of rights for the people against the state, and not the other
way around2— should have even less weight when compared to principles of
non-discrimination.Second, subsequent to Bakke, the Court has made clear that any form of race
discrimination must be justified by a compelling governmental interest and be
narrowly tailored to meet that interest. Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 235-36 (1995). Of particular concern to the Court has been the
possibility that a justification could permit the use of race in an unlimited way, i.e.,
without numerical or temporal constraints. City of Richmond v. J.A. Croson, Co.,
488 U.S. 469, 505 (1989) ("The 'evidence' relied upon by the dissent, the history
of school desegregation in Richmond and numerous congressional reports, does
little to define the scope of any injury to minority contractors in Richmond or the
necessary remedy. The factors relied upon by the dissent could justify a
preference of any size or duration.").____________________
2 E.g., N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990) ("the First
Amendment protects citizens' speech only from government regulation;
government speech itself is not protected by the First Amendment"); Student
Government Ass'n. v. Board of Trustees of Univ. of Massachusetts, 868 F.2d 473,
481 (1st Cir. 1989) (administrative unit of state university "has no First
Amendment rights" even though analogous private entities did); Muir v. Alabama
Educ. Television Comm'n, 688 F.2d 1033, 10541 (5th Cir. 1982) (en banc)
(television station operated by University of Houston, which in turn is operated by
the State of Texas, is a "state instrumentalit[y]" and is thus "without the protection
of the First Amendment"). See generally Hopwood, 78 F.3d at 943 n.25.
The Court has never found any "compelling" interest other than a
"remedial" one; it has specifically rejected non-remedial interests like an interest
in providing "role models" on the ground that they would permit undefined racial
preferences endless into the future. Croson, 488 U.S. at 497-98 (opinion of
O'Connor, J.) ("because the role model theory had no relation to some basis for
believing a constitutional or statutory violation had occurred, it could be used to
'justify' race-based decisionmaking essentially limitless in scope and duration")
(citing Wygant v. Jackson Bd. of Education, 476 U.S. 267, 276 (1986) (plurality
opinion)); Croson, 488 U.S. at 520 (opinion of Scalia, J.). Indeed, the Court has
said that any non-remedial "interest" would suffer from similar defects. Croson,
488 U.S. at 493 ("Classifications based on race carry a danger of stigmatic harm.
Unless they are strictly reserved for remedial settings, they may in fact promote
notions of racial inferiority and lead to a politics of racial hostility" (emphasis
added)) (opinion of O'Connor, J.); id. at 520 (opinion of Scalia, J.).Without a majority rationale in Bakke, this Court must turn to other
Supreme Court precedents and analytical framework to assess defendants'
purported compelling interests. As shown above, Justice Powell's lone opinion in
Bakke, and its non-remedial analysis, has remained just that: alone. Its "academic
freedom" rationale was inconsistent with binding precedent and it did not
command the allegiance of anyone else on the Court. It never has. Hopwood, 78
F.3d at 944 ("Justice Powell's view in Bakke is not binding precedent on this
issue"). See also Alexander v. Sandoval, No. 99-1908, 2001 U.S. LEXIS 3367, at
*58 n.15 (U.S. April 24, 2001) (Stevens, J., dissenting) (The five Justices in Bakke
who voted to overturn the injunction imposed by the lower courts "divided over
the application of Equal Protection Clause — and by extention 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.") (emphasis added); Adarand, 515 U.S. at
218 ("Bakke did not produce an opinion for the Court"); Fullilove v. Klutznick,
448 U.S. 448, 492 (1980) (Court did "not adopt, either expressly or implicitly, the
formulas of analysis articulated in such cases as …University of California
Regents v. Bakke.") And the amorphous, ill-defined, open-ended contours of the
diversity rationale are precisely the kinds of fatal flaws that have caused the Court
to reject other asserted interests in racial classifications.V. The District Court Erred In Granting The Individual
Defendants' Motion for Summary Judgment on Grounds of
Qualified Immunity.Although concluding that the defendants' admissions system for years
1995-1998 was unlawful and "impermissible under the principles enunciated by
Justice Powell in Bakke" (R.206 December 13, 2000 Opinion, pg. 44, JA-___), the
district court granted the individual defendants' motion for summary judgment on
grounds of qualified immunity.Qualified immunity is an affirmative defense, and plaintiffs may defeat it by
producing "sufficient evidence after discovery to prove the existence of genuine
issues of material fact regarding the issue of immunity, or if the undisputed facts
show that the defendant violated [plaintiffs'] clearly established rights." Noble v.
Schmitt, 87 F.3d 157, 161 (6th Cir. 1996). Defendants are not entitled to qualified
immunity here because plaintiffs established both the violation of a clearly
established right and the existence of genuine issues of fact precluding summary
judgment in defendants' favor.It could not be clearer that plaintiffs have a right to be free from state-
sponsored intentional discrimination on the basis of race. More than twenty years
ago, the Court in Bakke struck down an illegal admissions system that
intentionally discriminated against applicants on the basis of race. Among the
reasons the Davis system was struck down was the existence of an admissions
policy that systematically excluded applicants from consideration for admission
solely on the basis of their race, and that reserved seats in the class for certain
designated minorities. Defendants have engaged in precisely the same practices
and have had the temerity to do so by actually invoking Bakke. The district court
made the same point, at least with respect to the 1995-1998 policies: "It is clear
that the LSA's system operated as the functional equivalent of a quota and
therefore, ran afoul of Justice Powell's opinion in Bakke." (R.206 December 13,
2000 Opinion, pg. 41, JA-___ (emphasis added)); (R.206 December 13, 2000
Opinion, pg. 41, JA-___ ("In this Court's opinion, there is no sigificant difference
between the LSA's prior practice of "protecting" or "reserving" seats and the
University of California's quota system.")); (R.206 December 13, 2000 Opinion,
pg. 42, JA-___ ("It cannot be seriously disputed, however, that the effect of the
LSA's differing standards was to systematically exclude a certain group of non-
minority applicants . . . solely on account of their race.") (emphasis added))It was untenable for the district court to have concluded both that
defendants had clearly operated a system like the one struck down in Bakke, and
that defendants had not violated plaintiffs' clearly established constitutional rights.
The district court confused debate about whether diversity is a compelling interest
with something that Bakke left no doubt about: a system operated like the one at
Davis is clearly illegal, even assuming the diversity rationale to be controlling.
The district court also contradicted its own reasoning (quoted above) and elevated
form over substance in dismissing plaintiffs' claims on a theory that defendants
"did not employ the same type of rigid quota" found illegal in Bakke. (R. 206
December 13, 2000 Opinion, pg. 46, JA-___) In many respects, e.g., admission of
virtually all qualified minorities and no required showing of disadvantage on the
part of those eligible for the preferences, defendants' system is even more
flagrantly discriminatory than the illegal Davis program.Finally, the existence of genuine issues of fact concerning defendants'
qualified immunity defense also precluded granting their summary judgment
motion. Plaintiffs produced evidence that defendants' real motive for their race-
conscious admissions system was racial and ethnic (as opposed to educational)
diversity, i.e., racial balancing. (R. 82 Michigan Mandate ("Exh.D"), pg. v-vii,
JA-___) Indeed, as discussed above, defendants' counsel stated as much at oral
argument on the motions for summary judgment, see supra at 29. Defendants'
subjective motive is an important factor in assessing their defense based on
qualified immunity. Poe v. Haydon, 853 F.2d 418, 432 (6th Cir. 1988); Tompkins
v. Vickers, 26 F.3d 603, 607 (5th Cir. 1994) ("Every circuit that has considered the
question has concluded that a public official's motive or intent must be considered
in the qualified immunity analysis where unlawful motivation or intent is a critical
element of the alleged constitutional violation.").
Conclusion
For the foregoing reasons, plaintiffs respectfully request this Court to reverse
the decision of the district court denying plaintiffs' motion for summary judgment
and request for an injunction and granting defendants' motion for summary judgment
regarding the 1999-2000 admissions system and the claims against the individual
defendants.
Dated: May 7, 2001 MASLON EDELMAN BORMAN & BRAND, LLP
____________________________________
By David F. Herr, #44441
Kirk O. Kolbo, #151129
R. Lawrence Purdy, #88675
Michael C. McCarthy, #230406
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140
(612) 672-8200
Michael E. Rosman
Michael P. McDonald
CENTER FOR INDIVIDUAL RIGHTS
1233 20th Street, NW, Suite 300
Washington, D.C. 20036
202/833-8400
ATTORNEYS FOR PLAINTIFFS JENNIFER GRATZ
AND PATRICK HAMACHER
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Questions? Comments? Please send e-mail to diversitymatters@umich.edu.
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