Whether public institutions of higher education may
consider race and/or ethnicity as one of many factors in
making admissions decisions in order to serve the compelling
interest of remedying the lingering present effects of past
discrimination.

                                                                                                Page

QUESTION PRESENTED ...................................................i

TABLE OF AUTHORITIES...............................................iv

STATEMENT OF THE CASE ...........................................2

Factual Background .....................................................2

Procedural History .......................................................2

REASONS FOR DENYING THE WRIT ............................5

1. THE PETITION SHOULD BE DENIED FOR
   THE SAME REASONS SET FORTH IN
   CONDITIONAL OPPOSITION TO
   CERTIORARI BEFORE JUDGMENT IN
   GRATZ. ........................................................................5
2. IN THE EVENT THIS COURT GRANTS
   CERTIORARI IN GRUTTER AND GRATZ,
   RESPONDENTS DO NOT OPPOSE THIS
   PETITION. ..................................................................6

CONCLUSION....................................................................7

                                                                                                Page

Grutter v. Bollinger,
188 F.3d 394 (6th Cir. 1999).................................... 3

Regents of University of California v. Bakke,
438 U.S. 265 (1978) ................................................ 3

28 U.S.C. § 1292(a) ........................................................ 4, 5

28 U.S.C. § 1292(b) ............................................................ 4

Fed. R. Civ. P. 23(b)(2)....................................................... 3

Fed. R. Civ. P. 23(f) ............................................................ 3

Fed. R. Civ. P. 54(b) ....................................................... 4, 5

S. Ct. Rule 11.................................................................. 1, 6

This petition arises out of a lawsuit that presents a
challenge to the University of Michigan’s College of
Literature, Science, and the Arts’ admissions program, which
takes race and ethnicity into account as one of many factors
in making admissions decisions. Respondents, the Board of
Regents of the University of Michigan, Lee Bollinger, and
James J. Duderstadt, hereby conditionally oppose the petition
for a writ of certiorari before judgment.

This petition is related to two other petitions pending
before this Court, Grutter v. Bollinger, No. 02-241, and
Gratz v. Bollinger, No. 02-516. Petitioners here purport to
present two questions: (1) whether race may be considered
to achieve the educational benefits of diversity; and (2)
whether race may be considered to remedy the present effects
of past discrimination. Insofar as this petition purports to
raise the first question, it merits no separate consideration.
That question is clearly before this Court in Gratz, a case in
which Petitioners here are Respondents. Accordingly, the
only independent question actually presented is whether race
may be considered to remedy the present effects of past
discrimination.

This case—like Gratz—seeks certiorari before judgment
in the court of appeals, which this Court’s Rule 11 provides
shall be granted only on a showing that the “case is of such
imperative public importance as to justify the deviation from
normal appellate practice and to require immediate
settlement in this Court.” This petition, standing alone, does
not satisfy that rigorous standard, for the same reasons
Respondents set forth in their Conditional Opposition to the
Petition for a Writ of Certiorari in Gratz.

As Respondents stated therein, if this Court were to grant
the petition in Grutter, it would be appropriate also to grant
review in Gratz to some, but not all, of the appeals. If this
Court were to grant review in Gratz, Respondents do not
oppose this petition for a writ of certiorari before judgment
with respect to appeal No. 01-1438.

Factual Background

The University has made an educational judgment that a
broadly diverse student body is an essential component of its
educational mission because it “increase[s] the intellectual
vitality of [its] education, scholarship, service, and communal
life.” Pet. App. 4a (internal quotations and citation omitted).¹
Thus, to “facilitate the University’s goal” of obtaining the
educational benefits of diversity, the College of Literature,
Science, and the Arts (“LS&A”) considers race and ethnicity
as one of many factors as it “strives to compose a class of
students” that is broadly diverse. Id.

The Brief in Conditional Opposition to Certiorari Before
Judgment in Gratz sets forth in detail the admissions systems
employed by LS&A to obtain the educational benefits of
diversity. Respondents in this case will not repeat those
facts, but incorporate them by reference.

Procedural History

Plaintiffs Jennifer Gratz and Patrick Hamacher, both of
whom are white, were unsuccessful applicants for admission
to LS&A for the classes that enrolled in 1995 and 1997,
respectively. On October 14, 1997, Plaintiffs brought this
action on behalf of a class of similarly-situated applicants.
The complaint asserted that the admissions policy of LS&A
violates the Fourteenth Amendment’s Equal Protection
Clause, Title VI of the Civil Rights Act of 1964, and 42
U.S.C. §§ 1981, 1983. The plaintiffs sought declaratory and
injunctive relief, and compensatory and punitive damages
against the Board of Regents of the University of Michigan,
as well as Lee Bollinger and James J. Duderstadt, both of
whom are former presidents of the University of Michigan.

___________________
¹       Citations to “Pet. App.” are to the appendix to the petition in Gratz
v. Bollinger, No. 02-516.

On February 5, 1998, a group of seventeen African-
American and Latino students who applied, or intended to
apply, for admission to the University of Michigan, along
with Citizens for Affirmative Action’s Preservation, a
nonprofit organization that seeks to preserve opportunities in
higher education for African-American and Latino students,
moved to intervene as defendants in the case. The district
court denied the motion to intervene. The court of appeals
reversed that denial on an interlocutory appeal (heard along
with an appeal from the denial of intervention in Grutter).
See Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999). The
defendant intervenors are the Petitioners in this case.

By an order dated December 23, 1998, the district court
certified a class, pursuant to Fed. R. Civ. P. 23(b)(2), of those
applicants who applied for and were denied admission to
LS&A and who “are members of those racial and ethnic
groups, including Caucasian, that defendants treat less
favorably on the basis of race in considering their application
for admission.” Pet. App. 3a & n.2. The district court also
bifurcated the case into separate liability and damages
phases. On September 26, 2000, the Sixth Circuit denied the
University’s petition for interlocutory review of the district
court’s certification order, pursuant to Fed. R. Civ. P. 23(f).

Following extensive discovery, on December 13, 2000,
the district court issued an opinion granting, in part, cross
motions for summary judgment. The district court
concluded, following Justice Powell’s opinion in Regents of
the Univ. of California v. Bakke, 438 U.S. 265 (1978), that
the University of Michigan has a compelling interest in
seeking to obtain the educational benefits that flow from a
student body that is diverse in many ways, including with
respect to racial and ethnic diversity. Pet. App. 27a-28a. In
reaching that conclusion, the district court also determined
that, through the unrebutted reports of nationally-renowned
experts in history, sociology, psychology, and education, the

University had presented “solid evidence” of the educational
benefits of diversity. Id. at 22a-25a.

The district court noted, however, that “Justice Powell’s
opinion in Bakke fails to set forth any bright line regarding
what constitutes a permissible consideration of race in
admissions decisions,” and that it “is often a thin line that
divides the permissible from the impermissible.” Id. at 34a
(footnote omitted). The district court concluded that the
admissions programs in operation in 1999 and 2000 satisfied
the requirements set forth in Bakke and were therefore
constitutional, whereas the systems in place from 1995
through 1998, taken together, “cross that thin line from the
permissible to the impermissible.” Id. The district court also
granted the individual defendants’ motions for summary
judgment on qualified immunity grounds, holding that a
reasonable official in the position of the individual
defendants might not have known that the admissions
systems in place from 1995 to 1998 would be found
unconstitutional.

On January 10, 2001, the plaintiffs and defendants jointly
requested that the district court, in connection with the entry
of an order reflecting the conclusions set forth in its
December 13, 2000 opinion, certify interlocutory crossappeals
pursuant to 28 U.S.C. § 1292(b). The district court,
by order dated January 30, 2001, did so. On February 9,
2001, the district court also entered final judgment, pursuant
to Fed. R. Civ. P. 54(b), in favor of the individual defendants
who had prevailed on their qualified immunity defenses.

Following the district court’s § 1292(b) certification of
questions arising from its January 30, 2001 order, the
plaintiffs and defendants each petitioned the court of appeals
to permit the interlocutory appeals to proceed. By order
dated March 26, 2001, the court of appeals granted the
petition and cross-petition. Those appeals are pending in the
court of appeals as Nos. 01-1416 and 01-1418. The plaintiffs
also filed a notice of appeal, No. 01-1333, pursuant to 28

U.S.C. § 1292(a), with respect to the final order dismissing
the claims against the individual defendants and denying the
requested injunctive relief. Those three appeals were subject
to consolidated briefing and argument in the court of appeals.

In a separate opinion, dated February 26, 2001, the
district court rejected the arguments advanced by the
intervening defendants that LS&A’s consideration of race as
a factor in admissions could be justified as a means to
remedy the present effects of past discrimination. By order
dated March 21, 2001, the district court also separately
entered final judgment under Fed. R. Civ. P. 54(b) with
respect to the claims of the intervening defendants, thereby
permitting those defendants to bring an interlocutory appeal
from its summary judgment rulings. The intervening
defendants filed a notice of appeal as to the district court’s
order rejecting their defenses. That appeal, No. 01-1438, was
briefed separately from the other three appeals in Gratz, but
argued along with those appeals.

All four appeals were argued before the en banc court of
appeals on December 6, 2001—the same date that the court
heard argument in Grutter. The court of appeals issued its
decision in Grutter on May 14, 2002. In that opinion, the
court of appeals noted that it would “address the challenge to
the University of Michigan’s admissions policy, Gratz v.
Bollinger, Nos. 01-1333, 01-1416, 01-1418, 01-1438, in a
forthcoming opinion.” Grutter Pet. App. 4a n.2. The court
of appeals has not yet decided the Gratz case.

1. THE PETITION SHOULD BE DENIED FOR THE
   SAME REASONS SET FORTH IN CONDITIONAL
   OPPOSITION TO CERTIORARI BEFORE
   JUDGMENT IN GRATZ.

As Respondents stated in their Conditional Opposition in
Gratz (No. 02-516), if this Court denies the petition in
Grutter (No. 02-241), it should deny the petition for

certiorari before judgment in Gratz. If the Gratz petition is
denied, then it follows that this petition for certiorari before
judgment should be denied as well. The standard for
granting certiorari before judgment is very demanding. “A
petition for a writ of certiorari to review a case pending in a
United States court of appeals, before judgment is entered in
that court, will be granted only upon a showing that the case
is of such imperative public importance as to justify
deviation from normal appellate practice and to require
immediate determination in this Court.” S. Ct. Rule 11.

Assuming this Court denies the petitions for certiorari in
Grutter and Gratz, nothing else presented in this petition
even remotely suggests that the rigorous standard set forth in
Rule 11 and this Court’s cases regarding certiorari before
judgment is satisfied. For that reason, this petition should be
denied.

2. IN THE EVENT THIS COURT GRANTS
   CERTIORARI IN GRUTTER AND GRATZ,
   RESPONDENTS DO NOT OPPOSE THIS
   PETITION.

As stated in the Conditional Opposition in Gratz, if this
Court were to grant the petition in Grutter, Respondents
assert that that it would be appropriate to grant certiorari
before judgment in Gratz in some, but not all, of the appeals
now pending in the court of appeals. In the event the Court
grants the petition in Gratz, Respondents do not oppose
certiorari before judgment on appeal No. 01-1438 on the
question whether the University of Michigan’s admissions
programs may be justified as a remedy for the present effects
of past discrimination.

If (and only if) this Court grants certiorari in both the
related cases of Grutter v. Bollinger, No. 02-241, and Gratz
v. Bollinger, No. 02-516, then Respondents do not oppose
this petition. Otherwise, for the foregoing reasons, the
petition for a writ of certiorari before judgment should be
denied.

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