Students -- of any race -- with exceptionally high standardized test scores and high school grade point averages typically have been admitted without reference to other factors. (See Raudenbush Supp. Rep. at 2.) Some of these students have been admitted by clerks without further review by counselors in what has been known as the "automatic admit" process. (Ex. I.) Others of these students with exceptionally high test scores and grades, who are enrolled in private schools, applicants to small academic units, athletes, foreign students, and minority students, are admitted by counselors. (See Ex. J.) This practice of admitting top scholars quickly, whether by clerk or counselor, is designed to increase the chances these highly competitive
-13-
applicants will actually decide to attend the University. (Spencer Dep. at 58-59.) 6/ Although a portion of the class has thus been admitted without reference to factors other than grades and test scores, the majority of applications have been reviewed by counselors who take all possible factors into consideration. (Spencer Dep. at 102-03.)
In evaluating each applicant under the guidelines, the counselors consider a number of factors, including high school GPA, standardized test scores, the quality of an applicant's high school, the strength of the curriculum chosen by the applicant, geographic location, alumni relationships, whether the applicant is a member of an underrepresented minority group, 7/ essays, letters of recommendation, whether an applicant has attended a high school with a predominantly
-14-
minority population, an applicant's socioeconomic status, and any unusual circumstances presented. (Ex. H; Spencer Dep. at 133-35; see Pls.' Mem. at 13-14.) The counselors bring to bear their experience and professional judgment, as well as the knowledge they have of the high schools in their respective territories. (See Vanhecke Dep. at 35; McKinney Dep. at 30-31.) The guidelines establish that admissions decisions will not be reduced solely to grades and test scores. As a result, it often turns out that applicants, including white applicants, may be accepted with lower grades and test scores than applicants with higher grades and test scores who have been denied admission. It should be stressed, however, that only qualified applicants who can be expected to succeed at the University are admitted. (Ex. K at 19 ("admission is dependent upon a high probability of success in the chosen school or college").)
It is undisputed that OUA's consideration of race is only one of many factors in making admissions decisions. It is undisputed that there are no quotas, numerical targets or goals for the admission of underrepresented minority students. (See Spencer Dep. at 12, 290; Provost Cantor Dep. at 83; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118; McKinney Dep. at 111, 121.)
The counselors evaluate applications to LS&A using a "selection index" worksheet, the mechanics of which are undisputed. (Ex. H; see Pls.' Mem. at 13-14.) As shown in the worksheet, applicants are awarded points for factors described above, up to a possible total of 150 points. 8/ A student's high school academic GPA receives the most points -- for example, a 2.0 GPA earns an applicant 40 points; an applicant receives 80 points for a 4.0 GPA. (Ex. H at
-15-
UMA 005893.) Students also receive a range of points depending on their standardized test scores. 9/ (Id.) The "School" factor reflects points for the strength of a student's high school. (Ex. 11 at UMA 005893; see Ex. 4 at 1-2.) OUA maintains a list of schools across the country and the number of points, if any, given for each school. (See, e.g., Ex. 18; see also Spencer Dep. at 200.) The "Curriculum" factor takes the strength of an applicant's high school course of study into account. (Ex. 11; see also Ex. 4 at 2.) As the guidelines state, "[g]iven the wide disparity in high school course selection and offerings, it seems imperative that the choice of strong courses . . . be considered in the review process." (Ex. 11 at UMA 005887; see also Ex. 4 at 2.) Counselors therefore subtract points from applicants who chose a weak high school curriculum when a stronger curriculum was available, and add points for those who took stronger courses. (Ex. 11 at UMA 005887.) The maximum points that can be awarded for all of these academic factors taken together is 110. (Ex. 11.)
Applicants can also receive a maximum of 40 points from a variety of other factors. The "Geography" factor assigns points to Michigan residents (10 points), students from underrepresented Michigan counties (six points), and students from states that are underrepresented at the University, such as many western and southern states (two points). (Ex. 11 at UMA 005889; see also Ex. 4 at 4.) The "Alumni" factor awards either one point or four points to applicants who are close relatives of an alumnus, depending on the relationship. (Ex.
-16-
11 at UMA 005890; see also Ex. 4 at 4.) In addition, the counselors may assign points for personal achievement (up to five points), leadership and service (up to five points), and outstanding essays (one point). (Ex. 11 at UMA 005893.) Finally, applicants may receive 20 points if they are underrepresented minorities, socioeconomically disadvantaged, athletes, men applying to the nursing school, students from predominantly minority high schools (regardless of their race), or by the provost's discretion. (Id.) Those 20 points may be awarded for only one of these factors. 10/ (Spencer Dep. at 156-58.)
Once an applicant's points are totaled, applicants may be accepted, rejected, or their applications may be postponed, depending on the number of points an applicant has accumulated. (See, e.g., Ex. M at UMA 005852.) As part of its effort to recruit as many underrepresented minorities as possible from the small pool of qualified applicants, OUA tends not to postpone decisions on their applications. 11/ OUA believes that minority applicants who are
-17-
admitted are more likely to enroll if they receive notification of their admission promptly. ( McKinney Dep. at 145, 176-77.)
Over the years, the guidelines used by the counselors have taken different forms. (See, e.g., Ex. N, O, P.) The OUA reviews its admissions process every year and considers ways to make it simpler, clearer, and easier to implement. (Spencer Dep. at 96-97, 116, 143-44; Seltzer Dep. at 113.) But, while the mechanics of the admissions process have varied, the policies underlying the guidelines have not changed. Specifically, the University's use of race as a factor in admissions has been consistent throughout the period at issue in this litigation.
For classes admitted before 1998, the guidelines were implemented by means of grids instead of a selection index. The basic mechanics of how the grids worked are undisputed. (Pls.' Mem. at 10-11.) In 1995, for example, the admissions guidelines comprised four grids. (Ex. N at 1-4.) 12/ Each grid had a vertical axis with GPA ranges and a horizontal axis with standardized test score ranges; the cells on each grid indicated the various options available to counselors. (Id.) Significantly, the "GPA" ranges listed on the left column of the grids did not refer to high school GPA, but instead represented ranges of what was referred to as "GPA2." (Spencer Dep. at 92-93.) The academic GPA calculated by the clerks from 10th and 11th grade courses was called "GPA1." (Id. at 161-62; Gauss Dep. at 16-17.) The counselors then added points to the
-18-
GPA1 for school, curriculum, and other factors. (See Spencer Dep. at 90; McKinney Dep. at 23-24.) This adjusted value was labeled "GPA2." (See Spencer Dep. at 161-62.)
The grids used GPA2 -- not GPA1. GPA2 did not include all of the factors considered in the admissions process (and that now are all included in the selection index). Although counselors considered an applicant's race, Michigan residency, and alumni status -- as they continue to do -- these three factors were reflected in the grids themselves and not in GPA2. 13/ (See Spencer Dep. at 92-93.) Counselors used specific grids to factor in an applicant's Michigan residency, alumni relationships, or status as an underrepresented minority, instead of adding a numerical value for race to the GPA2 of underrepresented minority students. (See Ex. N at 1-4.) 14/ That is, the use of the grid was the "plus" rather than a numerical value added to the
-19-
GPA2. 15/ Plaintiffs' simplistic conclusion that separate grids amount to a dual admissions system (Pls.' Mem. at 13, 15) is inaccurate and finds no support in the record. It also fails to take into account the array of factors OUA considers in making admissions decisions. The grids and the GPA2 together reflected the manner in which counselors took these factors into account. (See Spencer Dep. at 92-93.)
The University devised the selection index in 1997 to simplify its admissions process. The selection index "was designed to be more straightforward, more understandable." (Seltzer Dep. at 93.) While the selection index is different in appearance, the changes to the process are mechanical, rather than substantive. (Id. at 88.) David Hunter, the statistician who created the selection index in consultation with the OUA, testified that the selection index simply captured the same outcomes produced by the prior system. (Hunter Dep. at 76-77.)
Although Plaintiffs characterize OUA's use of grids as a dual admissions system, they do not contend that the selection index constitutes a dual admissions system. Yet, Plaintiffs concede that the selection index "constituted a change in form, not substance." (Pls.' Mem. at 14.)
The University Manages Enrollment
As a large university that receives thousands of applications every year, the University of Michigan must carefully manage its enrollment to avoid overenrollment and to enroll an entering class with the spectrum of attributes it values. (See Knepp Dep. at 31.) The mechanics of this
-20-
process are undisputed. (See Pls.' Mem. at 6-7.) As part of this process each year, the University sets an enrollment target for the total number of students in the entering freshman class. (See Provost Cantor Dep. at 73.) The overall enrollment targets are necessary because they affect every aspect of University life. They allow appropriate planning for academic programs (course development and scheduling, faculty work load and hiring, class size, etc.), the budget, financial aid, housing, orientation, and other services. (See id.) In addition to the overall enrollment target, the University sets targets for in-state residents and for enrollment in each of the academic units. (See id. at 83; see Knepp Dep. at 14.) There are no other enrollment targets. In particular, there are no targets for the admission of underrepresented minority students. Every witness who was asked about this issue testified unequivocally that the University does not have any numerical targets or goals for the admission or enrollment of underrepresented minority students. (Provost Cantor Dep. at 83; Spencer Dep. at 12, 290; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118; McKinney Dep. at 111, 121.)
The University of Michigan admits students to its undergraduate programs on a rolling basis. That is, OUA reviews applications when they are received and makes decisions throughout the admissions cycle. (Knepp Dep. at 21; Spencer Dep. at 177.) Rolling admissions obviously require careful management of the admissions process throughout the year. (Knepp Dep. at 23; Spencer Dep. at 180.) For example, if the University admitted 100 percent of its class in the first two months of the admissions process, it could not admit attractive applicants who applied later without overenrolling. (See Knepp Dep. at 31-32.) As Provost Cantor said:
Without monitoring and evaluating the application flow, the pool size, how many people we've admitted over the course of a year, we would either end up with an inability as the cycle goes on to
-21-
continue to compose a diverse class, or with way overenrollment that we could not then provide the quality of education we provide to all our students.
(Provost Cantor Dep. at 79.) Accordingly, enrollment management requires staggered decision-making, based on projections of anticipated applications at various points in the admissions cycle. (See id. at 80.)
An enrollment working group ("EWG") manages the admissions process to ensure that the University does not exceed or fall short of its overall enrollment target, and that it is achieving the desired distribution of students among the academic units, the appropriate balance of in-state and out-of-state enrollment, and the desired composition of the entering class. (See Spencer Dep. at 52; Seltzer Dep. at 27.) 16/ The EWG accomplishes these objectives by monitoring admissions and enrollment as the admissions season progresses, analyzing enrollment trends and projections, and advising OUA accordingly. (Spencer Dep. at 183-84.)
Projecting anticipated applications becomes particularly important beginning in mid-January, toward the end of the admissions cycle. At this point, the class has been mostly filled. (See Knepp Dep. at 17.) The University is aware from experience that many applicants from certain groups tend to apply later in the cycle. (Spencer Dep. at 177.) These groups include, among others, athletes, foreign students, ROTC candidates, and underrepresented minorities. (Spencer Dep. at 178; see Knepp Dep. at 38.) The EWG projects how many applications from
-22-
these groups the University is likely to receive after a given date by reference to how many were received from applicants in these groups after that same date in the prior year. OUA then paces admissions decisions to permit full consideration of those applications expected to arrive without ultimately overenrolling the class. (See Knepp Dep. at 23, 28; Spencer Dep. at 232; Seltzer Dep. at 151.) The key is to "monitor and keep very close touch on those pools that are very small, highly recruitable, competitive pools that . . . come in at various points in the rolling admissions cycle. . . ." (Provost Cantor Dep. at 80.)
Those groups for which the EWG projects application flow have been referred to as "protected categories," and the estimates of anticipated admissions from among later applicants in these groups have been referred to as "protected seats." (Spencer Dep. at 177-78.) The facts relating to the process of "protected seats" are undisputed. 17/ (Pls.' Mem. at 6-7.) The concept of "protected seats" is designed to give the University an estimate of the number of applications that should be expected from groups of students in the last stages of the process. (Knepp Dep. at 17.) This process is all about the timing of decisions in a rolling admissions context. Minority students who apply during the later stages of the process are evaluated using the same criteria that are applied to all students. (See Spencer Dep. at 107-08.) The estimates allow the University
-23-
to monitor the process to ensure that it can still consider the applications of attractive applicants who apply later without overenrolling its class. (Id. at 27, 31.)
The Data Illustrate the Admissions Process
The LS&A admissions data in the record paint a picture of how the admissions process works, and the role that an applicant's race plays. Several points, all undisputed, can be made from a review of the basic descriptive numbers. First, the pool of minority applicants to LS&A is consistently small. Applications from underrepresented minority groups constituted only 11.4 percent of applicants to LS&A in 1995, 11.2 percent in 1996, and 9.5 percent in 1997. (Raudenbush Supp. Rep. at Tables 2a-2c.)
Second, the number of students from each racial or ethnic group admitted to LS&A varies from year to year. In 1997, for example, when LS&A received fewer applicants than in prior years, it made fewer offers of admission. (Id.) The figures on admitted students do show that a somewhat greater proportion of minority applicants are admitted than non-minority applicants. In 1997, for example, 87.0 percent of underrepresented minority applicants were accepted, compared with 74.2 percent of non-minority applicants. (Id. at Table 3c.) According to Stephen W. Raudenbush, a leading educational statistician and one of Defendants' experts, "[c]omparison of average probabilities of admission for sub-groups of students defined by membership in an under-represented racial or ethnic minority group provides a simple, first check on the importance of [race] in admissions." (Id. at 4.) These figures indicate that race plays an important, but not overwhelming, role in the process. If race played an overwhelming role, Raudenbush pointed out, one would expect the differences in the average probabilities of admission to be greater. (Id. at 4-5.) This analysis can be misleading if not understood in the
-24-
context of the absolute numbers behind the percentages, which are strikingly different for minority and non-minority students. For example, in 1995, for students who had a GPA2 between 3.80 and 3.99, and SAT scores between 1400 and 1490, the tables show that 262 out of 268 non-minority students were admitted, as compared to five out of five minority students. (Ex. S at UMA 030393; Ex. T at UMA 030396.) The percentages indicate that 100 percent of the minority students in this range of grades and test scores were admitted, while only 97.76 percent of the non-minority students were admitted. (Id.) Knowing that 100% of admitted minority students actually refers to five students is quite different than analyzing the percentage alone.
It is also clear that admissions rates vary significantly depending on the grades and test scores of the applicants. The statistical analysis performed by Raudenbush confirms that students of all races with high GPA and test scores typically are admitted. Students of all races with low grades and test scores typically are rejected. For the many students in the middle range, the decision to admit or reject is more complex and the other factors in the process have greater significance. (Raudenbush Supp. Rep. at 6.)
Third, an examination of admissions data cautions against overstating the significance of the grids. The data show that the grids were not rigidly applied to compel certain results, but rather served as a guide to decisions made in the exercise of professional judgment by the
-25-
counselors. (Ex. S, T.) 18/ The data therefore confirm that the grids did not produce mechanical results.
Fourth, while there is some difference between the average grades and test scores of admitted majority and admitted minority students, the average grades and test scores for all students admitted to LS&A are quite high. (Ex. U at UMA 022187; Ex. V at UMA 022107.) For example, in 1996, the average SAT score of majority students enrolled in LS&A was 1272, (Ex. U at UMA 022187), while the average score for minority students was 1113. 19/ (Ex. V at UMA 022107.) This fact reflects the implementation of the University's policy only to admit applicants who can succeed in its academic program.
Finally, one cannot adequately understand the complex admissions process employed by the University without considering the proportion of admitted students who choose to enroll in LS&A -- the so-called "yield." The stiff competition among selective colleges and universities for qualified students means that well under half of the admitted students choose to enroll.
-26-
The small pool of minority applicants and the low yield for admitted minority students combine to produce a predictable result: in order to achieve even the limited diversity it does, the University ends up admitting virtually all qualified underrepresented minorities. (See Spencer Dep. at 83-84; Vanhecke Dep. at 36, 38; Seltzer Dep. at 121-22; McKinney Dep. at 56-57.) This fact is undisputed. (See Pls.' Mem. at 8-9, 12.) But Plaintiffs mischaracterize this effect as a "policy" that is not applied equally to non-minority students, and suggest that the admission of minority students is not based on "competitive considerations." (Id. at 8-9.) That is incorrect. The applications of all students, regardless of race, are considered against the guidelines. Moreover, all applicants compete for admission, and all applications are evaluated using the same criteria. (See Spencer Dep. at 107-08.) Those students who are not qualified are rejected. (See, e.g., Ex. W.) Indeed, the document that Plaintiffs have cited on this point explicitly states that "an individual who is not prepared academically to be a Michigan student, regardless of their minority status, will not be admitted." (Id.) (emphasis added). Among those students who are qualified, the University must make choices, and enroll a class that reflects its educational mission and goals. (See Spencer Dep. at 306.) All students who are qualified cannot be admitted to the University because there are overall enrollment targets that the University cannot exceed. Because the number of minority applicants is so small, as a practical matter, the University admits nearly all who are qualified in order to enroll meaningful numbers of minority students, (see Spencer Dep. at 83-84), and Bakke permits this practice.
The University Vigorously Recruits Minority Applicants
The pool of qualified underrepresented minorities that do apply to the University of Michigan is the result of aggressive efforts to recruit as many qualified applicants as possible.
-27-
As Provost Cantor said, "[as] a consequence of our desire to admit and compose a diverse class given the small application pool and the selective nature of our admissions, we work to recruit as many highly qualified minority students to the University of Michigan as we can." (Provost Cantor Dep. at 68.) Accordingly, the University has launched numerous recruiting programs designed to attract minority students, and it is constantly trying to find new ways to recruit underrepresented minorities. The University's efforts have ranged from personal contact with minority applicants by counselors to minority student symposia, attendance at recruiting fairs in major urban areas, direct mailings, and campus visits for minority students. (Vanhecke Dep. at 11-12.) OUA also maintains an office in Detroit to recruit local high school students, most of whom are African-American. (Spencer Dep. at 196-97; see also id. at 29; Ex. D at vi, 19.) The University's efforts to "do just about all aspects of recruitment that is possible," (Vanhecke Dep. at 9) nevertheless produce only a small pool of qualified minority applicants, most of whom are highly recruited by other selective colleges and universities as well.
The Plaintiffs
In January 1995, Plaintiff Jennifer Gratz applied for admission to the University of Michigan for the fall of 1995. Gratz was a senior at Southgate Anderson High School, in Southgate, Michigan. Several weeks after applying, Gratz received a letter notifying her that she had been denied admission. (Ex. X.) Despite the initial denial of admission, the University offered Gratz a place on the extended waiting list. If she wanted her name to be placed on the list, she was instructed to complete and return a form to the University. (Ex. X; Gratz Dep. at
-28-
153.) Gratz declined to return the form to the University. 20/ Had she completed her application for the extended waiting list, she would have been admitted: in 1995, all Michigan residents who were on the extended waiting list were admitted to the University. (See Gratz Dep. at 158; see also Seltzer Dep. at 225.)
Upon receipt of the initial rejection letter, Gratz turned to her father and told him she wanted to sue the University. (Gratz Dep. at 144; B. Gratz Dep. at 46.) Gratz, who is white, knew a Hispanic student in her high school who had been admitted to the University despite having a slightly lower class ranking. (Id. at 144-45.) Although Gratz concedes that she did not know this student's standardized test scores or much else about his application, she assumed the University had discriminated against her on the basis of her race. (Gratz Dep. at 145; see also Compl. ¶ 4, 20.) Gratz subsequently enrolled at the University of Michigan at Dearborn.
Gratz had the opportunity to apply to transfer to the University, but chose not to pursue that either. In her sophomore year at Dearborn, Gratz met with a counselor at the University, completed a transfer application, and looked for housing in Ann Arbor. (Gratz Dep. at 169-70, 172.) Gratz never submitted the transfer application because she decided she had too many other things happening in her life. (Id. at 172-73.) At that time, she had just been offered a position as cheerleading coach at Southgate Anderson High School and she was involved with a cheerleading organization in Michigan. (Id.) Because of her involvement in these activities, and
-29-
the risk that credits from a couple of Dearborn courses would not transfer, she decided not to apply to transfer. (Id.)
Patrick Hamacher graduated in 1997 from Luke Powers Catholic School, in Flint, Michigan, with a ranking of 88 of 220 students. 21/ His academic grade point average (which includes academic courses taken in tenth and eleventh grades) was a 2.8, lower than that of most accepted students. (See Gauss Dep. at 51.) He applied to the University of Michigan for the fall of 1997, but was initially denied admission. Hamacher, like Gratz, was offered the opportunity to be placed on the extended waiting list, but he chose not to pursue it. He testified that at that point, he just wanted to know where he would be attending college, rather than waiting for an opportunity to be admitted from the extended waiting list. Hamacher subsequently enrolled at Michigan State University, where he achieved a 2.1296 GPA during his freshman year. (Hamacher Dep. at 119.) Hamacher would like to attend the University of Michigan, but he has no present intention of applying to transfer. He concedes that he would need a B average -- a 3.0 -- to transfer to LS&A. (Id. at 125-26). As Hamacher himself acknowledges, even if the University's admissions practices no longer used race as a factor, his Michigan State University record precludes a realistic chance of acceptance. (Id. at 133.)
* * *
In sum, there are no genuine issues of dispute as to any material facts that would preclude summary judgment for Defendants in this case. Defendants have taken issue with some of
-30-
Plaintiffs' characterizations of undisputed facts, and the conclusions they have drawn from them. There are, however, no factual disputes that would preclude summary judgment in this case.
ARGUMENT
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is required when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). That is the case here. At the end of the day, while Defendants object to the various mischaracterizations and distortions of the LS&A admissions process set out in Plaintiffs' Memorandum, there is little, if any, disagreement between the parties about how the admissions process actually operates. The undisputed record evidence demonstrates that the University's admissions policy includes the "competitive consideration" of race and ethnicity as one of many factors. The record also shows that the University does so consistent with its articulated objective -- to achieve the educational benefits that having a racially diverse student body brings. Defendants therefore are entitled to summary judgment on all of Plaintiffs' claims.
Plaintiffs' motion for summary judgment advances two arguments. First, Plaintiffs argue that the University's admissions policies and processes, which uncontestably do not contain any type of fixed racial quota, nevertheless violate the principles set out in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). And second, while Plaintiffs concede, as they must, that the Supreme Court "has not reexamined or overruled Bakke," (Pls.' Mem. at 35), they nevertheless urge this Court to act as if that case simply never existed. While accusing Defendants of "brazen and breezy defiance of Bakke," (Pls.' Mem. at 1), Plaintiffs ask this Court to enter precisely the
-31-
same injunction -- barring any consideration of race in the admissions process -- that the Supreme Court reversed in Bakke. Neither of Plaintiffs' arguments is supportable.
| I. |
CONTROLLING PRECEDENT PERMITS THE COMPETITIVE
CONSIDERATION OF RACE IN UNIVERSITY ADMISSIONS POLICIES. |
This Section will first describe Justice Powell's opinion in Bakke, and set out how -- under Justice Powell's view -- race could be taken into account in an admissions system to achieve the compelling interest in realizing the academic benefits of a diverse student body. Second, this Section will explain why, despite Plaintiffs' arguments, Justice Powell's opinion, the critical part of which was joined by four other Justices, states the controlling legal standard.
| A. |
"A Properly Devised Admissions Program Involving the Competitive
Consideration of Race and Ethnic Origin" is Constitutional. |
Bakke addressed the constitutionality of the admissions system employed by the University of California at Davis Medical School. Davis employed a two-track admissions system and a rigid quota. Each year's entering class of 100 students included at least 16 minorities. Before the Davis admissions committee even began to review applications, it knew that it would fill at least those 16 seats in its entering class from a separate pool comprised only of minority applicants. Bakke, 438 U.S. at 275. The California Supreme Court had held this system to be unconstitutional, and affirmed an injunction that barred the Davis Medical School from considering the race of any applicant.
A sharply divided Supreme Court concluded that this type of admissions regime was unlawful. Four Justices would have upheld the constitutionality of the Davis admissions policy, holding that racial classifications that benefited rather than burdened groups that had suffered
-32-
historical discrimination are not even subject to "strict scrutiny." Bakke, 438 U.S. at 324-25 (Brennan, White, Marshall and Blackmun, JJ., concurring in the judgment in part and dissenting in part). Four other Justices would have invalidated any use of race in admissions as a violation of Title VI (without reaching the constitutional question). Id. at 408 (Stevens, J., concurring in the judgment in part and dissenting in part, joined by Burger, C.J., and Stewart and Rehnquist, JJ.).
Justice Powell announced the judgment of the Court and authored the pivotal opinion. Unlike the group of four Justices for whom Justice Brennan wrote, Justice Powell applied strict scrutiny to the Davis plan. Justice Powell held that public universities do have a compelling interest in achieving the benefits of a diverse student body, but that the Davis policy was not a narrowly tailored means to serve that objective. Because of his conclusion that a properly devised admissions program would serve a compelling interest, he voted to reverse that part of the California Supreme Court's judgment that barred all consideration of race as a factor in admissions.
Importantly, Part V.C. of Justice Powell's opinion was joined by four other Justices (Brennan, White, Marshall and Blackmun, JJ.), establishing a majority of the Supreme Court for the following critical passage, which states Bakke's central holding and judgment:
In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.
-33-
Id. at 320 (emphasis added). Thus there is no doubt: "a properly devised admissions program involving the competitive consideration of race and ethnic origin" is constitutional.
1.
Bakke Embodies Three Principles.
In addition to the holding by a majority of the Court that race may be properly used in admissions decisions, which is controlling here, the balance of Justice Powell's Bakke opinion stands as the "narrowest grounds" offered in support of the judgment in that case and is therefore also binding precedent on this Court. See Marks v. United States, 430 U.S. 188, 193 (1977); see infra, pp. 47-51. The opinion states three important principles: first, that attaining the educational benefits of diversity is a compelling interest that justifies the consideration of race as a factor in admissions; second, that the diversity that furthers this compelling interest is broader than, but includes, racial diversity; and third, there are limits both as to the manner in which race may be considered (no fixed racial quotas) and the extent to which race may be used (all students must be fully qualified) in order to serve the compelling interest it recognizes.
Since Bakke, the Supreme Court has not overruled or even questioned the proposition that achieving the academic benefits of diversity is a compelling state interest that justifies a properly devised race-conscious admissions system. As controlling precedent, Bakke has consistently been followed in this Circuit. It provides the sole standard for evaluating the LS&A's consideration of race in its admissions decisions. 22/
-34-
a. Diversity is a Compelling Interest.
Bakke's first principle is that "the interest of diversity is compelling in the context of a university's admissions program," 438 U.S. at 314, because "our tradition and experience lend support to the view that the contribution of diversity is substantial," id. at 313. Justice Powell emphasized that "[t]he atmosphere of 'speculation, experiment and creation' -- so essential to the quality of higher education -- is widely believed to be promoted by a diverse student body." Id. at 312. A university is a "marketplace of ideas" that only works if there is a rich variety of voices available to offer a diversity of perspectives. Because of the important role that race plays in American life, and because different individuals -- with their wide range of experiences -- are necessary to fuel a vibrant exchange of ideas, Justice Powell believed that racial diversity must be included in this mix. 23/
-35-
The benefits of having a diverse student body therefore reflect the values protected by the First Amendment -- the "robust exchange of ideas which discovers truth 'out of a multitude of tongues,'" Bakke, 438 U.S. at 312 (citations omitted). These values, Justice Powell noted, are essential to the mission of higher education. "[I]t is not too much to say that the 'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." Id. at 313 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)).
Justice Powell grounded Bakke's first principle -- that diversity is a compelling interest that justifies the competitive consideration of race in university admissions -- in a rich heritage of cases recognizing the principle of "academic freedom." This line of cases, dating back more than two decades before the Bakke decision, recognizes the importance of education to our democracy, and establishes that a university has an important interest in creating a campus environment that encourages a vigorous and healthy learning environment.
-36-
As Justice Powell noted, "[a]cademic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment." Bakke, 438 U.S. at 312. In Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957), the Court emphasized that "[n]o one should underestimate the vital role in a democracy that is played by those who guide and train our youth." In an often-quoted passage, Justice Frankfurter reasoned in his concurring opinion:
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
Id. at 263. The Supreme Court repeatedly has reinforced these principles. In Keyishian, the Court said that "[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned." 385 U.S. at 603. And in Healy v. James, 408 U.S. 169, 180 (1972), the Court noted that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom." (citation omitted). Justice Powell therefore drew on this tradition when he reasoned in Bakke that "universities must be accorded the right to select those students who will contribute the most to the 'robust exchange of ideas'" and emphasized that, by attempting to foster diversity among its student body, a university seeks "to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 U.S. at 313.
-37-
Since Bakke, the Supreme Court has often repeated this point in various contexts -- that the airing of diverse views, from students of diverse backgrounds, is an important part of the mission of an institution of higher education. In Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819 (1995), for example, the Court held that the exclusion of a particular viewpoint from campus debate would not only violate the First Amendment's free speech guarantee, but would undermine the very purpose of education. In the university setting, the Court noted, the government "acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." Id. at 836 (citations omitted). Encouraging "free speech and creative inquiry" improves the educational experience on our nation's campuses, which are "vital centers for the Nation's intellectual life." Id. 24/
In light of the role of race in American history, and in American society, Justice Powell was on firm ground in determining that a university may properly conclude that it is better able to reflect a rich variety of experiences, backgrounds, and insights, if it is permitted to include racial diversity among the types of diversity it values, and seeks to achieve. To say this, however, is not to make the assumption that one's race determines or preordains the views that any particular person will hold regarding any given subject. Indeed, there may be no better way to debunk stereotypes than by exposing students -- in a racially diverse educational setting -- to the wide array of viewpoints that are very often held by members of a single racial or ethnic group, or to confront students with the fact that members of other racial groups have similar views to their own where differences are expected.
-38-
| b. |
A Broad Sense Of Diversity: Race Is One Of
Many Factors. |
While Bakke's controlling opinion supports giving a university wide latitude to assemble a diverse student body, the opinion also makes clear that achieving the benefits of diversity constitutes a compelling interest where "[e]thnic diversity . . . is only one element in a range of factors" that a university considers in its admissions decisions. Bakke, 438 U.S. at 314. This is Bakke's second principle. As the Bakke opinion observed, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial and ethnic origin is but a single though important element." Id. at 315.
As an example of the kind of race-conscious admissions system that would be constitutional, the Bakke opinion specifically approved Harvard's admissions program as a model. The Harvard admissions policy, which was reproduced as an appendix to Justice Powell's opinion, states that Harvard seeks "variety in making its choices" among applicants, id. at 322, and endeavors to include students "from disadvantaged economic, racial and ethnic groups" among its student body. Id. This "variety" serves to add "a critical ingredient to the effectiveness of the educational experience." Id.
| c. |
Bakke's Two Limitations: Fixed Quotas are Impermissible
and Admitted Minority Students Must be Qualified. |
While Bakke squarely permits colleges and universities to consider race as a factor in admissions decisions, the opinion does impose two distinct but related limitations on the manner and extent to which race may be used. On the question of manner, the opinion explains that fixed racial quotas are impermissible. It is for this reason that Justice Powell, joined by the four
-39-
Justices who believed that Title VI precluded all use of race, invalidated the Davis admissions system.
This limitation on the manner in which race is used, however, should not be confused with the question of the extent to which race is used. A quota, after all, can be set quite low, while a permissible "plus factor" might have a much larger impact. Put another way, the invalidity of the Davis program did not turn on the fact that the fixed quota was set at 16 minority students in a class of 100, rather than, for example, six or two. And conversely, the Harvard plan that Justice Powell expressly endorsed would not have been constitutional if the consideration of race -- which was treated as a single though important factor -- turned out to admit unqualified minorities. A "properly devised" admissions system only allows for the admission of qualified students. Thus, while the Davis plan satisfied this requirement, see Bakke, 438 U.S. at 275-76, an admissions system (even one with no quota) would use race "too much," and therefore violate Bakke, if it called for the admission of minority applicants who were not "deemed capable of doing good work in their courses," even if it did not involve a quota. See id. at 323 (appendix to opinion of Powell, J.).
| 1) Fixed Racial Quotas Are Prohibited. |
The "fatal flaw" in the Davis admissions system, according to Justice Powell's controlling opinion, was not the consideration of race, but rather the fact that minorities were insulated "from comparison with all other candidates" on account of race. Id. at 317. This is so because an admissions system "in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups" reflects an interest in "simple ethnic
-40-
diversity." without regard to the variety of other factors that contribute both to diversity and educational excellence. Id. at 315 (emphasis added).
A few words, however, need to be said about what this prohibition on quotas does not mean:
No "systematic" use of race. Plaintiffs contend that the University of Michigan's admissions policies violate the Bakke's principle because the University has adopted a policy of considering race in order to achieve diversity. On Plaintiffs' view, it appears that race can be considered in "individual" or "particular" cases (see Pls.' Mem. at 21), as if at random; but the Constitution is somehow offended if a university seeks, in some "systematic" way, to achieve racial diversity among its student body. (Id.) Quite unsurprisingly, Bakke does not say that. Rather, Bakke holds that race may be taken into account in the admissions process, as one of many factors, in order to achieve the benefits of having a diverse student body. Plaintiffs' suggestion that Bakke forbids a university from adopting a policy that seeks to achieve some measure of racial diversity just cannot be squared with what the Bakke opinion, and the Harvard plan that Justice Powell held out as a model, actually say. Moreover, there is no dispute that the admissions office considers the qualifications of each applicant as an individual, and makes an admissions decision based on that individual's qualifications, as they relate to a set of guidelines that includes the consideration of race. The consideration of race does, of course, make a difference in certain applications. That is what it means for race to be a factor. But beyond that, Plaintiffs' argument that race may only be considered in "individual" cases adds nothing to the analysis.
-41-
No attention to numbers. Plaintiffs suggest that any attention at all to the number of minority students is somehow evidence that the University has violated Bakke. That is not so. Indeed, the Harvard admissions plan that Justice Powell held out as a model recognized that in order to "provide a truly heterogeneous environment that reflects the rich diversity of the United States," admissions decisions cannot be made "without some attention to numbers." Id. at 323.
In fact, the Harvard policy explained that
10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.
Id. at 323. As Justice Powell noted, the Harvard plan "take[s] race into account in achieving . . . educational diversity," but does not assign "a fixed number of places to a minority group." Id. at 316. In so doing, the Harvard policy treated race or ethnic background merely as a "plus" factor and did not allow race or ethnicity to "insulate" any "individual from comparison with all other candidates for the available seats." Id. at 317. 25/
-42-
No goals or targets. While the University of Michigan does not have a particular "target" for the number of minority students it seeks to enroll (see supra, p. 15), it is incorrect, to the point of disingenuous, to suggest that Bakke would forbid a university from adopting such a goal. Plaintiffs are misleading when they quote Justice Powell as saying that the distinction between "goals" and "quotas" is merely "semantic" and "beside the point." (Pls.' Mem. at 20.) Justice Powell makes that statement in that part of his opinion concluding that the consideration of race in admissions counts as a "racial classification" that is subject to "strict scrutiny" -- a matter that was disputed in Bakke but is not at issue in this case. Bakke, 438 U.S. at 288-91. On the question that does matter -- what type of admissions system satisfies strict scrutiny -- the Bakke opinion makes clear that the distinction between a goal and quota is not "semantic" or "beside the point," it is the difference between Davis and Harvard. It is dispositive.
* * *
This common sense understanding of Bakke -- as forbidding fixed racial quotas but otherwise permitting race to be considered systematically as a factor -- has been repeated in other contexts by the Supreme Court. For example, in Johnson v. Transportation Agency, 480 U.S. 616 (1987), the Court examined a promotion plan for the Santa Clara County Transportation Agency that "was intended to achieve 'a statistically measurable yearly improvement in hiring,
-43-
training and promotion of minorities and women throughout the Agency.'" Id. at 621 (citation omitted). Specifically, the plan established "short-range goals" for employment decisions. While the plan "set aside no specific number of positions for minorities or women," it "authorized the consideration of ethnicity or sex as a factor when evaluating qualified candidates." Id. at 622. In short, it involved a systematic effort with particular goals in mind to increase the number of women and minorities employed by the County Transportation Agency.
Pursuant to that plan, the County promoted Diane Joyce to road dispatcher, despite the fact that Paul Johnson received a higher score -- a 75 compared to Joyce's 73 -- on his promotional interview. The Supreme Court, relying on Bakke, upheld that decision. The Court noted that a promotion plan that considered the gender of an employee as one of a range of factors "resembles the 'Harvard Plan' approvingly noted by Justice Powell" in Bakke. Id. at 638. In upholding the promotion plan which considered gender as one of a range of factors, the Court noted that the plan "requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of the other applicants." Johnson, 480 U.S. at 638.
Justice O'Connor repeated this reading of Bakke in City of Richmond v. J. A. Croson, Co., 488 U.S. 469, 496 (1989). Describing the Bakke opinion, Justice O'Connor wrote that "Five Members of the Court determined that none of [the asserted] interests could justify a plan that completely eliminated nonminorities from consideration for a specified percentage of opportunities." Id. (emphasis added). Bakke, in short, means just what it says. While fixed quotas are forbidden, that case cannot fairly be read to preclude "systematic" efforts to achieve a racially diverse student body.
-44-
Without even a hint of irony, Plaintiffs heatedly charge that this reading of Bakke is "disingenuous," and insist that systematic efforts to achieve diversity represent the "constitutional evil" to which that opinion is addressed, and charge that the University of Michigan's attention to the numbers (which Justice Powell permits) represents "the worst kinds of race norming." (Pls.' Mem. at 24.) But the truth of it is that the University of Michigan has simply undertaken the same the kinds of efforts to achieve meaningful racial diversity that Bakke squarely endorses. Justice Powell expressly noted that "the weight attributed to a particular quality may vary from year to year depending upon the 'mix' both of the student body and the applicants for the incoming class." Bakke, 438 U.S. at 317-318. Under Justice Powell's view, then, a university may look at the racial diversity of its current class, look at the mix of qualifications presented in the applicant pool, and set the "weight" to be attributed to the various factors considered in the admissions process in order to achieve the benefits of a diverse student body. To read Bakke to forbid quotas but otherwise to permit the competitive consideration of race -- even systematic efforts to achieve racial diversity -- does not "confine its meaning to the precise facts of the Davis program." (Pls.' Mem. at 24.) Rather, it is to read the opinion fairly.
| 2) Only Qualified Applicants may be Admitted. |
On the question of the extent to which race may be used, the Bakke opinion makes clear that a "properly devised" admissions system is one that considers race as a factor in choosing among "otherwise qualified" applicants. 438 U.S. at 314. Bakke does not require that all factors be weighed equally. Rather, a "[proper] admissions program . . . 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
-45-
same weight." Bakke, 438 U.S. at 318 (emphasis added). This point has also been made elsewhere. For example, in United States v. Paradise, 480 U.S. 149, 183 (1987), the Court upheld a racial set-aside that had been designed to remedy a showing of past discrimination, but also set out a limitation on the extent to which race may be used: "the basic limitation, that black troopers promoted must be qualified, remains. Qualified white candidates simply have to compete with qualified black candidates." Id.
In deciding which applicants for admission are qualified, the question of academic freedom again weighs in the balance, as courts will generally respect the academic judgments made by university officials. Indeed, many of the cases on which Bakke relied, as well as subsequent cases, have emphasized the autonomy of educational institutions in making these judgments. For instance, Justice Powell -- quoting Justice Frankfurter's concurrence in Sweezy, 354 U.S. 234, 263 (1957), noted that it is the business of a university "'to determine for itself . . . who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" Id. at 312. 26/
The principle that courts will defer to the judgments of educators to determine who is qualified for admission finds support in the Sixth Circuit. In Jacobson v. Cincinnati Bd. of
-46-
Educ., 961 F.2d 100, 102 (6th Cir. 1992), for example, the court observed that "school authorities have broad discretion to implement educational policy." And in Parate v. Isibor, 868 F.2d 821, 826 (6th Cir. 1989), the court noted that "[a]cademic freedom thrives not only on the robust and uninhibited exchange of ideas between the individual professor and his students, but also on the 'autonomous decisionmaking [of] . . . the academy itself.'" (citation omitted). In fact, the Constitution of the State of Michigan reflects a similar value, in expressly vesting the authority to govern the University of Michigan in the Board of Regents of the University of Michigan, and insulating that body from the control of the state's political branches of government. See Mich. Const., art. 8 (1963).
B. Bakke Is Binding Precedent.
Bakke squarely holds that a university may consider race as a factor in admissions, so long as it does not use a rigid quota. 438 U.S. at 320. The diversity rationale set out in Justice Powell's Bakke opinion states controlling law. Plaintiffs do not argue here that Bakke was overruled by later precedent. (See Pls.' Mem. at 35.) Their position, rather, is that the case never stood for any legal proposition. It is on that basis that Plaintiffs have the temerity to seek, in this Court, precisely the same injunction that the Bakke Court reversed -- one that forbids all consideration of race.
| 1. |
The Powell Opinion -- the Narrowest Opinion That Supports
the Judgment -- States the Holding of the Court. |
While the Bakke decision produced a number of opinions, four other Justices joined Part V.C. of Justice Powell's opinion expressly holding that "a properly devised admissions program involving the competitive consideration of race and ethnic origin" is constitutional, and that
-47-
accordingly, the judgment of the California Supreme Court forbidding any use of race had to be reversed. 438 U.S. at 320. Thus, a majority of the Court joined this section that squarely rejects the argument Plaintiffs now advance. Although Plaintiffs omit all reference to Bakke's holding from their Memorandum, it must be central to this Court's review of the University's use of race.
Moreover, even if four Justices had not joined the critical part of Justice Powell's opinion permitting the use of race, lower federal courts may not simply disregard Supreme Court cases in which no single opinion was signed by five Justices. Plurality opinions are not intended to invite lawlessness. Rather, the judicial task is to identify the "narrowest" grounds that will support the judgment. That task is easiest where there is a "common denominator" between the broader and narrower opinions. In such cases, the "lesser included" rationale has the support of five Justices, and therefore states the law. That was the circumstance in Marks v. United States, 430 U.S. 188, 193 (1977), where the Court said that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Id. (citation omitted). The Sixth Circuit has embraced this reading of Marks. See Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 132 (6th Cir. 1994) ("In light of the Supreme Court's instruction that '[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'") (citations omitted). Even where a single opinion does not stand as a "common denominator," the task is nevertheless to determine which opinion is narrower. That point is demonstrated by Nichols v. United States, 511 U.S. 738 (1994), the very case on which
-48-
Plaintiffs rely. The Court in Nichols, after a careful analysis of the splintered decision in Baldasar v. Illinois, 446 U.S. 222 (1980), concluded that there was neither a "lowest common denominator," nor could one of the rationales fairly be described as the "narrowest grounds." Nichols, 511 U.S. at 745-746.
Judge Zilly of the Western District of Washington engaged in exactly the analysis that Marks requires, and sought to determine which of the opinions in support of the judgment in Bakke was the narrowest. He concluded that Justice Powell's opinion met that test and was controlling. See Smith v. University of Washington Law School, Case No. C97-335Z, Ex.Y (W.D. Wash. Feb. 12, 1999) (order denying summary judgment). In that case, Judge Zilly stated that under Marks, the opinion that sets forth the narrowest rationale for the Court's judgment is the holding of the Court regardless of whether that position would garner approval of at least five Justices. Id. at 4 (emphasis added).
Under the Marks analysis, it is clear that the diversity rationale set out in Justice Powell's opinion is the narrowest opinion in support of the judgment to reverse the injunction against all consideration of race in university admissions. There is no question that Justice Brennan's approach permitted a much broader use of race than Justice Powell's. That much should be clear from the very result in Bakke: Justice Brennan would have upheld both the Davis plan as well as the Harvard plan discussed in Justice Powell's opinion. 438 U.S. at 376-79 (Brennan, J., concurring). Justice Powell, on the other hand, rejected the Davis set-aside, but endorsed the Harvard admissions system. His view is the more narrow one.
Plaintiffs seek to avoid this conclusion by distorting Justice Brennan's Bakke opinion beyond recognition, and suggesting that Justice Brennan would require detailed factual findings
-49-
of past discrimination against individual victims before he would permit a voluntary affirmative action plan. (See Pls.' Mem. at 31 (referring to "the Brennan group's requirement of demonstrated disadvantage on the part of the minority beneficiaries of their admissions policies").) To the contrary, in every salient aspect, Justice Powell's opinion in Bakke is more narrowly constructed than the opinion written by Justice Brennan. Unlike Justice Brennan, who applied intermediate scrutiny and would have upheld the Davis program as a means of curing past societal discrimination, Justice Powell applied strict scrutiny and upheld the use of race only to achieve the educational benefits of diversity. 27/ Indeed, Justice Powell, who approved of the Harvard plan, but rejected Davis' fixed quota, criticized the Brennan analysis as "amorphous," and insisted on a narrower, "more focused" justification for the use of race. See Bakke, 438 U.S. at 307. Justice Powell further criticized Justice Brennan's position, which required a determination only that the benefited minority group has been the victim of discrimination by "society at large," and that "there is reason to believe" the underrepresentation of that group is the "product" of that discrimination. "The breadth of this hypothesis," Justice Powell wrote, "is unprecedented in our constitutional system." Bakke, 438 U.S. at 296 n.36 (emphasis added). In City of Richmond v. J. A. Croson Co., 488 U.S. 469, 496-97 (1989), the Court said precisely the same thing about the Bakke case -- that Justice Powell properly rejected Justice Brennan's
-50-
position as reflecting an "amorphous concept," and that by applying strict scrutiny (with its requirement of narrow tailoring), Justice Powell charted a more "focused" course. Id.
| 2. |
Supreme Court and Sixth Circuit Have Followed Bakke. |
Cases decided since Bakke, both by the Supreme Court and the Sixth Circuit, have recognized the essential holding of that case. In her concurring opinion in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), for example, Justice O'Connor noted that "although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently 'compelling,' at least in the context of higher education, to support the use of racial considerations in furthering that interest." Wygant, 476 U.S. at 286 (citing Bakke). Similarly, in a case involving an alleged violation of Title VII of the Civil Rights Act of 1964, Johnson v. Transportation Agency, 480 U.S. 616 (1987), the Supreme Court noted that a promotion plan that considered the gender of an employee as one of a range of factors was similar to the Harvard plan "approvingly noted by Justice Powell" in Bakke. Johnson, 480 U.S. at 638. The Court explicitly relied on the reasoning set forth in the Bakke opinion. Id. 28/
The Sixth Circuit has consistently relied on the Bakke opinion. In Oliver v. Kalamazoo Board of Education, 706 F.2d 757 (6th Cir. 1983), it cited Bakke for the proposition that "affirmative action admission programs of educational institutions may take race into account, but racial quotas are prohibited." Id. at 763. Referring to Bakke, the Sixth Circuit invalidated a
-51-
court-imposed racial quota for minority teachers and expressly stated that a "wiser approach is a more flexible affirmative action program rather than a hiring quota." Id. More recently, it relied on Bakke in upholding Cincinnati's policy of transferring teachers to balance the racial composition of its schools "to achieve a racially integrated faculty throughout the Cincinnati public school system." Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100, 103 (6th Cir. 1992). And in United States v. Ovalle, 136 F.3d 1092, 1106 (6th Cir. 1998), the Sixth Circuit held that the government had a compelling interest in creating a jury pool representing a fair cross-section of the community, although the court invalidated the plan at issue there as not being narrowly tailored towards achieving that objective. Other courts have likewise followed the Bakke decision. 29/ Plaintiffs' argument that remedying past discrimination is the only compelling interest allowed by the law is thus foreclosed by precedent.
-52-
| 3. |
Hopwood was Wrongly Decided. |
Despite the absence of any Supreme Court authority questioning Bakke, (see Pls.' Mem. at 35), Plaintiffs attempt to read tea leaves, and invite this Court to predict -- as the Fifth Circuit did in Hopwood v. State of Texas,78 F.3d 932 (5th Cir. 1996) -- that the Supreme Court will eventually conclude that "there is essentially only one compelling state interest to justify racial classifications: remedying past wrongs." 30/ (See Pls.' Mem. at 34); Hopwood, 78 F.3d at 944. Hopwood was wrongly decided. While the Supreme Court has -- since Bakke -- made clear that all racial classifications, even those that benefit racial minority groups, are subject to strict scrutiny, see, e.g., Adarand Constructors, Inc. v. Pe�a, 515 U.S. 200 (1995), no Supreme Court opinion overrules or questions Bakke's holding that there is a compelling interest in achieving a racially diverse student body. See, e.g., Smith, No. C97-335Z, Ex. Y, at 8 ("The Supreme Court has never held that educational diversity cannot be a compelling state interest. In the absence of such a holding, this Court will follow Justice Powell's opinion in Bakke that educational diversity 'is a constitutionally permissible goal for an institution of higher education.'"). Indeed, in cases both before and after Hopwood, the Supreme Court has repeatedly made clear that lower courts do not have the authority to override or disregard its decisions. See Hohn v. United States, 118 S. Ct. 1969, 1978 (1998) ("Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their
-53-
continuing vitality."); State Oil Company v. Khan, 118 S. Ct. 275, 284 (1997) ("[I]t is this Court's prerogative alone to overrule one of its precedents."); Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (only Supreme Court can overrule its own precedent); Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (same).
| II. |
THE LS&A ADMISSIONS PROCESS COMPLIES WITH THE
PRINCIPLES OF BAKKE. |
The University of Michigan takes race into account in making its LS&A admissions decisions in order to achieve the significant and demonstrable benefits that flow from having a diverse student body. (Provost Cantor Dep. at 63-64.) Diversity is a "dynamic characteristic" that is central to the quality of education that the University offers, and to the fulfillment of the University's overall mission. (Id. at 58-59.) Plaintiffs do not dispute the significance of diversity in higher education. Instead, Plaintiffs' counsel makes the extraordinary -- and constitutionally erroneous -- statement that "[a]ny evidence or any report that shows, or purports to show, that racial diversity has educational value is beside the point." Peter Schmidt, U. of Michigan Turns to Scholars to Bolster Its Defense of Affirmative Action, Chronicle of Higher Educ., Apr. 2, 1999, at A38 (quoting Terence J. Pell, Center for Individual Rights). See also Jaimie Winkler, Expert Witnesses Discuss Diversity, Michigan Daily, March 18, 1999, at 7a (quoting Pell to the same effect). But, as explained above, this common sense judgment about the educational value of diversity lies at the heart of the Bakke opinion and is part of a respected line of Supreme Court precedent recognizing the degree of autonomy that universities have, consistent with the First Amendment, to pursue their educational mission. Defendants' expert
-54-
case, which confirms the correctness of Bakke and the wisdom of the University's use of race in admissions, cannot be "beside the point."
The LS&A admissions system complies with the principles set out in the Bakke decision. Bakke prohibits the use of race in an admissions policy that operates as "a cover for the functional equivalent of a quota system," 438 U.S. at 318, or otherwise serves as a "two-track" admissions system. The undisputed record makes clear that the University does nothing of the sort. Instead, it considers race as one of a broad array of factors used in making admissions decisions in a system where all applicants are considered competitively together, and not separately by race.
Plaintiffs allege that the University "used different admissions standards based on each student's self-identified race," (Compl. ¶ 19), that "[a]pplicants from disfavored racial groups were not compared directly to applicants from favored racial groups," (Id. at ¶ 20), and that "Defendants did not merely use race as a 'plus' factor or as one of many factors to attain a diverse student body." (Id. at ¶ 22). In their motion for summary judgment, Plaintiffs assert that the University "employs separate explicit guidelines and standards for admission for racial and ethnic minority applicants versus non-minority applicants." (Pls.' Mem. at 22-23.) Yet after 17 months of extensive discovery -- during which Defendants produced thousands of pages of documents, and Plaintiffs deposed 11 fact witnesses -- there is no evidence in the record to support any of these allegations. Admissions to LS&A comply fully with Bakke.
A. There Is No Quota for Minority Admissions.
The flaw that Justice Powell found in the Davis system at issue in Bakke was that it employed a rigid quota for the admission of minority students. The record in this case
-55-
demonstrates unequivocally that the University has no fixed racial quota for minority students. (See Spencer Dep. at 12, 290; Provost Cantor Dep. at 83; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118; McKinney Dep. at 111, 121.) In their motion for summary judgment, Plaintiffs do not even argue that the University uses a quota.
B. The University Does Not Have a "Two-Track" Admissions System.
The University of Michigan seeks to achieve diversity, in part, through an "admissions program involving the competitive consideration of race and ethnic origin," which the Court in Bakke expressly approved. 438 U.S. at 320. In making decisions, the counselors consider an applicant's race as one of many factors evaluated in the admissions process. See id. at 314 (race "is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body"). Like the Harvard admissions program cited approvingly by Justice Powell in Bakke, when OUA
reviews the large middle group of applicants who are 'admissible' and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases.
It means only that in choosing among thousands of applicants who are not only 'admissible' academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students.
438 U.S. at 316-17 (internal citations omitted). The University's concept of diversity therefore "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.
-56-
The LS&A admissions guidelines show how the University considers race -- along with a number of other factors -- in making admissions decisions. (See, e.g., Ex. N, G.) The OUA counselors review the applications of minority applicants along with all other applicants in their territories, and "every decision [they make] is an individual decision." (Spencer Dep. at 107-08.) Using the selection index, counselors award points for a variety of factors, total up the points, and then use the resulting score in making a decision. (See Ex. M.) Applicants' characteristics entitle them to various combinations of factors. 31/
The development of the selection index for admissions in 1998 changed only the mechanics, not the substance, of how race and ethnicity are considered in admissions. Plaintiffs agree that this is true. (Pls.' Mem. at 14.) Instead of cumbersome, complex, and confusing grids, there is a simple, straightforward system that makes clear how different factors are considered and the criteria that are applied to all students. 32/ (Id. at 13-14; see also Hunter Dep. at 76-77, 81-82.) The difference between the selection index and the grids, therefore, has no legal significance. The grids, which were the final step in a counselor's review of an application, were
-57-
designed with GPA2 along one axis and standardized test scores along the other. As explained above, the GPA2 was an index comprised of academic GPA and included points for a number of factors, but not all of them -- not race, alumni status (for Michigan residents), or in-state residency. (See, e.g., Ex. N at 1-4.) Those factors were taken into account by the use of grids for underrepresented minorities, applicants who were relatives of alumni and who were Michigan residents, and all in-state residents. The grids themselves -- rather than the GPA2 -- reflected the adjustment given for these factors. The University could have taken other factors such as the quality of the school out of GPA2, and used different grids for schools of different quality. Or, alternatively, the University could have added points for race, alumni status, and in-state residency to the GPA2 of underrepresented minorities, legacies, and Michigan residents, and used one giant (and even more complex) grid as a guideline for admission for all students. All of these approaches would have been functionally the same.
The University used separate grids, rather than one such grid, to ensure that race did not have too little nor too much effect on admission. The different grids did not embody different policies because no one grid comprised the entire admissions policy. All grids contained the same information -- the only difference was visual, not substantive. They simply showed visually how race -- like in-state residency, for example -- could tip the balance in some cases, and protected against race driving the outcome in all cases. Thus, the grids identified those cases in which race played a decisive role -- they allowed race to make a difference for some minority students. The grids helped the University prevent minority status from being a blanket admissions policy by ensuring that race was only an additional factor in some cases, not a
-58-
controlling factor in all cases. Over time, these complex grids evolved into the selection index, which gives a clearer picture of the significance given to various factors, including race.
There can be no question that in some cases, race is an important factor in admissions and can even be a deciding factor. Whether by use of the grids or the selection index, the University has considered race on an individual basis -- for some minority students, it is decisive, but for others it is not. The role that race plays varies widely, is different for members of different racial groups, and depends on a variety of other factors. (Raudenbush Supp. Rep. at 6-7.) Applicants with high grades and test scores are very likely to be admitted, regardless of their race; students of any race with low grades and test scores would likely be rejected. Moreover, the decision to take race into account as one of many factors in the admissions process necessarily has a more substantial impact on the underrepresented group than on the majority group. If race were not taken into account, the probability of acceptance for minority students would be cut dramatically while non-minority students would see only a very small positive effect on their probability of admission. (Id. at 11.) The bottom line is that, however the different factors are considered for admission, the criteria employed has been the same for all students.
Moreover, the University has not relied solely on the consideration of race in admissions to achieve diversity. (See Spencer Dep. at 189.) More than 10 years ago, the University adopted the Michigan Mandate, which sought to recruit and retain underrepresented minority students. (See Ex. D at 12-13.) Since then, the University has devoted considerable efforts to creating and expanding recruitment programs to attract underrepresented minority students. Despite these efforts, the University has had to continue to consider race in making admissions decisions in order to achieve diversity. (See Provost Cantor Dep. at 59.)
-59-
C. The Consideration of Race is Competitive.
Because of the small pool of minority applicants and the low yield for admitted minority students, the University ends up admitting virtually all qualified underrepresented minorities in order to achieve diversity. (See Spencer Dep. at 83-84; Vanhecke Dep. at 36, 38.) Plaintiffs have erroneously argued, however, that because of this outcome, the admission of minority students is not based on "competitive considerations." (Pls.' Mem. at 8-9.) In fact, all applicants to LS&A compete for admission and are evaluated using the same LS&A guidelines. (See Spencer Dep. at 107-08.) The admission of nearly all qualified minority applicants is simply an outcome that is attributable to the University's efforts to increase diversity and the small pool size of minority applicants.
Plaintiffs also characterize the University's use of "protected seats" in the enrollment management process as some sort of set-aside that insulates some applicants from competition with others. (See Pls.' Mem., at 23.) This allegation is in stark contrast to the evidence, stated quite clearly by Marilyn Knepp, the EWG chair: "We don't set aside protected spaces for minority students." (Knepp Dep. at 29.) The calculation of "seats" refers not to specified slots in the class, but to the number of applications that are still expected from a number of groups. Because the University is aware that some groups of students -- including underrepresented minorities -- tend to apply later in the admissions cycle, the University paces its process so that it can consider these later applications. If all admissions decisions were made in one day -- the precipice system used by many undergraduate schools -- the University would make decisions designed to achieve the same class composition goals that the rolling admissions system is structured to achieve. That is, the University would admit, postpone, and reject the same
-60-
applicants on one day that it currently admits, postpones, and rejects over the course of several months under a rolling admissions system. This highlights the main objective of having protected categories. It is not to set aside a specific number or quota; it is instead a policy of setting a pace for making decisions that takes into account different application flows.
This process is quite distinct from the "fixed number of places" that insulated minorities from competition in Bakke. See Bakke, 438 U.S. at 316. First, the term "protected seats" refers only to an estimate of anticipated applications, and not to a set number of slots in the class. (Knepp Dep. at 17.) As discussed earlier, this is not a quota for underrepresented minority students or for any of the other groups for which the University calculates expected applications. (See id. at 17, 23.) Second, the use of "protected seats" does not insulate any students from competition. In Bakke, minority students were insulated from competition with all other applicants because there was a separate admissions committee that evaluated their applications; thus, they competed only against each other for admission. 438 U.S. at 319-20. In this case, minority applicants are all evaluated against the same guidelines and reviewed by the same counselors. (See Spencer Dep. at 27, 107-08, 273; Vanhecke Dep. at 99.) Moreover, although students in the protected categories tend to apply late, they are not the only students being considered -- or admitted -- at this point in the admissions cycle.
This is also not a process whereby "spaces are held and then filled and when that's reached, that's it, there are no more spaces. And that's just not the way -- it's not an accurate characterization at all." (Seltzer Dep. at 123.) The "seats" are not protected for specific applicants to be admitted, nor are they protected from white applicants. They are protected from timing, from being swallowed up by the rolling admissions process. If there are no qualified
-61-
students who apply from the protected categories, the number of expected applications is reduced, and other students continue to be admitted to fill the class. "The intent is to allow us to manage our admissions in such a way that we aren't overadmitting before we can get the full flow of applicants in." (Knepp Dep. at 27.) This process is consistent with Bakke.
* * *
In sum, the University of Michigan has devised an admissions process to achieve its legitimate and compelling interest in diversity. As Justice Powell explained in Bakke:
Universities . . . may make individualized decisions, in which ethnic background plays a part, under a presumption of legality and legitimate educational purpose. So long as the university proceeds on an individualized, case-by-case basis, there is no warrant for judicial interference in the academic process. If an 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, the presumption of legality might be overcome, creating the necessity of proving legitimate educational purpose.
438 U.S. at 319 n.53. The record in this case warrants such a presumption of legality.
Indeed, there are two central facts in this case, both of which are undisputed in the record and which entitle the University of Michigan to summary judgment in its favor. First, the University considers race as only one of many factors in making admissions decisions. Plaintiffs can offer no evidence to prove their allegation that "Defendants did not merely use race as a 'plus' factor or as one of many factors to attain a diverse student body." (Compl. ¶ 22). Second, the record shows that the University has no fixed racial quotas, targets, goals, or set-asides for the admission or enrollment of minority students. Accordingly, the record in this case is clear that the University's admissions policies comply with the Bakke standard.
-62-
| III. |
THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO SUMMARY
JUDGMENT ON THEIR QUALIFIED IMMUNITY DEFENSE. |
Defendants Bollinger and Duderstadt, who have been sued in their personal capacities for money damages, are entitled to summary judgment as to such claims on the strength of their qualified immunity defense. As set forth above, the University of Michigan's admissions policy is a flexible one that involves the competitive consideration of race and ethnic origin. Because the Plaintiffs cannot come forward with evidence sufficient to permit a reasonable factfinder to conclude that the University's admissions policy was inconsistent with the Bakke opinion, the individual Defendants are entitled to summary judgment with respect to their claim for qualified immunity.
Under long-standing doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) ("[T]he first step in any qualified immunity analysis is to determine whether a clearly established statutory or constitutional right has been violated.") (citation omitted). 33/ For a plaintiff "to make a successful � 1983 claim, '[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Dickerson, 101 F.3d at 1158
-63-
(quoting Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992)). In other words, the unlawfulness of the official's conduct "must be apparent." Id. 34/
As courts have consistently recognized, "there is a strong public interest in protecting public officials from the costs associated with the defense of damages actions." 35/ Crawford-El v. Britton, 118 S. Ct. 1584, 1592-93 (1998). These costs include "the expenses of litigation," the "diversion of official energy" and "the deterrence of able citizens from acceptance of public office." Id. at 1593, n.12 (quoting Harlow, 457 U.S. at 814). The qualified immunity defense therefore "permits insubstantial lawsuits" brought against individual defendants "to be quickly terminated," because judging defendant's conduct against "the state of the law at the time of the challenged conduct" is a matter that "normally can be resolved on summary judgment." Id. at 1593.
-64-
Moreover, the qualified immunity defense is a recognition that it would simply be unjust to impose personal liability for monetary damages for conduct that conformed with then-prevailing legal rules. As the Supreme Court emphasized earlier this year, the defense "avoids the unfairness of imposing liability on a defendant who 'could not reasonably be expected to anticipate subsequent legal developments, nor . . . fairly be said to "know" that the law forbade conduct not previously identified as unlawful.'" Id. (quoting Harlow, 457 U.S. at 818). See also Jackson-El v. Winsor, 986 F. Supp. 440, 443 (E.D. Mich. 1997) (Duggan, J.) (same).
Once a government official raises a defense of qualified immunity by filing a motion for summary judgment, the analysis proceeds in two steps. First, a court is to determine the contours of a plaintiff's "clearly established" rights. Second, the court is to determine whether the plaintiff has come forward with "'sufficient facts supported by sufficient evidence to indicate what [the officer] allegedly did was objectively unreasonable in light of [the] clearly established constitutional rights.'" Dickerson, 101 F.3d at 1158 (quoting Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994)); Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir. 1994) (same).
| A. |
The Individual Defendants Cannot be Held Liable for Damages for
Carrying Out a Policy Consistent with the Bakke Decision. |
The first step of this analysis is quite simple. "In this circuit, a finding of a clearly established constitutional right must generally be supported by precedent from the Supreme Court, or this circuit, or in the alternative, by decisions from other circuits." Mumford v. Zieba, 4 F.3d 429, 432 (6th Cir. 1993) (citation omitted). It is the plaintiff's obligation "to establish, 'in the light of pre-existing law' that the unlawfulness . . . was apparent." Rich v. City of Mayfield
-65-
Heights, 955 F.2d 1092, 1097 (6th Cir. 1992) (citation omitted). Plaintiffs cannot meet this obligation. 36/
In addition, Plaintiffs may not rely on cases from outside the Sixth Circuit unless such authority is "so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting." Marsh v. Arn, 937 F.2d 1056, 1068 (6th Cir. 1991) (quoting Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)); see also Seiter, 858 F.2d at 1177 (permitting reliance on authority from a different circuit only in "an extraordinary case").
-66-
As explained above (supra, pp. 32-47), the Supreme Court's opinion in Bakke permits the "competitive consideration" of race as a factor in admission, but forbids the imposition of an inflexible quota or a process that insulates minority applicants from competition with the balance of the applicant pool. See Bakke, 438 U.S. at 311-324. There is not, as there cannot be, any contrary authority in the Sixth Circuit. Accordingly, the individual Defendants are entitled to summary judgment.
| B. |
The Undisputed Evidence Shows that the University of Michigan's
Admissions Policy Satisfies the Bakke Standard. |
The record in this case demonstrates that the University of Michigan has not violated Plaintiffs' "clearly established" constitutional rights. While the Plaintiffs allege that applicants "from disfavored racial groups were not compared directly to applicants from favored racial groups," (Compl. ¶ 20), and that Defendants "did not merely use race as a 'plus' factor," (Compl. ¶ 22), there is no evidence in the record to support these allegations. Its absence is quite easily explainable: the allegations just are not true. The record makes clear that, as demonstrated above, LS&A's admissions policy -- both on its face and as applied -- entails precisely the competitive consideration of race as a factor that Bakke approves. Because the Plaintiffs are unable to come forward with sufficient evidence to permit a reasonable factfinder to conclude that the individual Defendants have violated their clearly established constitutional rights, these individual Defendants are entitled to summary judgment on Plaintiffs' damages claims.
-67-
| IV. |
THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN IS
ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS' DAMAGES
CLAIMS UNDER TITLE VI OF THE CIVIL RIGHTS ACT. |
Plaintiffs seek damages from the Board of Regents of the University of Michigan, invoking Title VI of the Civil Rights Act. (See Compl. 32.) The Board of Regents, as an arm of the state of Michigan, is generally immune under the Eleventh Amendment from being sued for damages in federal court. See Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 217 n.3 (1985); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Estate of Ritter v. University of Mich., 851 F.2d 846, 847 n.4 (6th Cir. 1988).
A state may, however, waive its immunity from suit as a condition on its receipt of federal funds. The Supreme Court has made clear that Title VI, like Title IX, provides a damages action against entities that receive federal funds. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992). "The two statutes [Title VI and Title IX] operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds." Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989, 1997 (1998). Title VI also expressly abrogates the Board of Regents' sovereign immunity. 42 U.S.C. � 2000d-7. Thus, by accepting federal funds, the Board of Regents of the University of Michigan consents to being sued for damages in federal court.
The question that remains is the scope of that agreement. As the Court noted in Lago Vista, the statute's "contractual nature has implications for our construction of the scope of available remedies." Lago Vista, 118 S. Ct. at 1998. Accordingly, a court "examine[s] closely the propriety of private actions holding the recipient liable in monetary damages for
-68-
noncompliance with the condition." Id. Specifically, where a state's liability is inferred from its acceptance of federal funds, the state must "voluntarily and knowingly accept[] the terms of the 'contract.'" Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 37/ Because there can "be no knowing acceptance if a State is unaware of the conditions," id., a damages action is permitted under Title VI only where it would be "obvious that the grantee was aware that it was administering the program in violation of the [law]." Guardians Ass'n. v. Civil Serv. Comm'n, 463 U.S. 582, 598 (1983). In other words, damages are not available against the recipient of federal funds if the recipient is not on notice regarding conduct that will subject it to liability in damages.
The Court's opinions in Guardians, Franklin, Pennhurst and Lago Vista thus forbid the imposition of a damages remedy against the recipient of federal funds where the recipient's conduct does not violate clearly established legal principles. Cf. United States v. Lanier, 520 U.S. 259, 270 (1997) (where Congress would not intend to impose liability without giving defendant "fair warning," liability will not be imposed unless "the contours of the right violated are sufficiently clear that a reasonable official would understand that what he is doing violates that right.") (citation omitted). This standard bars these claims for damages against the Board of Regents. Where, as here, a recipient of federal funds establishes policies that are fully consistent
-69-
with the Supreme Court's statement of the governing legal principles (Bakke), it is "sensible to assume that Congress did not envision a recipient's liability in damages." Lago Vista, 118 S. Ct. at 1992.
As demonstrated more fully above, see supra, pp. 54-62, the University of Michigan's admissions policies under which Defendants denied Plaintiffs' applications for admission are flexible policies involving the competitive consideration of race and ethnicity in the admissions process. The policies comply fully with the decision in Bakke, and therefore cannot be said to be in violation of "clearly established" legal rules. Therefore, at the very least, the Board of Regents of the University of Michigan (like the individual Defendants, who enjoy a "qualified immunity") are entitled to summary judgment on Plaintiffs' claims for monetary damages.
-70-
CONCLUSION
For the foregoing reasons, this Court should grant Defendants' Motion for Summary Judgment and dismiss Plaintiffs' claims.
| Dated: May 3, 1999 |
Respectfully submitted,
______________________________
John H. Pickering
John Payton
Jane Sherburne
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000
AND
Philip J. Kessler
P15921
Leonard M. Niehoff
P36695
BUTZEL LONG
350 South Main Street, Suite 300
Ann Arbor, MI 48104
(313) 213-3625
|
-71-
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
|
________________________________
JENNIFER GRATZ, et al.,
Plaintiffs,
v.
LEE BOLLINGER, et al.,
Defendants.
________________________________ |
)
)
) Civil Action No. 97-75231
)
) Hon. Patrick J. Duggan
) Hon. Thomas A. Carlson
)
)
)
)
)
|
CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of May, 1999, I caused copies of Defendants' Motion for Summary Judgment and Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment and Memorandum in Support of Defendants' Cross-Motion for Summary Judgment to be served by first-class mail, postage pre-paid, on:
Kirk Kolbo, Esq.
Maslon, Edelman, Borman & Brand
3300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402
Michael E. Rosman, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, DC 20036
Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak, P.C.
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180-6303
|
______________________________
Brigida Benitez
|
