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No. 01-1333, 01-1416, 01-1418

____________________________________________

United States Court of Appeals
for the
Sixth Circuit

___________________________

JENNIFER GRATZ, et al.,
                                        Plaintiffs-Appellants, (01-1333, 01-1418)
                                        Plaintiffs-Appellees, (01-1416)

v.

LEE BOLLINGER, et al.,
                                        Defendants-Appellants, (01-1333, 01-1418)
                                        Defendants-Appellants, (01-1416)

and

EBONY PATTERSON, et al.,
                                        Intervening Defendants-Appellees
                                        (01-1333, 01-1416, 01-1418).

___________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN (DUGGAN, J.)

____________________________________________

FINAL BRIEF OF APPELLEES (01-1333, 01-1418)
AND APPELLANTS (01-1416)

____________________________________________

PHILIP J. KESSLER, P15921
LEONARD M. NIEHOFF, P36695
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625
JOHN H. PICKERING
JOHN PAYTON
BRIGIDA BENITEZ
STUART F. DELERY
ANNE HARKAVY
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Counsel for Defendants-Appellants



UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the table of contents in the brief of the
party. See copy of 6th Cir. R. 26.1 on page 2 of this form.)

Jennifer Gratz and Patrick Hamacher

v.

Lee Bollinger, et al.
and
Ebony Patterson, et al.

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Lee Bollinger and James J. Duderstadt* (Name of Party)
makes the following disclosure:

  1. Is said party a subsidiary or affiliate of a publicly owned corporation? No

    If the answer is YES, list below the identity of the parent corporation or affiliate and the
    relationship between it and the named party:

  2. Is there a publicly owned corporation, not a party to the appeal, that has a financial
    interest in the outcome? No

    If the answer is YES, list the identity of such corporation and the nature of the financial interest:
__________/s/__________ ____7/30/01____
(Signature of Counsel) (Date)

6CA-1                         (Over)
Page 1

*         The Board of Regents, as a state entity created by the Michigan Constitution, is exempt
            from the requirements of 6 Cir. R. 26.1.


TABLE OF CONTENTS

TABLE OF AUTHORITIES … … … iii

STATEMENT IN SUPPORT OF ORAL ARGUMENT … … … viii

JURISDICTIONAL STATEMENT … … … 1

ISSUES PRESENTED … … … 1

STATEMENT OF THE CASE … … … 1

STATEMENT OF FACTS … … … 5

  1. The University's Educational Mission … … … 5

  2. LSA Admissions … … … 6
    1. Overview of the Admissions Process … … … 6

    2. Operation of the Admissions Process: 1999-2000 … … … 8

    3. Discontinued Admissions Programs: 1995-1998 … … … 12

    4. Challenges to Enrolling Meaningful Numbers of Minority Students … … … 15

SUMMARY OF ARGUMENT … … … 18

ARGUMENT … … … 21

Standard of Review 21

  1. CONTROLLING PRECEDENT PERMITS THE
    COMPETITIVE CONSIDERATION OF RACE AND
    ETHNICITY IN UNIVERSITY ADMISSIONS … … … 21
  2. OBTAINING THE EDUCATIONAL BENEFITS OF
    DIVERSITY IS A COMPELLING STATE INTEREST THAT
    JUSTIFIES CONSIDERING RACE AND ETHNICITY IN
    UNIVERSITY ADMISSIONS … … … 24
    1. Plaintiffs Mischaracterize the Relevant State Interest … … … 25
    2. The Diversity Rationale Is Binding … … … 29
      1. Courts Have Treated the Diversity Rationale as
        Controlling … … … 29
      2. The Diversity Rationale Is Controlling UnderMarks
        v. United States
        … … … 30
    3. The University's Interest in the Educational Benefits of
      Diversity is Compelling … … … 33
  3. PLAINTIFFS WRONGLY SUGGEST THAT THERE ARE
    DISPUTED QUESTIONS OF MATERIAL FACT
    CONCERNING THE EDUCATIONAL BENEFITS OF
    DIVERSITY … … … 40
  4. THE LSA ADMISSIONS PROGRAMS ARE NARROWLY
    TAILORED … … … 44
    1. Bakke's Principles of Narrow Tailoring … … … 45
    2. 1999-2000 … … … 47
    3. 1995-1998 … … … 50
    4. The University Cannot Achieve Meaningful Diversity
      Without Considering Race and Ethnicity in Admissions … … … 54
  5. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO
    QUALIFIED IMMUNITY … … … 58

CONCLUSION … … … 60

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

APPENDIX DESIGNATIONS


ii


TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995) … … … 25, 26

Advocacy Organization for Patients and Providers v. Auto Club
Insurance Association,
176 F.3d 315 (6th Cir.1999) … … … 31

Agostini v. Felton,
521 U.S. 203 (1997) … … … 28

Alexander v. Sandoval,
121 S. Ct. 1511 (2001) … … … 24

Ambach v. Norwick,
441 U.S. 68 (1979) … … … 37

Associated General Contractors of Ohio, Inc. v. Drabik,
214 F.3d 730 (6th Cir. 2000), cert. denied, 121 S. Ct. 1089 (2001) … … … 46

Bernal v. Fainter,
467 U.S. 216 (1984) … … … 58

Bratton v. City of Detroit,
704 F.2d 878 (6th Cir. 1983), modified on other grounds,
712 F.2d 722 (6th Cir. 1983) … … … 33

Brewer v. West Irondequoit Central School District,
212 F.3d 738 (2d Cir. 2000) … … … 29

Brown v. Board of Education,
347 U.S. 483 (1954) … … … 22

Burson v. Freeman,
504 U.S. 191 (1992) … … … 36-37

iii


California Democratic Party v. Jones,
530 U.S. 567 (2000) … … … 33

City of Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283 (1982) … … … 54

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) … … … 25-26, 35

Dickerson v. McClellan,
101 F.3d 1151 (6th Cir. 1996) … … … 21, 58

Eisenberg v. Montgomery County Public Schools,
197 F.3d 123 (4th Cir. 1999), cert. denied, 529 U.S. 1019 (2000) … … … 29

Friends of the Earth, Inc. v. Laidlaw Environmental Services., Inc.,
528 U.S. 167 (2000) … … … 53, 54

Fullilove v. Klutnik,
448 U.S. 448 (1980) … … … 26

Grutter v. Bollinger,
188 F.3d 394 (6th Cir. 1999) … … … 2

Grutter v. Bollinger,
137 Supp.2d 821 (E.D. Mich. 2001) … … … 30, 58

Harlow v. Fitzgerald,
457 U.S. 800 (1982) … … … 59

Hohn v. United States,
534 U.S. 236 (1998) … … … 28

Hopwood v. Texas,
78 F.3d 932 (5th Cir. 1996) … … … 24, 30

Hunter ex rel Brandt v. Regents of University of California,
190 F.3d 1061 (9th Cir. 1999), cert. denied 121 S. Ct. 186 (2000) … … … 39

iv


Hunter v. Bryant,
502 U.S. 224 (1991) … … … 60

Johnson v. Regents of University of Georgia,
106 F. Supp. 2d 1362 (S.D. Ga. 2000), appeal docketed,
No. __ (11th Cir. __ 2000) … … … 29, 30

Johnson v. Transportation Agency,
480 U.S. 616 (1987) … … … 25

Keyishian v. Board of Regents,
385 U.S. 589 (1967) … … … 18, 22

Marks v. United States,
430 U.S. 188 (1977) … … … 27

Marsh v. Arn,
937 F.2d 1056 (6th Cir. 1991) … … … 59

Metro Broadcasting, Inc. v. FCC,
497 U.S. 547 (1990) … … … 24

Minnick v. California Department of Corrections,
452 U.S. 105 (1981) … … … 24

Oliver v. Kalamazoo Board of Education,
706 F.2d 757 (6th Cir. 1983) … … … 29

Plyler v. Doe,
457 U.S. 202 (1982) … … … 37

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

Regents of the University of Michigan v. Ewing,
474 U.S. 214 (1985) … … … 23, 43, 51

v


Rosenberger v. Rector and Visitors of the University of Virginia,
515 U.S. 819 (1995) … … … 23

Rust v. Sullivan,
500 U.S. 173 (1991) … … … 28

Smith v. University of Washington Law School,
233 F.3d 1188 (9th Cir. 2000), cert. denied,
69 U.S.L.W. 3593 (U.S. Feb. 21, 2001) (No. 00-13) … … … 27, 29

Steel Co. v. Citizens for a Better Environment,
523 U.S. 83 (1998) … … … 54

Sweezy v. New Hampshire,
354 U.S. 234 (1957) … … … 21, 23

Triplett Grille, Inc. v. City of Akron,
40 F.3d 129 (6th Cir. 1994) … … … 28

Tuttle v. Arlington County School Board,
195 F.3d 698 (4th Cir. 1999), cert. dismissed, 529 U.S. 1050 (2000) … … … 29, 52

United States v. Michigan,
940 F.2d 143 (6th Cir. 1991) … … … 42

United States v. Oregon State Medical Society,
343 U.S. 326 (1952) … … … 53, 54

United States v. Ovalle,
136 F.3d 1092 (6th Cir. 1998) … … … 26-27

United States v. Paradise,
480 U.S. 149 (1987) … … … 52

Wessman v. Gittens,
160 F.3d 790 (1st Cir. 1998) … … … 29, 52

Wilson v. Layne,
526 U.S. 603 (1999) … … … 59

vi


Wittmer v. Peters,
87 F.3d 916 (7th Cir. 1996) … … … 26

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) … … … 25

STATUTES

28 U.S.C. § 1291 … … … 1

28 U.S.C. § 1292(a) … … … 1

28 U.S.C. §1292(b) … … … 1

Fed. R. Civ. P. 56(e) … … … 42

vii


STATEMENT IN SUPPORT OF ORAL ARGUMENT

This case presents an issue of great national importance whose resolution
will affect the admissions program of every public and private institution of higher
education in this country. The University of Michigan believes that oral argument
in this matter would aid the Court.

viii


JURISDICTIONAL STATEMENT

Defendants concur in Plaintiffs' jurisdictional statement for all three appeals,
except for Plaintiffs' reliance on 28 U.S.C. § 1292(a) as the basis for their appeal
from the portion of the district court's order upholding the 1999-2000 admissions
policies of the University of Michigan's undergraduate college. (See Defs.'
Statement Respecting Appellate Jurisdiction, filed in this Court on March 14,
2001). This Court need not resolve this disagreement, however, because it has
jurisdiction over all relevant issues under 28 U.S.C. §1292(b) or §1291.

ISSUES PRESENTED

  1. Whether a public institution of higher education has a compelling state
    interest in obtaining the educational benefits of diversity that justifies the
    competitive consideration of an applicant's race in admissions.
  2. Whether the admissions programs employed by the University of
    Michigan's College of Literature, Science and the Arts from 1995-2000 are
    narrowly tailored to achieve that interest.
  3. Whether the individual defendants are entitled to qualified immunity from
    Plaintiffs' damages claims.

STATEMENT OF THE CASE

This case presents a constitutional question of profound national
significance: whether, consistent with the Fourteenth Amendment, a university
may consider race and ethnicity as one of many factors in admissions to obtain the

1


educational benefits that flow from a racially and ethnically diverse student body.
In Regents of the University of California v. Bakke, 438 U.S. 265, 320 (1978), the
Supreme Court said that it may, holding that a "properly devised admissions
program involving the competitive consideration of race and ethnic origin" is
constitutional. The Supreme Court has never reversed or questioned this holding.
Hundreds of colleges and universities -- including the University of Michigan --
have relied on Bakke in crafting admissions programs to achieve the educational
benefits of a racially and ethnically diverse student body. 1/

Plaintiffs seek to upset this settled law. In 1997, they sued President Lee
Bollinger, former President James J. Duderstadt, and the Board of Regents of the
University of Michigan (collectively, "the University"), challenging the
University's College of Literature, Science, and the Arts' ("LSA") consideration of
race in admissions on behalf of themselves and a class of similarly situated
individuals. A group of current and prospective LSA students later intervened as
defendants. See Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999).

It is undisputed that the University considers race and ethnicity as one of
many factors in admissions. It does so to obtain the educational benefits of

___________________
1/       Because Title VI has been read to incorporate constitutional requirements, see Regents of
the Univ. of Cal. v. Bakke,
438 U.S. 265, 287 (1978), and applies to all recipients of federal
funding, this case will affect both public and private schools.

2


diversity. 2/ The University submitted reports from nationally recognized experts in
history, sociology, education, and psychology, confirming the longstanding
consensus among educators that there is a clear relationship between the diversity
of a university's student body and the quality of the educational experience it
offers. The parties conducted nearly three years of intense discovery. Plaintiffs
deposed every University expert they requested, including Dr. Patricia Y. Gurin,
Dr. Stephen Raudenbush, and Dr. William Bowen; they proposed their own
experts; they even added additional experts when discovery re-opened after
Defendant-Intervenors joined the case. Yet, Plaintiffs found nothing to dispute the
University's evidence.

After discovery, Plaintiffs and the University (supported by Defendant-
Intervenors) filed cross-motions for summary judgment. The University
maintained that Bakke governs this case and that LSA's admissions program
complies with Bakke. Plaintiffs urged the district court to ignore Bakke and to hold
any consideration of race unconstitutional. At oral argument, both parties
represented that trial was unnecessary because the only disagreements were
about what legal conclusions to draw from the undisputed facts. (R-204, Transcript at 8,

___________________
2/       Although Defendant-Intervenors argued that "LSA has a compelling interest
in remedying the University's past and current discrimination against minorities,"
the University has "never justified [its] race-conscious admissions policies on
remedial grounds," and does not do so here. (R-206, Opinion at 7 & n.5, JA-49.)
Defendant-Intervenors advance their position in another pending appeal (01-1438).

3


12-13, 57, JA-4137, 4141-42, 4186.) Indeed, Plaintiffs' counsel expressly
conceded that there were no factual disputes about the educational benefits of
racial and ethnic diversity, that such benefits exist, and that they are "something
that's valuable, maybe even important." (Id., at 28, JA-4157.)

The district court's December 13, 2000, opinion held that, under strict
scrutiny, achieving the educational benefits of a racially and ethnically diverse
student body "constitutes a compelling governmental interest in the context of
higher education justifying the use of race as one factor in the admissions process."
(R-206, Opinion at 15, JA-57.) The court found that the University presented
"solid evidence regarding the educational benefits that flow from a racially and
ethnically diverse student body," (id. at 20, JA-62 (emphasis added)), and that
"Plaintiffs have presented no argument or evidence rebutting the University['s]
assertion that a racially and ethnically diverse student body gives rise to
educational benefits for both minority and non-minority students," (id. at 23, JA-
65).

The court also concluded that LSA's 1999-2000 3/ admissions programs
"represent[] a permissible use of race" because they are narrowly tailored to
achieve that interest, but that certain discontinued features, taken together, made

___________________
3/       Unless otherwise noted, years refer to the year of the fall entering class. For
example, the "1999 program" was used to admit the class entering in Fall 1999.

4


the 1995-98 programs impermissible. (Id., at 31, JA-73.) The court, inter alia,
granted the University's motion for summary judgment regarding the 1999-2000
programs; denied Plaintiffs' request for injunctive relief; granted Plaintiffs' motion
regarding the 1995-98 programs; and dismissed the individual defendants based on
qualified immunity. (Id., at 50, JA-92.)

STATEMENT OF FACTS

A.       The University's Educational Mission.

The University of Michigan is a preeminent public institution of higher
education, of which LSA is the largest undergraduate division. A central part of
the University's mission is to provide an education that "open[s] the minds and
challenge[s] the thoughts of students." (R-161, Appendix, Cantor Dep. at 45, JA-
1438.) 4/ The University's educational judgment is that a broadly diverse student
body -- with different racial, ethnic, cultural, socioeconomic, and geographic
backgrounds, and varying interests, achievements, experiences, and beliefs -- is an
essential component and catalyst of this educational experience. (id., JA-1438; R-
206, Opinion at 3, JA-45.) Race or ethnicity is a crucial, but single, element of this
diversity. (R-161, Appendix, Spencer Dep. at 301-02, JA-1483-84.) As the
district court found, racial and ethnic diversity is "an integral component of [the

___________________
4/       Citations to exhibits attached to Plaintiffs' summary judgment papers refer
to "Affidavit-Exhibits." Citations to exhibits attached to Defendants' summary
judgment papers refer to "Appendix."

5


University's] mission" because it "increase[s] the intellectual vitality of [its]
education, scholarship, service, and communal life." (R-206, Opinion at 3, JA-45.)
Thus, to "facilitate the University's goal" of obtaining the educational benefits of
diversity, LSA considers race and ethnicity as one of many factors as it "strives to
compose a class of students" that is broadly diverse. 5/ (Id., at 3-4, JA-45-46.)

B.       LSA Admissions.

            1.       Overview of the Admissions Process.

The Office of Undergraduate Admissions ("OUA") reviews all 13,000
applications LSA receives each year. To promote consistency, OUA uses written
guidelines, which are reviewed annually and altered periodically. (Compare, e.g.,
R-79, Affidavit-Exhibits, Ex. DD, 1998 Guidelines, JA-545-79 with R-156,
Affidavit-Exhibits, Ex. A, 1999 Guidelines, JA-1084-1111.) These guidelines
"blend the consistency of a formula with the flexibility of a review that is
ultimately a matter of human judgment . . . ." (R-156, Affidavit-Exhibits, Ex. D,
2000 Selection Index ("SI") Guidelines, at 1, JA-1147.) Recognizing that
"[a]dmissions is more art than science," the guidelines provide structure but give

___________________
5/       Plaintiffs suggest that the University considers race in admissions for
reasons other than achieving the educational benefits of diversity. (Plaintiffs'
Brief, 5/7/01 ("Br."), at 47.) This is not true and it is not an issue: the parties
stipulated that "it is undisputed that the University considers race" in admissions
"[t]o facilitate diversity." (R-205, Joint Summary of Undisputed Facts, at 1, JA-
4093.)

6


counselors discretion to make subjective judgments, based on their expertise, in
evaluating applications. (id., JA-1147.)

Admission to LSA is selective because thousands more students apply each
year than can be admitted. For example, in 1997, LSA enrolled only 3,958
freshmen from over 13,500 applications. (R-206, Opinion at 3, JA-45.) As
Plaintiffs conceded, LSA only admits fully qualified applicants. (Id., at 42, JA-84;
R-204, Transcript at 13, JA-4142 ("We're not here suggesting that the University
accepts unqualified minority students over qualified non-minority students.").)
The University has made a judgment that "qualifications" are not limited to high
school grade point average and standardized test scores, and that an applicant with
somewhat higher grades and scores is not necessarily "more qualified" than
another applicant. (See R-156, Affidavit-Exhibits, Ex. D, 2000 SI Guidelines, JA-
1147.) Many factors, academic and otherwise, help reveal a student's potential to
contribute -- individually, and in conjunction with classmates -- to the educational
environment at LSA. (See id. , JA-1147.) Admission is neither a reward nor an
entitlement based on past performance in high school or on standardized tests. (R-
161, Appendix, Spencer Dep. at 301-02, 306, JA-1483-84, 1485; R-162, Appendix,
Bowen Rep. at 4, 10, JA-1500, 1506.)

While students with very low grades and test scores typically are denied
admission, and students with very high grades and test scores typically are

7


admitted, most applicants do not fall into either of these categories. (R-162,
Appendix, Raudenbush Supp. Rep., 3/3/99, at 6, JA-1871.) For that large pool of
qualified applicants in the middle range, many other factors -- including, but not
limited to, race and ethnicity -- can make a difference in admissions decisions.
(Id., JA-1871.)

            2.       Operation of the Admissions Process: 1999-2000.

Each application is reviewed individually by one of OUA's approximately
20 professional admissions counselors. (R-206, Opinion at 35, JA-77.) Each
counselor reviews all applications from an assigned geographic territory. (id.,
JA-77.) "There is no separate review or assignment of under-represented minority
applicants." (id., JA-77.) All applications are evaluated based on the same set of
factors. (R-156, Affidavit-Exhibits, Ex. D, 2000 SI Guidelines, JA-1147.) LSA
does not employ quotas, numerical targets or goals for admission or enrollment of
minority students. (R-206, Opinion at 31-32, JA-73-74.)

Counselors evaluate applications aided by a "selection index" worksheet
listing factors the University believes important in composing a class, and select a
numerical value for each factor, up to a possible total of 150 points. (R-156,
Affidavit-Exhibits, Ex. D, 2000 SI Guidelines, JA-1147.) Academic factors
account for up to 110 points. Eighty points are available for academic GPA from

8


tenth and eleventh grades, and 12 points are available for standardized test scores. /
(Id., at 1, JA-1147.) Every applicant from the same school receives the same
number of points -- up to ten -- for the academic strength of that school. (Id., at 2,
JA-1148.) In addition, counselors subtract up to four points for an applicant who
chose a weaker curriculum when a stronger one was available, and add up to eight
points for an applicant who selected more challenging courses. (Id., at 3-4, JA-
1149-50.)

Applicants receive up to 40 points for other factors that indicate an
applicant's potential contribution to LSA. (Id., at 4, JA-1150.) They may receive
20 points for one of the following: membership in an underrepresented minority
group, 7/ socioeconomic disadvantage, attendance at a predominantly minority high

___________________
6/       High school grades clearly have predictive value. LSA (like many other
selective schools) has made an educational judgment to place relatively little
emphasis on standardized test scores, in contrast, because of their modest
additional predictive value. (R-156, Affidavit-Exhibits, Ex. D, 2000 SI Guidelines,
at 1, 4, JA-1147, 1150.) Considering scores increases the prediction of an
applicant's college freshman grades by only three or four percent over using grades
alone. (R-162, Appendix, Steele Rep. at 5, JA-1929.)

7/       LSA considers African-Americans, Hispanics, and Native Americans to be
underrepresented minorities. (R-161, Appendix, Spencer Dep. at 73, JA-1471.)
Plaintiffs' assertion that LSA "arbitrari[ly]" and "unaccountably" considers race or
ethnicity only for applicants from these three groups, (Br. at 37-38), is wrong.
Because LSA receives sufficient numbers of applications from other racial and
ethnic groups, it can enroll meaningful numbers of such students without
considering their race or ethnicity. (See R-161, Appendix, Cantor Dep. at 72, JA-
1445.)

9


school, athletics, or at the Provost's discretion. (Id., at 7-8, JA-1153-54.)
Reflecting the University's commitment both to state residents and to broader
geographic diversity, counselors assign ten points for Michigan residency, six
additional points for residency in underrepresented Michigan counties, and two
points for residency in underrepresented states. (Id., at 4-5, JA-1150-51.)
Applicants receive one or four points for alumni relationships. (Id., at 5, JA-1151.)
The personal essay can earn up to three points. (Id., at 6, JA-1152.) Based on an
applicant's activities, work experience, and awards, counselors may assign up to
five points for leadership and service, and five more points for personal
achievement. (Id., at 6-7, JA-1152-53.)

The counselor totals the points to calculate the selection index score, which
is entered into OUA's database. That score is sometimes, but not always, the basis
for the ultimate admissions decision. (R-156, Affidavit-Exhibits, Ex. F, Defs.
Supp. Resp. Int. 1, at 3, JA-1162.)

The University recognizes that a selection index score may not always
reflect an applicant's potential contribution to LSA. Therefore, OUA asks
counselors to identify applications that would benefit from review by the
Admissions Review Committee ("ARC"), which evaluates more complex cases
through an informal discussion format. (See id. at 2-3, JA-1161-62.) A counselor
may, in his or her discretion, "flag" an application for ARC discussion if the

10


applicant: (1) is academically prepared to do the work at LSA; (2) has a selection
index score above a certain level; and (3) possesses at least one of a variety of
qualities or characteristics important to the University's composition of its
freshman class, such as underrepresented race, ethnicity, or geography; high class
rank; socioeconomic disadvantage; unique life experiences, challenges,
circumstances, interests or talents; connections to the University community; or
athletics. (R-206, Opinion at 36, JA-78.) For example, a counselor might flag an
applicant whose outstanding essay described exceptional community leadership,
but whose selection index was average.

LSA makes admissions decisions throughout the admissions season. Those
decisions are generally executed in one of two ways. First, the Enrollment
Working Group ("EWG"), which monitors enrollment during the admissions
season, sets selection index score parameters that determine the admissions action
-- admit, defer, or deny -- for all reviewed applications then pending in OUA's
database. Decisions are made periodically, and EWG adjusts the parameters, when
necessary, to pace admissions appropriately. (See R-156, Affidavit-Exhibits, Ex.
F, Defs. Supp. Resp. Int. 1, at 3, JA-1162.) Second, flagged applications not
admitted based on the EWG parameters are forwarded to the ARC, which decides
whether to admit, defer, or deny, after considering the applicant's file. (id., JA-
1162.)

11


            3.       Discontinued Admissions Programs: 1995-1998.

The admissions programs used before 1999 differed from the current system
in three ways that, taken together, the district court concluded were unlawful. The
University has undisputedly eliminated all three practices. (R-156, Affidavit-
Exhibits, Ex. F, Defs. Supp. Resp. Int. 1, at 1, 4, JA-1160, 1163; R-161, Appendix,
Spencer Dep. at 143-44, JA-1476-77.) Plaintiffs' present-tense descriptions of
these abandoned practices are therefore misleading. 8/ (See Br. at 8-15.)

First, before the selection index, counselors used "grids" to assist in making
admissions decisions. Each grid's horizontal axis listed standardized test score
ranges, and its vertical axis listed ranges of "GPA2" -- an index incorporating
multiple factors, including academic GPA, school strength, curriculum rigor, and
exceptional leadership or extracurricular activities. Each grid cell listed admission
action options. 9/ (E.g., R-78, Affidavit-Exhibits, Ex. Y, 1995 Guidelines, at 1-4,
JA-436-39.)

___________________
8/       Plaintiffs invoke a memo entitled "Admissions Policy for Minority
Students." (Br. at 8-9.) This memo was created in 1995, well before the current
admissions program was implemented. Moreover, nothing in the memo creates
admissions standards separate from the guidelines that apply to all applicants.

9/       In 1995, when Jennifer Gratz applied, over 1400 non-underrepresented
minority students with lower GPA2 or standardized test scores than hers were
admitted, while over 2000 non-underrepresented minority students with higher
GPA2 or standardized test scores were rejected. (See R-79, Affidavit-Exhibits, Ex.
GG, Profiles, JA-590.)

12


OUA accounted for other factors, including Michigan residency, alumni
status, and race, in different ways between 1995 and 1997: by creating multiple
grids, listing different "action codes" within the same grid, and/or including that
factor in GPA2. In 1995, four grids were used: (1) in-state non-minority
applicants, (2) out-of-state non-minority applicants, (3) in-state minority
applicants, and (4) out-of-state minority applicants. (R-206, Opinion at 30, JA-72.)
In 1996, only two grids were used (one for in-state and legacy students and one for
out-of-state students), and the cells listed two rows of "action codes" -- one for
underrepresented minorities and another for non-minorities. (id., JA-72.) In
1997, two grids were used again, but race was considered in two ways: it was
partly factored into GPA2, and partly accounted for in the distribution of action
codes. (id., JA-72.)

Second, in 1999, OUA eliminated the portion of the guidelines that
permitted clerks to have rejection letters sent to some applicants with very low
grades and scores without counselor review, while requiring counselor review for
all applicants from certain groups, including athletes, private school students, and
underrepresented minorities. (R-156, Affidavit-Exhibits, Ex. F, Defs. Supp. Resp.
Int. 1, at 4, JA-1163; R-78, Affidavit-Exhibits, Ex. Y, 1995 Guidelines, at 5-6, JA-
440-41.) Despite the guidelines' language, however, the clerks generally
forwarded all applications to counselors because they felt uncomfortable rejecting

13


applicants without counselor input. (See R-161, Appendix, Gauss Dep. at 61-62,
JA-1457-58.)

Third, in 1999, LSA discontinued its use of so-called "protected seats" as an
enrollment management technique for its rolling admissions process. (R-156,
Affidavit-Exhibits, Ex. F, Defs. Supp. Resp. Int. 1, at 4, JA-1163.) The practice
had been used because students from certain groups -- such as minorities, ROTC
candidates, recruited athletes, and foreign students -- tend to apply later in the
admissions season. (See R-161, Appendix, Spencer Dep. at 177-78, JA-1478-79.)
Towards the end of each admissions cycle, EWG projected the number of
applications expected from these groups, based on the number received the prior
year, (see id. , Appendix, Knepp Dep. at 17, JA-1461), so OUA could pace
admissions decisions to permit consideration of these anticipated applications
before the class was filled, (see id. at 23, 28, JA-1463, 1465). The groups for
which EWG made projections were called "protected categories," and the
projections were called "protected seats." Students from "protected categories"
who applied late in the admissions cycle were not guaranteed admission; they were
evaluated in the same way, against the same criteria, as all other applicants,
regardless of race. (See id., Appendix, Spencer Dep. at 108, JA-1475.)

            4.       Challenges to Enrolling Meaningful Numbers of Minority
                      Students.

14


The undisputed evidence shows that to provide the educational benefits of
racial and ethnic diversity to all students, learning environments must include more
than token numbers of minority students. (R-162, Appendix, Gurin Supp. Rep.,
7/13/00, at 3, JA-1834.) In those circumstances, minority students are less likely to
feel isolated and pressured to espouse a view stereotypically attributed to their
group. (Id., at 4, JA-1835.) In addition, when minority students are present in
sufficient numbers "to expose heterogeneity within the groups," all students view
each other as individuals, recognizing and appreciating commonalities and
differences between and within races. (Id., at 3-5, JA-1834-36.)

LSA vigorously recruits qualified minority applicants. (R-206, Opinion at
38, JA-80; R-161, Appendix, Cantor Dep. at 68, JA-1444; id., Appendix,
Vanhecke Dep. at 9, JA-1486.) LSA's year-round minority recruiting efforts
include attending recruiting fairs in areas with substantial minority populations;
hosting workshops for high school counselors; coordinating campus visits for
minority high school juniors; corresponding with individual minority candidates;
and hosting a Spring Welcome Day for admitted minority students. (id.,
Appendix, Vanhecke Dep., at 11-12, JA-1487-88.) OUA maintains an office in
Detroit to recruit local high school students, most of whom are African-American.
(Id., Appendix, Spencer Dep. at 196-97, JA-1480-81.)

15


Despite LSA's efforts, recruiting is insufficient to enroll a student body with
meaningful numbers of underrepresented minority students because the pool of
qualified underrepresented minority applicants is significantly smaller than the
pool of qualified non-minority applicants. (See R-206, Opinion at 39, JA-81; R-
161, Appendix, Cantor Dep. at 59, JA-1441; id., Appendix, Vanhecke Dep. at 39,
JA-1492.) According to the expert report of Dr. Wayne Camara, College Board
Vice President of Research and Development, the pool of potential
underrepresented minority applicants with grades and test scores comparable to the
range of enrolled LSA students is quite small. / (See R-182, Defs. SJ Reply,
Camara Rep. at 9-13, 15, JA-3987-91, 3993.) For example, nationally in 1999, of
all students with a B average or above and SAT scores of 1000 or above, only 11%
were underrepresented minority students. (Id., at Table B5, JA-4016.) In Michigan
in 1999, only 8% of students with those grades and scores were underrepresented
minorities. (Id., at Table B6, JA-4017.)

___________________
10/       Plaintiffs' description of admissions data, (Br. at 19), is misleading because
it ignores the pool size disparities. First, acceptance rates are deceptive, standing
alone, because they often reflect decisions for very few applicants. For example,
in 1995, for students with 3.80-3.99 GPA, and 1400-1490 SAT scores, 97.76% of
non-minority students -- 262 of 268 -- were admitted, compared to 100% of
minority students -- 5 of 5. (R-79, Affidavit-Exhibits, Ex. FF, Profiles, JA-589;
id., Appendix, Ex. GG, Profiles, JA-590.) Second, despite the pool size disparities,
the differences in admissions rates by race are modest. In 1997, for example,
87.0% of underrepresented minority applicants were accepted, compared with
74.2% of non-minority applicants. (R-162, Appendix, Raudenbush Supp. Rep.,
3/3/99, at Table 3c, JA-1885.)

16


Intense competition with peer institutions for these highly sought-after
students compounds the pool size problem by depressing the "yield" -- the
proportion of admitted students who choose to enroll. (See id. at 13-14, JA-3991-
92; R-161, Appendix, Vanhecke Dep. at 39, JA-1492.) In an effort to enroll
meaningful numbers of minority students, OUA ends up admitting virtually all
qualified underrepresented minority applicants. (See R-161, Appendix, Vanhecke
Dep. at 38-39, JA-1491-92; id., Appendix, Spencer Dep. at 83-84, JA-1472-73.)
Indeed, Dr. Gurin concludes, based on enrollment data, that LSA only provides
some of the educational benefits of diversity because meaningful numbers of
minority students are not present in all significant learning contexts. (See R-162,
Appendix, Raudenbush Supp. Rep., 7/13/00, at Table 1, JA-1917; id., Appendix,
Gurin Supp. Rep., 7/13/00, at 5, JA-1836.)

As the district court recognized, a race-neutral admissions system would not
enable the University to enroll a diverse student body. (See R-206, Opinion at 40-
42, JA-82-84; R-161, Appendix, Cantor Dep. at 59, 80, JA-1441, 1448; R-162,
Appendix, Bowen Rep. at 12-13, JA-1508-09.) Plaintiffs submitted no evidence
suggesting otherwise. Without considering race and ethnicity in admissions, the
proportion of admitted and enrolled underrepresented minority students would

17


drop precipitously, 11/(see R-162, Appendix, Raudenbush Supp. Rep., 3/3/99, at 11,
JA-1876), leaving most of LSA's learning contexts with token numbers of
minority students, or none at all, (see id., Appendix, Raudenbush Supp. Rep.,
7/13/00, at 8, JA-1916.). Under those circumstances, the University could not
achieve the educational benefits of diversity. (id., Appendix, Gurin Supp. Rep.,
7/13/00, at 5, JA-1836.)

SUMMARY OF ARGUMENT

The district court correctly held that the University has a compelling interest
in obtaining the educational benefits that flow from a racially and ethnically
diverse student body, and that LSA's current admissions program is narrowly
tailored to achieve that interest. The Supreme Court held in Bakke that the
Constitution does not require race-blind university admissions, and that "a properly
devised admissions program involving the competitive consideration of race and
ethnic origin" satisfies the Fourteenth Amendment. 438 U.S. at 320. Bakke controls this case.

Like hundreds of other selective colleges and universities, the University of
Michigan has relied on Bakke for over two decades in designing its admissions
policies. Because public education "is the very foundation of citizenship," Brown

___________________
11/       Despite the dramatic drop in underrepresented minorities, only a slightly
higher proportion of non-minority students would be admitted. (See R-162,
Appendix, Raudenbush Supp. Rep., 3/3/99, at 11, JA-1876.)

18


v. Bd. of Educ., 347 U.S. 483, 493 (1954), seeking the academic and civic benefits
of diversity "is of paramount importance in the fulfillment of [a university's]
mission," Bakke, 438 U.S. at 313. Indeed, as Justice Powell recognized, "it 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. (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603
(1967)).

Plaintiffs make four fundamental errors in challenging the district court's
decision.

First, Plaintiffs assert the "absence of any holding" in Bakke. (Br. at 56.)
Part V.C. of Justice Powell's opinion held that race-conscious university
admissions programs are constitutional and was joined by four other Justices. See
Bakke, 438 U.S. at 320. It is therefore a holding of the Supreme Court. No
subsequent decisions have altered that holding, and this Court is bound to follow it.

Second, Plaintiffs assert that the district court was wrong to conclude that
achieving the educational benefits of diversity "constitutes a compelling
governmental interest under strict scrutiny." (R-206, Opinion at 25, JA-67.) Yet,
Justice Powell reached that very conclusion in Bakke, 438 U.S. at 311-12, and that
holding binds this Court as the narrowest grounds in support of Bakke's judgment

19


permitting race-conscious admissions. See Marks v. United States, 430 U.S. 188
(1977).

Third, after conceding the existence -- indeed, the value -- of the educational
benefits of diversity, and representing that no trial was necessary, Plaintiffs now
make a shocking about-face, contending that disputed factual issues precluded
summary judgment. This argument should be summarily rejected. The University
introduced "solid evidence regarding the educational benefits that flow from a
racially and ethnically diverse student body." (R-206, Opinion at 20, JA-62.) Faced with that evidence, Plaintiffs conceded that the benefits of diversity exist
and are "valuable," (R-204, Transcript at 28, JA-4157), and represented that no
trial was necessary on that issue because they did not and would not dispute that
proposition,(see id. at 12-13, JA-4141-42). Plaintiffs now act like that did not
happen. The record, however, is clear as to both the educational benefits of
diversity and Plaintiffs' concession.

Fourth, Plaintiffs assert, without record support, that LSA's admissions
program relies on "systematic exclusion and the absence of individual,
particularized consideration" of applicants. (Br. at 32.) The district court correctly
found that "LSA's current program does not utilize rigid quotas or seek to admit a
predetermined number of minority students." (R-206, Opinion at 31-32, JA-73-
74.) Instead, "certain minority applicants receive a �plus' on account of their race

20


but are not insulated from all competition with other applicants." (Id., at 39, JA-
81). Thus, the court correctly held that the current LSA admissions program is
"properly devised" under Bakke.

The court did err, however, in holding that certain aspects of the pre-1999
LSA admissions programs, "examined in their entirety, cross that thin line from the
permissible to the impermissible." (Id., at 31, JA-73.) In any case, the court's
dismissal of the individuals defendants based on qualified immunity was correct.

ARGUMENT

Standard of Review

Whether obtaining the educational benefits of diversity is a compelling
interest and whether LSA's admissions programs are narrowly tailored to achieve
that interest are legal questions subject to de novo review. See Bratton v. City of
Detroit,
704 F.2d 878, 898 (6th Cir. 1983), modified on other grounds, 712 F.2d
222. Likewise, the dismissal of the individual defendants based on qualified
immunity is also subject to de novo review. See Dickerson v. McClellan, 101 F.3d
1151, 1157 (6th Cir. 1996).

I.       CONTROLLING PRECEDENT PERMITS THE COMPETITIVE
          CONSIDERATION OF RACE AND ETHNICITY IN UNIVERSITY
          ADMISSIONS.

In Bakke, the Supreme Court held that "a properly devised admissions
program involving the competitive consideration of race and ethnic origin" is

21


constitutional. 438 U.S. at 320. No subsequent Supreme Court case has
questioned this holding. Although Plaintiffs at one time agreed that Bakke
"governs this dispute," (R-206, Opinion at 8, JA-50), in this Court they attempt to
marginalize this controlling precedent by asserting its "absence of any holding,"
(Br. at 56).

Bakke considered the constitutionality of the race-conscious admissions
program employed by the University of California at Davis Medical School. This
separate, "special" admissions program employed a rigid quota, which reserved
slots solely for minority applicants who were "never compared against the non-
minority applicants." (R-206, Opinion at 9-10, JA-51-52.) Justice Powell
provided the fifth vote both to overturn the California Supreme Court's injunction
barring all race-conscious admissions programs at the Medical School, and to
invalidate the particular program at issue because it was not "properly devised." 12/
Bakke, 438 U.S. at 320.

Bakke squarely rejects the contention that the Constitution requires race-
blind admissions programs. It expressly permits universities to consider race and
ethnicity in admissions, provided that it is only one of many factors in a

___________________
12/       Four Justices would have upheld the Davis program. See Bakke, 438 U.S. at
324-25 (Brennan, J. joined by White, Marshall and Blackmun, JJ.). Four other
Justices would have affirmed the judgment below on statutory grounds, concluding
that Title VI prohibits recipients of federal funds from considering race. See id. at
408 (Stevens, J., joined by Burger, C.J., Rehnquist and Stewart, JJ.).

22


competitive system of consideration. Justice Powell authored the pivotal opinion.
Four other Justices joined Part V.C. of Justice Powell's opinion, which articulates
the Court's core 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.
Id. at 320 (emphasis added). "[I]t is clear that a majority of the Justices in Bakke
expressly agreed that the California Supreme Court erred in enjoining the [Davis
Medical School] from ever considering race in its admissions programs." (R-206,
Opinion at 14, JA-56).

The Supreme Court has never questioned Bakke's holding permitting race-
conscious admissions programs, and this Court has followed it. 13/ Plaintiffs
nevertheless urge this Court to treat Bakke as having been implicitly overruled by

___________________
13/       See Johnson v. Transp. Agency, 480 U.S. 616, 638 (1987) (relying on
"competitive consideration" rationale in Bakke's Part V.C. to approve gender-
conscious promotion plan); see also Minnick v. Cal. Dep't of Corr., 452 U.S. 105,
115 (1981), cert. dismissed (describing Bakke as "unequivocally stat[ing] that race
may be used as a factor in the admissions process"); Alexander v. Sandoval, 121 S.
Ct. 1511 (2001) (recognizing Bakke's reversal of injunction mandating race-blind
admissions); Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757, 763 (6th Cir. 1983)
(citing Bakke for proposition that "affirmative action admission programs of
educational institutions may take race into account, but racial quotas are
prohibited").

23


"subsequent precedents." (Br. at 56.) The Supreme Court has repeatedly
condemned this practice: "[o]ur decisions remain binding precedent until we see fit
to reconsider them, regardless of whether subsequent cases have raised doubts
about their continuing vitality." Hohn v. United States, 524 U.S. 236, 252-53
(1998) (citation omitted). The Court has made clear that "[i]f a precedent of this
Court has direct application in a case . . . the Court of Appeals should follow the
case which directly controls, leaving to this Court the prerogative of overruling its
own decisions." Rodriguez De Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989) (mandating this approach even if the decision seems "far out of
step" with the Court's current views); see also Agostini v. Felton, 521 U.S. 203,
237 (1997) (lower courts should not "conclude our more recent cases have, by
implication, overruled an earlier precedent"). Bakke has a holding, and this Court
must follow it.

II.       OBTAINING THE EDUCATIONAL BENEFITS OF DIVERSITY IS A
            COMPELLING STATE INTEREST THAT JUSTIFIES
            CONSIDERING RACE AND ETHNICITY IN UNIVERSITY
            ADMISSIONS.

Applying strict scrutiny in Bakke, Justice Powell concluded that "the
attainment of a diverse student body . . . clearly is a constitutionally permissible
goal for an institution of higher education." 438 U.S. at 311-12. Plaintiffs seek to
evade Bakke by deliberately misconstruing the asserted interest and by attempting

24


to portray Justice Powell's opinion as the unmoored musings of a single Justice
that this Court is free to disregard.

A.       Plaintiffs Mischaracterize the Relevant State Interest.

Plaintiffs grossly misstate the interest Justice Powell found compelling in
Bakke.

First, Plaintiffs claim that Justice Powell was concerned only with diversity
of viewpoint (what they call "intellectual diversity") and that he "did not conclude
that there was a compelling interest in attaining racial and ethnic diversity." (Br. at
28.) This statement is preposterous. Justice Powell articulated the interest asserted
by Davis Medical School as "obtaining the educational benefits that flow from an
ethnically diverse student body," Bakke, 438 U.S. at 306, and concluded that this
interest (which he refers to in shorthand as "attainment of a diverse student body"),
"clearly is a constitutionally permissible goal for an institution of higher
education," id. at 312-13. The conclusion that racial and ethnic diversity is a
"single though important element" of the diversity "that furthers a compelling state
interest," id. at 315, could not be more clear. 14/

___________________
14/       Plaintiffs' quotation of decontextualized snippets of the University's
counsel's summary judgment argument does not help their cause. (Br. at 29.)
Counsel was merely responding to Plaintiffs' contention, repeated in their briefs,
(see id. at 26-30), that Justice Powell's opinion had nothing to do with racial and
ethnic diversity, and was pointing to particular passages in Bakke that clearly
discuss racial diversity.

25


Plaintiffs also disregard the Harvard admissions policy, which was expressly
approved by Justice Powell, id. at 316-19, and four other Justices, id. at 326 n.1, as
an example of a "properly devised" admissions program. The Harvard policy
provided that, as part of the "variety" it seeks in a student body, Harvard endeavors
to enroll students "from disadvantaged economic, racial and ethnic groups." Id. at
322. The policy cautioned that "if Harvard College is to continue to offer a first-
rate education to its students, minority representation in the undergraduate body
cannot be ignored" because racial and ethnic diversity "adds a critical ingredient to
the effectiveness of the educational experience." Id. at 322-23.

The "diversity" Justice Powell found compelling cannot be limited to --
although it certainly includes -- diversity of viewpoint. The conceded educational
benefits of diversity do not depend on a minority student expressing any particular
"viewpoint." Justice Powell relied on an article by William Bowen entitled
"Admissions and the Relevance of Race," which explained that much learning
occurs through interactions among students of different backgrounds, including
students "of different races," who "are able . . . to learn from their differences and
to stimulate one another to reexamine even their most deeply held assumptions
about themselves and their world." Id. at 312-13 n.48. (See also R-162,
Appendix, Bowen Rep., JA-1497-1512.) Many students have certain experiences
because of their race that affect their views, and learning occurs when a student

26


articulates a perspective that would not have been aired in a non-diverse class.
(Id., Appendix, Gurin Rep., JA-1648-1717; id., Appendix, Sugrue Rep. at 60-67,
JA-2008-15.) However, given the racial separation in our society, learning also
occurs when a minority student does not express a view that might be expected,
when students see that members of one racial or ethnic group often have differing
views, or when they discover that individuals of different racial groups may have
similar attitudes on an issue. (id., Appendix, Gurin Rep., JA-1648-1717.)

Second, just as Plaintiffs incorrectly argue that Justice Powell was concerned
only with "intellectual diversity" and not with racial and ethnic diversity, so they
also incorrectly argue that Justice Powell was concerned only with "academic
freedom" and not with the educational benefits of diversity. (See, e.g., Br. at 26.)
This is simply disingenuous. Justice Powell explicitly described the interest he
found compelling as "obtaining the educational benefits that flow from an
ethnically diverse student body." Bakke, 438 U.S. at 306.

In ignoring this language, Plaintiffs misunderstand the relationship between
the educational benefits of diversity and academic freedom -- which includes a
university's "countervailing constitutional interest" in "select[ing] those students
who will contribute the most to the �robust exchange of ideas'" and the learning
environment on campus. Id. at 313. Justice Powell relied on a rich heritage of
cases recognizing that academic freedom, "though not a specifically enumerated

27


constitutional right, long has been viewed as a special concern of the First
Amendment," 15/ and includes a university's freedom "to make its own judgments
as to education includ[ing] the selection of its student body." 16/ Id. at 312. That
notion of academic freedom recognizes the significant role that discussion and
debate of diverse views, by students of diverse backgrounds, in and out of the
classroom, play in a university's educational mission. See, e.g., Rosenberger v.
Rector and Visitors of the Univ. of Va.,
515 U.S. 819, 835-36 (1995); Rust v.
Sullivan, 500 U.S. 173, 200 (1991). "The 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." Bakke, 438 U.S. at 312.

B.       The Diversity Rationale Is Binding.

            1.       Courts Have Treated the Diversity Rationale as
                      Controlling.

The Supreme Court has recognized that the diversity rationale articulated by
Justice Powell in Bakke is controlling. In Metro Broadcasting, Inc. v. FCC, 497
U.S. 547, 567 (1990), the Court explicitly relied on Bakke's diversity rationale in

___________________
15/       See also Keyishian, 385 U.S. at 603; Sweezy v. New Hampshire, 354 U.S.
234, 250 (1957).

16/       The University has never asserted that the First Amendment provides an
unlimited "right" to consider race in admissions. (Br. at 57.) Contrary to
Plaintiffs' insinuations, neither did Justice Powell, as evidenced by his rejection of
the Davis admissions program as an unconstitutional use of race.

28


upholding FCC regulations designed to "enhanc[e] broadcast diversity." 17/
Similarly, in her concurring opinion in Wygant v. Jackson Board of Education, 476
U.S. 267, 286 (1986), Justice O'Connor observed that "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." 18/

All but one of the appellate courts that have considered the question have
treated as controlling Justice Powell's conclusion that diversity is a compelling

___________________
17/       Metro evaluated these regulations under intermediate scrutiny. Adarand
Constructors, Inc. v. Peña,
515 U.S. 200 (1995), held that strict scrutiny applies to
all uses of race by government actors and overruled that aspect of the Court's
decision in Metro, but it did not disturb the parts of that opinion reaffirming Justice
Powell's holding that efforts to achieve an interest in diversity are constitutional.
See id. at 258 (Stevens, J., dissenting).

18/       Justice O'Connor's dissent in Metro, which said that non-remedial rationales
for race-conscious programs risk fostering stereotypes by treating race as a proxy
for viewpoint, see 497 U.S. at 603-04, is not incompatible with her statement in
Wygant concerning higher education. Unlike the FCC's judgments about
broadcasters in Metro, a university does not judge the content of a student's
potential contribution based on his or her race. Moreover, the educational benefits
the University seeks from enrolling a diverse student body include exploding the
very stereotypes that Justice O'Connor feared. Only when the student body
contains meaningful numbers of minority students can all students see a variety of
perspectives within races, and therefore see each other as individuals, rather than as
stand-ins for groups. (R-162, Appendix, Gurin Supp. Rep., 7/13/00, at 4-5, JA-
1835-36.)

29


interest. 19/ Only the Fifth Circuit, in Hopwood v. State of Texas, 78 F.3d 932, 944
(5th Cir. 1996), has rejected Bakke and held that diversity can never be a
compelling interest 20/ -- a decision that was wrong and exceeded that court's
authority. See, e.g., Agostini, 521 U.S. at 237.

            2.       The Diversity Rationale Is Controlling Under Marks v.
                      United States.

The Supreme Court has directed that "[w]hen a fragmented Court decides a
case and no single rationale explaining the result enjoys the assent of five
Justices," lower courts should consider the holding to be "that position taken by
those Members who concurred in the judgments on the narrowest grounds . . . ."
See Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted).

As the Ninth Circuit recently held, the diversity rationale articulated by
Justice Powell is plainly the "narrowest grounds" in support of the judgment in

___________________
19/       See, e.g., Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1200 (9th Cir.
2000), cert. denied, 69 U.S.L.W. 3593 (U.S. May 29, 2001) (No. 00-1341). See
also Eisenberg v. Montgomery County Pub. Sch.,
197 F.3d 123, 131 (4th Cir.
1999), cert. denied, 529 U.S. 1019 (2000) (assuming without deciding that Bakke
is controlling authority for proposition that diversity is a compelling interest);
Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 705 (4th Cir. 1999) (same);
Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998) (same); cf. Brewer v. West
Irondequoit Cent. Sch. Dist.,
212 F.3d 738 (2d Cir. 2000).

20/       Two district courts have also rejected Bakke. See Johnson v. Regents of the
Univ. Sys. of Georgia,
106 F. Supp. 2d 1362 (S.D. Ga. 2000), appeal docketed, No.
___ (11th Cir. 2000); Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001),
appeal docketed, No. 01-1447 (6th Cir. 2001).

30


Bakke because Justice Brennan's opinion would have upheld a much broader range
of admissions programs, including the rigid quotas employed by Davis Medical
School. 21/ Accordingly, not only was there "nothing barring" the district court
from concluding that the interest in the educational benefits of diversity is
compelling, (R-206, Opinion at 20, JA-62), but, in fact, Bakke requires that
conclusion based on stare decisis. 22/

Plaintiffs assert that the Marks analysis should not apply in this case because
the opinions of Justices Powell and Brennan are "simply different" and lack a
"common denominator." (Br. at 55.) Neither argument withstands scrutiny. First,
it is precisely when a "fragmented" Court relies on "different" rationales that the
Marks analysis applies and lower courts must fulfill their "obligation to follow the
Supreme Court's decision" by identifying the "determinative opinion" and

___________________
21/       See Smith, 233 F.3d at 1200. See also City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 496-97 (1989) (O'Connor, J.) (recognizing that Justice Powell
adopted a more "focused" view than Justice Brennan by applying strict scrutiny);
Bakke 438 U.S. at 307; id at 296 n.36 (Powell, J., concurring) (describing Justice
Brennan's societal discrimination rationale as having "breadth [that is] unprecedented").

22/       Although the district court purported not to be bound by Bakke to hold that
obtaining the educational benefits of a racially and ethnically diverse student body
is a compelling interest, this Court may affirm its ultimate holding on that ground.
See Advocacy Org. for Patients and Providers v. Auto Club Ins. Ass'n, 176 F.3d
315, 328 (6th Cir.), cert. denied, 528 U.S. 871 (1999) (permitting affirmance on
any ground supported by the record, even if different from grounds relied on by
district court).

31


according it precedential value. Triplett Grille, Inc. v. City of Akron, 40 F.3d 129,
132 (6th Cir. 1994). Second, as the Ninth Circuit recognized in Smith, Justices
Powell's and Brennan's approaches meaningfully overlap: the diversity rationale
is an "allotrope of the principle [Justice Brennan] was propounding." 23/ 233 F.3d
at 1200. Both Justices Powell and Brennan agreed that the competitive
consideration of race in admissions is constitutional, and both approved the
Harvard Plan -- which was explicitly designed to achieve the educational benefits
of racial and ethnic diversity -- as an example of a lawful admissions program. 24/
See Bakke, 438 U.S. at 316-19; id. at 326 n.1.

C.       The University's Interest in the Educational Benefits of Diversity
            Is Compelling.

___________________
23/       Although the district court claimed not to "necessarily agree with the Ninth
Circuit's conclusion that Justice Powell's �analysis is the narrowest footing upon
which a race-conscious decision-making process could stand,'" it nevertheless
concluded, citing Smith, that Justice Brennan's opinion was an "implicit approval"
of the diversity rationale, and that diversity is a compelling interest "under Bakke."
(R-206, Opinion at 15-17, JA-57-59 (citation omitted).)

24/       The district court recognized that "the panel in Hopwood reads too much
into the other Justices' silence regarding Justice Powell's diversity rationale. It is
just as likely that the other Justices felt no need to address the issue of diversity
based upon their finding that under intermediate scrutiny, the program at issue was
justified as a means to remedy past discrimination." (R-206, Opinion at 16, JA-
58.) Indeed, the court concluded that Justice Brennan's "silence regarding the
diversity interest in Bakke was not an implicit rejection of such an interest, but
rather, an implicit approval of such an interest." (Id., at 17, JA-59 (emphasis
added).)

32


Even if Bakke had never been written, this Court should affirm the district
court's legal conclusion that "a racially and ethnically diverse student body
produces significant educational benefits such that diversity, in the context of
higher education, constitutes a compelling governmental interest under strict
scrutiny." (R-206, Opinion at 25, JA-67.) The compelling interest inquiry is made
"in the circumstances of this case," not "in the abstract." California Democratic
Party v. Jones,
530 U.S. 567, 584 (2000). Thus, the court's legal conclusion is
properly based, as Justice Powell's was, on the magnitude -- given the University's
unrebutted "solid evidence" -- of the University's interest in the educational
benefits that flow from a racially and ethnically diverse student body, and the
uniqueness of the educational context.

The University's unrebutted expert case establishes that a racially and
ethnically diverse student body yields educational benefits because all students
"learn better in a diverse educational environment, and they are better prepared to
become active participants in our pluralistic, democratic society once they leave
such a setting." (R-162, Appendix, Gurin Rep. at 3, JA-1650; R-206, Opinion at
20, JA-62.)

Dr. Patricia Gurin, Chair of the Department of Psychology at the University
of Michigan, conducted an extensive empirical analysis of how and why education
in a racially and ethnically diverse environment affects students, and drew on

33


substantial work by others in the field to explain why these results make sense.
Learning in a diverse environment exposes students to situations, perspectives, and
experiences that are discrepant from those to which they are accustomed, and that
require them to bypass routine, "scripted" thinking patterns, and engage, instead, in
what is referred to as active thinking. (R-162, Appendix, Gurin Rep. at 9-18, JA-
1656-65.) "Students who experienced the most racial and ethnic diversity in
classroom settings and in informal interactions with peers showed the greatest
engagement in active thinking processes, growth in intellectual engagement and
motivation, and growth in intellectual and academic skills." (Id., at 5, JA-1652.)

Dr. Gurin's report demonstrates that academic and social interactions among
racially and ethnically diverse students prepare them to participate more fully and
productively in our increasingly pluralistic democracy. (Id., at 3, JA-1650.)
Education in a diverse setting better equips students "to understand and consider
multiple perspectives, deal with the conflicts that different perspectives sometimes
create, and appreciate the common values and integrative forces that harness
differences in pursuit of common ground." (Id., at 5-6, JA-1652-53.)

Racial and ethnic diversity yields educational benefits for all students
because race remains a defining feature of American life. Thomas J. Sugrue,
Associate Professor of History and Sociology at the University of Pennsylvania
and a recognized authority on urban racial history, submitted an unrebutted expert

34


report demonstrating that, even as our country grows more diverse, Americans of
different races and ethnicities lead lives largely separate from each other. (See R-
162, Appendix, Sugrue Rep. at 19-44, JA-1967-92.) 25/ Although we may see
members of other races and ethnicities in the workplace, on the road, or in the
grocery store, we tend not to engage with each other, and any encounters are often
superficial. Indeed, where meaningful interactions are most likely, such as
residential neighborhoods and elementary and secondary education, our society is
as racially separate today as it was before Brown v. Board of Education, the Civil
Rights Act of 1964, and the Voting Rights Act of 1965. 26/ (See id., JA-1967-92.)

Most students entering college have had few opportunities to benefit from
exposure to ideas and perspectives of people from racial and ethnic groups other
than their own. According to a survey of University of Michigan students, 92% of

___________________
25/       Two other professors described the historical circumstances that produced
the conditions Dr. Sugrue documented. Eric Foner, Professor of History at
Columbia University, explained that race has been a crucial line of division in
America since the 17th century, and that our nation's experience with its African-
American minority has shaped how Americans view questions of race. (See R-
162, Appendix, Foner Rep., JA-1571-1621.) Albert M. Camarillo, Professor of
History at Stanford University, outlined the historical patterns and legacies of
racial isolation and separation of Hispanics in America. (See id., Camarillo Rep.,
JA-1523-49.)

26/       For example, Michigan contains three of the nation's ten most segregated
metropolitan areas, including Detroit, where rates of residential segregation were
higher in 1990 than in 1960. (R-162, Appendix, Sugrue Rep. at 22-23, JA-1970-
71.) Similarly, Michigan ranks in the top four states in the degree of black/white
school segregation. (Id., at 38-39, JA-1986-87.)

35


all white students grew up in predominantly white neighborhoods, and 83% went
to predominantly white high schools. (See R-162, Appendix, Gurin Rep., App. E,
at 3, JA-1828.) This lack of meaningful contact among individuals of different
races and ethnicities fosters misconceptions and mistrust, and affords little or no
opportunity to disrupt the perpetuation of racial stereotypes or to experience the
richness of different racial and ethnic communities. (See id., Appendix, Sugrue
Rep. at 67. JA-2015.) Exposure to a diverse student body provides unique
educational opportunities because of this persistent and prevalent separation. (See
id., Appendix, Gurin Rep. at 11-12, 16, JA-1658-59, 1663.)

The hundreds of colleges and universities that seek to obtain the educational
benefits of diversity reflect a longstanding "substantial consensus," Burson v.
Freeman,
504 U.S. 191, 211 (1992), on a fundamental educational policy. The
Supreme Court has repeatedly acknowledged that "education is perhaps the most
important function of state and local governments," Brown, 347 U.S. at 493, and
carries an obligation to engage "in the preparation of individuals for participation
as citizens, and in the preservation of the values on which our society rests,"
Ambach v. Norwick, 441 U.S. 68, 76 (1979). Indeed, "education has a fundamental
role in maintaining the fabric of our society." Plyler v. Doe, 457 U.S. 202, 221
(1982). Businesses have also recognized the critical role higher education plays in
providing opportunities for significant inter-racial and inter-ethnic contact, as well

36


as the advantages of hiring university graduates who have learned to work
productively in a diverse environment. (See R-162, Appendix, Bowen Rep. at 14-
15, JA-1510-11.)

Plaintiffs argue that, regardless of the quality or quantity of the University's
unrebutted record evidence, diversity cannot -- as a matter of law -- be a
compelling interest because it is too amorphous and of unlimited duration. The
University's interest can hardly be too amorphous, given that it was specifically
identified by Justice Powell in Bakke, 438 U.S. at 306, and is supported by detailed
expert testimony. (See R-162, Appendix, Bowen Rep. at 2, JA-1498 (explaining
why diversity, despite imprecise popular usage, is not an amorphous concept in
education)).

In objecting to the "timelessness" of the interest, Plaintiffs have improperly
conflated the narrow tailoring inquiry with the identification of a compelling
interest. Although the interest in diversity may be "ongoing," while a remedial
interest is internally time-bound, this is of absolutely no constitutional significance.
The interest at stake in a particular case need not have a built-in "stopping point";
it is the use of race that, under narrow tailoring requirements, must be limited to
the duration necessary to achieve its purpose. See Associated Gen. Contractors of
Ohio, Inc. v. Drabik,
214 F.3d 730, 737 (6th Cir. 2000), cert. denied, 121 S. Ct.
1089 (2001). Thus, as the district court recognized, "[h]opefully, there may come

37


a day when universities are able to achieve the desired diversity without resort to
racial preferences. Such an occurrence, however, would have no [e]ffect on the
compelling nature of the diversity interest . . . [but rather] only the issue of whether
a university's race-conscious admissions program remained narrowly tailored."
(R-206, Opinion at 24, JA-66.)

Finally, Plaintiffs suggest that remedying past discrimination is the only
compelling interest that justifies governmental consideration of race. That is not
the law. Even Plaintiffs concede that, as the district court recognized, "neither the
Supreme Court nor the Sixth Circuit have definitively held that diversity can never
be a compelling interest under strict scrutiny." (Br. at 53; R-206, Opinion at 15
n.9, JA-57.) Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), and City of
Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989), make clear that strict scrutiny
applies to any racial classification, but they do not address whether diversity can
constitute a compelling interest in the context of higher education. (R-206,
Opinion at 17, JA-59.) See also Smith, 233 F.3d at 1200. The higher education
context "is distinguishable from the employment, [and] minority business set-aside
. . . contexts" (R-206, Opinion at 18, JA-60) both because, as Justice Powell
recognized, the First Amendment interest in academic freedom is implicated, and
because of the distinctive role of public education in our society.

38


Moreover, as the district court noted, "that section of Justice O'Connor's
opinion in Croson that is most often cited for the proposition that race-based
classifications must be �strictly reserved for remedial settings' did not enjoy a
majority of the Court." (Id., at 19, JA-61.) See also Croson, 488 U.S. at 511 n.1
(Stevens, J., concurring) (cautioning that Justice O'Connor's approach "overlooks
the potential value of race-based determinations that may serve other valid
purposes"). Many courts have recognized that a remedial rationale is not the only
compelling interest that can justify race-conscious governmental decisionmaking.
See, e.g., Smith, 233 F.3d at 1200-01; Hunter ex rel. Brandt v. Regents of Univ. of
Cal.,
190 F.3d 1061, 1064 n.6 (9th Cir. 1999), cert. denied, 121 S. Ct. 186 (2000);
United States v. Ovalle, 136 F.3d 1092, 1105 (6th Cir. 1998); Wittmer v. Peters, 87
F.3d 916, 918-20 (7th Cir. 1996).

III.       PLAINTIFFS WRONGLY SUGGEST THAT THERE ARE
            DISPUTED QUESTIONS OF MATERIAL FACT CONCERNING
            THE EDUCATIONAL BENEFITS OF DIVERSITY.

All parties and the district court agreed that whether obtaining the
educational benefits of diversity is a compelling state interest is a question of law.
All parties told the district court that there were no disputes of material fact that
would prevent summary judgment under Rule 56. Nevertheless, Plaintiffs now
assert on appeal, for the first time, that summary judgment was inappropriate.
Plaintiffs are trying to run away from their concession below that diversity

39


produces educational benefits by attempting belatedly to conjure up factual issues
in the record.

The University presented the district court with "solid evidence regarding the educational benefits that flow from a racially and ethnically diverse student body." (R-206, Opinion at 20, JA-62.) Most of the expert reports were submitted in December 1998, well before the initial close of discovery. Plaintiffs deposed all of the University's experts that they requested, including Dr. Gurin. When discovery re-opened after Defendant-Intervenors joined the case, Plaintiffs had, but did not use, a second opportunity to supplement the record with evidence from witnesses contesting the educational benefits of diversity. As the district court found, "Plaintiffs have presented no argument or
evidence rebutting the University Defendants' assertion that a racially and
ethnically diverse student body gives rise to educational benefits for both minority
and non-minority students." (Id., at 23, JA-65.) This was not only the district
court's view of the record. Plaintiffs expressly conceded at the summary judgment
argument that there were no factual disputes concerning the benefits of diversity:
The Court: I infer that you don't see a need for a, quote, trial,
unquote, or further testimony, et cetera. I'll start with Mr.
Payton, since you're here. Do I interpret your position
correctly?

Mr. Payton: Yes.

The Court: Mr. Kolbo?

40


Mr. Kolbo: Yes, Your Honor.

(R-204, Transcript at 57, JA-4186.) Indeed, Plaintiffs told the court that they were
"not going to put in a case, if this case should go to trial, against diversity." (Id., at
12-13, JA-4141-42.) It is disingenuous for Plaintiffs now to claim that issues of
material fact precluded the court from ruling, as a matter of law, that the interest in
the educational benefits of diversity is compelling. 27/

Plaintiffs now purport to rely on "several factual objections to the report of
Patricia Gurin" that were included in an amicus brief submitted to the district court
by the National Association of Scholars ("NAS"). (Br. at 43.) That same group
has submitted an amicus brief in this Court making similar points, and attaching a
report by two professors. This strategem in no way undermines the district court's
decision.

First, Plaintiffs' reliance on the NAS brief is a transparent attempt to
circumvent the discovery process. Despite ample opportunity, Plaintiffs were
unable or unwilling to find an expert to submit a report in opposition to Dr.
Gurin's, and be subjected to cross-examination. They did not introduce any

___________________
27/       In this Court, Plaintiffs contend that "[n]owhere have the parties stipulated
that there is an evidentiary basis for the conclusion that diversity has educational
value." (Br. at 42.) This statement is literally true, but grossly misleading. Once
the University put forward an expert case and Plaintiffs conceded the educational
benefits of diversity, there was no need for such a stipulation.

41


evidence into the record to contradict Dr. Gurin's findings and conclusions.
Plaintiffs cannot wait for the close of discovery and then, on appeal, rely on a
friendly amicus submission, which was insulated from discovery, to raise a handful
of insubstantial and unsubstantiated questions about Dr. Gurin's work.

Second, criticisms of one of the University's experts by an amicus cannot
create a genuine issue where none exists in the record. See Fed. R. Civ. P. 56(e)
(stating that the "adverse party" may defeat summary judgment by submitting
specific counterevidence); see also United States v. Michigan, 940 F.2d 143, 165
(6th Cir. 1991) (distinguishing role of amicus from role of litigating party, and
noting that amicus has "never been recognized, elevated to, or accorded the full
litigating status of a named party" and "has been consistently precluded from . . .
participating and assuming control of the controversy in a totally adversarial
fashion").

Finally, there is absolutely no merit to the "objections" to Dr. Gurin's work
that Plaintiffs cite, (Br. at 43), which reflect either a fundamental misunderstanding
or a deliberate mischaracterization of her work. The critique sets up a straw man --
i.e, only evidence showing that the percentage of minority students on campus
directly affects student outcomes matters -- and then suggests that Dr. Gurin found
no such direct effects. Both points are wrong. Despite what Plaintiffs suggest, Dr.
Gurin's study does include some direct outcomes related to the presence of

42


minority students (called "structural diversity"). (E.g., R-162, Appendix, Gurin
Rep. at Figure 2, JA-1682.) In addition, it is well-established in social psychology
that racial diversity of a campus operates through the experiences that students
have on campus, both in the classroom and in informal interactions with peers. As
Dr. Gurin explains, "[f]or new learning to occur, institutions of higher education
have to make appropriate use of structural diversity." (Id., at 22, JA-1669.) Having
sufficient numbers of minority students is necessary, but not sufficient, to achieve
the educational benefits of diversity. (Id., at 22-23, JA-1669-70.) Not only does
this make sense, but it is confirmed by Dr. Gurin's work and that of many other
researchers described in the report. (Id., at 9-21, JA-1656-68.) Plaintiffs ignore
this research entirely.

IV.       THE LSA ADMISSIONS PROGRAMS ARE NARROWLY
            TAILORED.

As the district court recognized, "a university must carefully design its
system to fall between . . . two competing ends of the spectrum, i.e., between a
system that completely fails to achieve a meaningful degree of diversity, under
which the benefits associated with a diverse student body will never be realized,
and a rigid quota system, which is clearly unconstitutional." (R-206, Opinion at
29, JA-71.) Under strict scrutiny, an admissions system that considers race and
ethnicity as a "�plus' in a particular applicant's file, but does not insulate the
individual from comparison with all other candidates for the available seats,"

43


satisfies the Fourteenth Amendment, while a program that employs a rigid racial
quota does not. 28/ Bakke, 438 U.S. at 317. So long as the program complies with
Bakke's limits on the manner and extent to which race is considered in admissions,
it is entitled to a "presumption of legality and legitimate educational purpose," Id.
at 318-19 and n.53, in light of the "narrow avenue for judicial review" when courts
review academic decisions, Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225-
28 (1985).

A.       Bakke's Principles of Narrow Tailoring.

Bakke limits the manner and extent to which a university can consider race
and ethnicity in admissions. First, as to manner, an admissions system "in which a
specified percentage of the student body is in effect guaranteed to be members of
selected ethnic groups," Bakke, 438 U.S. at 315, insulates minority applicants
"from comparison with all other candidates," id. at 317, and excludes non-minority
students from even competing for certain spaces in the class. 29/ (R-206, Opinion at
26-30; JA-68-72.) The "fatal flaw" in the Davis admissions system was its use of a

___________________
28/       The "most exacting judicial examination" to which Justice Powell subjected
the Davis program in Bakke is what is now generally known as strict scrutiny. See
Fullilove v. Klutznick,
448 U.S. 448, 496 (1980) (Powell, J., concurring); Adarand,
515 U.S. at 218-20 (plurality op. of O'Connor, J.).

29/       Justice O'Connor repeated this reading of Bakke in Croson, 488 U.S. at 496,
describing the flaw in the Davis plan, as identified by a majority of the Court, as
the "complete[] eliminat[ion] [of] nonminorities from consideration for a specified
percentage of opportunities." Id. (citation omitted).

44


"two-track," segregated admissions system in which minority applicants were
compared only with each other. By contrast, an admissions program that considers
race as a "plus factor" does not create concern:

This kind of program treats each applicant as an individual in
the admissions process. The applicant who loses out on the last
available seat to another candidate receiving a "plus" on the
basis of ethnic background will not have been foreclosed from
all consideration for that seat simply because he was not the
right color or had the wrong surname. It would mean only that
his combined qualifications, which may have included similar
nonobjective factors, did not outweigh those of the other
applicant. His qualifications would have been weighed fairly
and competitively, and he would have no basis to complain of
unequal treatment under the Fourteenth Amendment.
Bakke, 438 U.S. at 318. For these reasons, a five-Justice majority in Bakke
expressly approved the Harvard system as an example of a "properly devised"
admissions program. Id. at 316-19; id. at 326 n.1.

Bakke also limits the extent to which race may be considered. Race should
not be valued so much that it eclipses all other factors and results in the admission
of unqualified students. It may be considered only to the extent necessary to
achieve the educational benefits of diversity. Put differently, Bakke does not
permit a university to strike some racial balance "for its own sake." Id. at 307.

Significantly, Bakke does not require that all factors considered in
admissions be weighed equally. Rather, a "properly devised" admissions program
"is flexible enough to consider all pertinent elements of diversity in light of

45


the particular qualifications of each applicant, and to place them on the same footing
for consideration, although not necessarily according them the same weight." Id.
at 317. Moreover, Justice Powell reasoned that "pay[ing] some attention to
distribution" of students is permissible -- indeed, necessary -- for a narrowly
tailored admissions program because the educational benefits of diversity depend
upon the enrollment of meaningful numbers of minority students. (R-206, Opinion
at 28-29, JA-70-71); Bakke, 438 U.S. at 316, 325.

B.       1999-2000

The district court correctly concluded that "LSA's current admissions
program, under which certain minority applicants receive a �plus' on account of
their race but are not insulated from all competition with other applicants, meets
the requirements set forth by Justice Powell in Bakke and is therefore
constitutional." (R-206, Opinion at 39, JA-81.) The court found that LSA's
admissions program "does not utilize rigid quotas or seek to admit a predetermined
number of minority students," (id. at 31-32, JA-73-74), that "there is no separate
review or assignment of underrepresented minority applicants as there was in
Bakke," (id. at 35, JA-77), and that race is only one of "many factors" that entitle
applicants to a "plus" in the process, (id. at 33, JA-75). Accordingly, LSA's
program has none of the features that rendered the Davis program unconstitutional.

46


It is therefore no surprise that Plaintiffs fail to address the details of LSA's
admissions program. Their entire discussion of the program's actual operation
consists of a mere three sentences with no citations to the record. (Br. at 31-32.)
Instead, Plaintiffs resort to making an unsupported general assertion that the
admissions program relies on "systematic exclusion and the absence of individual,
particularized consideration." (Id., at 32.) Plaintiffs offer no record support for that
assertion because none exists.

Plaintiffs do not explain how the LSA admissions program creates
"systematic exclusion" of anyone from consideration -- nor could they. Each
application is reviewed in its entirety according to a single set of standards.
Counselors review the applications of minority applicants along with all other
applications from their territories, and use the same selection index worksheet,
which includes the same factors, for applicants of all races and ethnicities. (R-206,
Opinion at 35, JA-77.) Because there are over 20 counselors reviewing the more
than 13,000 applications LSA receives each year, some standardization of the
process is necessary. 30/ Plaintiffs use the term "systematic" to suggest that a

___________________
30/       The volume of LSA applications, and the presentation of applicant
information, makes it impractical for OUA to use the same admissions program as
the University of Michigan Law School. First, the large number of applications
precludes LSA from having a single decisionmaker for all applications. Multiple
evaluators make explicit guidelines and standardized procedures necessary to
ensure consistency in the process. Second, applications to LSA are not accompanied by a report summarizing applicants' grades, test scores, and prior
(continued onto next page)
educational background, as are applications to the Law School. Thus, LSA
depends on counselors' knowledge of high schools in their territories, as well as
the guidelines, to compare applicants efficiently and effectively.

47


standardized process is somehow incompatible with individualized treatment of
applications. (E.g., Br. at 30.) Standard procedures and individualized review are
not mutually exclusive.

The only feature of LSA's current admissions system about which Plaintiffs
specifically complain is that counselors award twenty points to underrepresented
minorities because of their racial or ethnic status. (See id. at 33.) Even then,
however, Plaintiffs do not explain how this aspect of the admissions program
violates Bakke. Race is indisputably only one of many factors that admissions
counselors consider in evaluating applicants, (R-206, Opinion at 33, JA-75), as
Bakke plainly permits. In addition, the fact that only underrepresented minority
students receive points for this factor does not mean that they are guaranteed
admission or that non-minorities are excluded from consideration. If that were
true, then the fact that only applicants who wrote a stellar essay receive points for
that factor would mean that the consideration of the essay factor "excludes"
applicants who wrote a below-average essay. This is absurd. (Cf. id. at 35, JA-
77.) The ability to earn 20 points because of one's racial or ethnic status simply
makes race a plus factor -- which could make no difference in some cases and an
important difference in others. This is entirely consistent with Bakke.

48


By criticizing LSA's admissions program as "systematic," Plaintiffs also
suggest that not all underrepresented minorities should get this "plus." Plaintiffs'
suggestion that race is irrelevant for some unidentified subset of these applicants is
rooted in the same misunderstanding that led Plaintiffs to assert that Justice
Powell's opinion was not about racial and ethnic diversity. Race itself -- not race
as a proxy for socioeconomic status or viewpoint or some other characteristic -- is
a central facet of Americans' lives. (See R-162, Appendix, Sugrue Rep., JA-1946-
2015.) It affects everyone, although its specific impact is unpredictable. LSA's
admissions program simply recognizes this reality.

Plaintiffs cannot cite any part of LSA's current admissions program that
constitutes a quota, insulates minority students from review with non-minority
students, excludes non-minority students from being considered for admission, or
results in the admission of unqualified minority students. Accordingly, the district
court was right to conclude that LSA's 1999-2000 admissions programs comply
with Bakke.

C.       1995-1998

The 1995-98 admissions systems differ from the 1999-2000 admissions
systems in the manner in which race and ethnicity were considered in making
admissions decisions, and the University has never argued otherwise. In berating
the district court for making a legal distinction between the prior and current

49


programs based entirely on "mere differences in form." (Br. at 33), Plaintiffs miss
the point. A change in form can be constitutionally relevant because the manner in
which race is considered is one of the elements of narrow tailoring under Bakke.
While the University disagrees with the particular legal distinction the court drew
between the prior and current systems, it is quite clear that a mechanical change
can be constitutionally significant. Plaintiffs' failure to understand this basic point
illustrates that Plaintiffs' real problem is with the consideration of race at all,
regardless of the form it takes.

The district court erred in concluding that three features of these programs --
the grids, procedures for denying admission to applicants with very low grades and
test scores, and enrollment projections known as "protected seats" -- taken
together, rendered them unconstitutional.

The difference between the selection index and the grids lies in the manner
in which all of the factors -- including race -- were considered. Plaintiffs
emphasize that the grids were "separate" by race, or that the suggested action
codes within each cell of the grids sometimes differed by race. That
characterization is misleading. The fact that the grids used for underrepresented
minority students were on different pieces of paper from the grids for non-minority
students simply reflects that race was taken into account. Instead of having
separate grids, OUA could have asked counselors to take race into account by

50


factoring it into GPA2, as was done for curriculum strength and extraordinary
extracurricular activities, for example. Conversely, the University could have
taken other factors, such as the quality of an applicant's high school, out of GPA2
and used multiple grids for school quality. Even the district court noted that the
grids, standing alone, would not necessarily have rendered the 1995-1998 systems
unconstitutional. (R-206, Opinion at 43, JA-85.)

The district court identified as unconstitutional the portion of the guidelines
that permitted clerks to reject some applicants based on grades and test scores
alone, while requiring that all applications from certain groups -- including
athletes, foreign students, private school students, and underrepresented minorities
-- be forwarded to admissions counselors. The clerks' supervisor, however, made
an exception to the guidelines, and, thus, in practice the clerks generally did not
automatically reject any students. (R-161, Appendix, Gauss Dep. at 61-62, JA-
1457-58.)

The final feature the district court identified as constitutionally problematic
was the enrollment management technique called "protected seats." Based on the
undisputed facts regarding the operation of LSA's admissions system, "protected
seats" were neither a quota, nor a "cover for the functional equivalent of a quota."
Bakke, 438 U.S. at 318. The "protected seats" label is misleading.

51


Protected seats were actually just projections, based on the prior year, of
applications expected from groups of students who traditionally applied late in the
admissions season, including recruited athletes, foreign students, ROTC
candidates, and underrepresented minorities. (See R-161, Appendix, Knepp Dep.
at 17, JA-1461.) These estimates allowed OUA to pace the rolling admissions
process so that these applications could be considered, along with the other
pending applications, before the class was filled. (See id. at 23, 28, JA-1463,
1465.) This technique did not create a fixed number of places in the class for
minorities, as highlighted by the variation in the proportion of minority students
enrolled in the entering class from year to year. (See R-162, Appendix,
Raudenbush Supp. Rep. 3/3/99, Tables 2a, 2b, 2c, JA-1880, 1881, 1882.)
Moreover, only qualified students were admitted; the technique did not require
OUA to admit students to match or fill the number in the projections. (See R-161,
Appendix, Cantor Dep. at 79-80, JA-1447-48.) Finally, the "protected seats"
technique did not affect the fact that all students were still given individualized
counselor review and were still all compared against the same criteria. (See id.,
Appendix, Spencer Dep. at 107-08, JA-1474-75.)

Even if the district court correctly concluded that the 1995-98 admissions
systems fall on the unconstitutional side of the line, Plaintiffs' claim that the court
should have enjoined the University from using these defunct practices

52


misunderstands the law of injunctions. An injunction is only warranted when a
party's action poses a "real threat of future violation or a contemporary violation of
a nature likely to continue or recur," United States v. Oregon State Med. Soc'y, 343
U.S. 326, 333 (1952), and it is Plaintiffs' burden to establish any such threat, see
Friends of the Earth, Inc. v. Laidlaw Envt'l Servs., Inc.,
528 U.S. 167, 190-91
(2000). They have not and cannot do so. The University has stated unequivocally
-- without challenge -- that the practices the court held unconstitutional have been
eliminated. (R-156, Affidavit-Exhibits, Ex. F, Defs. Supp. Resp. Int. 1, at 4, JA-
1163; R-161, Appendix, Spencer Dep. at 143-44, JA-1476-77.) See Oregon State
Med. Soc'y,
343 U.S. at 334 (no injunction necessary based on prior practices
where changes did "not consist merely of pretensions or promises but [were] an
overt and visible reversal of policy"). 31/

___________________
31/       Plaintiffs confuse the question of whether the district court had jurisdiction
to grant an injunction with the question of whether an injunction was warranted.
See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) (noting
that "abandonment [of a challenged practice] is an important factor . . . relating to
the exercise rather than the existence of judicial power" to issue an injunction).
The cases that Plaintiffs cite are inapposite because they all address defendants
who argued that plaintiffs' claims were moot based on their own voluntarily
cessation of challenged conduct. In that situation, defendants must show that there
is no reasonable likelihood that they will resume the conduct. The burden of proof
is allocated that way so that defendants cannot defeat claims simply by temporarily
ceasing illegal conduct. See Friends of the Earth, 528 U.S. at 190-91; Steel Co. v.
Citizens for a Better Envt,
523 U.S. 83, 109 (1998). However, that is not the case
here, where the University has never suggested either that Plaintiffs' claims are
moot, or that the district court lacks jurisdiction to consider the propriety of
injunctive relief.

53


D.       The University Cannot Achieve Meaningful Diversity Without
            Considering Race and Ethnicity in Admissions.

Based on uncontroverted evidence, the district court found that, absent the
consideration of race and ethnicity in admissions, the University would not be able
to achieve the meaningful levels of diversity that generate the educational benefits
that the University seeks. (See R-206, Opinion at 37, JA-79.) Plaintiffs have
turned a blind eye to the court's extensive discussion,(see id. at 36-39, JA-78-81),
of the inefficacy of race-neutral alternatives and "less drastic means" in achieving
the educational benefits of diversity. Their claim that the University "drew a
pass," (Br. at 35), on these issues is puzzling.

OUA attempts to enroll meaningful numbers of minority students by
enlarging the pool of minority applicants and increasing the yield of minority
admittees through numerous recruiting programs. The University has devoted
considerable efforts to creating and expanding recruitment programs to attract
minority students. (See supra at 15-16.) Yet, these efforts produce only a small
pool of qualified underrepresented minority applicants, most of whom are intensely
recruited by other selective colleges as well.

Plaintiffs question why virtually all qualified underrepresented minority
applicants end up being admitted. (Br. at 36.) The answer is in the record and in

54


the district court's opinion: pool size. 32/ The report of Dr. Camara establishes that
the number of underrepresented minority students nationally with grades and test
scores in ranges comparable to those of most enrolled LSA students is quite small,
particularly when compared with the number of similarly situated non-minority
students. (R-182, Defs. SJ Reply, Camara Rep. at 9-13, JA-3987-91.) The number
of qualified underrepresented minority students who apply is smaller still, and the
number of those who choose to enroll shrinks further, as the University faces stiff
competition from peer institutions. (R-161, Appendix, Cantor Dep. at 59, 68, JA-
1441, 1444; id., Appendix, Vanhecke Dep. at 38-39, JA-1491-92.) In an effort to
enroll the meaningful numbers of minority students necessary to produce a
learning environment that yields the benefits of diversity, OUA ends up admitting
virtually all qualified underrepresented minorities and considering race for every
underrepresented minority applicant.

The University cannot obtain the educational benefits of diversity through
race-neutral alternatives. The analyses conducted by the University's expert,
Dr.
Raudenbush, show that changing to a race-neutral admissions system would
substantially reduce the proportion of underrepresented minority students in the

___________________
32/       Plaintiffs also question why every underrepresented minority applicant
receives points for race or ethnic status. As discussed supra at 49-50, part of the
explanation is conceptual: race shapes everyone's experience, although in unique
ways. Pool size is the other part of the explanation. To enroll meaningful numbers
of minorities, every underrepresented minority receives a "plus" for race.

55


entering LSA classes. 33/ (See R-162, Appendix, Raudenbush Supp. Rep., 2/24/00,
at 4-5, JA-1901-02; id., Appendix, Raudenbush Supp. Rep., 3/3/99, at 9-11, JA-
1874-76.) Under such a system, the level of racial and ethnic diversity on campus
would not provide sufficient opportunities for the interactions among members of
different racial and ethnic groups that are necessary to achieve the significant
educational benefits of diversity. 34/ (See R-162, Appendix, Gurin Supp. Rep.,
7/13/00, at 5, JA-1836; id., Appendix, Raudenbush Supp. Rep., 7/13/00, at 4-8, JA-
1912-16.) In addition, minority students would be highly likely to be present only
in token numbers in classes or other settings on campus -- a circumstance that
would engender feelings of isolation and adversely affect their opportunity to
learn. (See R-162, Appendix, Gurin Supp. Rep., 7/13/00, at 4, JA-1835; id.,
Appendix, Gurin Rep., App. B, at 4-6, JA-1734-36.) Race-neutral alternatives are

___________________
33/       Plaintiffs' unsupported assertion that considering race in admissions has a
"great" impact on third parties is false. (Br. at 38.) Under a race-neutral system,
the likelihood of admission for a non-minority applicant would rise only slightly,
and the absolute number of additional non-minority students who would be
admitted would be small as well. (R-162, Appendix, Raudenbush Supp. Rep.,
3/3/99, at 11, JA-1876.)

34/       Although Plaintiffs claim the University has failed to address "how much"
diversity is necessary to achieve the educational benefits it seeks, (Br. at 37), Dr.
Gurin submitted a report devoted to "describ[ing] the relationship between the
level of racial and ethnic diversity on campus and the educational benefits of
diversity." (R-162, Appendix, Gurin Supp. Rep., 7/13/00, at 1, JA-1832.) She
concluded that LSA is far from maximizing those benefits. (id., at 2, 5, JA-1833,
1836.)

56


also not effective because they would undermine LSA's ability to achieve its
mission and intrude on its prerogative to define its character. (See id., Appendix,
Bowen Rep. at 6, 10, JA-1502, 1506.)

Experimentation with clearly ineffective race-neutral alternatives is not a
requirement of narrow tailoring. See United States v. Paradise, 480 U.S. 149
(1987); Bernal v. Fainter, 467 U.S. 216, 227 (1984) (state need not employ means
not "practically available"). Given the twin forces of small pool size and low yield
of qualified underrepresented minority applicants, the University must continue to
consider race in admissions to achieve diversity. (See R-206, Opinion at 37-39,
JA-79-81; R-161, Appendix, Cantor Dep. at 59, JA-1441.)

V.       THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO
            QUALIFIED IMMUNITY.

The district court's ruling that the individual defendants are entitled to
qualified immunity is clearly correct. At all relevant times, the University's
admissions programs have complied with Bakke. As the district court recognized,
Bakke remains the Supreme Court's authoritative pronouncement on the use of
race in higher education admissions, and it permits the competitive consideration
of race in admissions. (See R-206, Opinion at 15, 17, JA-57, 59.) Even if this
Court were to conclude that any of LSA's admissions programs were
unconstitutional, such a violation could not involve "clearly established
constitutional rights of which a reasonable person would have known." Dickerson

57


v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996); cf. Grutter v. Bollinger, 137 F.
Supp. 2d 821 (E.D. Mich. 2001) (granting individual defendants qualified
immunity under nearly identical circumstances after finding a constitutional
violation because the law was not "clearly established"). 35/

In addition, Plaintiffs have not shown that "the unlawfulness was apparent"
such that the individual defendants "knew or reasonably should have known" that
their actions were unconstitutional. Harlow v. Fitzgerald, 457 U.S. 800, 815
(1982). First, in crafting and implementing a race-conscious admissions program
to achieve the benefits of diversity, the University is in the company of nearly all
selective colleges and universities. (See R-162, Appendix, Bowen Rep. at 2, JA-
1498.) Second, as the district court concluded, LSA's admissions programs clearly
do not contain the rigid quotas that Bakke forbids, and the demarcations of lawful
from unlawful are "thin line[s]," not bright lines. (R-206, Opinion at 31, JA-73.)
Under these circumstances, the individual defendants acted properly in carrying
out their duties. See Wilson v. Layne, 526 U.S. 603 (1999).

___________________
35/       The Fifth Circuit's renegade Hopwood decision cannot define a "clearly
established" right in this Circuit not only because it stands alone and was wrongly
decided, but also because cases from other jurisdictions are not relevant to whether
a principle is "clearly established" in this Circuit. See Marsh v. Arn, 937 F.2d
1056, 1068 (6th Cir. 1991).

58


Finally, the very purpose of qualified immunity is to avoid chilling
government officials in exercising discretion, particularly where the law is
uncertain, by providing "ample room for mistaken judgment[] by protecting all but
the plainly incompetent or those who knowingly violate the law." Hunter v.
Bryant,
502 U.S. 224, 229 (1991) (citation omitted). This protection is especially
important here, where the individual defendants are making educational judgments
fundamental to the University's mission.

CONCLUSION

For the foregoing reasons, Defendants ask this Court to affirm insofar as the
district court held that the 1999-2000 LSA admissions programs are constitutional
and that the individual defendants are entitled to qualified immunity, and to reverse
insofar as it held that the 1995-98 admissions programs were unconstitutional.

 

Respectfully submitted,

 


___________________________
Philip J. Kessler
Leonard M. Niehoff
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625
John H. Pickering
John Payton
Brigida Benitez
Stuart Delery
Anne Harkavy
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000
Dated: July 30, 2001


CERTIFICATE OF COMPLIANCE

Pursuant to FRAP 32(a)(7) and 6 Cir. 32(a), the undersigned certifies that
this brief complies with the type-volume limitations of FRAP 32(a)(7)(C).
  1. Exclusive of the portions of the brief exempted by 6 Cir. 32(a)(7)(B)(iii), the
    brief contains 13, 904 words.
  2. The brief has been prepared in proportionately spaced typeface using
    Microsoft Word Version 2000 in Times New Roman 14 point type.
  3. If the Court so requests, the undersigned will provide an electronic version
    of the brief and/or a copy of the work or line printout.
  4. The undersigned understands that a material misrepresentation in completing
    this certificate, or circumvention of the type-volume limits in 6 Cir. 32(a)(7)
    may result in the Court's striking the brief and imposing sanctions against
    the person signing the brief.

 

_________________________
John Payton


CERTIFICATE OF SERVICE

I hereby certify that, on this 30th day of July, 2001, pursuant to FRAP 25
and 6 Cir. R. 31, I caused an original and six copies of the foregoing Brief to be
filed, by Federal Express, with:

Mr. Bryant Crutcher, Office of the Clerk
U.S. Court of Appeals for the Sixth Circuit,
Potter Stewart U.S. Courthouse
100 E. Fifth Street
Cincinnati, OH 45202-3988

I further certify that, on the same day and pursuant to the same provisions, I
caused two copies of the above brief to be served, by Fax and Federal Express, on:

David F. Herr, Esq.
Kirk O. Kolbo, Esq.
Maslon, Edelman,
Borman & Brand
300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402
Theodore M. Shaw, Esq.
Olatunde C.A. Johnson, Esq.
Melissa Woods, Esq.
NAACP Legal Defense &
      Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, NY 10013
Michael E. Rosman, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 20036
Godfrey J. Dillard, Esq.
Evans & Luptak, P.L.C.
2500 Buhl Building
Detroit, MI 48226
Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180
Christopher A. Hansen, Esq.
E. Vincent Warren, Esq.
ACLU Foundation
125 Broad Street, 18th Floor
New York, NY 10041

 

_____________________________
Anne, Harkavy, Esq.
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000


DESIGNATION OF APPENDIX CONTENTS

Pursuant to Sixth Circuit Rules 28(d) and 30(b), Defendants-Appellees (01-1333,
01-1418)/Defendants-Appellants (01-1416) hereby designate the following filings
in the district court record as items to be included in the joint appendix.

Description of Entry Date Filed in
District Court
Record Entry
Number
Defendants' Motion for Order Denying Class
Certification (with no exhibits)
09/14/98 36
Defendants' Reply Memorandum of Law in
Support of Defendants' Motion for Order
Denying Class Certification and in Opposition
to Plaintiffs' Motion to Certify a Class Action
and to Bifurcate Liability from Damages
(with no exhibits)
11/02/98 52
Defendants' Motion for Summary Judgment
(with no exhibits)
05/03/99 80
Defendants' Opposition to Plaintiffs' Motion
for Partial Summary Judgment and
Memorandum in Support of Defendants'
Cross-Motion for Summary Judgment
(with no exhibits)
05/03/99 81
Brief of Association of American Law
Schools, et al. as Amici Curiae in Support of
Defendants (with no exhibits)
05/03/99 87
Memorandum of the State of Ohio as Amicus
Curiae in Support of Motion for Summary
Judgment (with no exhibits)
05/27/99 93
Memorandum of Amici Curiae American
Council on Education, et al.
(with no exhibits)
05/27/99 95
Defendants' Motion for Relief from Order
Regarding Class Certification and Bifurcation
in Light of Subsequent Authority
(with no exhibits)
02/07/00 119
Reply Brief in Support of Defendants' Motion
for Relief from Order Regarding Class
Certification and Bifurcation in Light of
Subsequent Authority
(with no exhibits)
03/09/00 130
Brief of Attorney General Jennifer Granholm
(Michigan) as Amicus Curiae
(with no exhibits)
07/14/00 151
Brief of General Motors Corporation as
Amicus Curiae in Support of Defendants
(with no exhibits)
07/17/00 155
Defendants' Renewed Motion for Summary
Judgment as to Plaintiffs' Claims for
Injunctive and Declaratory Relief
07/17/00 158
Renewed Motion by Defendants Bollinger and
Duderstadt for Summary Judgment on
Grounds of Qualified Immunity
07/17/00 159
Defendants' Summary Judgment Exhibits
Appendix, Vol. I-Documents and Materials

      Exhibit D, The Michigan Mandate, date
      March, 1990 (Title Page, Page 1)

      Exhibit E, Association of American
      Universities statement, On the Importance
      of Diversity in University Admissions,
      dated April 14, 1997

      Exhibit F, Memo from Theodore Spencer
      re: Reason for Diversity, dated September
      25, 1996
07/17/00 160
Defendants' Summary Judgment Exhibits
Appendix, Vol. II-Deposition Excerpts

      Nancy Cantor (45, 59, 68, 72, 79-80, 83)

      Diane Gauss (61-62)

      Marilyn Knepp (17, 21, 23, 27-29, 31-32,
      38)

      Theodore Spencer (52, 73, 83-84, 107-108,
      143-44, 177-78, 196-197, 232, 301-02,
      306)

      James Vanhecke (9, 11-12, 38-39)
07/17/00 161
Defendants' Summary Judgment Exhibits
Appendix, Vol. III-Expert Witness Reports

      William Bowen (12/09/98)

      Albert Camarillo (12/14/98)

      Eric Foner (12/15/98)

      Patricia Gurin (12/15/98)

            Supplemental Report (07/13/00)

      Stephen Raudenbush (01/22/99)

            Supplemental Reports
            (03/03/99, 02/24/00, 07/13/00)

      Claude Steele (12/14/98)

      Thomas Sugrue (12/15/98)
07/17/00 162
Memorandum by Defendants in Opposition to
Plaintiffs' Renewed Motion for Summary
Judgment*

      Attachment-Expert Report of Wayne J.
      Camara
08/11/00 182
Brief of Steelcase, Inc., et al. as Amici Curiae
in Support of Defendants (with no exhibits)
10/16/00 196
Civil Docket for Case No. 97-CV-75231    

*   District Court Docket Number 182 erroneously references the title of this
document as: "Memorandum by defendants in opposition to motion renewed
motion for summary judgment on grounds of qualified immunity."


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