Defendants' Renewed Motion for Summary Judgement in Gratz

STATEMENT OF UNDISPUTED FACTS

The University of Michigan — a government institution created by the constitution of the State of Michigan, see Mich. Const. Art. 8, § 4 — is one of the nation’s premier institutions of higher education. Defendant James Duderstadt served as President of the University from 1988 to 1996, and was then succeeded by Defendant Lee Bollinger, who is the University’s current President. Each President has had supervisory responsibility for overseeing LS&A’s admissions program — and every other department in the University — while in office.

Like institutions of higher education throughout the nation, the University seeks to create a diverse and vibrant academic community, and uses the admissions process as a means of achieving that end. It is undisputed that, under the leadership of Defendants Bollinger and Duderstadt, the University has employed what Bakke expressly permits — the competitive consideration of race and ethnic origin as one of many factors in deciding who among a large pool of qualified applicants should be admitted. It does so to further its important educational judgment that diversity, including racial and ethnic diversity, is crucial to the University’s educational mission.

A. Diversity and the University’s Educational Mission.

The University of Michigan seeks to compose a student body with individuals of different racial, ethnic, cultural, socioeconomic, and geographical backgrounds, who bring with them different interests, achievements, experiences, and beliefs. The University has made an educational judgment that this “diversity is extremely important to opening the minds and challenging the thoughts of students and faculty alike,” (Provost Cantor Dep. at 45), / and is therefore central to the University’s educational mission: “Diversity is in our best intellectual interest because diversity will increase the intellectual vitality of our education, scholarship, service, and communal life.” (Ex. D at 4; see also Inj. Claims Br. at 7-9.) Racial and ethnic diversity in the student body is an essential element of this mix. It contributes to an education that “emphasizes the joys of variety and the benefits of engaging those with different experiences and perspectives.” President Lee Bollinger and Provost Nancy Cantor, The Educational Importance of Race, Wash. Post., Apr. 28, 1998, at A17. As Admissions Director Spencer testified: “The university is very clear that one of its fundamental educational values is diversity and that … if we’re going to prepare students for the 21st century or prepare them for living in a very pluralistic society, we need to create an environment on our campus where all types of diversity [are] available.” (Spencer Dep. at 301-02.)

³/ The exhibits cited in this Memorandum are reproduced in Volume 1 of the Appendix in support of this Motion and the Memorandum concerning Defendants’ Renewed Motion for Summary Judgment as to Plaintiffs’ Claims for Injunctive and Declaratory Relief, and are cited, e.g., as “Ex. A at __.” Deposition testimony, organized by deponent, is reproduced in Volume 2 of the Appendix, and is cited, e.g., as “Spencer Dep. at __.” Expert witness reports are reproduced in Volume 3 of the Appendix, and are cited, e.g., as “Sugrue Rep. at __.” Orders issued by this Court and amicus briefs filed with this Court as part of the initial summary judgment briefing in 1999 are reproduced in Volume 4 of the Appendix.

The University’s commitment to racial and ethnic diversity stems from an understanding, which is widely held in the higher education community, (see, e.g., Ex. E, Association of American Universities, On the Importance of Diversity in University Admissions, April 14, 1997; Brief for the United States as Amicus Curiae at 18; Brief of Amici Curiae American Council on Education, et al., at 3), that such diversity in an educational setting provides a broad range of concrete measurable educational benefits.⁴/ See Bollinger and Cantor, supra, at A17. Expert testimony submitted by the University provides empirical proof of this view. (See generally Inj. Claims Br. at 9-15.) Studies conducted by Defendants’ expert Professor Patricia Y. Gurin, for example, show that students who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with other students showed the greatest engagement in active thinking and improvement in a range of intellectual and social skills. (See Gurin Rep. at 35-38.) The reason for these benefits is that race still matters in American society, where racial segregation in areas such as housing and elementary and secondary school is as pervasive today as it was before Brown v. Board of Education, 347 U.S. 483 (1954), and the landmark civil rights legislation of the 1960s. (See Sugrue Rep. at 19-44; Foner Rep. at 48-49; Camarillo Rep. at 23-26; see also Kevin Sack and Janet Elder, Poll Finds Optimistic Outlook But Enduring Racial Division, N.Y. Times, July 11, 2000 (85 percent of white respondents said they lived in areas with no or few black neighbors; 83 percent said they worked with only a few Blacks or none at all.)) Because most students enrolling in LS&A have had few opportunities to benefit from exposure to individuals with backgrounds different from their own, the University has found that bringing students from different races together on campus, in addition to having a demonstrated effect on classroom learning, helps to challenge preconceived notions and move beyond misconceptions about a variety of issues. (See Gurin Rep. at 18-21; Cantor Dep. at 63-64.)

⁴/ A commitment to diversity in some form has been part of the University’s educational agenda throughout its history. For example, in 1879, Michigan’s third president, James B. Angell, gave a commencement speech addressing the need for diversity in university admissions that challenged University officials to admit students from broader segments of society, students who would come together and cross the “artificial distinctions of conventional society.” (See Ex. C, Nancy Cantor, A Michigan Legacy: Ensuring Diversity and Democracy on Campus, Michigan Alumnus, Summer 1998.) Similarly, in 1988, more than a century later, then-President Duderstadt launched a university-wide initiative referred to as the Michigan Mandate, which was grounded in the view that a “multicultural community” would draw “its intellectual strength from the rich diversity of peoples of different races, cultures, religions, nationalities, and beliefs.” (Ex. D at i; see also President Bollinger Dep. at 228.) According to President Duderstadt, the Michigan Mandate “was stimulated by a growing realization of the importance of the diversity of our campus, our students, our faculty and our staff, to the quality of our academic programs and to the educational experience of our students.” (Duderstadt Dep. at 20.)

B. The LS&A Admissions Process.

Having reached the educational judgment that a racially and ethnically diverse student body is essential to its mission, the University of Michigan takes race and ethnic origin into account as a factor in making admissions decisions. (Provost Cantor Dep. at 51.) The basic facts and key characteristics of the admissions system are not in dispute: race is only one of many factors considered in making admissions decisions, all applications receive individualized review by an admissions counselor and are judged against a uniform set of criteria, there is no separate program, tier, or review for minority applications, and there are no quotas, numerical targets, or goals for the admission of minority students. The following sections describe the LS&A admissions process in some detail to establish that the University’s effort to comply with Bakke under the leadership of Defendants Bollinger and Duderstadt was not “objectively unreasonable in light of clearly established constitutional rights.” Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996) (internal quotations omitted).

1. Admissions Procedures. The Office of Undergraduate Admissions (“OUA”) reviews all applications. The sheer volume of applications received each year requires the establishment of procedures and routines to promote consistency in applying admissions standards. (See Ex. Z at 1.) At the same time, OUA values the individualized review professional counselors accord each application, the myriad factors that combine to make a candidate attractive, and the expertise of the counselors in discovering and assessing these factors based on a student’s application. (Spencer Dep. at 56; McKinney Dep. at 25; see also Ex. Z.) In response to these competing considerations, OUA has created written guidelines for evaluating applications and assisting in making admissions decisions. (See Ex. Z at 1.) With these guidelines, OUA aims to “blend the consistency of a formula with the flexibility of a review that is ultimately a matter of human judgment.” (Id.) In fact, OUA cautions its personnel that “[a]dmissions is more art than science, and these guidelines should not be read otherwise.” (Id.)
Over the years, the guidelines used by the admissions counselors have taken different forms. (See, e.g., Exs. N, O, P, M, BB, and Y (College of LS&A Guidelines for 1995-2000).) OUA reviews its admissions process every year and considers ways to make it simpler, clearer, and easier to implement. (Spencer Dep. at 96-97, 116, 143-44; Seltzer Dep. at 113.) But, while the mechanics of the admissions process have varied over time, the policies underlying the guidelines have not changed — including the policy of considering race and ethnic origin as a single but important factor in admissions, as permitted by Bakke, in order to achieve diversity.

Clerks at OUA handle the initial processing of all applications to LS&A. One set of clerks processes the application fee and enters biographical data gleaned from each application into the OUA admissions database. (Gauss Dep. at 12-13.) In addition, another set of clerks, using a procedure book, computes an academic grade point average (“GPA”) using a student’s academic courses from 10th and 11th grades. (See id. at 16-17.)

Clerks do not make any decisions to admit or reject any applicant.⁵/ (See Ex. EE.) Rather, all applications are turned over to professional admissions counselors for individualized review. Each of the approximately 20 counselors is assigned a geographic territory and reviews all applications from that region, thereby developing territorial expertise, including detailed knowledge of school strength, curricula, and any special geography-based factors. (Spencer Dep. at 28; Gauss Dep. at 30; see also Vanhecke Dep. at 99.) The only exception to this geography-based assignment system is that all applications from athletes are reviewed by a single counselor rather than being assigned to a counselor by region. (Gauss Dep. at 30-31.) Applications from minority students are assigned to counselors responsible for the relevant geographic area, and are reviewed along with the applications of everyone else. This fact bears emphasis: unlike the admissions system that was rejected in Bakke, there is no separate assignment or review of minority applications. (Spencer Dep. at 27, 273; Gauss Dep. at 31; Vanhecke Dep. at 99.)

⁵/ For a time, OUA used an expedited review process to ensure that students with exceptionally high standardized test scores and high school GPAs were admitted as early in the admissions session as possible, based solely on these rankings. (See, e.g., Ex. I; Ex. J.) Some of these students were admitted after counselor review, (Ex. J), but others were admitted by clerks, without such review or reference to other factors, (Ex. I). This practice was discontinued. (See Ex. EE at 4.) For the most part, however, decisions to admit applicants made pursuant to the guidelines have been based on more than grades and test scores.

Under the current LS&A admissions program, counselors implement the University’s admissions guidelines by evaluating applications using a “selection index worksheet.” The worksheet prompts the counselor to enter a numerical value for each of a number of academic and other factors, up to a possible total of 150 points. (Ex. Y; Ex. Z; see also Ex. BB; Ex. CC; Ex. H; Inj. Claims Br. at 19-23.) Although some of the categories provide for fixed point values, several permit the counselor to exercise discretion in determining how many points to award for a given factor. A student’s high school academic GPA receives the most points — a possible 80 out of 150. (Ex. Z at 1.) Students also receive a range of points depending on their standardized test scores.⁶/ (Id. at 4.) The “School” factor accounts for the strength of a student’s high school. The guidelines call for counselors to exercise judgment in determining the School factor for each school in their territories, in light of their familiarity with the quality of education offered at that school; each student from that school then receives the same number of points. (See id. at 2; Spencer Dep. at 200.) The rigor of each individual applicant’s particular high school course of study is reflected in the “Curriculum” factor. As the guidelines state, “[g]iven the wide disparity in high school course selection and offerings, it is imperative that the choice of strong courses … be considered in the review process.” (Ex. Z at 3.) Counselors therefore subtract points if an applicant’s record shows that he or she chose a weaker curriculum when a stronger one was available, and then add points for an applicant who chose a more challenging course load. (See id. at 3-4.) Again, in assigning the appropriate point value, counselors are encouraged to draw upon their knowledge of the meaning of course labels (e.g., “honors”) used by the schools in their territory. (See id.) Applicants can be awarded a maximum of 110 points for all of these academic factors taken together. (See id. at 1.)

⁶/ Applicants receive far fewer points for standardized test scores than for GPA because test scores are highly correlated with GPA and therefore do not add much predictive value to an applicant’s future academic performance. Standardized test scores only increase the prediction of an applicant’s college freshman grades by about 3 or 4 percent over predictions using high school grades alone. (See Steele Rep. at 5)

Applicants can also receive a maximum of 40 points from a variety of other factors evaluated by the counselor. (See id. at 4.) The “Geography” factor assigns points to Michigan residents (10 points), students from underrepresented Michigan counties (six points), and students from underrepresented states, such as many western and southern states (two points). (See id. at 4-5.) The “Alumni” factor awards either one or four points to applicants who are close relatives of an alumnus, depending on the specific relationship. (See id. at 5.) Counselors may also award up to three points for the required personal essay, taking into account the originality, organization, subject matter, and writing quality. (See id. at 6.) In addition, based on the information applicants supply as to activities, work experience, and awards, counselors may, in their discretion, assign up to five points for leadership and service as well as an additional five points for personal achievement — as evidenced by persistence, character, commitment to high ideals, and level of awards. (See id. at 6-7.) Finally, applicants who fall into one of the following categories may receive 20 points: socioeconomically disadvantaged; underrepresented minority;⁷/ students from predominantly minority high schools (regardless of race); recruited athlete; or by the Provost’s discretion. (See id. at 7-8.) Only 20 points, in total, may be awarded for these factors. (Spencer Dep. at 156-58.)

⁷/ The University of Michigan considers underrepresented minorities to be African-Americans, Hispanics, and Native Americans. (Spencer Dep. at 73.) Because the University receives a substantial pool of applications from Asian-American students, the University is able to achieve diversity with respect to such students without considering their race in the admissions process. (Cantor Dep. at 72.)

The guidelines themselves make clear that admissions decisions will not be reduced solely to grades and test scores. (Ex. Z; Ex. AA.) In making admissions decisions, OUA considers each of the guideline factors and evaluates the talents and experiences that individual applicants, based on their unique backgrounds, would bring to the entering class. As a result, it often turns out that there are applicants in every racial group who have been accepted with lower grades and test scores than other applicants with higher grades and test scores who have been denied admission. Nevertheless, only qualified applicants who can be expected to succeed at the University are admitted. (Ex. K at 19 (“admission is dependent upon a high probability of success in the chosen school or college”).)

Once a counselor has arrived at a selection index score for an applicant, the counselor enters this score into OUA’s database. The counselor may also decide to flag the application for additional consideration by the Admissions Review Committee (“ARC”), which was created for the 1999 admissions cycle and comprises members of OUA and the Office of the Provost.⁸/ (Ex. EE at 2-3.) The ARC provides an additional level of consideration beyond the initial counselor review. The ARC is designed to allow discussion of the more difficult decisions for the group of applicants at the margins, or for those applicants whose selection index score may not accurately reflect the contribution they would make to the University. The ARC makes admissions decisions while — quite literally — sitting around a table reviewing and discussing the flagged applications. This kind of committee format for admissions decisionmaking is used widely by smaller colleges around the nation. See, e.g., Jacques Steinberg, College Gatekeepers Read Between The Lines, N.Y. Times, April 3, 2000 (discussing the “communal” discussions the admissions committee at Wesleyan University engages in after rounds of individual application review). The University has adopted a modified version of committee review (as the volume of applications permits) in order to capture the virtues of extended discussion and debate that it offers for the more difficult and complex admissions decisions. The ARC differs only in form, not substance, from the individualized counselor review that each application always receives: “[a]s with the other components of [the University’s] admissions process, the overall goal is to admit a class of qualified students who best serve our educational mission both individually and as a group.” (Ex. AA at 2.)

⁸/ A counselor may, in his or her discretion, choose to flag an application for the ARC that meets all of the following three criteria: (1) in the estimation of the counselor, using his or her professional expertise, the applicant is academically prepared to do the level of work required at the University; (2) the applicant’s selection index score is greater than or equal to 80 for Michigan residents or 75 for non-residents; and (3) the applicant possesses a quality or characteristic important to the University’s composition of its freshman class. These attributes include high school class rank; unique life experiences, challenges, circumstances, interests or talents; socioeconomic disadvantage; underrepresented race, ethnicity, or geography; connections to the University community; athlete; or application through the “on-the-spot” program. In addition, an admissions counselor may flag an application if something in the applicant’s file, such as a pattern of declining grades or disciplinary problems, indicates that the applicant may not be suitable for admission despite a high selection index score. For flagged applications, the counselor enters both the selection index score and the flag into the OUA database. (See Ex. AA at 2-5; Ex. EE at 2-3.)

After the counselors complete their individualized review of each application and enter the applicant’s selection index score and flag (if any) into the OUA database, admissions decisions are generally executed in one of two ways. First, on the basis of parameters set by the selection index score, the admissions action — admit, defer, or deny — is determined with respect to all applications awaiting action in the OUA database.⁹/ (See Ex. EE at 3.) These parameters apply across-the-board, regardless of the race of the applicant, to all applications in the OUA database. Periodically, the parameters are adjusted to prevent over-enrollment and to pace the admissions process appropriately. (See id.) Second, the ARC reviews and discusses applications that were flagged by the admissions counselor but not admitted based on the parameters. Based on these discussions, the committee decides whether to admit, deny, or defer the applicant. (See id.)

⁹/ The parameters are set by the Enrollment Working Group (“EWG”), a committee comprised of representatives from various University offices, including the Office of Budget and Planning, the Office of Academic Affairs, the OUA, the Office of Financial Aid, the Office of Academic Multicultural Initiatives, LS&A, and other colleges of the University. (Ex. R at 7.) See infra, at 16.

OUA first used the selection index to select the freshman class entering in 1998. Before that year, the guidelines were implemented by means of so-called “grids.” The basic mechanics of how the grids worked have been subject to extensive discovery and are undisputed. Once the clerks calculated an applicant’s academic GPA, then referred to as “GPA1,” (Spencer Dep. at 161-62; Gauss Dep. at 16-17), the counselors produced an adjusted value, called “GPA2,” (Spencer Dep. at 161-162), by giving an applicant points for the factors now included in the University’s selection index. (Spencer Dep. at 90; McKinney Dep. at 23-24.) Each grid had a vertical axis with GPA2 ranges and a horizontal axis with standardized test score ranges, and cells indicating the various evaluation options open to counselors.¹⁰/ GPA2 did not include all of the factors considered in the admissions process (and that are now included in the selection index). Although counselors considered an applicant’s race, Michigan residency, and alumni status (as they continue to do), these three factors were reflected in the grids themselves and not in GPA2.¹¹/ (Spencer Dep. at 92-93.) Counselors used specific grids to factor in an applicant’s Michigan residency, alumni relationships, or status as an underrepresented minority. That is, the “plus factor” was reflected by the grid, rather than a numerical value added to GPA2. The grids and the GPA2 together reflected the manner in which counselors took factors such as Michigan residency, legacy status, or race into account. These factors could have been organized in any number of different ways (e.g., including underrepresented minority status in GPA2 and reflecting the strengths of the applicant’s high school on the grids) to the same effect.

¹⁰/ The data show that the grids were not rigidly applied to compel certain results, but rather served as a guide to decisions made in the exercise of professional judgment by the counselors. (See Ex. S; Ex. T.) For example, tables displaying the fall 1995 students enrolled in LS&A demonstrate that many students were admitted for whom the guidelines did not call for admission. (Ex. T.) One such table, for instance, shows that of the non-resident, non-minority students with a 3.0 to 3.19 GPA2 who applied, across all ranges and test scores, 6.2 percent were admitted. (Id. at UMA 030398.) A strict adherence to the 1995 LS&A admissions tables would have led to the rejection of virtually all of these students. (Ex. N at UMA 005736.) Similarly, for students who had Plaintiff Gratz’s GPA2 and SAT ranges — GPA2 between 3.80 and 3.99, and SAT scores between 1000 and 1090 — the tables show that 121 non-minority students with her grades and test scores were either admitted upon first consideration or off of the extended wait list. (Ex. T at UMA 030396.)

¹¹/ GPA2 only accounted for the alumni status of non-resident applicants. (See, e.g., Ex. G at 4.)

OUA changed the format of the grids each year from 1995 to 1997. In 1995, the admissions guidelines comprised four grids. (Ex. N at 1-4.) In 1996, the four grids were collapsed into two grids: one for Michigan residents and individuals with alumni relationships, and one for non-Michigan residents. (Ex. O at 1-2.) In 1997, GPA2 was restructured to include points for, among other things, applicants who were underrepresented minorities or had alumni relationships. (Ex. P at 1-2; Ex. Q at 3-4.) The 1997 grids combined two rows of possible options: one for students in general, and one for all students who were underrepresented minorities, attended schools with a predominantly minority population, were socioeconomically disadvantaged, or were underrepresented in the academic unit to which they were applying. (Ex. P at 1-2.) Although this change in 1997 gave consideration to race in both GPA2 and the grids, the combined degree of that consideration was designed to be no greater than the consideration given to the race factor in the previous years. (Id.)

Throughout these changes in how the grids were organized, and the creation of the current selection index, the substance of the admissions guidelines and the significance of race in decisionmaking has remained the same. (Spencer Dep. at 116.) David Hunter, the statistician who created the selection index in consultation with OUA, testified that the selection index was simply another way of considering the factors used in the grid system. (Hunter Dep. at 76-77.) The grids represented visually what the points represent in the linear selection index; the relative importance of the various factors remains the same. The selection index was adopted by OUA only to simplify the admissions process and “to be more straightforward, more understandable.” (Seltzer Dep. at 93.) The undisputed record evidence indicates that, although important in the admissions process, race has always been just one of many factors considered by OUA when making decisions. (See Spencer Dep. at 107; 189.) The LS&A admissions system reflects a conscientious attempt to comply with Bakke.

2. Managing Enrollment.
Given the thousands of applications it receives, the University must carefully manage its enrollment to avoid over-enrollment and to enroll an entering class with the spectrum of attributes it values. (Knepp Dep. at 31.) As part of the admissions process each year, the University sets enrollment goals for the total number of entering students in the freshman class. (See Cantor Dep. at 73.) The overall enrollment targets are necessary because they affect every aspect of University life. They allow appropriate planning for academic programs (e.g., course development and scheduling, faculty workload and hiring, class size, etc.), the budget, financial aid, housing, orientation, and other services. In addition to the overall enrollment goal, the University sets targets for in-state residents and for enrollment in each of the academic units. (See Spencer Dep. at 12, 183; Knepp Dep. at 14.) There are no other enrollment targets. In particular, the process described above does not have — and has not had — targets or quotas for the admission of underrepresented minority students. The consistent testimony in the record is that the University does not have any numerical targets or goals for the admission or enrollment of underrepresented minority students. (See Spencer Dep. at 12, 290; Cantor Dep. at 83; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118; McKinney Dep. at 111, 121.)

Counselors review applications as they are received, and admissions decisions are made on a phased basis at certain intervals throughout the admissions cycle. (Knepp Dep. at 21; Spencer Dep. at 177.) This kind of phased admissions system requires careful management of the admissions process throughout the year. (Knepp Dep. at 23; Spencer Dep. at 180.) For example, if the University admitted 100 percent of its class in the first two months of the admissions process, it could not admit attractive applicants who applied later without over-enrolling. (See Knepp Dep. at 31-32; Cantor Dep. at 79.) For assistance in pacing its admissions decisions, the University created the Enrollment Working Group (“EWG”), a committee that works with OUA and other offices to permit full consideration of each of the applications submitted over the course of the year. EWG monitors admissions and enrollments as the season progresses, analyzes enrollment trends and projections, and advises OUA accordingly, to ensure that the University does not exceed or fall short of its overall enrollment target, and that it achieves the desired composition of the entering class. (See Spencer Dep. at 52; Seltzer Dep. at 27.)
Historically, the University’s experience showed, many attractive applicants in certain groups, such as athletes, foreign students, ROTC candidates, and underrepresented minorities, tended to apply later in the cycle. To account for this pattern, EWG has projected the number of applications from individuals in such groups that the University was likely to receive by a given date by reference to how many were received from applicants in these groups after that same date in the prior year. OUA then paced its admissions decisions to permit full consideration of those applications expected to arrive without ultimately overenrolling the class. (See Seltzer Dep. 151; Spencer Dep. at 232.)
The groups for which EWG projected application flow were referred to as “protected categories,” and the estimates of anticipated admissions from later applicants in these groups were referred to as “protected seats.” (Spencer Dep. at 177-78.) The facts relating to this process are undisputed. “Protected seats” did not represent specific slots in the class, but rather were designed to give OUA some advance sense of the number of applications it was likely to receive from groups of students in the last stages of the cycle. (Knepp Dep. at 17.) The purpose of this process was to permit the University to wait to enroll the entire class until all applications had been submitted. (See Knepp Dep. at 23, 27-29; Seltzer Dep. at 151; Spencer Dep. at 232.) Minority applicants, along with foreign students and others, who applied during the later stages of the admissions cycle were evaluated using the same criteria that had been applied to all other applicants. (See Spencer Dep. at 107-08.) With the advent of ARC and EWG’s increased involvement in admissions earlier in the season, the University has also discontinued its prior practice of using “protected seats” as an enrollment management technique. (Ex. EE at 4.)

3. Recruitment of Minority Applicants.
As part of its commitment to compose a diverse entering class from among its applicants, the University has launched numerous recruiting programs designed to attract minority students, and is constantly trying to find new ways to recruit underrepresented minorities. The University ’s efforts have ranged from maintaining an office in Detroit for recruiting local high school students, (Spencer Dep. at 29, 196-97), to direct mailings, personal contact with minority applicants by counselors, attendance at recruiting fairs, and campus visits for minority students. (Vanhecke Dep. at 11-12; Ex. D at vi, 19.) The number of qualified underrepresented minorities who do apply to the University each year is largely the result of these aggressive recruitment efforts.

Nevertheless, the University’s efforts to “do just about all aspects of recruitment that [are] possible, ” (Vanhecke Dep. at 9), typically produce limited and varying results. Each year, the University receives applications from only a small pool of qualified minority applicants.¹²/ As a result, the number of students from each racial and ethnic group admitted to LSŠA is also relatively small, as is the proportion of successful applicants who opt to enroll at the University (the so-called “yield, ” which is generally low). Because of this, the University ends up admitting virtually all qualified underrepresented minorities to ensure a diverse student body on campus. (See Spencer Dep. at 83-84; Vanhecke Dep. at 36, 38; Seltzer Dep. at 121-22; McKinney Dep. at 56-57.) It is, however, undisputed that the admission of such students is based on competitive considerations, and that the University ’s policy has always been to grant admission only to qualified applicants who can be expected to succeed. (Ex. K at 19.)¹³/

¹²/ For example, applications from underrepresented minority groups constituted only 11.4 percent of applicants to LSŠA in 1995, 11.2 percent in 1996, and 9.5 percent in 1997. (Raudenbush Supp. Rep. at Tables 2a-2c.)

¹³ / The data show that, though the average grades and test scores for all students admitted to LSŠA are high, there is some difference between the average grades and test scores of admitted majority and admitted minority students. (See Ex. U; Ex. V.) The differences are not significant, however. Professor Claude Steele, one of the University’s experts, pointed out that differences in SAT scores as large as 300 points “actually represent a very small difference in skills critical to grade performance.” (Steele Rep. at 5.)

The University does not rely on racial quotas or their functional equivalent in making admissions decisions. The evidence shows that there are no fixed numbers or targets for the admission of racial minorities, (see Spencer Dep. at 12, 290; Cantor Dep. at 83; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118; McKinney Dep. at 111,121), and that the percentage and number of students admitted to the University varies from year to year. (See Raudenbush Supp. Rep., March 3, 1999, at Tables 3a-3c.) While the figures on admitted students do show that a somewhat greater proportion of underrepresented minority students are admitted than non-minority applicants, (id. at Table 3c (indicating that in 1997, 87.0 percent of underrepresented minority applicants were accepted, compared with 74.2 percent of non-minorities)), Professor Stephen Raudenbush, a leading statistician and one of Defendants ’ experts, concludes that these figures show only that race plays a role in admissions, not that it is the predominant or overwhelming consideration in the admissions process. (Raudenbush Rep., January 22, 1999, at 4.)¹⁴/ The facts show that all applicants, regardless of race, are evaluated on an individual basis, pursuant to the same set of admissions guidelines. (Spencer Dep. at 107-08.)

¹⁴/ Because of the small pool of minority applicants to LS&A each year, the actual numbers of underrepresented minority students admitted is not especially large. For example, in 1997, the total number of underrepresented minority students admitted to LS&A was 1125. (Raudenbush Supp. Rep., March 3, 1999, at Table 3c.) In contrast, a total of 7749 non-minority students were admitted that year. (Id.)

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