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Amicus Briefs—United States Supreme Court
Summary of Arguments
Grutter v. Bollinger, et al.

Briefs Filed IN SUPPORT OF THE UNIVERSITY OF MICHIGAN:
updated April 4, 2003

Briefs Filed IN SUPPORT OF GRATZ, HAMACHER & CIR:

Briefs Filed IN SUPPORT OF NEITHER PARTY:

Briefs Filed IN SUPPORT OF RESPONDENTS:

13,922 Current Law Students

  • Justice Powell’s opinion in Bakke, holding that diversity is a compelling governmental interest, is controlling and should be followed.
  • A diverse student body imparts invaluable educational and social benefits to law students.
    1. Diversity contributes to a wide, robust exchange of ideas, essential to the discovery of truth and to the critical debate necessary to legal education.
    2. Diversity is essential to fostering speculation, experimentation and creation in law school.
    3. Legal education is severely diminished in isolation from the individuals and institutions with which the law interacts.

3M, et al. (Fortune 500 Corporations)

  • The pursuit of diversity in higher education is a compelling state interest because it prepares all students to succeed in and enhance the global community.
  • The importance of diversity was addressed by the Supreme Court in Bakke and has been a controlling force in the 25 years since the case was decided.
  • Because the population is diverse and because of the increasingly global reach of American business, the skills and training needed to succeed in business today demand exposure to widely diverse people, cultures, ideas and viewpoints.
  • Individuals who have been educated in a diverse setting are more likely to succeed.
    1. They have the ability to facilitate unique and creative approaches to problem-solving arising from the integration of different perspectives.
    2. They are better able to develop products and services that appeal to a variety of consumers and to market offerings in ways that appeal to those consumers.
    3. They are better able to work with business partners, employees and clientele in the U.S. and around the world.
    4. They are likely to contribute to a positive work environment, by decreasing incidents of discrimination and stereotyping.

American Bar Association

  • The Supreme Court has sanctioned the use of race-conscious admissions policies by institutions of higher education since 1978.
  • Ensuring full minority participation in our legal institutions is a compelling state interest.
    1. Full participation by racial and ethnic minorities in the legal profession is necessary to ensure adequate representation of minority interests and the legitimacy of our democracy.
    2. Race-conscious admissions are essential to increasing minority representation in the legal system.
  • Public law schools have a compelling interest in ensuring that racial and ethnic minorities receive a legal education.

American Educational Research Association, et al.

  • Research evidence in the record supports the compelling interest in promoting educational diversity.
  • Research studies support the compelling interest in promotion educational diversity.
    1. Student body diversity improves educational outcomes. It improves classroom learning environments; promotes thinking skills; and has positive effects on retention, college satisfaction, self-confidence, and interpersonal and leadership skills.
    2. Student body diversity promotes democratic values and increased civic engagement. Diverse learning environments challenge students to consider alternative viewpoints and develop tolerance for differences as well as promote participation in civil activities.
    3. Student body diversity prepares students for a diverse society and workforce.
    4. Diverse learning environments in K-12 educational settings provide comparable educational benefits.
  • The University of Michigan’s admissions policies are narrowly tailored to promote educational diversity.
    1. The University’s admissions policies employ race modestly and flexibly and do not overburden non-minority applicants.
    2. Race-neutral policies are less efficacious than race-conscious policies in promoting educational diversity.

American Federation of Labor & Congress of Industrial Organizations (AFL-CIO)

  • The compelling interest in reducing employment discrimination
    1. The persistence of employment discrimination.
    2. The resistance of discrimination rooted in prejudice and stereotypes to prohibition.
  • The admissions programs further the compelling interest in reducing discrimination.
    1. Segregation in the U.S. prior to college
    2. The conditions for contact on campus.
    3. The benefits of contact with diverse peers in higher education, resulting in reduction of stereotypes and bias as well as benefits in the workplace.
  • The admissions programs are narrowly tailored

American Jewish Committee, et al.

  • Historic Jewish opposition to quotas does not mandate rejection of narrowly tailored admissions programs like those in place at the University of Michigan and its Law School.
  • Consideration of race to achieve diversity in public university admissions furthers a compelling governmental interest.
  • The admissions systems at the University of Michigan and its Law School are narrowly tailored to meet the compelling governmental interest of achieving diversity and do not violate the equal protection clause.

American Law Deans Association

  • Consideration of race in law school admissions serves multiple compelling interests, including avoiding resegregation, selective admission standards, serving the whole state, and remedying past and present discrimination in public education. These compelling interests are color blind.
  • No race-neutral means are available to achieve these compelling interests.
    1. Direct consideration of race achieves diversity at the least cost to academic standards.
    2. Race-neutral methods inherently achieve less diversity and at far greater cost to academic standards.
    3. Prominent examples of race-neutral approaches include percentage plans, lottery admission, strong proxies and private assistance.
    4. The Supreme Court cannot now deprive law schools of the only means of meeting court-imposed expectations.

American Psychological Association

  • Diversity in higher education promotes harmonious and productive intergroup relations.
    1. Discrimination and prejudice persist in significant and demonstrable ways, even in many who believe that they are not prejudiced and do not discriminate.
    2. Diversity in higher education reduces unconscious stereotyping and promotes productive intergroup relations.
  • The Gurin Report provides sound evidence to support the conclusion that the government’s interest in educational diversity is compelling.
  • Diversity in higher education leads to cultural competence, which is critical to the psychology profession and to society at large.
    1. Psychologists must be culturally competent in an increasingly diverse society.
    2. Diversity in higher education is critical to the acquisition of cultural competence.

American Sociological Association, et al.

  • Universities have a compelling interest in considering the life experience of growing up Black, Latino, or Native American in making admissions decisions. These experiences include residential segregation, social segregation, economic disadvantage, and stigma.
  • Race-based life experiences are relevant to university admissions.
  • Considering race in university admissions is narrowly tailored when race is one of many life experiences considered in assessing individual applicants.

Amherst and Other Private Colleges

  • Private, highly selective colleges have a compelling educational interest in enrolling higher diverse — including racially diverse — classes, and cannot do so without taking the diversity they strive for into account.
    1. Private, highly selective colleges are committed to obtaining the educational benefits of diversity, including racial diversity.
    2. Highly selective institutions cannot obtain the diversity they seek except by seeking it directly.
    3. The alternatives suggested by the United States and petitioners cannot work at smaller highly selective colleges, and would compel them to trade selectivity to obtain diversity.
    4. Selecting a diverse student body does not classify students by race or violate Title VI or Section 1981; without more, such practice imposes no quota; built-in structural and competitive factors afford substantial guarantees against abuse.
  • The commitment to broadly include students from groups which had been systematically disadvantaged and effectively excluded has brought myriad benefits which the Supreme Court should respect and safeguard.
    1. The recognition that classes were not racially or ethnically diverse, and the commitment to efforts to obtain a broader diversity by attending to students who had been systematically excluded.
    2. Thirty-five years later, the colleges’ experience demonstrates that affirmative action has had educational benefits — and benefits for American society.
  • Barring institutions of higher education from maintaining their own admission criteria would violate vital principles of academic freedom and institutional autonomy, as well as legal precedent.

Arizona State University College of Law

  • Amicus’ use of race and ethnicity as positive factors in its admissions decisions enables it to maintain a diverse student body and promotes diversity in the Arizona bar and the Arizona judiciary.
    1. Arizona’s two state law schools contribute importantly to the Arizona bar and judiciary.
    2. Amicus’ use of race and ethnicity as positive factors in admissions decisions is necessary in order to achieve a significant degree of diversity in its student body.
  • Racial and ethnic diversity in the student body contributes substantially to the quality of amicus’ educational program.

Association of American Law Schools

  • A racially integrated system of legal education is critical to American democracy.
    1. Law schools, particularly ones with highly selective admissions processes, produce a significant proportion of high public officials.
    2. A racially integrated student body is essential for law schools to perform their role as training grounds for the next generation of judges, public servants and leaders.
  • Without race-conscious affirmative action, law schools would be faced with an unacceptable choice between having virtually no minority presence and sacrificing other weighty educational interests.
    1. The alternative methods of achieving a representative student body proposed by the United States are not race-neutral as a matter of constitutional law.
    2. The alternative methods of achieving a representative student body proposed by the United States would not work to integrate selective law schools.
    3. Race-neutral means for achieving a representative student body can actually be less narrowly tailored than a carefully constructed affirmative action plan, once the overall mission of law schools is taken into account.
  • Law schools’ justified reliance on the Supreme Court’s assurance that race may be deemed a “plus factor” in admissions warrants reaffirming that principle.
    1. Higher education as we know it today was build in reliance upon Bakke.
    2. Colleges, law schools and universities justifiably relied upon the holding in Bakke.

Association of American Medical Colleges, et al.

  • Our society has a critical need to graduate competent minority physicians.
    1. Minority physicians are more willing to practice in underserved population areas.
    2. Patient satisfaction is integral to effective health care, and minority patients are often more comfortable with physicians of their own race.
    3. Increasing the number of minority physicians will help to inform the nation’s medical research agenda.
  • A diverse student body helps to create “culturally competent” physicians and health care managers.
    1. Classroom diversity leads to more effective clinicians.
    2. Classroom diversity helps to bring creative thinking and expanded perspectives to health care management issues.
  • An admissions policy that considers race as one of many factors is narrowly tailored to meet medicine’s diversity needs.
    1. Relying on MCAT scores and GPA’s alone would have disastrous consequences for minority enrollment in medical school.
    2. Considering race and ethnicity in the application process does not compromise physician competence.
    3. No other factor yields the diversity benefits that direct consideration of race and ethnicity yields.
    4. Race-conscious admissions programs are only part of academic medicine’s efforts to address minority underrepresentation in medicine.
  • The educational community’s judgment that there is a compelling need to consider race in admissions is entitled to a degree of deference.

Bay Mills Indian Community, et al.

  • The State of Michigan has a compelling interest in educating Native American students.
    1. One of the original missions of the University of Michigan was to educate Native American students.
    2. The federal government has promoted special educational programs for Native American students since this nation’s founding, and responsibility for many of these programs has been delegated to the states, including the State of Michigan.
    3. The State of Michigan has an independent interest in educating Native American students so that they can manage complex tribal governmental and business affairs.
  • In addition, the law school has a compelling interest in a diverse student body.
  • The law school admissions policy is narrowly tailored to accomplish the state’s interest in educating Native American students and in promoting educational diversity.

Lt. Gen. Julius W. Becton, Jr., et al. (Retired Military)

The government’s compelling national security interest in a diverse officer corps requires race-conscious admissions policies for officer training programs.

  • Integration of the military.
  • Integration of the officer corps.
  • Race-conscious admissions programs for officer education and training.
  • Race-conscious admissions are constitutional.

Black Law School Graduates Committee

  • Correcting the systemic ways traditional admissions criteria embed racial preferences is a compelling state interest.
    1. Universities are constitutionally permitted to counteract racial preferences embedded in traditional admissions criteria. Properly understood, affirmative action is not a preference but an effective and efficient mechanism to counteract racial preferences.
    2. Racial diversity is a compelling state interest because it satisfies the academic and democratic mission of public universities and the mission of the University of Michigan. Because race is not simply skin color, but a marker for social status, experience, and access to wealth, racial diversity serves the academic mission of public universities and promotes the democratic mission of public schools.
    3. Genuine racial diversity at the University of Michigan Law School requires some race consciousness. The admissions program is narrowly tailored. Percentage plans are not race neutral alternatives to race conscious admissions.

Black Women Lawyers Association of Greater Chicago

  • Historical analysis of institutionalized racial discrimination.
  • Statistical evidence of the pervasiveness of racial discrimination.
  • The experience of black women lawyers in the 20th and 21st centuries — a difference in kind and not just degree.
  • Remedying past racial discrimination in higher education is a compelling state interest. This section includes the University of Michigan’s discriminatory history and the school desegregation cases that establish the constitutionality of race-conscious remedial measures.
  • Race-neutral plans are inherently race-conscious and disadvantage African Americans.
  • Beneficiaries of affirmative action are not stigmatized.

Carnegie Mellon University and 37 Fellow Private Colleges and Universities

  • The Supreme Court should reaffirm Justice Powell’s opinion in Bakke that diversity, including racial diversity, serves compelling interests in excellence, leadership, and experimentation in higher education.
  • The Supreme Court should reaffirm Justice Powell’s opinion in Bakke that race may be considered, as one of many factors, in a narrowly tailored effort to achieve meaningful diversity in higher education.
  • The Supreme Court should preserve academic freedom and the spirit of experimentation vital to higher education by preserving the ability of colleges and universities to consider race as one of many factors when selecting students for admission.

Cities of Philadelphia and Cleveland and the National Conference of Black Mayors

  • The Supreme Court should reject Petitioners’ proposed rule.
    1. Petitioners’ proposed rule would inhibit colleges and universities from treating amici’s students as individuals.
    2. Petitioners’ proposed rule would disrupt the delicate balance between vindicating Fourteenth Amendment rights and interfering with the educational process.
  • The Supreme Court should reaffirm Justice Powell’s Bakke opinion.

Clinical Legal Education Association

  • The state has a compelling interest in enrolling a diverse law school student body.
    1. All law students benefit from racially and ethnically diverse student bodies.
    2. The focus of clinical legal education is to prepare student-lawyers to enter into a multi-cultural, global legal profession.
    3. Clinical law professors cannot properly train student-lawyers without a diverse student body. Since law school clinics serve a predominantly minority client base, student-lawyers are better able to provide effective client-centered counseling with exposure to a diverse population of law students who have experienced the benefits of racial diversity.
  • Enrolling a critical mass of minority law students requires law schools to consider applicants as complete individuals, and to weigh the contributions each student can make to the school as a whole.
  • The benefits of diversity cannot materialize without a critical mass of minority students.
  • Enrolling a critical mass of minority law students is essential to fostering and maintaining public confidence in America’s legal system.

Coalition For Economic Equity, et al.

  • Petitioner’s equal protection strict scrutiny analysis is flawed because it is grounded on an impoverished version of constitutional “colorblindness.”
    1. Petitioner’s and Amici’s view of constitutional “colorblindness” disregards historical and social context and would render the strict scrutiny standard automatically “fatal-in-fact.”
    2. Petitioner’s version of constitutional colorblindness is impoverished because it contradicts the historic purpose and original meaning of the equal protection clause and civil rights laws — to foster genuine equality for groups subordinated under law and by social practice.
    3. Petitioner’s view of colorblindness is impoverished because it perpetuates stark inequalities and deepens social divisions.
    4. Petitioner’s version of colorblindness leads to a distorted application of the strict scrutiny standard of review.
    5. Petitioner’s view of colorblindness is impoverished because it implicates an equally narrow conception of constitutional “gender-blindness.”
  • Constitutional colorblindness, appropriately viewed, informs a strict scrutiny standard that carefully assesses race-based classifications while according an added measure of judicial respect for government initiatives designed to remove historically-rooted group disadvantages.
    1. Constitutional colorblindness, appropriately viewed, distinguishes between governmental classifications designed to promote inclusion from those aimed at perpetuating group disadvantage.
    2. When carefully conceived, a program designed to promote inclusion by removing historical barriers is deserving of greater judicial respect, especially in the court’s assessment of whether the program is “narrowly tailored” to its purpose.

Columbia, Cornell, Georgetown, Rice and Vanderbilt Universities

  • The First Amendment rights of universities to determine whom to admit constitutes a central element of academic freedom.
  • First Amendment interests can be accommodated and Fourteenth Amendment and Title VI interests still vindicated by providing a high degree of deference to a university’s good-faith determination as to how to further its academic mission.
  • When a university determines that a constitutionally permissible goals — such as diversity within its student body — is essential to providing the highest quality educational experience for its students, any assessment of “narrow tailoring” as part of strict scrutiny analysis should reflect the deference noted above.

John Conyers, Jr., and Other Members of Congress

  • Racial diversity in higher education furthers compelling governmental interests that strengthen American democracy.
    1. Considering race as one factor in admissions is constitutional.
    2. Non-remedial justifications can support race-conscious governmental action.
    3. Eliminating educational diversity as a compelling state interest will have negative consequences for the ideal of the rule of law.
  • The Supreme Court’s framework for distinguishing legitimate race-conscious decisions from unlawful quotas preserves the efficacy of our federal system.
    1. Race may be considered as one of many factors in governmental decision making in some circumstances.
    2. Sustaining limited race-conscious decision making preserves necessary flexibility for governmental actors.
    3. Congress and the Executive Branch have continuously endorsed race-conscious decision making as a constitutional means of promoting full and complete political and economic participation for all Americans.

Representative Richard A. Gephardt, et al.

  • Promoting diversity in higher education through increased minority representation is a compelling governmental interest.
  • The University of Michigan’s admissions policies are narrowly tailored to meet this interest.
    1. It is undisputed that race is a constitutionally-permitted factor to consider in achieving a diverse student body.
    2. The University of Michigan’s use of race is constitutional.
    3. The University of Michigan’s admissions policy is not a quota.
    4. Programs based on socioeconomic status or other factors cannot replace race-conscious admissions policies to achieve a diverse student body.
  • The allegedly race-neutral alternatives proposed by the Bush Administration are constitutionally suspect.
    1. Percentage programs impermissibly rely on segregated high schools to produce racial diversity in colleges.
    2. Cookie-cutter percentage plans improperly regard students as numbers, rather than unique individuals.
    3. Percentage plans are not effective on a nationwide scale; they are an unworkable approach to increasing minority representation in most states; and they ignore realities and rely on the very same problematic criteria that traditionally have stifled minority students.

Graduate Management Admission Council and the Executive Leadership Council

  • Despite efforts by the Graduate Management Admission Council, the Executive Leadership Council and others to promote diversity, the number of underrepresented minority students in MBA and other graduate programs remains deplorably low and does not reflect the composition of American society as a whole.
  • Underrepresentation of minority students in business and other graduate schools means an equally troubling underrepresentation of minorities in leadership positions in the American workplace.
  • If graduate schools cannot consider race or ethnicity as one factor among many in the admissions process, the goal of achieving reasonable diversity in all levels of the American workforce will be substantially undermined.

Harvard and Other Private Universities

  • Consideration of race and ethnicity in an individualized admissions process serves compelling interests.
    1. There is a broad consensus on the important educational benefits of diversity.
    2. Consideration of race and ethnicity grows naturally out of the needs of the professions and of American business.
    3. The interests in diversity and inclusion that support well-designed programs of race-specific affirmative action in university admissions do not reflect impermissible stereotyping.
    4. Advancing the interests in diversity and inclusion is not tantamount to attempting to remedy societal discrimination.
  • Strict scrutiny is satisfied by properly designed university admissions policies that consider race and ethnicity.
    1. The distinctive educational role of universities must be accommodated in the application of strict scrutiny.
    2. Explicit consideration of race and ethnicity in an individualized admissions process is fully capable of satisfying the narrow tailoring requirement; petitioners’ arguments rest on a misunderstanding of the admissions process at selective universities; the interest in racial diversity cannot be served by race-neutral reliance on factors, such as economic disadvantage, that are already carefully considered; the interest in racial diversity cannot be served by the newer alternatives involving non-individualized guaranteed admissions.
    3. Consideration of race does not make an admissions plan a quota.
    4. Race-conscious admissions programs are not open-ended commitments.

Harvard, Stanford and Yale Black Law Students Associations

  • Racial diversity is necessary for elite law schools to fulfill their public mission of training students for leadership positions and integrating the legal profession.
    1. Racial diversity in legal education prepares students at elite law schools to meet the challenges of our multiracial democracy.
    2. Black graduates are fulfilling the public mission of elite law schools.
  • Alternative race-neutral admissions policies critically diminish the number of black students at elite law schools and are not effective substitutes for current race-conscious admissions policies.
    1. “Percentage plans” are not viable alternatives to race-conscious admissions policies.
    2. Admissions policies that focus on socioeconomic disadvantage are not effective alternatives to race-conscious admissions policies.
    3. Elite law schools that have abandoned race-conscious admissions policies have not been able to maintain meaningful racial diversity.

Hayden Family

  • The University of Michigan admissions program follows the precedent of University of California Regents v Bakke.
  • The University of Michigan admissions program is “narrowly tailored“ to meet a “compelling government interest“ as defined in University of California Regents v Bakke.
  • The juxtaposition of Justice Powell’s opinion in Bakke to Justice O’Connor’s dissent in Metro Broadcasting.

Hispanic National Bar Association & Hispanic Association of Colleges and Universities

  • The original legislative intent of the framers of the Fourteenth Amendment establishes that respondents’ use of race is consistent with the proper interpretation of “the equal protection of laws.”
  • The Supreme Court’s decision in Bakke, which found that the use of race in a university admissions process is constitutionally permissible, was correctly applied by the Court of Appeals.
    1. The Supreme Court’s analysis of the constitutionality of race-conscious programs in other contexts is consistent with Bakke’s upholding of the consideration of race in the educational context.
    2. Achieving diversity in systems of higher education is a compelling state interest that is consistent with equal protection principles.
  • Affirmative action in law school admissions is critical to the attainment of diversity in the legal profession.
    1. People of color are grossly underrepresented in the legal profession.
    2. Diversity in the legal profession would reduce racial and ethnic bias in the justice system.
    3. The elimination of race as a factor in law school admissions would clearly cause the legal profession to be less diverse.

Howard University

  • The Fourteenth Amendment and Title VI allow race-conscious measures to avoid participation in and perpetuation of discrimination.
  • Racial and ethnic diversity in higher education is a compelling and necessary governmental interest.
    1. Racially and ethnically diverse educational environments for learning are critical in preparing citizens for service to a country that is pluralistic, democratic, and a leader among nations.
    2. Race conscious measures designed to promote diversity and to avoid the perpetuation of discrimination are constitutionally distinct from invidious discrimination.
  • Meaningful application of the narrow tailoring standard must not be so rigid as to preclude all reasonable race-conscious admissions measures.

Howard University Law Students

  • The University of Michigan Law School’s consideration of race in its admissions program to achieve a diverse student body is a compelling governmental interest.
  • The University of Michigan Law School’s consideration of race to achieve student diversity furthers Brown’s goals of societal integration, and racially diverse classrooms foster an environment for students to challenge their misconceptions about race.
    1. Justice Powell’s diversity rationale in Bakke is a continuation of the ideals inherent in Brown.
    2. A racially diverse student body allows law students to challenge racial stereotypes, fosters harmonious relationships among students of different races, and encourages students to examine the law from different perspectives.
  • The University of Michigan Law School’s consideration of race in its admissions program advances effective client representation by ensuring that future attorneys are exposed to a variety of perspectives prior to entering the work force.
    1. A law school’s consideration of race in its admissions program promotes fair representation of clients within the public legal sector, maintains client confidence, and strengthens public notions of fairness.
    2. Without significant exposure to racially and ethnically diverse people, leading law firms and corporations will retain attorneys who are ill-equipped to effectively serve their clients in today’s global economy.
    3. In the absence of race-conscious admissions programs, minorities in the legal profession will enter an unwelcoming, unfamiliar, and potentially hostile work environment that will likely result in low retention rates.
  • Race-conscious admissions programs are effective in achieving student diversity, and race neutral alternatives such as socioeconomic status and percentage plan programs produce inadequate results.

Human Rights Advocates and the University of Minnesota Human Rights Center

  • Treaty provisions are the supreme law of the land under the U.S. Constitution.
  • A reversal of the decision of the Sixth Circuit would impair the ability of state and local governmental entities to institute measures designed to meet U.S. treaty obligations.
  • The application of the self-executing doctrine.
  • The treaties are helpful for interpreting United States standards.

Indiana University

  • The interest of government-funded schools in the diversity of their student body is constitutionally furthered by the competitive consideration of race and ethnicity in admissions decisions.
    1. The interest of IU School of Law in diversity is constitutionally protected.
    2. Consistent minority enrollment standing alone, does not constitute or prove the use of a de facto quota.
  • IU School of Law requires the discretion permitted by Bakke to meet its academic mission.
    1. Courts should not substitute their judgment in the place of lawful decisions by faculty admissions committees.
    2. IU School of Law’s admissions process is narrowly tailored to achieve diversity.
    3. Race-neutral admissions policies would fail to meet the school’s compelling interest in diversity.
  • The diversity furthered by IU School of Law’s admissions policy confers significant benefits upon its students, the bar, and the state.

King County Bar Association

  • Promoting diversity in the legal profession is a compelling governmental interest.
  • The Supreme Court should adhere to Justice Powell’s opinion in Bakke and should recognize a compelling governmental interest in promotion diversity in the legal profession.
  • The compelling governmental interest in diversity cannot be achieved without race-sensitive admissions processes.

Law School Admission Council

  • Education in a racially diverse environment improves the quality of education for all students.
  • The Supreme Court should not second-guess the University’s educational policy judgment about how best to achieve a diverse student body.
  • Law schools cannot achieve meaningful racial diversity without taking race into consideration as one of many admissions factors.
    1. Minority law school applicants are significantly underrepresented in the highest ranges of numeric admissions criteria.
    2. Discarding test scores and grades is not an educationally responsible answer to the problem of minority underrepresentation in the highest UGPA/LSAT ranges.
    3. Race-sensitive admissions policies such as Michigan’s achieve racial diversity without compromising the ability of the school to assemble an educationally optimal class.

Law School Deans

  • Social expectations have crystallized around Justice Powell’s decision in Bakke, and these expectations strongly militate against reversal of the Supreme Court’s previous instructions to universities.
    1. Justice Powell’s opinion in Bakke announced a principle that has been undisturbed by the Supreme Court’s government contracting jurisprudence.
    2. Bakke is the bedrock of the law schools’ admissions practices.
    3. The Supreme Court should not use its judicial power to jeopardize a longstanding and widespread practice when social expectations have crystallized around its own decision.
  • Legal prcedent is particularly important in this case because the Constitution protects the autonomy of universities and law schools to pursue their educational and social missions.

Lawyers' Committee for Civil Rights Under Law, et al.

  • The Supreme Court should follow the wisdom of Casey and Bakke.
    1. The Supreme Court has long applied the legal precedent doctrine in circumstances such as this.
    2. “Prudential and pragmatic considerations” necessitate reaffirming Bakke.
  • The law school’s race-conscious admissions program is narrowly tailored.
    1. The law school’s admission policy considers race as only one among many factors and follows The Harvard Plan references in Bakke.
    2. Percentage plans are insufficient to achieve the law school’s interest in diversity, and the government’s proffers provide no basis on which to challenge the law school’s policy.
    3. The law school’s admissions policy is not an impermissible quota within the meaning of Bakke and its progeny.
  • De Novo review of constitutional facts is appropriate in this case.
    1. Appellate courts employing strict scrutiny should review findings of constitutional fact de novo.
    2. The Court of Appeals acted within its purview in applying de novo review on the issue of whether the law school uses an impermissible quota and on the implied issue of “constitutional necessity.”

Leadership Council on Civil Rights

  • Racial diversity in the United States serves government interests of the highest order.
    1. This country historically has pursued a national goal of unity in the face of powerful polarizing forces.
    2. Racial diversity remains a paramount value.
    3. Racial diversity will pose a central challenge over the next century.
  • In the university setting, the government has a compelling interest in developing cooperative leadership and promoting civic values to deal with the challenges of pluralism.
    1. A diverse student body cultivates leadership skills.
    2. Colleges and universities promote civic engagement in a pluralistic society.

MTV Networks

A diverse workforce is essential for producing eclectic programming that feeds the marketplace of ideas.

  • MTVN is a substantial contributor to the marketplace of ideas.
  • A well-trained workforce with a diverse background is essential to the innovation of eclectic programming.
  • To build and retain diverse workforces, MTVN depends on universities to teach cross-cultural competencies.

Massachusetts Institute of Technology, et al.

  • The educational benefits of achieving a diverse population of students in the fields of science and engineering are compelling.
    1. Many justifications commonly offered for a broadly diverse student body are no less applicable to study in the areas of science and engineering.
    2. In a number of critical respects, the importance of diversity is heightened in the fields of science and engineering. Collaboration with diverse individuals is a critical part of science and engineering; diversity leads to increased creativity, productivity, and success in the science and engineering fields; diversity within science and engineering is vital to this country’s economic growth; and American businesses operating in the areas of science and engineering depend on institutions of higher education to produce a diverse pool of scientists and engineers.
  • Race-conscious recruiting and selection processes are essential to achieve racial diversity at selective colleges and universities, especially in the fields of science and engineering.
    1. Selective universities consider race as one of many factors in their admissions processes.
    2. Minorities would be even more underrepresented in the fields of science and engineering if race and national origin were not considered in the admissions processes.
    3. The use of race as one of many factors in the admissions process has been successful at increasing the diversity in science and engineering academic programs.

Media Companies

  • Amici media companies play a vital role as the vehicle for the exchange of information and ideas in this country.
  • The public welfare depends on amici’s ability to engage individuals from all aspects of our multi-faceted nation in debate on the complex issues confronting us.
  • Colleges and universities in this country provide the pool from which amici’s workforces are drawn. It is essential that there be a large pool of qualified minority applicants and that all of the graduates, minority and non-minority, have been educated to value each other’s differences.

Michigan Black Law Alumni Society

  • Racial diversity is a compelling interest for a law school, and the study shows that both white and minority graduates believe that they profit from racial diversity in the classroom.
  • Michigan Law School minority graduates and white graduates have closely similar career achievements, indicating that the Law School’s race-conscious admissions program advances its core admissions goal of producing outstanding lawyers.
  • Improving the delivery of legal services to historically underrepresented minority groups is a compelling state interest, and the study shows that Michigan’s minority graduates are substantially more likely than its white graduates to serve those groups.

Michigan Governor Jennifer Granholm

The University of Michigan’s determination that it has a compelling interest in achieving a diverse student body in order to advance its educational mission falls within the institutional autonomy afforded to universities by the First Amendment and by Article VIII, Section 4 of the Michigan Constitution and should, therefore, be afforded deference by the Supreme Court.

NAACP Legal Defense & Educational Fund and the American Civil Liberities Union

  • Race-sensitive admissions policies further the compelling goals of diminishing the effects of deepening racial segregation and of preserving opportunities in higher education for African Americans.
  • Historical racial oppression by governmental and private actors and ongoing discrimination continue to significantly affect the lives and opportunities of African Americans.
    1. Slavery and Jim Crow constituted an unbroken chain of racial oppression that remained intact until the second half of the twentieth century.
    2. The cumulative effect of generations of racial subordination and continued discrimination has produced stark inequality which, by any measure, leaves African Americans significantly disadvantaged.
  • The Fourteenth Amendment should not be interpreted to frustrate voluntary state efforts, using race-conscious remedies, to eliminate the continuing effects of state-sponsored discrimination.
    1. The persistence of pervasive racial inequality calls for the Court to revisit its conclusion in Bakke that redressing “societal discrimination” is not a compelling interest.
    2. A principal purpose of the Fourteenth Amendment was to constitutionalize race-conscious remedies.

National Asian Pacific American Legal Consortium (NAPALC), et al.

  • Asian Pacific Americans are not harmed by Michigan’s race-conscious admission procedures.
    1. Asian Pacific American students, like all students, benefit from a diverse student body.
    2. Because Michigan’s race-conscious admission procedures are flexible, and consider a variety of factors, these procedures do not harm Asian Paciftic Americans or other applicants.
    3. Empirical evidence refutes Grutter’s suggestion that Asian Pacific Americans would significantly benefit from the elimination of Michigan’s race-conscious admission procedures.
  • Notwithstanding the claims of opponents of affirmative action that Asian Pacific Americans no longer suffer from discrimination, in appropriate circumstances Asian Pacific Americans should be included in affirmative action plans as underrepresented minorities.

National Center for Fair & Open Testing (FairTest)

  • Standardized tests are not the neutral, objective measures of “merit” that petitioner’s argument assumes.
  • Compensating for the biases of standardized tests and standardized testing requires admissions officers to consider race as one factor in order to ensure equal treatment to students of color and to assess equally their true promise for admission.
  • The University of Michigan Law School’s policy constitutes a necessary and constitutional remedy in this case.

National Coalition of Blacks for Reparations in America (N’Cobra), et al.

  • The Fourteenth Amendment supports affirmative action in education as reparations for the crimes of slavery and de jure racial discrimination.
  • The Civil War Amendments were adopted in part as a remedy for the crimes of slavery and do not require “color blind” jurisprudence.
  • Strict scrutiny is not the proper standard of review for remedial affirmative action. Racial classifications are incidental to remedial affirmative action.
  • Remedial affirmative action is consistent with United States treaty obligations under the Convention on the Elimination of all Forms of Racial Discrimination.

NEA, its state affiliates, AFSCME and People For the American Way

  • Racially diverse classrooms produce significant societal and educational benefits in public elementary/secondary education.
  • Inequitable apportionment of educational opportunities by race
  • Societal and educational benefits of racially diverse classrooms.

National Coalition of Blacks for Reparations in America (N'Cobra), et al.

  • The Fourteenth Amendment supports affirmative action in education as reparations for the crimes of slavery and de jure racial discrimination.
  • The Civil War Amendments were adopted in part as a remedy for the crimes of slavery and do not require “color blind” jurisprudence.
  • Strict scrutiny is not the proper standard of review for remedial affirmative action. Racial classifications are incidental to remedial affirmative action.
  • Remedial affirmative action is consistent with United States treaty obligations under the Convention on the Elimination of all Forms of Racial Discrimination.

National School Boards Association, et al.

  • In elementary and secondary education, constitutional principles are shaped by he unique mission of schools and the authority of education officials to pursue that mission.
  • Issues of race remain central to fulfilling the mission of elementary and secondary schools.
  • The educational benefits of diversity are sufficiently compelling to justify limited race-conscious actions.
    1. Diversity prepares students to be productive citizens in our diverse democratic society, by enhancing students’ civic values, improving student learning, and improving students’ preparation for employment and economic success.
    2. Diversity promotes other compelling nonremedial interests, such as ensuring high-quality educational opportunities for all students.
  • Current federal law establishes judicially enforceable limiting principles that apply to race-conscious decisions made by state and local education officials.

National Urban League, et al.

  • This Court should reject petitioners’ argument that race no longer matters in American life and reaffirm the proposition, which was self-evident to Justice Powell in Bakke and which still rings true today, that broader racial diversity in the student body in higher education enhances the learning environment and leads to profound societal benefits.
    1. Social science evidence that went unchallenged provides a strong empirical foundation for the premise of Justice Powell’s Bakke opinion that, because race matters in American life, expanding racial diversity in colleges and universities will expand the richness and quality of the learning environment there and produce benefits for society as a whole.
    2. Race continues to be salient because racial differences shape our experiences and perspectives; the educational experience of students in public schools from kindergarten through twelfth grade diverges along racial lines; racial differences in the experience of public school students from kindergarten through twelfth grade shape the perspectives of students in higher education institutions.
    3. Race-conscious admission policies that seek to foster academic diversity do not presume that race shapes the experiences and perspectives of all persons of a particular race in the same way.
  • The United States fails to tender any analysis to support its argument that this Court should decide these cases solely on the ground that “percentage plans” for college admissions provide an alternative means of achieving a racially diverse learning environment that is both efficacious and race-neutral.
    1. The United States fails to consider the risk that percentage plans, like quotas, may dilute the quality of the student body in our colleges and universities.
    2. The United States fails to consider that percentage plans impose costs on society because their dependency on de facto segregation in high schools has the effect of condoning and perpetuating the racial divide in K-12 public education.
    3. The United States fails to consider whether the percentage plans actually are race conscious because they were intended to have a racially identifiable impact.

New America Alliance

  • The policy is race neutral and should be upheld under intermediate scrutiny.
    1. The policy’s “competitive consideration“ of race is not a classification or preference on the basis of race.
    2. The policy is a properly devised program that legitimately serves a substantial interest.
  • Federal laws cannot restrict race neutral state experimentation with educational programs.
    1. Congress lacks power to compel states to adopt admissions policies that do not give race consideration.
    2. Federal laws would violate the First Amendment if they imposed liability for all admissions policies that give race consideration.

New Mexico Hispanic Bar Association, et al.

  • As a minority-majority state with extensive poverty and multiple Indian jurisdictions, New Mexico faces special challenges in the delivery of legal services to all its citizens.
    1. New Mexico’s communities of color experience significant obstacles in gaining access to legal services.
    2. New Mexico must respond to the need for specialized legal services for its Indian tribes and nations.
  • Training significant numbers of students of color in its law school achieves New Mexico’s compelling state interest in providing legal services to its underserved citizens.
    1. New Mexico’s commitment to racial diversity in student admissions at its publicly funded law school results in better access to legal services for its underserved communities of color.
    2. UNM law school’s curriculum, including its emphasis on clinical legal education, is designed to prepare all students to serve the state’s racially diverse communities.
    3. Lawyers and doctors of color provide needed services to communities of color.

New York City Council Speaker A. Gifford Miller, et al.

  • Diversity is a compelling state interest justifying race-conscious university admissions policies.
    1. Diversity in education is a compelling state interest under Bakke.
    2. Bakke has not been overruled and remains good law.
    3. The Supreme Court should not overrule Bakke because overruling that case would deny students and their future employers the benefits of a diverse student body.
  • Narrowing the gap between social conditions of underrepresented minorities and Caucasians constitutes an alternative compelling government interest.
    1. Socioeconomic conditions facing underrepresented minorities nationwide.
    2. Race-conscious university admissions policies are a proven means of redressing the social conditions of underrepresented minorities.
  • The law school and undergraduate admissions policies are narrowly tailored to achieve the compelling interests of either diversity or equalization of social conditions.
    1. Both the law school and the undergraduate admissions policies are narrowly tailored under Bakke.
    2. The university should not be required to consider non-viable race-neutral alternatives in order to survive strict scrutiny.
    3. Top percentage plans have not increased the number of underrepresented minority students in the most selective state schools; they depend on and create an incentive for students to stay in segregated high schools; and they do not work in the graduate or professional school context.

New York State Black and Puerto Rican Legislative Caucus

  • The Supreme Court must reject Petitioner’s argument that the only constitutionally permissible means to admit students from different racial or ethnic backgrounds is through rigid adherence to an odds ratio formula that permanently disadvantages already underrepresented minority groups.
    1. Petitioner asserts a novel claim that reverse discrimination can occur among equally credentialed candidates.
    2. Petitioner offers an unusual statistical proof that capitalizes on majoritarian privilege to produce seemingly “enormous” racial preferences.
    3. The highest odds ratios occur among candidates with the highest credentials.
  • The University of Michigan Law School did not violate the rights of white applicants when they accepted members of minority groups who had slightly lower LSAT scores than other applicants in the same cell.
    1. The University of Michigan Law School was justified in accepting minority applicants with equal college grades from the same college that have perennially experienced unexplained, significant score gaps compared to white applicants.
    2. Differential test scores and grades between highly qualified minority and majority applicants have been found to reflect minority students’ unconscious response to the lingering racial stereotype that members of minority groups are less intellectually gifted.
    3. The affirmative action admissions policies at the University of Michigan Law School do not impose any stigma on the students admitted under its auspices.

NOW Legal Defense and Education Fund, et al.

  • Comparative and international law are relevant to the issues before the Court.
  • High courts of other nations have upheld affirmative action measures under comparable circumstances.
  • United States treaty law permits affirmative action and, under certain circumstances, imposes affirmative duties to assure equality.
    1. The ICCPR supports affirmative action programs such as the admissions policies at issue here.
    2. CERD endorses affirmative action programs.
    3. Self-execution is not an issue where, as here, the treaty provisions are cited as aids to interpretation.

Pennsylvania General Assembly Members, et al.

  • The findings of fact by the trial court that grade point average, LSAT scores, and alumni admissions preferences are all factors of low predictability of law school and occupational success which operate to keep out minorities should be carefully considered before the circuit court decision is overturned.
  • Diversity in American institutions of higher education and American workforces is a compelling state (and national) interest allowing racial classifications to achieve it.
  • African-Americans are a narrowly-tailored group of people with diverse cultural and life experiences whom the University of Michigan School of Law has a compelling state interest in admitting.
  • Universities have First Amendment rights to structure their admissions policies to produce greater discussion and debate of ideas.
  • Remedies suggested by the Solicitor General constitute a constitutional regression in the direction of Plessy v Ferguson as they reward the choice of low prestige schools by African-Americans.

Senators Thomas A. Daschle, et al.

  • Bakke warrants continued adherence.
    1. Justice Powell’s opinion was constitutionally sound and practically viable.
    2. There is no legitimate reason, let alone any “special justification,” for rejecting Bakke. Subsequent constitutional rulings build upon rather than undermine Bakke. Bakke’s factual understandings regarding the benefits of diversity are unassailable.
  • Because of the compelling national interests served, Congress and the Executive consistently have endorsed the Bakke regime.
    1. Congress and the Executive have treated Justice Powell’s Bakke opinion as the controlling and correct interpretation of Title VI.
    2. Congress has enacted and the Executive has supported legislation recognizing the educational benefits of racial diversity.
    3. The federal government consistently has sought to promote diversity and inclusion in higher education.
  • The Court’s resolution of this case must take proper account of the legally relevant actions and judgments of the other two branches.
    1. The longstanding judgments of the legislature and the executive are significant to the statutory question
    2. The longstanding judgments of the legislature and the executive are constitutionally significant.

Social Scientists Glenn C. Loury, et al.

  • Description of the Texas, California and Florida percentage plans.
  • Under strict scrutiny, facial race-neutrality, even if preferred, cannot outweigh less-narrow tailoring.
  • The “percentage plans” advocated by the United States and the State of Florida are not truly race-neutral, because the purpose of the percentage plans is to increase racial diversity and their results depend upon race-targeted financial aid and outreach programs.
  • Percentage plans are not more narrowly tailored than plus factor programs.
    1. Attempting to achieve racial diversity through proxies, rather than directly, produces significant inefficiencies.
    2. Percentage plans have had undesirable consequences that would be worse in Michigan and other states nationwide. These consequences include: affecting many more decisions than necessary; causing disruptions in total enrollment; leading to disproportionate rejection of qualified minority students below the percent cut-off; causing minority enrollment to “cascade” to less selective state institutions; and requiring expensive increases in financial aid and outreach programs in an attempt to maintain diversity.
    3. Percentage plans have not achieved success at promoting diversity as claimed, and would do worse in Michigan.
    4. Other race-neutral alternatives would likely fare no better under the narrow tailoring test.

Society of American Law Teachers

  • Past and present discrimination justifies the law school’s affirmative action plan.
    1. Discrimination perpetrated by the state and its localities, including residential segregation, discrimination in education, and employment discrimination.
    2. The law school’s reliance on the LSAT has a disparate impact on minority students.
  • The Law School’s policy should be upheld under the Supreme Court’s strict scrutiny.
  • Prudential considerations counsel in favor of upholding the Law School’s plan.

State of Maryland, et al. (Including 21 States and the Territory of the U.S. Virgin Islands)

  • Equal protection review of a public university’s admissions decisions requires accommodation of First Amendment interests and respect for the states’ traditional role in education.
    1. University admissions decisions are a special concern of the First Amendment and require judicial deference.
    2. Public education is a traditional state concern.
    3. Harmonizing these constitutional principles requires judicial deference to a public university’s judgment as to how best to fulfill its mission.
  • Public universities have a compelling interest in the educational benefits of a diverse student body.
    1. Public universities have determined that diversity is essential to their educational missions.
    2. The goal of achieving the educational benefits of a diverse student body is compelling.
  • An admissions program that provides for individualized, weighted consideration of race is narrowly tailored.
    1. The mere existence of alternatives for achieving diversity does not preclude a university from establishing that a race-conscious admissions program is narrowly tailored to achieve its diversity goals.
    2. An admissions plan that considers race as a factor and does not set quotas or insulate any student from competition is constitutional.

State of New Jersey

  • Based on the principles of legal precedent, the Supreme Court should uphold the decision in Bakke and reaffirm that states have a compelling state interest in achieving student diversity that can be achieved by a carefully tailored race-conscious admissions policy.
    1. The principles of Bakke are embedded in the operation of institutions of higher education in New Jersey and other states.
    2. Under the methodology set forth in Marks v United States, Justice Powell’s opinion in Bakke is the controlling opinion.
  • Race and ethnicity can be considered, along with other factors, by state universities in admissions to achieve the educational benefit of student diversity which constitutes a compelling state interest.
    1. Student diversity in higher education is a compelling state interest.
    2. First Amendment protections attached to university academic determinations further support the conclusion that the educational value of student diversity is a compelling state interest.
  • University admissions systems which consider race among other factors in order to obtain the educational benefits of student diversity and which operate in a manner similar to the Harvard Plan endorsed in Bakke are narrowly tailored for purposes of equal protection clause analysis.

United Negro College Fund and Kappa Alpha Psi

The history of racial discrimination in American education demonstrates that continued efforts to enhance minority access to higher education must embrace race-conscious admissions to further a compelling governmental interest.

  • The exclusion of African Americans from the nation’s traditionally white educational institutions resulted in a long history of disproportionate numbers of African Americans attending under-resourced schools.
  • The dramatic increase in African American access to higher education over the past several decades was not achieved through efforts like UNCF’s alone, but was also the result of efforts by traditionally white institutions to foster racial diversity.
  • Colleges, universities, and professional schools must continue to be able to consider race in admissions and financial aid in order to maintain access by African Americans.

UCLA School of Law Students of Color

  • Preventing resegregation in higher education is a compelling state interest.
    1. The Supreme Court has recognized the harms caused by segregation in higher education.
    2. The protections that the Supreme Court has recognized as critical for students of color in the desegregation context should apply to colleges and universities in order to prevent resegregation in higher education.
  • Diversity in higher education is a compelling state interest.
    1. Factoring diversity in higher education admissions is a remedial program.
    2. Bakke establishes the notion that diversity is a compelling state interest.
  • Testimonials demonstrate the impact of resegregated universities.

University of Michigan law Students Associations

  • Race-based life experiences provide an inherently unique perspective.
  • Meaningful racial diversity contributes to the robust exchange of ideas in the law school community. It is an integral component of classroom dialogue and of legal education beyond the classroom.
  • Meaningful racial diversity requires a meaningful presence within Michigan Law School. This is necessary to facilitate meaningful diversity and the robust exchange of ideas. Without a meaningful presence of minority students, the Michigan Law School experience will irreparably suffer.

University of North Carolina School of Law

  • Public universities have a special mission to prepare the future leaders of their respective states.
  • Allowing public law schools to consider race as one factor in selecting students has proven the least restrictive and fairest means of assuring that states can provide higher education to their most promising future leaders.

University of Pittsburgh, et al.

  • Percentage plans are not a viable mechanism in many contexts to serve the compelling interest in ensuring diversity in higher education.
    1. The use of percentage plans in a few states does not establish that the University of Michigan’s affirmative action plan is not narrowly tailored.
    2. The Constitution permits state universities to determine appropriate diversity strategies and does not mandate a single federal solution.
    3. There is significant evidence that percentage plans do not serve the compelling interest in educational diversity even in Texas, Florida and California.
  • The percentage plans that a few states have adopted to increase minority enrollment are not race-neutral.
    1. Policies that are motivated by race are not race-neutral.
    2. These percentage plans are motivated by race.

Veterans of the Southern Civil Rights Movement, et al.

  • The progress in increasing the participation by people of color in higher education over the last forty years rested and continues to rest in large part on affirmative action.
  • The civil rights movement and affirmative action have, to a significant extent, ameliorated the injustice of African American exclusion from higher education and the legal profession.
  • The U.S. Supreme Court benefits from the varied perspectives and experiences brought by justices of different races and backgrounds, and should not deny law schools and the legal profession a similar benefit.

Briefs Filed IN SUPPORT OF PETITIONERS:

Cato Institute

  • The use of racial or ethnic preferences to achieve a “critical mass” of minority admissions exceeds the limited privilege, recognized in Justice Powell’s opinion in Bakke, permitting consideration of race as only one factor in a truly individualized determination of the merits of applicants.
  • Pursuit of educational or pedagogic diversity does not provide a compelling justification for the use of racial or ethnic preferences under the equal protection clause.
  • No legitimate reliance interest privileges the university’s post-1995 use of racial and ethnic preferences.

Center for the Advancement of Capitalism

  • The University has not demonstrated that racial diversity is essential to the school’s core educational mission.
  • The University errs in inferring the individuals of the same race share experiences that impact their educational ability in the same way. Race is not a legitimate proxy for experience.
  • The University considers racial diversity more important than achievement, which will act to undermine the very mission of the University, which is education.
  • Racial diversity is an “anti-concept,” and obliterates the concept of equal protection.

Center for Equal Opportunity

  • Racial and ethnic discrimination in State higher-education admissions is a major national problem.
  • The University of Michigan’s 1992 Law School admissions policy is an unlawful quota system and shows that Bakke is ineffective.
  • The Court should address and reject the “diversity” justification for racial and ethnic discrimination.
    1. The “diversity” rationale is not persuasive, let alone compelling.
    2. There should be no “social science” exception to the Equal Protection Clause.
    3. The Court should not create a “diversity” exception to Title VI.
  • Ending preferential treatment does not deny educational opportunity.

Center for New Black Leadership

  • Racial diversity is not a compelling government interest.
  • Racial disparities in higher education are the result of a severe and persistent academic gap that racial preferences cannot cure.

Law Professors

  • Michigan’s direct pursuit of racial diversity necessarily entails racial classifications.
    1. Pursuit of “diversity” is a euphemism for race-based decisionmaking.
    2. Direct pursuit of racial diversity is functionally indistinguishable from racial quotas.
    3. “Diversity” is not a remedial interest.
  • Racial “diversity” is not a compelling interest.
    1. Interests in “diversity” that assume stereotyping cannot have compelling weight.
    2. Discrimination resulting from racial stereotyping results in stigmatization and hostility.
    3. Government-defined viewpoint diversity is not a compelling interest.
    4. The “diversity” rationale is limitless.

Michigan Association of Scholars

  • Creating a diverse student body can never be a compelling state interest.
    1. State interest is “compelling” when the furtherance of that interest protects those principles which lie at the heart of ensuring our nation stays free, open and democratic governed under the rule of law.
    2. Government mandated racial diversity can never be a compelling state interest under the equal protection clause.
  • Even if the claims of the University for the value of racial diversity had some merit, such diversity does not constitute a compelling demand upon the state.
    1. A student’s race contributes nothing to the University’s pursuit of truth.
    2. The rationale proffered by the Law School is internally inconsistent.
    3. The University has not sustained its evidentiary burden of establishing that its interest in racial diversity is compelling.
  • “Academic freedom” cannot serve as a sword to engage in outright discrimination by race in university admissions.
  • The university’s use of race and ethnicity in the admissions process is immoral and engenders racial tension and hostility.

National Association of Scholars

  • There is no consensus among faculty, students or beneficiaries of racial preferences that supports the Law School’s admissions policy.
    1. Most faculty and students oppose racial preferences.
    2. Most African Americans and Hispanic Americans disfavor admissions policies like the Law School’s.
  • This Court has foreclosed the Law School’s reliance on group identity and group experience.
    1. This Court’s jurisprudence is antithetical to the lower court’s reliance on “group identity.”
    2. The Law School’s reliance on Justice Powell’s diversity rationale ignores Bakke’s controlling holding.
  • Educators’ reliance on group identity has led to less, not more, campus integration.
  • Universities’ reliance on group identity has come at the expense of individual expression.

Pacific Legal Foundation

  • The Law School’s race-conscious admissions policy violates the standards set by Justice Powell in Bakke.
    1. The Law School’s “critical mass” is the functional equivalent of a race quota.
    2. The Law School’s dual track admissions system violates Justice Powell’s opinion.
  • Racial diversity in education is not a compelling state interest.
    1. The Sixty Circuit’s ruling that an amorphous interest in educational diversity justifies the use of racial classifications is fundamentally inconsistent with this Court’s equal protection rulings.
    2. The rationale of educational diversity as a proxy for race preferences has been rejected by the Third, Fourth, Fifth, Seventh, Eleventh, and District of Columbia circuits.
  • The Sixth Circuit’s rationale that race preferences in school admissions can be justified by the assumption of validity of racial stereotypes violates the rulings of this Court and conflicts with the holdings of other circuits.
    1. The assumption of the validity of racial stereotypes to justify the use of race preferences conflicts with the rulings of this Court.
    2. The reliance on the assumption of the validity of racial stereotypes ruling to justify racial preferences has been rejected by other circuits.
    3. The use of racial stereotypes by a state law school to create a learning environment for the purposes of teaching the constitutional invalidity of racial stereotypes is an exercise in educational hypocrisy.

State of Florida

  • Florida’s experience demonstrates that diversity in a state university system is attainable by race-neutral means.
    1. Florida’s state university system has adopted race-neutral admissions policies and continues to be racially and ethnically diverse.
    2. Florida’s goal of providing all students equal opportunity for educational achievement is accomplished by better equipping all students for higher education.
    3. The goal of providing all students equal opportunity for educational achievement is accomplished by recognizing that some students, without regard to racial or ethnic background, have been disadvantaged in educational opportunities.
  • Florida’s experience demonstrates that a racially preferential admissions process cannot pass Constitutional muster.
    1. A system of racially preferential admissions is not narrowly tailored to accomplish diversity, and is therefore unconstitutional.
    2. The justification for diversity based solely upon a public policy argument, without a showing that it is necessary to correct past discrimination, is insufficient to meet the compelling interest requirements.

United States

  • Respondents’ use of race-based admissions criteria is not justified in light of the ample race-neutral alternatives.
  • Public universities have ample means to ensure that their services are open and available to all Americans.
  • These ample race-neutral alternatives render respondents’ race-based policy both unnecessary and unconstitutional.
  • The law school’s admissions program operates as an impermissible quota system.
  • Other requirements of this Court’s narrow tailoring requirements reinforce the unconstitutionality of respondents’ race-based admissions policy.
  • The law school’s admissions policy would permit race-based discrimination in perpetuity.
  • The law school’s admissions policy places a disproportionate emphasis on racial considerations.
  • The law school’s race-based admissions policy unfairly burdens innocent third parties.

Ward Connerly

  • The history of the United States and the Supreme Court’s jurisprudence on race demonstrate that the equal protection clause and other federal laws should be interpreted to prohibit race-based preferences and discrimination.
  • As long as the government deems it important to treat Black and Hispanic students differently, they will be marginalized and presumed to be inadequate.
  • The Court should make a clean break from the past and reject the use of race by government in favor of making true color-blindness the law.
  • Permitting the government to practice racial discrimination in the name of “diversity” is dangerous to the well-being of our society and repudiates the “culture of equality” that has evolved in America.
  • The diversity rationale is incoherent and illegitimate.

Briefs Filed IN SUPPORT OF NEITHER PARTY:

Anti-Defamation League

  • The University of Michigan undergraduate and law school admissions systems violate the equal protection clause and Title IV.
  • Governmental racial classifications are presumptively unlawful.
  • The university and law school programs are not narrowly tailored.
  • A “bright-line” test is neither necessary nor desirable, and should be avoided.
Criminal Justice Legal Foundation
  • The Marks rule has caused confusion and requires clarification.
  • Where a case has no majority opinion, the scope of the precedent is determined by the facts deemed material by any of the opinions needed to constitute a majority.
  • Bakke does not contain a holding controlling in the present case.

Equal Employment Advisory Council

  • Diversity in higher education is essential to employers in meeting their business-related diversity needs.
    1. The business case for diversity.
      1. Demographic changes translate to diversity in the consumer population.
      2. Entering the global marketplace creates a need for diversity skills.
      3. Workforce diversity improves internal performance.
      4. Workforce diversity improves the bottom line.
    1. Student body diversity in higher education contributes significantly to companies’ efforts to meet their need for workforce diversity.
  • If this Court concludes that race-conscious admissions are unlawful or unconstitutional, the Court should state its holding so as not to invalidate the affirmative action and diversity programs lawfully in use by private sector employers.
    1. Conscientious companies maintain various legitimate programs to promote equal employment opportunities, practice affirmative action, and promote and manage workforce diversity.
    2. This Court’s decision should not disturb legitimate equal employment opportunity efforts, affirmative action programs, and diversity initiatives.
  • If this Court concludes that race-conscious decisionmaking is permissible for the purpose of maintaining student body diversity, the Court should describe as clearly as possible the circumstances, if any, in which the same reasoning may apply to the use of race in employment decisions.

Massachusetts School of Law

  • The belief that diversity is necessary in law schools because a high percentage of American leaders are attorneys.
  • The long exclusion of minorities from law schools.
  • Reliance on the LSAT by American law schools and by ABA accreditors.
  • The failure of race-based affirmative action policies.
  • The American law schools’ continued reliance on the LSAT that creates the need for affirmative action.

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