TABLE OF AUTHORITIES … … … iii

INTEREST OF AMICUS CURIAE … … … 1

SUMMARY OF ARGUMENT … … … 2

1. PROMOTING EDUCATIONAL DIVERSITY IS A COMPELLING GOVERNMENTAL INTEREST. … … … 3
   1. The Supreme Court's Ruling in Bakke is Binding Precedent. … … … 3
   2. Bakke Has Not Been Overruled by Subsequent Case Law. … … … 7
2. SOCIAL SCIENCE STUDIES SUPPORT THE COMPELLING GOVERNMENTAL INTEREST IN PROMOTING DIVERSITY. … … … 10
   1. Student Body Diversity Improves Educational Outcomes. … … … 11
      1. Student Body Diversity Improves Classroom Learning Environments. … … … 12
      2. Diverse Learning Environments Promote Critical Thinking Skills. … … … 15
      3. Cross-Racial Interaction Has Positive Effects on Retention, College Satisfaction, Self-Confidence, Interpersonal Skills, and Leadership. … … … 16
      4. Student Body Diversity Promotes the Creation of Initiatives That Lead to Improved Educational Outcomes. … … … 17
   2. Student Body Diversity Promotes Democratic Values and Increased Civic Engagement. … … … 18
      1. Diverse Learning Environments Challenge Students to Consider Alternative Viewpoints and Develop Tolerance for Differences … … … 18
      2. Diverse Learning Environments Can Increase Participation in Civic Activities. … … … 21
   3. Student Body Diversity Prepares Students for a Diverse Society and Workforce. … … … 22
3. THE LAW SCHOOL'S ADMISSIONS POLICIES ARE NARROWLY TAILORED. … … … 25
   1. The Concept of "Critical Mass" is Not Amorphous. … … … 26
   2. Race-Neutral Admissions Cannot Achieve Student
      Body Diversity. … … … 30

CONCLUSION … … … 33

CERTIFICATE OF COMPLIANCE … … … 34

CERTIFICATE OF SERVICE … … … 35

Agostini v. Felton, 521 U.S. 203 (1997) … … … 9

Brewer v. West Irondequoit Central School District, 212 F.3d 738 (2d. Cir.
2000) … … … 8

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) … … … 8

Davis v. Halpern, 768 F. Supp. 968 (E.D.N.Y. 1991) … … … 7

DeRonde v. Regents of the University of California, 625 P.2d 220 (Cal.),
cert. denied, 454 U.S. 832 (1981) … … … 7

Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir.),
cert. denied, 529 U.S. 1019 (1999) … … … 7

Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) … … … 7

Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033
(1996) … … … 7

Hunter v. Regents of the University of California, 190 F.3d 1061 (9th Cir.
1999), cert. denied, 121 S. Ct. 186 (2000) … … … 8

Jacobson v. Cincinnati Board of Education, 961 F.2d 100 (6th Cir. 1992) … … … 7

Johnson v. Regents of the University of Georgia, 106 F. Supp. 2d 1362 (S.D.
Ga. 2000). … … … 7

Marks v. United States, 430 U.S. 188 (1977) … … … 5

McDonald v. Hogness, 598 P.2d 707 (Wash. 1979) … … … 7

Oliver v. Kalamazoo Board of Education, 706 F.2d 757 (6th Cir. 1983) … … … 7

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

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477
(1989) … … … 9

Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir.
2000), cert. denied, 69 U.S.L.W. 3593 (U.S. May 29, 2001) (No. 00-
1341) … … … 6, 7, 9

Sweatt v. Painter, 339 U.S. 629 (1950) … … … 4, 5

Tuttle v. Arlington County School Board, 195 F.3d 698 (4th Cir. 1999), cert.
dismissed, 529 U.S. 1050 (2000) … … … 7

United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998) … … … 8

University & Community College System v. Farmer, 930 P.2d 730 (Nev.
1997), cert. denied, 523 U.S. 1004 (1998) … … … 7

Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998) … … … 7

Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996), cert. denied, 519 U.S. 1111
(1997) … … … 8

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) … … … 8

Walter R. Allen, The Color of Success: African-American College Student
Outcomes at Predominantly White and Historically Black Public
Colleges and Universities, 62 Harv. Educ. Rev. 26 (1992) … … … 27

Anthony Lising Antonio, Diversity and the Influence of Friendship Groups
in College, 25 Rev. Higher Educ. (forthcoming 2001) (on file at The
Civil Rights Project — Harvard University) … … … 20

Anthony Lising Antonio, The Role of Interracial Interaction in the
Development of Leadership Skills and Cultural Knowledge and
Understanding, 42 Res. Higher Educ. 593 (2001) … … … 17

Alexander W. Astin, Diversity and Multiculturalism on the Campus: How
Are Students Affected? Change, Mar.-Apr. 1993, at 44 … … … 17

William G. Bowen & Derek Bok, The Shape of the River: Long-Term
Consequences of Considering Race in College and University
Admissions (1998) … … … passim

Mitchell J. Chang, Does Racial Diversity Matter?: The Educational Impact
of a Racially Diverse Undergraduate Population, 40 J. College Student
Dev. 391 (1999) … … … 17

Compelling Interest: Examining the Evidence on Racial Dynamics in Higher
Education (Mitchell Chang, et al. eds., forthcoming 2001) (draft
available at http://www.aera.net/reports/dynampp.pdf) … … … 10

Expert Report of Patricia Y. Gurin, Gratz v. Bollinger, No. 97-75231 (E.D.
Mich.) & Grutter v. Bollinger, No. 97-75928 (E.D. Mich.), in The
Compelling Need for Diversity in Higher Education 99 (1999) … … … passim

Roxanne Harvey Gudeman, Faculty Experience with Diversity: A Case
Study of Macalester College, in Diversity Challenged: Evidence on the
Impact of Affirmative Action 251 (Gary Orfield & Michal
Kurlaender eds. 2001) … … … 14, 15

Sylvia Hurtado, et al., Enacting Diverse Learning Environments:
Improving the Climate for Racial/Ethnic Diversity in Higher
Education (1999) … … … 10, 18, 27

Sylvia Hurtado, Linking Diversity and Educational Purpose: How
Diversity Impacts the Classroom Environment and Student
Development, in Diversity Challenged: Evidence on the Impact of
Affirmative Action 187 (Gary Orfield & Michal Kurlaender eds.
2001) … … … 16, 19, 24

Sylvia Hurtado, The Institutional Climate for Talented Latino Students, 35
Res. Higher Educ. 21 (Feb. 1994) … … … 28

Rosabeth Moss Kanter, Some Effects of Proportions on Group Life:
Skewed Sex Ratios and Responses to Token Women, 82 Am. J. Soc.
965 (1977) … … … 27

Jerome Karabel, No Alternative: The Effects of Color-Blind Admissions in
California, in Chilling Admissions: The Affirmative Action Crisis and
the Search for Alternatives 33 (Gary Orfield & Edward Miller eds.
1998) … … … 31

Chalsa M. Loo & Garry Rolison, Alienation of Ethnic Minority Students at
a Predominantly White University, 57 J. Higher Educ. 58 (1986) … … … 27

Patricia Marin, The Educational Possibility of Multi-Racial/Multi-Ethnic
College Classrooms, in American Council on Education & American
Association of University Professors, Does Diversity Make a
Difference? Three Research Studies on Diversity in College
Classrooms 61 (2000) … … … 16

Geoffrey Maruyama & José F. Moreno, University Faculty Views About
the Value of Diversity on Campus and in the Classroom, in American
Council on Education & American Association of University
Professors, Does Diversity Make a Difference? Three Research
Studies on Diversity in College Classrooms 9 (2000). … … … 14, 15, 17

Jack Meacham, et al., Student Diversity in Classes and Educational
Outcomes: Student and Faculty Perceptions (1999) (paper presented at
American Council on Education's Symposium on Diversity and
Affirmative action; on file with The Civil Rights Project — Harvard
University) … … … 25

Jeffrey F. Milem, College, Students, and Racial Understanding, 9 Thought
& Action 51 (1994) … … … 18

Jeffrey F. Milem & Kenji Hakuta, The Benefits of Racial and Ethnic
Diversity in Higher Education, in Minorities in Higher Education:
Seventeenth Annual Status Report 39 (Deborah J. Wilds ed. 2000) … … … 10

Rachel F. Moran, Diversity and Its Discontents: The End of Affirmative
Action at Boalt Hall, 88 Cal. L. Rev. 2241 (2000) … … … 31

José F. Moreno, Affirmative Actions: The Educational Influence of
Racial/Ethnic Diversity on Law School Faculty (2000) … … … 15

Gary Orfield & Dean Whitla, Diversity and Legal Education: Student
Experiences in Leading Law Schools, in Diversity Challenged:
Evidence on the Impact of Affirmative Action 143 (Gary Orfield &
Michal Kurlaender eds. 2001). … … … 12, 20, 21, 23

Ernest T. Pascarella, et al., Influences on Students' Openness to Diversity
and Challenge in the First Year of College, 67 J. Higher Ed. 188
(1996) … … … 18

Supplemental Expert Report of Patricia Y. Gurin, Grutter v. Bollinger, No.
97-75928 (E.D. Mich.) (Jan. 11, 2001) … … … 29

Supplemental Expert Report of Stephen W. Raudenbush, Grutter v.
Bollinger, No. 97-75928 (E.D. Mich.) (Jan. 5, 2001) … … … 30

Richard A. White, Preliminary Report: Law School Faculty Views on
Diversity in the Classroom and the Law School Community (May
2000) (available at http://www.aals.org/statistics/diverse3.pdf) … … … 13, 28

Linda Wightman, The Threat to Diversity in Legal Education: An
Empirical Analysis of the Consequences of Abandoning Race as a
Factor in Law School Admissions Decisions, 72 N.Y.U.L. Rev. 1 (1997) … … … 31

The Civil Rights Project at Harvard University submits this brief as amicus
curiae in support of Appellants Lee Bollinger, et al., urging reversal of the
district court's ruling that the University of Michigan Law School's admissions
policy is unconstitutional. Specifically, The Civil Rights Project asks the Court
to reverse the district court's holdings that promoting educational diversity is not
a compelling governmental interest and that the Law School's admissions policy
is not narrowly tailored to meet the compelling interest in promoting diversity.

Founded in 1996, The Civil Rights Project is a nonprofit organization
based at Harvard University whose mission is to advance research and advocacy
in pursuit of racial justice. The Civil Rights Project devotes significant attention
to educational issues, including the consequences of racial and ethnic diversity in
higher education, the problem of minority dropouts, the effects of high stakes
testing on minority children, K-12 school reform proposals, racial disparities
related to special education and school discipline, the rights of English language
learners, and the problem of resegregation in the public schools.

A central focus of The Civil Rights Project's research has been the
development of scholarship that provides insights into the impact of diversity in
higher education. Since its founding, The Project has commissioned or produced
over seventy-five studies on a range of, topics, including the consequences of the

elimination of affirmative action in several states and the effects of diversity in
higher education. As a result of these studies and numerous conferences and
roundtables, two volumes focusing on legal and social science findings involving
diversity and higher education admissions have been published: Chilling
Admissions: The Affirmative Action Crisis and the Search for Alternatives (1998)
and Diversity Challenged: Evidence on the Impact of Affirmative Action (2001).

Because of its core mission and its research and advocacy work in defense
of civil rights, specifically in the area of racial diversity in higher education, The
Project has a direct stake in the outcome of this case. However, The Civil Rights
Project does not, in this brief or otherwise, represent the official views of
Harvard University.

The district court below erred in holding that the promotion of educational
diversity is not a compelling governmental interest. The district court misapplied
the legal standards in the instant case and ignored the binding precedent of
Justice Powell's opinion in Regents of the University of California v. Bakke, in
which he held that promoting educational diversity is a compelling interest. The
district court also ignored the extensive body of social science literature
demonstrating the positive effects of student body diversity. Both the expert
evidence introduced at trial and the growing number of social science studies

examining racial diversity in higher education show that student body diversity
leads to improved learning outcomes, enhanced civic engagement, and better
preparation for a diverse society and workforce — all of which support a holding
that promoting diversity is a compelling interest.

The district court erred in holding that the admissions policy at the
University of Michigan Law School is not narrowly tailored. The Law School's
admissions policy is a carefully defined program that employs the limited use of
race to promote diversity and to extend minority group presence beyond mere
tokenism. Among several errors, the district court erred in finding that the
"critical mass" concept is too amorphous to satisfy narrow tailoring, and in
finding that the Law School could have employed race-neutral alternatives to
achieve educational diversity.

I.       PROMOTING EDUCATIONAL DIVERSITY IS A COMPELLING
          GOVERNMENTAL INTEREST.

      A.       Justice Powell's Opinion in Bakke is Binding Precedent.

Justice Powell's opinion in Regents of the University of California v.
Bakke, 438 U.S. 265 (1978), is controlling law in the instant case. In Bakke, the
U.S. Supreme Court upheld the use of race in higher education admissions, but
struck down the medical school admissions policy at the University of

California, Davis because it reserved exclusive seats for minority applicants.
Writing in Bakke, Justice Powell held that "the interest of diversity is compelling
in the context of a university's admissions program," because it contributes to
"the robust exchange of ideas." Id. at 314-15. Basing his decision on the well-
established academic freedom of a university "to determine for itself on
academic grounds who may teach, what may be taught, how it shall be taught,
and who may be admitted to study," Justice Powell held that the University of
California invoked a constitutionally permissible goal under the Fourteenth
Amendment. Id. at 312-13 (quoting Sweezy v. New Hampshire, 354 U.S. 234,
263 (1957)).

Relying on the U.S. Supreme Court's ruling in Sweatt v. Painter, Justice
Powell found that the contribution of diversity is compelling at the graduate and
professional school levels of higher education. Justice Powell stated that "our
tradition and experience lend support to the view that the contribution of
diversity is substantial," particularly in the area of legal education. Bakke, 438
U.S. at 313. "The law school, the proving ground for legal learning and practice,
cannot be effective in isolation from the individual and institutions with which
the law interacts. Few students and no one who has practiced law would choose
to study in an academic vacuum, removed from the interplay of ideas and the
exchange of views with which the law is concerned." Id. at 313-14 (quoting

Sweatt v. Painter, 339 U.S. 629, 634 (1950)). Justice Powell then went on to
hold that the Davis medical school admissions policy was not narrowly tailored
because it created separate tracks for minority and non-minority applicants, but
that the use of race as a "plus" factor among multiple admissions criteria would
be a constitutional means to achieve educational diversity. Id. at 315-19.

While several opinions were written in Bakke, section V.C of Justice
Powell's opinion garnered the support of four other Justices who voted to uphold
the consideration of race in higher education admissions. Id. at 320. Section
V.C of his opinion states unequivocally that "the State has a substantial interest
that legitimately may be served by a properly devised admissions program
involving the competitive consideration of race and ethnic origin." Id.

The district court below erred by suggesting that no controlling law could
be gleaned from Bakke. In Marks v. United States, the U.S. Supreme Court held
that "[w]hen a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, 'the holding of the Court
may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.'" 430 U.S. 188, 193 (1977) (quoting Gregg
v. Georgia, 428 U.S. 153, 169 n.15 (1976)). Clearly, Justice Powell's
opinion is
the narrowest opinion of the Justices, particularly when compared to the opinion
of Justice Brennan, who, along with three other Justices, joined Justice Powell to

form the majority upholding the use of race in higher education admissions.
Justice Powell called for the application of strict scrutiny to the medical school's
admissions program rather than the intermediate scrutiny standard offered by
Justice Brennan. See Bakke, 438 U.S. at 359 (Brennan, J., concurring in part). In
addition, Justice Brennan would have upheld the admissions program based on
an interest in remedying societal discrimination, a broader standard that was
criticized by Justice Powell as being an "amorphous concept of injury that may
be ageless in its reach into the past." Id. at 307. Moreover, Justice Brennan
would have upheld a more heavily weighted use of race — a separate track for
minority applicants — than the "plus" factor policy endorsed by Justice Powell.

Justice Powell's opinion is thus the narrower of the two opinions and
should be treated as binding precedent in a case involving race-conscious
admissions. The Ninth Circuit found this to be evident in Smith v. University of
Washington Law School, stating that "apply[ing] the Marks analysis to the
opinions of Justices Powell and Brennan . . . it becomes apparent that Justice
Powell's analysis is the narrowest footing upon which a race-conscious decision
making process could stand." 233 F.3d 1188, 1200 (9th Cir. 2000), petition for
cert. filed, 69 U.S.L.W. 3593 (Feb. 21, 2001) (No. 00-1341).

The court below erred by ignoring this reasoning and following the
reasoning adopted by only two other courts — the Fifth Circuit in Hopwood v.

Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996), and a district
court in the Eleventh Circuit in Johnson v. Regents of the University of Georgia,
106 F. Supp. 2d 1362 (S.D. Ga. 2000). Other lower courts addressing race-
conscious admissions have consistently relied on Justice Powell's opinion in
Bakke.¹ Indeed, as this Court indicated in Oliver v. Kalamazoo Board of
Education, 706 F.2d 757, 763 (6th Cir. 1983), Justice Powell's opinion in Bakke
makes clear that "affirmative action admission programs of education institutions
may take race into account, but racial quotas are prohibited." See also Jacobson
v. Cincinnati Bd. of Educ., 961 F.2d 100, 103 (6th Cir. 1992) (relying on Justice
Powell's opinion in Bakke).

      B.       Bakke Has Not Been Overruled by Subsequent Case Law.

The district court further erred by ruling that promoting diversity cannot be

___________________
¹     See, e.g., Smith v. University of Wash. Law. Sch., 233 F.3d 1188 (9th Cir.
2000), petition for cert. filed, 69 U.S.L.W. 3593 (Feb. 21, 2001) (No. 00-1341);
Gratz v. Bollinger, 122 F. Supp. 2d 811, 824 (E.D. Mich. 2000); Davis v.
Halpern, 768 F. Supp. 968, 975-79 (E.D.N.Y. 1991); McDonald v. Hogness, 598
P.2d 707, 713 (Wash. 1979); see also DeRonde v. Regents of Univ. of Cal., 625
P.2d 220 (Cal. 1981) (upholding race-conscious admissions plan based on both
Powell opinion and Brennan opinion); cf. University & Community College Sys.
v. Farmer, 930 P.2d 730, 734 (Nev. 1997) (relying on Bakke to uphold diversity-
based employment plan). Several courts have also assumed, without deciding,
that diversity is a compelling interest, consistent with Justice Powell's Bakke
opinion. See Tuttle v. Arlington County School Bd., 195 F.3d 698, 704-05 (4th
Cir. 1999), cert. dismissed, 529 U.S. 1050 (2000). Eisenberg v. Montgomery
County Public Schools, 197 F.3d 123, 130 (4th Cir.), cert. denied, 529 U.S. 1019
(1999); Wessman v. Gittens, 160 F.3d 790, 796 (1st Cir. 1998).

a compelling interest because more recent U.S. Supreme Court cases have in
effect overruled Bakke. Recent Supreme Court cases have delineated standards
for evaluating race-conscious policies in remedial settings, see City of Richmond
v. J.A. Croson Co., 488 U.S. 469 (1989); Wygant v. Jackson Bd. of Educ., 476
U.S. 267 (1986), but no majority of the Court has ever held that remedial
interests constitute the only possible interests that can satisfy a strict scrutiny
standard. As the Seventh Circuit has indicated, a court "would be unreasonable
to conclude that no other consideration except a history of discrimination could
ever warrant a discriminatory measure unless every other consideration had been
presented to [the court] and rejected . . . ." Wittmer v. Peters, 87 F.3d 916, 919
(7th Cir. 1996).

Consequently, several federal courts of appeals, including this Court, have
held that non-remedial interests can constitute compelling governmental
interests. See, e.g., Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738,
753 (2d. Cir. 2000) (reducing racial isolation); Hunter v. Regents of Univ. of
Cal., 190 F.3d 1061, (9th Cir. 1999) (improving educational quality in urban
schools), cert. denied, 121 S. Ct. 186 (2000); United States v. Ovalle, 136 F.3d
1092, 1106 (6th Cir. 1998) (ensuring that jury pools represent a fair cross section
of the community); Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996)
(maintaining order within prison boot camp).

The district court's suggestion that Bakke has been overruled is entirely
misplaced. A diversity-based admissions program, which is rooted in a
university's mission to pursue academic excellence and receives due
consideration under the First Amendment, is fully distinguishable from a
remedial program designed to address past discrimination. As the Ninth Circuit
has noted, the Supreme Court "has not returned to the area of university
admissions, and has not indicated that Justice Powell's approach has lost its
vitality in that unique niche of our society." Smith v. University of Wash. Law.
Sch., 233 F.3d 1188, 1200 (9th Cir. 2000), petition for cert. filed, 69 U.S.L.W.
3593 (Feb. 21, 2001) (No. 00-1341).

The Supreme Court has warned that "other courts [should not] conclude
[that] our more recent cases have, by implication, overruled an earlier
precedent." Agostini v. Felton, 521 U.S. 203, 237 (1997). This Court should
heed the admonition that if a Supreme Court precedent "has direct application in
a case, yet appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own decisions." Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). The correct
precedent in this case is Justice Powell's opinion in Bakke, and the district court
erred in suggesting otherwise.

II.       SOCIAL SCIENCE STUDIES SUPPORT THE COMPELLING
          GOVERNMENTAL INTEREST IN PROMOTING DIVERSITY.

The district court below compounded its errors by ignoring both
Appellants' expert evidence and the body of literature documenting the positive
effects of a diverse student body in higher education. Justice Powell's
determination in Bakke that promoting diversity is a compelling interest is
supported by a growing number of studies which show that educational diversity
can promote learning outcomes, democratic values and civic engagement, and
preparation for a diverse society and workforce — goals that fall squarely within a
university's basic mission. See generally Compelling Interest: Examining the
Evidence on Racial Dynamics in Higher Education (Mitchell Chang, et al. eds.,
forthcoming 2001) (prepublication draft available at
http://www.aera.net/reports/dynampp.pdf) (overview of research on race and
higher education); Jeffrey F. Milem & Kenji Hakuta, The Benefits of Racial and
Ethnic Diversity in Higher Education, in Minorities in Higher Education:
Seventeenth Annual Status Report 39 (Deborah J. Wilds ed. 2000) (overview of
research on benefits of racial diversity in higher education); Sylvia Hurtado, et
al., Enacting Diverse Learning Environments: Improving the Climate for
Racial/Ethnic Diversity in Higher Education (1999) (review of research on racial
diversity and campus climate) [hereinafter Hurtado, et al., Enacting Diverse

Learning Environments].

      A.       Student Body Diversity Improves Educational Outcomes.

Appellants' expert, Professor Patricia Gurin of the University of Michigan,
analyzed three sources of data — multi-institutional national data, the results of an
extensive survey of students at the University of Michigan, and data drawn from
a specific classroom program at the University of Michigan — and concluded that
"[s]tudents who experienced the most racial and ethnic diversity in classroom
settings and in informal interactions with peers showed the greatest engagement
in active thinking processes, growth in intellectual engagement and motivation,
and growth in intellectual and academic skills." Expert Report of Patricia Y.
Gurin, Gratz v. Bollinger, No. 97-75231 (E.D. Mich.) & Grutter v. Bollinger,
No. 97-75928 (E.D. Mich.), in The Compelling Need for Diversity in Higher
Education 99, 100 (1999). Gurin's study, which carefully controlled for factors
other than diversity and employed measures that have been tested and validated
extensively in the field, yielded statistically significant and consistent results
showing that both classroom learning environments and informal student
interactions are improved by student body diversity. The court below erred by
ignoring Gurin's study, as well as other recent studies which suggest that student
body diversity can produce a wide variety of positive educational outcomes,
including richer classroom environments, improved critical thinking abilities,

higher self-confidence, and improved interpersonal and leadership skills.

            1.       Student Body Diversity Improves Classroom Learning
                      Environments.

Recent studies show that a racially and ethnically diverse learning
environment provides the opportunity for students to share a broader array of
perspectives and experiences. For example, a recent survey of students from the
Harvard Law School and the University of Michigan Law School supports the
proposition that student body diversity has strong effects on the classroom
environment. See Gary Orfield & Dean Whitla, Diversity and Legal Education:
Student Experiences in Leading Law Schools, in Diversity Challenged: Evidence
on the Impact of Affirmative Action 143 (Gary Orfield & Michal Kurlaender eds.
2001). In the Orfield and Whitla law school study, the Gallup Poll surveyed
1,820 law students at the University of Michigan and Harvard to determine the
effects of diversity; the response rate for the survey was 81 percent, which is an
exceptionally high figure. Id. at 154. When asked how diversity had affected the
way in which they and their peers reflected upon problems and solutions in class,
68% of the Harvard law students and 73% of the Michigan law students
responded that diversity had affected such discussions positively. Id. at 158.
Sixty-three percent of the Harvard students and 66% of the Michigan students
reported that racial diversity enhanced the manner in which topics were

discussed in the majority of their classes. Id. at 160.

In addition, almost two-thirds of the law students in the Orfield and Whitla
study reported "that most of their classes were better because of diversity." Id. at
159. Moreover, when the law students were asked to compare their
homogeneous classes to their diverse classes in three categories — (1) the range of
discussion, (2) the level of intellectual challenge, and (3) the seriousness with
which alternative views were considered — 42% of the students found the diverse
classes to be superior in all three respects while only 3% believed the
homogeneous classes were superior. Id. at 166-67.

Surveys of faculty members show similar results. For example, in a national
survey of law faculty conducted by the American Association of Law Schools (a
sample of nearly 1,000 faculty, with a 57% response rate), approximately 75% of
the respondents felt strongly about the importance of diversity in developing student
willingness to examine their own perspectives and for exposing students to new
perspectives. Richard A. White, Preliminary Report: Law School Faculty Views on
Diversity in the Classroom and the Law School Community 5-6 (May 2000)
(available at http://www.aals.org/statistics/diverse3.pdf).

A national survey of faculty at major research universities (a sample of
1,210 faculty, with a 47% response rate) found that a substantial number of
respondents agreed that classroom diversity broadened the range of perspectives

shared in classes; specifically, more than two-thirds of respondents indicated that
students benefit from learning in a racially and ethnically diverse environment
with respect to exposure to new perspectives and willingness to examine their
own personal perspectives. Geoffrey Maruyama & José F. Moreno, University
Faculty Views About the Value of Diversity on Campus and in the Classroom, in
American Council on Education & American Association of University
Professors, Does Diversity Make a Difference? Three Research Studies on
Diversity in College Classrooms 9, 14-16 (2000).

Similarly, in a study of the faculty at Macalester College, a liberal arts
college in Saint Paul, Minnesota, 91% of the faculty agreed that "racial-ethnic
diversity in the classroom 'allows for a broader variety of experiences to be
shared.'" Roxanne Harvey Gudeman, Faculty Experience with Diversity: A Case
Study of Macalester College, in Diversity Challenged: Evidence on the Impact of
Affirmative Action 251, 258 (Gary Orfield & Michal Kurlaender eds. 2001).
More specifically, 80% the faculty felt that minority students typically raise
issues not normally raised by non-minority students, and 75% of faculty agreed
that racial and ethnic issues are discussed more substantively in diverse
classroom environments. Id. Research thus suggests that a diverse environment
positively influences the ways in which students discuss and reflect on issues
relevant to their studies.

            2.       Diverse Learning Environments Promote Critical
                      Thinking Skills.

Research also indicates that students learn more and think more critically
when educated in a racially and ethnically diverse learning environment. In her
report to the court below, Gurin states: "Students learn more and think in deeper,
more complex ways in a diverse educational environment." Gurin, supra, at 118.
Gurin goes on to suggest that a diverse educational environment, a curriculum
which addresses racial issues, and engagement with peers from diverse
backgrounds will result in "a learning environment that fosters conscious,
effortful, deep thinking" as opposed to automatic, preconditioned responses. Id.
at 105; see also Gudeman, supra, at 271 (non-minority students tend to read
course materials more critically when part of a diverse classroom); Maruyama &
Moreno, supra, at 16 (substantial numbers in faculty survey agree that diversity
is important for developing critical thinking skills); José F. Moreno, Affirmative
Actions: The Educational Influence of Racial/Ethnic Diversity on Law School
Faculty 92 (2000) (unpublished Ph.D. dissertation, Harvard University) (law
school faculty members report that diversity helps students develop critical
thinking skills). As one researcher suggests, a higher level of thinking can be
attributed to the range of ideas and perspectives that diverse students bring to a
discussion, which, in turn, "challenge students' stereotypes, broaden their

perspectives, and stimulate critical thinking." Patricia Marin, The Educational
Possibility of Multi-Racial/Multi-Ethnic College Classrooms, in American
Council on Education & American Association of University Professors, Does
Diversity Make a Difference? Three Research Studies on Diversity in College
Classrooms 61, 69 (2000).

Another line of research suggests that studying with peers from diverse
backgrounds will have a more "pronounced" effect on self-reported growth in
critical thinking and problem-solving skills, even more than curricular diversity.
Sylvia Hurtado, Linking Diversity and Educational Purpose: How Diversity
Impacts the Classroom Environment and Student Development, in Diversity
Challenged: Evidence on the Impact of Affirmative Action 187, 198 (Gary
Orfield & Michal Kurlaender eds. 2001) [hereinafter Hurtado, Linking Diversity
and Educational Purpose]. This research suggests that the curriculum cannot
replace or replicate the positive effects that a diverse learning environment will
have on students' critical thinking skills.

            3.       Cross-Racial Interaction Has Positive Effects on
                      Retention, College Satisfaction, Self-Confidence,
                      Interpersonal Skills, and Leadership.

Research also demonstrates that socializing across racial lines and
engaging in racial discussions with diverse peers has positive effects on a variety
of educational outcomes that go beyond cognitive abilities and skills. Studies

indicate that socializing across racial lines and engaging in racial discussions can
have an impact on outcomes such as retention, overall college satisfaction,
intellectual self-confidence, and social self-confidence. See Mitchell J. Chang,
Does Racial Diversity Matter?: The Educational Impact of a Racially Diverse
Undergraduate Population, 40 J. College Student Dev. 391 (1999); see also
Alexander W. Astin, Diversity and Multiculturalism on the Campus: How Are
Students Affected? Change, Mar.-Apr. 1993, at 44, 47 (socializing across racial
lines has positive effects on students' academic achievement). Related research
has found that interaction among diverse students leads to improved
interpersonal skills and leadership. Anthony Lising Antonio, The Role of
Interracial Interaction in the Development of Leadership Skills and Cultural
Knowledge and Understanding, 42 Res. Higher Educ. 593 (2001); see also
Maruyama & Moreno, supra, at 15-16 (substantial numbers in faculty survey
agree that diversity is important for developing leadership skills).

            4.       Student Body Diversity Promotes the Creation of
                      Initiatives That Lead to Improved Educational Outcomes.

Recent studies have shown that a diverse student population can also lead
to diversity-based initiatives and institutional change that improve educational
outcomes. As one review of the literature notes: "The impact of diverse student
enrollments has resulted in pressure for institutional transformation — a

transformation that has affected both the academic and social life of the
institution, including such changes as the development of ethnic studies
programs, diverse student organizations, specific academic support programs,
and multicultural programs." Hurtado, et al., Enacting Diverse Learning
Environments, supra, at 20.

In turn, diversity-based initiatives have been found not only to promote
racial understanding and campus activism, but to have positive effects on
retention, satisfaction with college, and academic development. See Jeffrey F.
Milem, College, Students, and Racial Understanding, 9 Thought & Action 51,
75-76 (1994). Research also suggests that such initiatives can affect both
students' openness to diversity and their willingness to have their views
challenged. See Ernest T. Pascarella, et al., Influences on Students' Openness to
Diversity and Challenge in the First Year of College, 67 J. Higher Ed. 188, 189
(1996).

      B.       Student Body Diversity Promotes Democratic Values and
                Increased Civic Engagement.

            1.       Diverse Learning Environments Challenge Students to
                      Consider Alternative Viewpoints and Develop Tolerance
                      for Differences

Recent studies suggest that diverse learning environments allow students
to encounter and consider different perspectives, ultimately leading to a deeper

understanding, respect, and tolerance for individual differences. Gurin indicates
that students educated in a diverse environment were "most likely to
acknowledge that group differences are compatible with the interests of the
broader community." Gurin, supra, at 101. Gurin further found that the students
at the University of Michigan who interacted with diverse peers had "[a]n
increased sense of commonality with other ethnic groups," and that these
students also exhibited a "growth in mutuality or enjoyment in learning about
both one's own background and the backgrounds of others, more positive views
of conflict, and the perception that diversity is not inevitably divisive in our
society." Id. at 127.

Other studies have found that socializing across racial lines has positive
effects on students' cultural awareness and commitment to racial understanding.
A study of undergraduates enrolled in the early 1990s found that studying with
someone from a different racial or ethnic background resulted in a positive
growth in civic outcomes such as "the acceptance of people of different
races/cultures, cultural awareness, tolerance of people with different beliefs, and
leadership abilities." Hurtado, Linking Diversity and Educational Purpose, at
198. Specific research on friendship groups developed among students on
campuses with diverse student bodies reinforces the notion that diversity can
provide students with the opportunity to develop close friendships with

individuals of different races and ethnicities. These interracial friendships
consequently become the norm for more general interracial interaction, thus
promoting greater racial understanding and awareness. Anthony Lising Antonio,
Diversity and the Influence of Friendship Groups in College, 25 Rev. Higher
Educ. (forthcoming 2001) (manuscript at 22, on file at The Civil Rights Project —
Harvard University).

Research also suggests that when confronted with new ideas and
perspectives in diverse learning environments, students' views are altered. When
law students in the Orfield and Whitla study were asked whether conflicts due to
racial differences challenged them to "rethink" their values, students responded
affirmatively. Orfield & Whitla, supra, at 162. Sixty eight percent of the
Harvard students and 75% of the University of Michigan students answered that
such conflicts either enhanced or moderately enhanced a rethinking of their
values. Id. In addition, 52% of the Harvard students and 60% of the Michigan
students reported that conflicts due to racial differences "ultimately [became]
positive learning experiences." Id. at 163.

Students in the Orfield and Whitla study also reported that diversity had a
positive impact on classes dealing with the justice system. Id. at 163. When
students were asked whether "discussions with students of different racial and
ethnic backgrounds [had] changed [their] view of the equity of the criminal

justice system," 78% of the Harvard students and 84% of the Michigan students
said that such discussions had changed their views either significantly,
substantially, or a great deal. Id.

            2.       Diverse Learning Environments Can Increase
                      Participation in Civic Activities.

Studies also indicate that students who are educated in a diverse
environment are more likely to participate in civic activities. Results from the
Gurin study "strongly support the central role of higher education in helping
students to become active citizens and participants in a pluralistic democracy."
Gurin, supra, at 126. Gurin concluded that "[s]tudents educated in diverse
settings are more motivated and better able to participate in an increasingly
heterogeneous and complex democracy," and that they "showed the most
engagement during college in various forms of citizenship." Id. at 101.

Researchers found similar results when they conducted a longitudinal
study of students graduating from selective colleges and universities that had
used affirmative action in their admissions practices. See William G. Bowen &
Derek Bok, The Shape of the River: Long-Term Consequences of Considering
Race in College and University Admissions vi (1998). Drawing from records of
more than 80,000 students who matriculated at twenty-eight selective colleges
and universities in 1951, 1976, and 1989, the Bowen and Bok study found that

the 1976 cohort "participated in civic activities in very large numbers — nearly 90
percent of the cohort participated in one or more [civic] activity in 1995." Id. at
156. The study showed that the students from these universities were
"noticeably more likely than the control group to participate in professional and
trade associations, college-related functions such as fund-raising and student
recruitment, cultural and arts activities, and environmental and conservation
programs." Id. at 157. Bowen and Bok also noted students' propensity to engage
in political activity after graduating from college. The study found, for instance,
that high percentages of the students, 94% of white respondents and 90% of
black respondents, voted in 1992. Id. at 174.

      C.       Student Body Diversity Prepares Students for a Diverse Society
                and Workforce.

Studies also suggest that educational diversity better prepares students for
living and working in a diverse society, another outcome that is integral to a
university's mission. One of Gurin's basic conclusions was that students in
diverse learning environments "were comfortable and prepared to live and work
in a diverse society." Gurin, supra, at 127. Gurin found that students who
attended diverse classes and who engaged in informal interactions with diverse
peers reported feeling the most prepared for graduate school. Id. at 133. The
students who reported engaging and interacting with diverse peers felt that "their

undergraduate education help[ed] prepare them for their current job." Id. In
addition, Gurin found that diversity experiences during college had "impressive
effects on the extent to which graduates in the national study were living racially
or ethnically integrated lives in the post-college world. Students who had taken
the most diversity courses and interacted the most with diverse peers during
college had the most cross-racial interactions five years after leaving college."
Id. at 133.

The law school students in the Orfield and Whitla study reported that
diversity had affected their "ability to work more effectively and/or get along
better with members of other races." Orfield & Whitla, supra, at 159. Sixty-
eight percent of the Harvard students responded that diversity either "clearly
enhanced" or produced a "moderate enhancement" in their ability to work and
get along with members of other races. Id. Forty-eight percent of the Michigan
students perceived a clear, positive impact on their ability to work and
get along with members of diverse backgrounds. Id. at 63.

Similarly, the students in Bowen and Bok's study were asked what
difference their college experience made in "developing [their] ability to work
with, and get along with, people of different races and cultures." Bowen & Bok,
supra, at 225. Forty-six percent of the white students in the 1976 cohort
"believe[d] that their undergraduate experience was of considerable value in this

regard," and "18 percent said it helped 'a great deal.'" Id. Fifty-seven percent of
black students in the 1976 cohort "gave college credit for helping them develop
these 'getting along' skills." Id. The 1989 cohorts reported an even larger
positive effect: 63% of whites and 70% of blacks attributed their ability to work
with and get along with others, in part, to their college experiences. Id.

A related study found that students credited their improved job-related
skills primarily to their ability to study frequently with diverse peers. See
Hurtado, Linking Diversity and Educational Purpose, supra, at 198. These
students reported "growth of important skills related to a diverse work force,
including their ability to work cooperatively with others." Id. The study
concluded that interacting with diverse peers "has the substantial positive effect
of the development of skills needed to function in an increasingly diverse society
. . ." Id. at 199.

As one study summarizes: "To be competitive, in terms of entry-level
employment as well as advancement into positions of responsibility and
leadership, students must acquire the understandings and the skills necessary for
working productively and harmoniously with fellow workers and citizens who
bring widely differing backgrounds and experiences to the workplace and to their
communities." Jack Meacham, et al., Student Diversity in Classes and
Educational Outcomes: Student and Faculty Perceptions 20 (1999) (paper

presented at American Council on Education's Symposium on Diversity and
Affirmative action; on file with The Civil Rights Project — Harvard
University).
Studying in a racially diverse environment provides the opportunity for students
to obtain the skills necessary to participate successfully in a diverse workforce
and society.

III.       THE LAW SCHOOL'S ADMISSIONS POLICY IS NARROWLY
            TAILORED.

The district court erred in holding the University of Michigan Law
School's admissions policy is not narrowly tailored to serve the compelling
interest in promoting diversity. The policy employs race in a highly limited
fashion and only in the context of reviewing individual applications for
admission to the Law School; the policy thus adheres to the narrow tailoring
principles articulated by Justice Powell in Bakke. 438 U.S. at 317-18. As
Appellants demonstrate in their Brief to this Court, the district court's analysis of
narrow tailoring contains extensive errors of fact and law. See Brief for
Appellants, at 42-55. Two of the court's errors are particularly serious in light of
expert testimony and recent social science studies. The district court's reasoning
suggesting that "critical mass" is too amorphous a concept to allow narrow
tailoring is flawed, and the court's analysis and findings related to the Law
School's consideration of race-neutral alternatives are erroneous.

      A.       The Concept of "Critical Mass" is Not Amorphous.

The district court erred by holding that the concept of a "critical mass" of
minority students is so amorphous that it renders the Law School's policy ill-
fitting to the interest in promoting diversity. Citing to the Harvard undergraduate
admissions policy, Justice Powell made clear in Bakke that the number of
minority students within a student body must not be so small that minority
students cannot make contributions to the learning environment or that minority
students become isolated:

It would not make sense, for example, to have 10 or 20 students out of
1,100 whose homes are west of the Mississippi. Comparably, 10 or 20
black students could not begin to bring to their classmates and to each
other the variety of points of view, backgrounds and experiences of blacks
in the United States. Their small numbers might also create a sense of
isolation among the black students themselves and thus make it more
difficult for them to develop and achieve their potential. Consequently, . . .
there is some relationship between numbers and achieving the benefits to
be derived from a diverse student body, and between numbers and
providing a reasonable environment for those students admitted.

The Law School's admissions policy recognizes the harms that accrue
from having only token numbers of minority students within its student body.
Indeed, the dangers of tokenism are well documented and include racial
isolation, alienation, and stereotyping. See, e.g., Walter R. Allen, The Color of
Success: African-American College Student Outcomes at Predominantly White

and Historically Black Public Colleges and Universities, 62 Harv. Educ. Rev. 26
(1992); Chalsa M. Loo & Garry Rolison, Alienation of Ethnic Minority Students
at a Predominantly White University, 57 J. Higher Educ. 58 (1986). See
generally Hurtado, et al., Enacting Diverse Learning Environments, supra, at 25-
27 (reviewing literature on psychological impacts of racial isolation in higher
education); Rosabeth Moss Kanter, Some Effects of Proportions on Group Life:
Skewed Sex Ratios and Responses to Token Women, 82 Am. J. Soc. 965 (1977)
(describing the adverse effects of tokenism).

The concept of "critical mass" is designed to address the Law School's
interest in moving beyond tokenism, but it is neither so amorphous that it eludes
definition nor so inflexible that it requires a fixed percentage of students. As one
survey of college faculty indicates, critical mass focuses on "the need for
students to feel safe and comfortable," and serves as a counter to "the lack of
safety or comfort felt when one finds oneself a 'solo' or 'minority of one.'"
Gudeman, supra, at 267-68. In other words, critical mass implies: "Enough
students to overcome the silencing effect of being isolated in the classroom by
ethnicity/race/gender. Enough students to provide safety for expressing views."
Id. at 268. A national survey of law school faculty underscores the point: "A
high percentage (50% or more) of faculty [feel] strongly that having a critical

mass of students of a particular racial/ethnic group is important to their participation in the classroom . . . ." White, supra, at 3-4 (emphasis added).

Moreover, as one researcher has noted, it was increases in the critical mass
of minority students that served as a significant predictor of race-related
activities during the 1970s, and "[i]ncreases in the absolute numbers of
minorities on campus resulted in new demands for institutional change . . . ."
Sylvia Hurtado, The Institutional Climate for Talented Latino Students, 35 Res.
Higher Educ. 21, 24 (Feb. 1994). In this way, critical mass provides a basis for
diversity-based initiatives that can lead to positive educational outcomes. See
supra Part IV.A.4. Nevertheless, critical mass need not be so rigidly defined that
it exists independent of factors such as the size of a campus or the community in
which the college is located. See id. at 24 (community size and location are
positively related to racial tolerance among members of a community). Critical
mass thus serves as a contextual benchmark that allows a university to exceed
token numbers within its student body, therefore promoting the robust exchange
of ideas and meaningful access to the curriculum that are central to a university's
mission.

When an institution such as the Law School has acted to admit a critical
mass of minority students, it also strives to admit enough students to represent
varied viewpoints and perspectives within underrepresented groups. Critical

mass promotes the notion of intra-group diversity, which counterposes the
stereotype that all students within a group have identical experiences and possess
identical viewpoints. As Gurin has stated: "[T]he presence of more than a token
number of minority students decreases the likelihood that those minority
individuals will be stereotyped by others." Supplemental Expert Report of
Patricia Y. Gurin, Grutter v. Bollinger, No. 97-75928 (E.D. Mich.) (Jan. 11,
2001), at 2; see also Bowen & Bok, supra, at 236 (noting that "greater diversity
within the minority community tends to create a greater number of potential
avenues of interaction").

By requiring a rigid definition of critical mass, however, the district court
makes it impossible for the Law School to establish the constitutionality of its
policy. The district court's inconsistent standard requires Appellants to navigate
between the Scylla of amorphousness and the Charybdis of rigid quotas. Within
the same opinion, the court thus rejects and accepts the Bakke standards,
mandating both numerical definiteness and flexibility. This Court should reject
this approach and accept the critical mass concept as a narrowly tailored method
for achieving the educational benefits that result from having numbers within a
student body that extend beyond mere tokens.

      B.       Race-Neutral Admissions Cannot Achieve Student Body
                Diversity.

The record clearly shows that the Law School has considered race-neutral
alternatives to its policy and found them inadequate. The Law School has
participated in both pre-admission and post-admission recruiting activities — such
as visits to undergraduate institutions, involvement in law school recruitment
fairs and forums, and personal correspondence and telephone calls to prospective
students — and found them insufficient to create a diverse student body. As
Appellants' expert witness Stephen Raudenbush has made clear, a race-neutral
admissions policy would substantially reduce the number of underrepresented
minority students in the Law School student body and increase the occurrence of
segregated learning spaces and social settings. See Supplemental Expert Report
of Stephen W. Raudenbush, Grutter v. Bollinger, No. 97-75928 (E.D. Mich.)
(Jan. 5, 2001).

The negative impact of race-neutral admissions policies on minority
enrollments in state law schools in California and Texas, where race-conscious
admissions policies have been eliminated, is well-documented. See, e.g., Jorge
Chapa & Vincent A. Lazaro, Hopwood in Texas: The Untimely End of
Affirmative Action, in Chilling Admissions: The Affirmative Action Crisis and the
Search for Alternatives 55, 62-68 (Gary Orfield & Edward Miller eds. 1998)

(discussing decline in minority enrollments in Texas law schools after
Hopwood); Jerome Karabel, No Alternative: The Effects of Color-Blind
Admissions in California, in Chilling Admissions, supra, at 33, 43-45 (discussing
decline in minority enrollments at University of California law schools). See
generally Linda Wightman, The Threat to Diversity in Legal Education: An
Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law
School Admissions Decisions, 72 N.Y.U.L. Rev. 1 (1997). For example, the
most recent data from the Boalt Hall School of Law at the University of
California, Berkeley, suggest that "Boalt will find it difficult to achieve the levels
of diversity that it had when race and ethnicity could be considered in the
admissions process. . . . For the foreseeable future, then, Whites will dominate
the student body . . . ." Rachel F. Moran, Diversity and Its Discontents: The End
of Affirmative Action at Boalt Hall, 88 Cal. L. Rev. 2241, 2248-49 (2000). Race-
neutral alternatives have been found to be ineffective at Boalt; after the passage
of Proposition 209 in California, an admissions program at Boalt that gave
special consideration to socioeconomically disadvantaged students was
abandoned after one year, following the determination that it did little to increase
the representation of blacks and Latinos in the student body. Id. at 2248.

The record shows that the University of Michigan Law School is well
aware of the failings of race-neutral admissions programs in other states, and the

Law School has made the determination that it cannot enroll meaningful numbers
of minority students without the consideration of race as a factor in admissions.
The district court's ruling that the Law School failed to consider race-neutral
alternatives is therefore erroneous.

The district court below erred by holding that promoting educational
diversity is not a compelling governmental interest and that the University of
Michigan Law School's admissions policy is not narrowly tailored. For all of the
foregoing reasons, the ruling of the district court should be reversed.

Dated: May 29, 2001

I hereby certify that, on this 29th day of May, 2001, pursuant to Fed. R.
App. P. 25 and 6 Cir. R. 31, I have caused two copies of the foregoing brief of
amicus curiae The Civil Rights Project at Harvard University to be served by
United States first-class mail, postage prepaid, on the following: