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No. 02-241
___________________________________________
In The
_________________________
Supreme Court of United States
BARBARA GRUTTER,
Petitioner,
v.
LEE BOLLINGER, JEFFREY LEHMAN,
DENNIS SHIELDS, and the BOARD OF
REGENTS OF THE UNIVERSITY OF MICHIGAN,
Respondents.
_________________________
On Petition For Writ Of Certiorari
___________________________________________
To The United States Court Of Appeals
For The Sixth Circuit
Brief in Opposition
___________________________________________
MARVIN KRISLOV
JONATHAN ALGER
UNIVERSITY OF MICHIGAN
Office of the Vice President
and General Counsel
4010 Fleming Admin. Bldg.
503 Thompson St.
Ann Arbor, MI 48109
EVAN CAMINKER
UNIVERSITY OF MICHIGAN
LAW SCHOOL
625 South State Street
Ann Arbor, MI 48109
PHILIP J. KESSLER
LEONARD M. NIEHOFF
BUTZEL LONG
350 South Main, Suite 300
Ann Arbor, MI 48104MAUREEN E. MAHONEY
Counsel of Record
J. SCOTT BALLENGER
LATHAM & WATKINS
555 Eleventh Street, N.W.
Suite 1000
Washington, DC 20004
(202) 637-2200
JOHN H. PICKERING
JOHN PAYTON
BRIGIDA BENITEZ
STUART DELERY
CRAIG GOLDBLATT
WILMER, CUTLER &
PICKERING
2445 M Street, N.W.
Washington, DC 20037Counsel for Respondents
i
QUESTIONS PRESENTED
1. Whether the court of appeals correctly applied
settled principles of stare decisis in determining that the
University of Michigan Law School's admissions program is
constitutional under this Court’s decision in Regents of the
University of California v. Bakke, 438 U.S. 265 (1978).2. If this Court declines to give stare decisis effect to
its decision in Bakke, whether the educational benefits that
flow from a diverse student body to an institution of higher
education, its students, and the public it serves, are
sufficiently compelling to permit the school to consider race
and/or ethnicity as one of many factors in making admissions
decisions through a “properly devised” admissions program.3. Whether the current admissions processes of the
University of Michigan Law School represent such a
“properly devised” admissions program.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED.................................................i
TABLE OF CONTENTS......................................................iii
TABLE OF AUTHORITIES................................................v
STATEMENT OF THE CASE.............................................1
REASONS FOR DENYING THE WRIT..........................12
I. THE DECISION OF THE SIXTH CIRCUIT
DOES NOT CONFLICT WITH ANY DECISION
OF THIS COURT........................................14
- A. The Sixth Circuit Correctly Held That
The Law School’s Policy Is Constitutional
Under The Essential Holding
of Bakke ..............................................................14- B. This Court Has Repeatedly Acknowledged
The Essential Holding Of Bakke,
And Has Never Questioned Its Continuing
Validity...................................................17
- II. THE PETITION FORWARDS NO PERSUASIVE
ARGUMENT FOR GRANTING
REVIEW IN ORDER TO OVERRULE
THE ESSENTIAL HOLDING OF BAKKE............18- III. THE PETITION IDENTIFIES NO CONFLICT
IN THE LOWER COURTS THAT
IS APPROPRIATE FOR REVIEW .........................23
- A. Review Is Not Appropriate On The
Narrow Question Of The Proper Application
Of Marks..................................................23
iv
TABLE OF CONTENTS — Continued
Page
- B. Review Of Whether The Educational
Benefits Of Diversity Constitute A
“Compelling Interest” Would Be
Premature...........................................................25- C. The Sixth Circuit’s Narrow Tailoring
Analysis Involves The Factbound
Application Of Settled Law And Does
Not Conflict With The Decision Of Any
Other Circuit ......................................................26- D. The Sixth Circuit’s De Novo Review Of
Various Ultimate Legal Conclusions
And Constitutional Mixed Questions
Was Consistent With Settled Law, And
Petitioner Identifies No Conflict That
Could Justify Review By This Court.................29CONCLUSION....................................................................30
v
TABLE OF AUTHORITIES
CASES:
Page(s)
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995).....................................9, 16, 18, 20Brown v. Board of Education,
347 U.S. 483 (1954)................................................... 18City of Richmond v. J. A. Croson Co.,
488 U.S. 469 (1989)................................................9, 16Dickerson v. United States,
530 U.S. 428 (2000)................................................... 20Hopwood v. Texas,
236 F.3d 256 (5th Cir. 2000), cert. denied, 533
U.S. 929 (2001) ......................................................... 13Hopwood v. Texas,
84 F.3d 720 (5th Cir. 1996)..................................13, 24Hopwood v. Texas,
78 F.3d 932 (5th Cir.), cert. denied, 518 U.S.
1033 (1996)...........................................................13, 23Hunter ex rel. Brandt v. Regents of University of
California,
971 F. Supp. 1316 (C.D. Cal. 1997), aff’d, 190
F.3d 1061 (9th Cir. 1999), cert. denied, 531
U.S. 877 (2000) ......................................................... 23Johnson v. Board of Regents,
263 F.3d 1234 (11th Cir. 2001)..................13, 24, 27, 29
vi
TABLE OF AUTHORITIES — Continued
Page(s)
Marks v. United States,
430 U.S. 188 (1977)................................................9, 16Metro Broadcasting, Inc. v. FCC,
497 U.S. 547 (1990)................................................... 17Mitchell v. United States,
526 U.S. 314 (1999)................................................... 20Planned Parenthood v. Casey,
505 U.S. 833 (1992)................................................... 20Regents of University of California v. Bakke,
438 U.S. 265 (1978)........................................... passimSmith v. University of Washington Law School,
233 F.3d 1188 (9th Cir. 2000), cert. denied,
532 U.S. 1051 (2001)................................................. 13Sweatt v. Painter,
339 U.S. 629 (1950)................................................... 18Tuttle ex rel. Tuttle v. Arlington County School
Board,
195 F.3d 698 (4th Cir. 1999), cert. dismissed,
529 U.S. 1050 (2000)............................................27, 29United States v. Paradise,
480 U.S. 149 (1987)................................................... 10
vii
TABLE OF AUTHORITIES — Continued
Page(s)
Washington v. Seattle School District No. 1,
458 U.S. 457 (1982)................................................... 19Wessmann v. Gittens,
160 F.3d 790 (1st Cir. 1998)...................................... 30Wittmer v. Peters,
87 F.3d 916 (7th Cir. 1996), cert. denied, 519
U.S. 1111 (19979)...................................................... 22Wygant v. Jackson Board of Education,
476 U.S. 267 (1986)................................................... 17STATUTES AND REGULATIONS
Emergency School Aid Act, Pub. L. No. 92-318,
§§ 701-720, 86 Stat. 354 (1972) ................................. 19Magnet Schools Assistance Program, Pub. L. No. 98-
377, 98 Stat. 1299 (1984)........................................... 19No Child Left Behind Act of 2001, Pub. L. No. 107-
110, 115 Stat. 1425.................................................... 1934 C.F.R. § 100.3(b)(6)(ii)..................................................... 21
LEGISLATIVE MATERIAL
S. Rep. No. 92-61 (1971) ....................................................... 19
viii
TABLE OF AUTHORITIES — Continued
Page(s)
OTHER AUTHORITY
44 Fed. Reg. 58,509 (Oct. 10, 1979) ...................................... 21
56 Fed. Reg. 64,548 (Dec. 10, 1991)...................................... 21
59 Fed. Reg. 8756 (Feb. 23, 1994)........................................ 21
Andrea Guerrero, Silence at Boalt Hall: The
Dismantling of Affirmative Action (Univ. of
Cal. Press 2002)........................................................ 21Stephanie E. Straub, Note, The Wisdom and
Constitutionality of Race-Based Decision-
Making in Higher Education Admission
Programs: A Critical Look at Hopwood v.
Texas, 48 Case W. Res. L. Rev. 133 (1997).............. 21Michelle Adams, Isn’t It Ironic? The Central
Paradox at the Heart of “Percentage Plans ,”
62 Ohio St. L.J. 1729 (2001)...................................... 22
1
STATEMENT OF THE CASE
Factual Background
There is no genuine dispute in this case about the
relevant historical facts, and the record evidence clearly
establishes three central realities. First, academic
selectivity and student body diversity, including racial
diversity, are both integral to the educational mission of the
University of Michigan Law School (the “Law School”).
Second, the only way for the Law School to achieve
meaningful racial diversity in its student body (while
maintaining academic selectivity) is to take race into account
in admissions. Third, the Law School’s consideration of race
in admissions is moderate in scope, treats all applicants as
individuals, and does not employ quotas or set-asides (or
their functional equivalent).1. The Law School is among the nation’s leading law
schools. It has achieved that prominence by striving to
produce highly skilled and effective lawyers who have been
chosen and tutored to serve as leaders of the profession and
of our Nation as a whole. JA 310, 319. 1 In pursuit of these
goals, the Law School has determined that its mission
requires “a curriculum that . . . firmly links professional
training to the opportunity for reflection about many of our
most fundamental public questions, such as . . . how the law
can address questions of real social urgency,” including “the
effects of religious, racial and gender intolerance in our
culture.” JA 1658. It also requires a broadly diverse “mix of
students with varying backgrounds and experiences who
will respect and learn from each other,” who are “among the
most capable students applying to American law schools in a
given year,” and who have a “strong likelihood of succeeding
in the practice of law and contributing in diverse ways to the
well being of others.” JA 310.___________________
1 “JA” citations refer to the Joint Appendix filed in the court of
appeals.
2
The Law School’s admissions policy, adopted by vote of
the faculty in 1992, is carefully crafted to support those
goals and (as the court of appeals recognized) to comply with
this Court’s opinion in Regents of University of California v.
Bakke, 438 U.S. 265 (1978). Pet. App. 4a. The policy
instructs the director of admissions, in consultation with the
Law School faculty, to review every application file in its
totality and make an individualized assessment of each
applicant. The Law School pays careful attention to an
applicant’s undergraduate grades and LSAT score; these
are useful (though imperfect) predictors of academic success
in law school. But the purpose of the admissions process is
not by any means to dole out rewards to those who earned
the best grades or achieved the highest scores on a
standardized test. Instead, “[t]he guiding purpose for
selection among applicants is to make the School a better
and livelier place in which to learn and to improve its service
to the profession and the public.” JA 1885.To that end, the Law School’s application form seeks a
great deal of information about each applicant—including a
personal statement, letters of recommendation, and an essay
describing the ways in which the applicant will contribute to
the life and to the diversity of the Law School. The Law
School gives serious consideration to “soft variables” and to
each “applicant’s promise of making a notable contribution
to the class by way of a particular strength, attainment or
characteristic—e.g., an unusual intellectual achievement,
employment experience, non-academic performance, or
personal background,” JA 1525, because it believes that
such matters “not only bear on the applicant’s likely graded
performance but also have the additional bene fit that they
may tell us something about the applicant’s likely
contributions to the intellectual and social life of the
institution.” JA 314.
3
The written policy relates several specific examples of
applicants—none of whom was a member of a historically
underrepresented minority group—for whom the Law
School’s concern for the broadest sense of diversity played a
role in the decision to offer them admission. See JA 320-21.
One had an LSAT score around the 50th percentile and a
2.67 GPA from Harvard, but was born in Bangladesh,
received outstanding references from his professors and had
an exceptional record of extracurricular activity. Another
was an Argentine single mother who also had a lower LSAT
score than most admitted applicants, but who graduated
summa cum laude from the University of Cincinnati and
was fluent in four languages. In each of these cases, the
applicants were capable of succeeding academically and
their personal experiences suggested that they would
contribute to the life of the school in important ways.Although the diversity sought by the Law School’s
admissions policy is much broader and more complex than
race, the policy does make special mention of the Law
School’s belief that the presence of “meaningful numbers”
(or a “critical mass”) of “students from groups which have
been historically discriminated against, like African
Americans, Hispanics, and Native Americans,” is essential
to effective pursuit of its educational mission. JA 321.The extensive (and unchallenged) educational and social
science evidence in the record establishes that meaningful
interaction among students of different racial backgrounds
improves the quality of education at the Law School in many
important ways. See infra pp. 18-20. It is obvious that race
matters to a great many issues that the Law School
considers central to its chosen pedagogical mission. It is
equally obvious that “students from groups which have been
historically discriminated against” have experiences that are
integral to this mission, regardless of whether they are rich
or poor or “victims” of discrimination. Through this diverse
4
student body, the Law School seeks to teach students of all
races about the role of race in our society (JA 1658); how to
“work more effectively and more sensitively” in a world that
“is and will be multi-racial” (JA 2243); and to instill “mutual
respect” and “sympathetic engagement with the
experiences of other people that are basic to the mature and
responsible practice of law” (JA 5106).2 As Kent Syverud, a
former professor at the Law School who is now the Dean of
the Vanderbilt Law School, further explained, “racial
diversity in the Socratic classroom strongly fosters the kind
of thinking that the best lawyers need to be able to do.” JA
5620. Although Dean Syverud was originally “skeptical that
considering race as a factor in admissions had a positive
impact on the educational experience of law students,” he
came to learn “that all law students receive an
immeasurably better legal education, and become
immeasurably better lawyers, in law schools and law school
classes where the student body is racially heterogeneous.”
JA 5618.3 Indeed, the educational benefits of diversity are
not in dispute. Petitioner acknowledged that, “[n]o one is
contesting that there are educational benefits of diversity.
It’s simply not an issue in the case.” JA 7192.2. The record in this case nevertheless demonstrated
that racially homogeneous classrooms would become the___________________
2 The Law School’s policy is not premised on the stereotyping notion
that anyone’s thoughts or perspectives are determined by his or her race.
To the contrary, educators testified that the presence of a critical mass of
minority students is essential to dismantling such stereotypes. When
there are more than a token number of minority students, “everybody in
the class starts looking at people as individuals in their views and
experiences, instead of as races” and sees “that there is a diversity of
views and experiences among the minority students” (JA 7697-99), just as
there is among white students.
3 This conclusion was derived from “the experience of teaching the
same subject matter to classes that are racially homogeneous and racially
heterogeneous” and to “classes where non-white students make up a tiny
fraction . . . and where their numbers are more significant.” JA 5618.
5
norm in leading law schools like the University of Michigan
if race could no longer be considered as a factor in
admissions. By way of example, a class of 401 students
entering the Law School would have included a sum total of
16 African-American, Hispanic and Native-American
students under such a regime. J.A. 6047.4While the Law School engages in extensive recruiting
and outreach activities targeted at minority applicants, such
efforts have never proven sufficient to enroll a critical mass
of minority students without the consideration of race in the
admissions process. See, e.g., JA 401, 7668-70. And the
evidence also showed that no entirely race-blind admissions
process (such as a “lottery” among applicants meeting
minimal numerical credentials) could enroll a meaningful
number of minority students. JA 7528-32; see also infra
pp. 8-9 & n.8, 21-22.3. The record also establishes that the “critical mass”
sought by the Law School is not by any means a quota. As
the chair of the committee that drafted the admissions
policy testified at trial, the concept of critical mass is in
many ways “the opposite of a quota.” Rather than seeking
some specific number of students of particular races, the
Law School simply wants “enough students so that every
minority student doesn’t feel that . . . their race is being___________________
4 The Law School’s statistical expert demonstrated that the
educational benefits of diversity that depend upon interaction among
students of different races simply cannot be achieved with so few
minority enrollments. JA 6045-49. The odds of having at least three
African-American students and three Hispanic students in each first-year
section of 85 would fall from nearly 100% at present to 27% under a raceblind
process. The odds of having such minimal racial diversity in each
half-section would fall from 76% to 4%. And the odds of having it in each
residential dormitory section would fall from 34% to 1%. From the
perspective of an African-American student, the odds of being the only
African-American in a first-year section would increase from near zero to
22%; in a half-section from 4% to 51%; and in a dormitory section from
18% to 69%. JA 6049.
6
evaluated every time they speak. We want enough students
so that there are differences of opinion. . . . [T]here’s no
hard and fast number on what that is.” JA 7522. The Law
School officials who devised and administer the policy
uniformly testified that they did not envision or employ any
numerical target or range of targets. Pet. App. 26a. The
data confirm that testimony. Between 1992 and 2000 (the
last year for which such data are available in the record), the
percentage of minority students enrolled varied from a low
of 13.5% to a high of 20% (Pet. App. 30a), a range that is
inconsistent with the operation of a fixed quota.More importantly, enrolling a critical mass of minority
students is merely one educational objective among many
that the admissions process seeks to foster. That goal is
constantly balanced and compromised in the face of
competing admissions objectives, such as assembling a class
that is broadly diverse in attributes other than race and that
shows exceptional academic promise. JA 7521-26.Petitioner has not challenged the Law School’s proof
that it cannot enroll a critical mass of minority students
without considering race in admissions. Instead, she has
argued that certain numerical disparities in college GPA and
LSAT scores between admitted minority and majority
students at the Law School are nonetheless too large to be
tolerated. The admissions “grids” petitioner relies upon
(Pet. 7-8), however, were generated by the plaintiff’s
statistician. The Law School uses nothing of the kind in its
actual admissions process. JA 7289-90.5 Nonetheless, a___________________
5 Petitioner’s grids exclude Hispanics other than Mexican
Americans from the data entirely, even though they are expressly
included in the Law School’s admission policy. The allegation that it is the
Law School’s policy to treat some Hispanic applicants differently than
others in admissions is incorrect. Pet. 6 n.2. Law School witnesses
testified that the 1992 policy embraces a special commitment to all
Hispanics, as the plain language indicates. See JA 7263 (Munzel, director
of admissions), 477 (Dean Lehman), 321 (policy refers to “Hispanics”).
7
careful review of the Petitioner’s year 2000 grid (Pet. 8)
illustrates a number of important points.First, an applicant’s college GPA, LSAT score, and
ethnic background all appear to have some influence on
admissions, but even together those factors fail to explain
the outcomes—either within or across racial categories.
This can easily be seen by comparing white applicants to
each other. A majority of the admitted white applicants in
2000 came from “cells” in which more than 30% of the total
white applicants were rejected. And the same point can be
made by comparing white to minority applicants. Seventyone
white applicants were admitted in 2000 with grades and
test scores the same or worse than minority applicants who
were rejected.6 These observations do not suggest that race
does not matter in the admissions process. The grids do
demonstrate, however, that the Law School is considering
race (as its admissions policy states) only in the context of a
highly individualized review that gives serious consideration
to many different factors, including non-numerical
“diversity” factors that obviously make a significant
difference for many white applicants as well.Second, the data indicate that the “plus” given to
minority students, while not insignificant, does not
guarantee anyone admission on racial grounds, insulate any
applicant from competition with every other applicant,
suggest a two-track admissions process, or unduly burden
other applicants. The Law School’s consideration of race
does not actually affect the outcome of the vast majority of
the admissions decisions each year. Approximately twothirds
of the Law School’s minority applicants are denied___________________
6 If the “other Hispanic” applicants strategically excluded from
plaintiff’s grid are reintegrated into the data, the number of white
students admitted in preference to rejected minorities with equal or
better “numbers” jumps to 223—or almost 2/3 of a typical entering class.
See JA 5467.
8
admission each year, and in each of the years between 1995
and 2000 the Law School denied admission to a greater
proportion of minority applicants than majority applicants.
JA 6045, 7585. The median college GPA of admitted
students in 2000 was 3.68 for white students and 3.4 for
African American students—slightly less than the
difference between an A- and a B+. JA 5446. The petition’s
observation that the grids show “substantial differences in
admissions outcomes at given selection indices” for white
and minority applicants (Pet. 9 (emphasis added)) reveals
nothing helpful. It would be surprising indeed, in a regime
in which race is given any weight in admissions, if minority
applicants were not admitted at substantially higher rates
than otherwise similar non-minority applicants.7Finally, the grid graphically demonstrates why it is
such a challenge for the Law School to enroll a critical mass
of minority students in each entering class, and why none of
the superficially “race neutral” alternatives has any chance
of success. The pool of minority applicants is extremely
small, and is simply overwhelmed by the raw numbers of
white applicants at every level. Among the candidates at
the top of the pool numerically (with “A” averages and
LSAT scores over 170), there were 92 white applicants and
only one minority applicant. More broadly, in the LSAT
range (164+) from which more than 90% of the admitted
white students are drawn, the Law School received only 35
minority applicants compared to 900 white applicants. Even
if a race-blind lottery were conducted for every applicant
with a GPA above 3.0 and an LSAT above 150 (50th
percentile)—a tactic that the Law School would never
employ because of its unacceptable impact on other
educational goals—the percentage of African-American___________________
7 Expert testimony established that the average odds of admission
for non-minority applicants would only have increased by approximately
4.4% if the Law School had not taken race into account. JA 6045.
9
students enrolled would almost certainly fall below 3%. JA
4043 & n.10, 5462, 5464.8Opinions Below
1. The district court concluded that Bakke contains no
binding holding concerning whether the educational value of
diversity is a “compelling interest” under strict scrutiny,
Pet. App. 241a, and that this Court’s recent decisions in
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995),
and City of Richmond v. J. A. Croson Co., 488 U.S. 469, 493
(1989), establish that “remedy[ing] carefully documented
effects of past discrimination” is the only possible
justification for race-conscious government action. Pet.
App. 243a. The district court also held that, even if
achieving the benefits of diversity were a compelling
interest, the Law School’s admissions policies are not
“narrowly tailored” to that end. Id. at 246a-252a.
Concluding that the Law School’s admissions policy violates
the Equal Protection Clause and Title VI, the court enjoined
the Law School “from using applicants’ race as a factor in its
admissions decisions.” Id. at 293a.2. An en banc panel of the Sixth Circuit reversed. The
court of appeals recognized that five Justices in Bakke
explicitly endorsed the “Harvard plan” admissions policy
discussed at length by Justice Powell and appended to his
opinion. Id. at 17a-19a. It also examined the various
opinions in Bakke through the interpretive lens provided by
this Court in Marks v. United States, 430 U.S. 188 (1977),
and concluded that Justice Powell’s opinion stated the
“narrowest grounds” artic ulated by any Justice concurring
in the relevant judgment. Id. at 15a-16a. The Sixth Circuit
therefore held that “Justice Powell’s opinion constitutes___________________
8 Even those bleak results could not be achieved once it became
known that the Law School was conducting such a lottery because the
pool would immediately be flooded with applications from lower-scoring
white students who do not currently apply.
10
Bakke’s holding and provides the governing standard here.”
Id. at 16a.The Sixth Circuit then examined the Law School’s
admissions policy in detail and concluded that it is “virtually
indistinguishable from the Harvard plan Justice Powell
approved in Bakke.” Id. at 29a. The Sixth Circuit
emphasized that the Law School considers race only in the
context of an individualized review of each applicant’s file,
and that it “considers more than an applicant’s race and
ethnicity” when pursuing a diverse class. Id. at 26a-27a. It
found that the Law School’s policy “does not operate to
insulate any prospective student from competition with any
other applicants,” and appropriately pays some attention to
the numbers but does not “use quotas,” “set aside or reserve
seats for under-represented minority students,” or “strive
to admit a particular percentage of under-represented
minority students.” Id. at 25a-29a. And it held that the Law
School is not operating the “functional equivalent” of an
illegal quota system. Id. at 30a.The Sixth Circuit also considered a number of
additional narrow tailoring factors drawn from this Court’s
opinions in Croson and United States v. Paradise, 480 U.S.
149 (1987). It held that the Law School appropriately
considered race-neutral alternatives, and that the Law
School in fact has no viable race-neutral alternatives at this
time that would allow it to achieve its legitimate educational
goals. Pet. App. 33a-36a. The Sixth Circuit acknowledged
the record evidence demonstrating that admissions by raceblind
“lottery” could not, in light of the Law School’s
applicant pool, produce meaningful diversity. Id. at 34a.
And it held that this Court’s decisions did not require the
Law School to “choose between meaningful racial and ethnic
diversity and academic selectivity,” or “abandon its
academic mission to achieve absolute racial and ethnic
neutrality.” Id. at 35a. The Sixth Circuit also held that the
11
Law School’s particular attention to African-American,
Native-American and Hispanic applicants was founded on a
reasonable educational judgment, and that its policy has
appropriate durational limits because the Law School
“intends to consider race and ethnicity to achieve a diverse
and robust student body only until it becomes possible to
enroll a ‘critical mass’ of underrepresented minority
students through race-neutral means.” Id. at 37a-38a.Judge Clay wrote separately to emphasize the strength
of the evidentiary record introduced by respondents
concerning the educational benefits of diversity, and to
respond to what he described as certain misrepresentations
in Judge Boggs’s dissenting opinion. Id. at 51a-83a.Judge Boggs, joined by three other judges, dissented.
Judge Boggs concluded that Justice Powell’s opinion in
Bakke was merely “the advisory opinion of one Justice” (id.
at 115a), and that a “compelling interest” in educational
diversity should not be recognized on the merits (id. at 115a-
129a). Judge Boggs also concluded that the Law School’s
policy was not narrowly tailored because the “plus” given to
racial minorities in practice was “just too large.” Id. at 130a.
He asserted, for example, that race is pervasively “worth
over one full grade point of college average.” Id. at 132a.9
He also reasoned that the Law School was operating a
secret quota because the percentage of minorities in the
entering class was very consistent between 1995 and 1998.
Id. at 141a-142a. (Judge Boggs acknowledged, however,
that the variation was considerably greater outside of that
narrow window. Id. at 142a n.29.) He further reasoned that
the Law School should seek to assemble a class that is
diverse in experiences and viewpoints, but not racial or
ethnic background. Id. at 152a-155a. (In this context Judge
Boggs questioned whether “an experience with [racial]___________________
9 As previously noted, the actual disparity is slightly less than 1/3 of
a grade point, or the difference between a B+ and an A- average.
12
discrimination” was really “so much more important than
any other experience germane to other legal issues.” Id. at
120a.) Finally, Judge Boggs suggested that the Law School
could assemble a class that is as racially and ethnically
diverse “as the qualified applicant pool itself” by conducting
“a lottery for all students above certain threshold figures for
their GPA and LSAT.” Id. at 156a.REASONS FOR DENYING THE WRIT
More than twenty years ago, this Court resolved a
bitter national controversy over the constitutionality of
race-conscious admissions policies in its landmark decision in
Bakke. The essential holding of Bakke is that quotas or
other dual track admissions systems are illegal, but that
some attention may be paid to race in the context of a
competitive review of the ways that each applicant will
contribute to the overall diversity of the student body.
As the Sixth Circuit properly held, the Law School’s
admissions practices are “virtually indistinguishable” from
the Harvard College policy specifically endorsed by five
Justices in Bakke. Pet. App. 29a. Petitioners therefore
cannot prevail in this litigation unless the square holding of
Bakke is overruled. The petition offers this Court no
persuasive justification for making such a radical and
disruptive break with settled precedent. Bakke has been
relied upon by universities and public officials for decades,
and has become an important part of our national culture.
And petitioners do not even challenge its underlying
rationale—that there are important educational benefits
associated with learning in a diverse, racially integr ated
environment. In the face of overwhelming educational and
social science evidence presented by the Law School, they
conceded that point in the district court.10___________________
10 See Pet. App. 246a (“The court does not doubt that racial diversity
in the law school population may provide these educational and societal
continued from next page
benefits. Nor are these benefits disputed by the plaintiffs in this case.
Clearly the benefits are important and laudable.”).
13
The petition’s assertion that there is now “sharp and
substantial disagreement in the lower courts about the
lawfulness of using race and ethnicity as a factor in
admissions to achieve a ‘diverse’ student body” (Pet. 16) is
simply wrong. Only one court of appeals decision has stated
that a university’s interest in assembling a diverse student
body can never justify the consideration of race in
admissions. See Hopwood v. Texas, 78 F.3d 932 (5th Cir.),
cert. denied, 518 U.S. 1033 (1996). That decision has been
sharply criticized even within the Fifth Circuit,11 and has
gained no adherents elsewhe re. Since this Court denied
certiorari in Hopwood, the Ninth Circuit and now the Sixth
have reaffirmed that Bakke remains the law. See Smith v.
Univ. of Washington Law Sch., 233 F.3d 1188 (9th Cir.
2000), cert. denied, 532 U.S. 1051 (2001). The Eleventh
Circuit suggested that it does not believe Bakke is
controlling, but then expressly declined to resolve whether
diversity is or is not a “compelling interest.” Johnson v. Bd.
of Regents, 263 F.3d 1234, 1251 (11th Cir. 2001). Several
other circuits have withheld judgment, awaiting a case that
requires them to resolve these issues. See Pet. 23-24. The
“disagreement” identified by the petition thus remains quite
shallow and undeveloped.The petition also implies, but stops short of squarely
alleging, a conflict over narrow tailoring principles. Id. at
17, 24-25. None exists. Only two courts of appeals have
considered whether a higher education admissions program___________________
11 See Hopwood v. Texas, 84 F.3d 720 (5th Cir. 1996) (Politz, C.J.,
joined by King, Wiener, Benavides, Stewart, Parker and Dennis, JJ.,
dissenting from failure to grant sua sponte rehearing en banc); Hopwood
v. Texas, 236 F.3d 256, 274 (5th Cir. 2000) (“This or other subsequent
panels of our court may well disagree with the aggressive legal reasoning
employed by the Hopwood II panel . . . .”), cert. denied, 533 U.S. 929
(2001).
14
is narrowly tailored, and both applied the same legal
standards to very different facts.This case undeniably touches upon issues of national
importance. But that simply underlines the wisdom of
adhering to this Court’s traditional reluctance to decide
difficult questions before they have been adequately aired in
the lower courts. This Court should consider revisiting
Bakke only with the guidance and experience of the courts
of appeals in a variety of concrete factual settings—and only
if a plaintiff is able to develop and present a meaningful
challenge to the educational and social science evidence
underlying that decision.
- I. THE DECISION OF THE SIXTH CIRCUIT DOES
NOT CONFLICT WITH ANY DECISION OF
THIS COURT
- A. The Sixth Circuit Correctly Held That The Law
School’s Policy Is Constitutional Under The
Essential Holding of BakkeThis Court announced two separate judgments in
Bakke: that the UC Davis Medical School’s rigid 16% quota
for racial minorities was illegal, and that the California
Supreme Court’s prospective injunction prohibiting all
future consideration of race in admissions was overbroad
and must be reversed. With respect to the latter judgment,
five Justices squarely held 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.” Regents of Univ. of
California v. Bakke, 438 U.S. 265, 320 (1978). That was true
even though it was “conceded that [the University] had no
history of discrimination,” id. at 296 n.36 (Powell, J.), and
articulated no narrowly remedial justification for
considering race.The Justices composing that majority were not,
however, entirely in agreement as to what constitutes a
15
“properly devised” race-conscious admissions program.
Justice Powell believed that the intellectual pluralism
promoted by diversity is “of paramount importance” to a
university’s institutional mission (id. at 313), to the academic
freedom that the Court has long considered a “‘special
concern of the First Amendment’” (id. at 311-12) (citation
omitted), and to the interests of the wider society. He
concluded that universities could pay some attention to race
in the context of a flexible, individualized review of the ways
that each applicant would contribute to the creation of a
vibrant and diverse student body—but could not employ
quotas or set-asides, which in his view did not suggest a
concern for educational diversity broadly, but instead
pointed to an improper and singular focus on race. Id. at
311-19. He also identified the admissions policy of Harvard
College as an example of a properly devised program, under
which race was considered as one of many factors in order to
achieve the benefits of a broadly diverse student body, and
appended a copy of that policy to his opinion. Id. at 316-18,
321-24.Justice Brennan, joined by Justices White, Marshall and
Blackmun, concluded that past and present societal
discrimination against racial minorities justified much wider
and stronger consideration of race in admissions than
Justice Powell and the “Harvard plan” would permit. Those
Justices nonetheless explicitly “agree[d] with Mr. Justice
Powell that a plan like the ‘Harvard’ plan is constitutional
under our approach, at least so long as the use of race to
achieve an integrated student body is necessitated by the
lingering effects of past discrimination.” Id. at 326 n.1
(Brennan, J., concurring in part, dissenting in part) (citation
omitted). In the context of their opinion, the caveat in the
last clause (which pointedly uses the phrase “necessitated
by” rather than “justified by”) simply means that
consideration of race in admissions should cease once the
disparities in applicants’ numerical qualifications produced
16
by our nation’s discriminatory past have been eliminated,
and a racially diverse class may be assembled by other
means.12The minimum, essential holding endorsed by five
Justices in Bakke is therefore that an institution of higher
education may consider the racial or ethnic background of
applicants in its admissions process, even if it has no
historical discrimination of its own to remedy, at least in the
manner exemplified by the “Harvard plan” appended to
Justice Powell’s opinion. Id. at 321-23 (Powell, J.), 326 n.1
(Brennan, J., concurring in part, dissenting in part). That
observation requires no sophisticated ana lysis, and is alone
sufficient to support the Sixth Circuit’s holding in this case
(reversing an injunction materially identical to the one this
Court reversed in Bakke)—since that court found that the
Law School’s admissions policy is “virtually
indistinguishable” from the Harvard plan. Pet. App. 29a.Although no further analysis is essential to the result
here, Justice Powell’s reasoning is also plainly the
“narrowest ground” articulated by any Justice supporting
the reversal of the California Supreme Court’s injunction,
and is therefore a holding of the Court under Marks v.
United States, 430 U.S. 188, 193 (1977). The other Justices
forming that majority believed that the Constitution
permits much more extensive consideration of race in
admissions than Justice Powell did; indeed, they even voted
to uphold the rigid 16% quota employed by UC Davis.13 At___________________
12 The Law School’s policy incorporates the same limitation, but that
day has not yet arrived. See Pet. App. 33a-36a, 38a; Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (“The unhappy
persistence of both the practice and the lingering effects of racial
discrimination against minority groups in this country is an unfortunate
reality . . . .”).
13 Stated differently, those Justices had much broader reasons for
reversing the injunction because they believed that it improperly
foreclosed a much wider spectrum of legal conduct than Justice Powell
did. See City of Richmond v. J. A. Croson Co., 488 U.S. 469, 496-97 (1989)
continued from next page
(noting that Justice Powell’s opinion in Bakke would permit the
consideration of race only to pursue more narrowly “focused” objectives,
not the “amorphous” goal of remedying societal discrimination).
17
the same time, however, they clearly regarded Justice
Powell’s analysis as compatible with (if stingier than) their
own. They explicitly endorsed the Harvard plan, for
example, even though that plan was solely focused on and
tailored toward the achievement of diversity rather than
compensating for past societal discrimination. Justice
Powell’s conclusion that achieving the educational benefits
of diversity is a “compelling interest” under strict scrutiny
is therefore a holding of this Court under Marks.
- B. This Court Has Repeatedly Acknowledged The
Essential Holding Of Bakke, And Has Never
Questioned Its Continuing ValidityThis Court has never questioned the essential holding
of Bakke, and indeed has uniformly assumed its continuing
validity. Justice O’Connor wrote in Wygant that this
Court’s fractured affirmative action opinions nonetheless
revealed “a fair measure of consensus,” including that “a
state interest in the promotion of racial diversity has been
found sufficiently ‘compelling,’ at least in the context of
higher education, to support the use of racial considerations
in furthering that interest.” Wygant v. Jackson Bd. of
Educ., 476 U.S. 267, 286 (1986) (O’Connor, J., concurring in
part); see also id. at 288 n.* (recognizing distinction between
providing role models and “the very different goal of
promoting racial diversity among the faculty”). And in
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 (1990),
this Court cited Bakke, 438 U.S. at 311-13, for the
proposition that “a ‘diverse student body’ contributing to a
‘robust exchange of ideas’ is a ‘constitutionally permissible
goal’ on which a race-conscious university admissions
program may be predicated.” The standard of review
applied in Metro Broadcasting was, of course, subsequently
18
overruled in favor of strict scrutiny, Adarand, 515 U.S. at
227, but this Court simultaneously acknowledged that
Justice Powell had in fact applied strict scrutiny in Bakke,
id. at 218-19.Dicta in various opinions in Adarand and Croson have
suggested that remedying the effects of prior discrimination
may be the only “compelling interest” justifying affirmative
action in highway contract awards. But this Court has
never questioned Bakke’s holding that the educational
benefits of diversity can justify some consideration of race in
the very different context of higher education. See
Adarand, 515 U.S. at 258 (Stevens, J., dissenting) (“The
proposition that fostering diversity may provide a sufficient
interest to justify [a racial or ethnic classification] is not
inconsistent with the Court’s holding today—indeed, the
question is not remotely presented in this case . . . .”).
- II. THE PETITION FORWARDS NO PERSUASIVE
ARGUMENT FOR GRANTING REVIEW IN
ORDER TO OVERRULE THE ESSENTIAL
HOLDING OF BAKKEThis Court recognized long before Bakke that preparing
students for work and citizenship in our diverse society is
difficult, if not impossible, in racially homogenous
classrooms and on racially segregated campuses. In Sweatt
v. Painter, 339 U.S. 629, 634 (1950), this Court held that
Heman Sweatt could not receive an equal legal education at
a law school which “excludes from its student body members
of the racial groups which number 85% of the population of
the State and include most of the lawyers, witnesses, jurors,
judges and other officials with whom petitioner will
inevitably be dealing.” “The law school, the proving ground
for legal learning and practice, cannot be effective in
isolation from the individuals and institutions with which
the law interacts.” Id. This Court has acknowledged the
educational benefits of a diverse student body repeatedly
since then. See Brown v. Bd. of Educ., 347 U.S. 483, 493-95
19
& n.11 (1954); Washington v. Seattle Sch. Dist. No. 1, 458
U.S. 457, 472 (1982) (“[I]t should be equally clear that white
as well as Negro children benefit from exposure to ‘ethnic
and racial diversity in the classroom.’”) (citation omitted);
Bakke, 438 U.S. at 311-23 (Powell, J.).This Court’s longstanding conviction that diversity has
important educational benefits is backed by a remarkably
uniform and non-ideological consensus among educators,
social scientists and policymakers. Respondents introduced
such voluminous and compelling evidence of those benefits in
the district court that petitioner chose not to contest the
point. See supra pp. 12-13 & n.10. The United States filed
an amicus curiae brief summarizing some of the educational
and social science evidence, and concluded that diversity “in
the higher education context improves students’ education,
racial understanding, cultural awareness, cognitive
development and leadership skills.” JA 786. Congress has
also repeatedly recognized the educational value of racially
diverse classrooms, enacting a series of measures over more
than three decades to reduce “racial isolation” in elementary
and secondary schools nationwide.14 The evidence of these
benefits, at all levels of the educational process, is well
known and overwhelming.These issues are particularly easy to understand in the
context of legal education. At this point in our nation’s
history, race is very salient to the day-to-day operation of___________________
14 See Emergency School Aid Act, Pub. L. No. 92-318, §§ 701-720, 86
Stat. 354 (1972); Magnet Schools Assistance Program, Pub. L. No. 98-377,
§ 703, 98 Stat. 1299 (1984); No Child Left Behind Act of 2001, Pub. L. No.
107-110, 115 Stat. 1425. The legislative history of these provisions reveals
Congress’s firm belief that “[e]ducation in an integrated environment, in
which children are exposed to diverse backgrounds, is beneficial to both”
white and minority students. S. Rep. No. 92-61, at 7 (1971). The justenacted
No Child Left Behind Act reaffirmed that “[i]t is in the best
interests of the United States . . . to continue the Federal Government’s
support of . . . local educational agencies that are voluntarily seeking to
foster meaningful interaction among students of different racial and
ethnic backgrounds . . . .” Pub. L. No. 107-110, § 5301(a)(4)(A), 115 Stat.
at 1806 (codified at 20 U.S.C. § 7231).
20
our legal system. Indeed, monitoring and mediating the
progress of our country’s ongoing struggle to achieve racial
justice has become one of the most important jobs of the
federal courts. Discrimination suits under Titles VI, VII
and IX, ongoing school desegregation cases, Voting Rights
Act enforcement and racial-profiling lawsuits have all
become staples of the judiciary’s case load. The disparate
impact of the criminal justice system in general, and certain
criminal statutes in particular, on racial minorities is one of
the most oft-debated and important challenges that our
society faces. Against this backdrop, law schools surely
must have the autonomy and discretion to decide that
teaching about the role of race in our society, and preparing
their students to function effectively in multiracial
environments and as advocates for racial justice (however
defined) after graduation, are critically important aspects of
their institutional missions. And once that decision is made,
it hardly requires extensive proof (although proof there is,
and abundant) that meaningful pursuit of those goals is
greatly enhanced by the presence of meaningful diversity
among the law school’s student body.This Court has also recognized several times in recent
years that stare decisis has particular force when a decision
has become woven into the fabric of our “national culture,”
Dickerson v. United States, 530 U.S. 428, 443 (2000), and has
“engendered substantial reliance.” Adarand, 515 U.S. at
233 (O’Connor, J.); Planned Parenthood v. Casey, 505 U.S.
833, 854 (1992); Mitchell v. United States, 526 U.S. 314, 331-
32 (1999) (Scalia, J., dissenting) (stating that the fact that a
rule has found “wide acceptance in the legal culture” is
“adequate reason not to overrule” it). Bakke falls squarely
into that category, and overruling it now would be
enormously disruptive. Over the past two and a half
decades, nearly every selective university and professional
school in the United States has relied on Bakke in crafting
admissions and financial aid policies that seek to secure the
21
educational benefits of a diverse student body. And they
have been supported by binding regulations and policy
guidance statements from the Department of Education, the
agency charged with enforcing Title VI, consistently
affirming (under both Republican and Democratic
administrations) that admissions and financial aid policies
that consider race in a manner consistent with Justice
Powell’s opinion and the Harvard plan are constitutional.
See, e.g., 34 C.F.R. § 100.3(b)(6)(ii); 44 Fed. Reg. 58,509 (Oct.
10, 1979); 56 Fed. Reg. 64,548 (Dec. 10, 1991); 59 Fed. Reg.
8756 (Feb. 23, 1994).Most importantly, overruling Bakke would produce the
immediate resegregation of many—and perhaps most—of
this Nation’s finest and most selective institutions.15 A
blanket prohibition on the consideration of race in
admissions for diversity purposes would cut the
representation of African-American students at selective
universities by more than two-thirds, and at accredited law
schools by more than three-fourths. JA 811-12; see also id.
at 5589-96, 6047 (Raudenbush). In the year after the Fifth
Circuit prohibited the University of Texas Law School from
considering race in its admissions process, Hispanic
admissions fell by 51% and African-American student
admissions fell by 83%—to four, out of a class of about 500.16
The University of California at Berkeley’s Boalt Hall School
of Law and UCLA School of Law experienced similar drops
after affirmative action was eliminated by the Regents and
then by voter initiative in California. JA 5102-03, 5123.17 It
___________________
15 That includes private institutions because this Court has held that
the scope of Title VI is coextensive with the Equal Protection Clause.
16 See Stephanie E. Straub, Note, The Wisdom and
Constitutionality of Race-Based Decision-Making in Higher Education
Admission Programs: A Critical Look at Hopwood v. Texas, 48 Case W.
Res. L. Rev. 133 (1997).
17 See generally Andrea Guerrero, Silence at Boalt Hall: The
Dismantling of Affirmative Action (Univ. of Cal. Press 2002). Texas and
(continued from the next page)
California have regarded those outcomes as so destructive to the
educational missions of their undergraduate institutions that they have
chosen to guarantee admission for students above a specified class rank
threshold in every high school in the State in order to prevent radical
resegregation. While that is a legitimate choice that States should be
entitled to make through their democratic and educational decisionmaking
processes, it is hardly a panacea and can have serious drawbacks
even for public undergraduate schools. Such plans rely on segregation at
the secondary school level to produce integration in higher education, see
Michelle Adams, Isn’t it Ironic? The Central Paradox at the Heart of
“Percentage Plans,” 62 Ohio St. L.J. 1729 (2001), and therefore will not
work in many areas of the country with different demographic patterns.
They may also force the enrollment of students who are unprepared for
the academic demands of selective institutions. There was evidence in
this case, for example, that the University of Chicago “routinely rejects
valedictorians from Chicago high schools . . . because of the experience
that they could not survive for a single quarter on the campus.” JA 7882-
83. In any event, such plans cannot solve the problem at the graduate
level or at private institutions because they draw from a national
applicant pool. The record in this case clearly establishes that there are
no race-neutral alternatives capable of producing meaningful diversity at
the Law School. Supra pp. 8-9 & n.8, 21-22.
22
should be obvious that, as our country becomes increasingly
racially diverse, the public confidence in law enforcement
and legal institutions so essential to the coherence and
stability of our society will be difficult to maintain if the
segments of the bench and bar currently filled by graduates
of those elite institutions once again become a preserve for
white graduates.Petitioner’s broader contention that remedying the
effects of past discrimination is the only possible “compelling
interest” would have even wider negative ramifications.
Public officials simply must be permitted to take race into
account when choosing an undercover law enforcement
officer to infiltrate a racially homogenous terrorist cell, for
example, or when acting to quell a race riot in a prison. A
number of lower courts have recognized compelling public
safety interests in situations like these, see Wittmer v.
Peters, 87 F.3d 916, 919 (7th Cir. 1996) (Posner, C.J.)
23
(collecting cases), and this Court should be reluctant to
embrace a rigid and abstract interpretation of the Equal
Protection Clause that would prejudge such situations. See
also, e.g., Hunter ex rel. Brandt v. Regents of Univ. of
California, 971 F. Supp. 1316 (C.D. Cal. 1997), aff’d, 190
F.3d 1061 (9th Cir. 1999), cert. denied, 531 U.S. 877 (2000).
- III. THE PETITION IDENTIFIES NO CONFLICT IN
THE LOWER COURTS THAT IS APPROPRIATE
FOR REVIEW
- A. Review Is Not Appropriate On The Narrow
Question Of The Proper Application Of MarksThe petition alleges a 2-2 split among the federal courts
of appeals over whether the “narrowest ground”
methodology outlined in Marks produces a binding holding
from this Court’s various opinions in Bakke. To begin with,
even the shallow conflict alleged by the petition is
substantially overstated. Two courts of appeals—the Sixth
Circuit in this case and the Ninth in Smith—have applied
the Marks analysis to Bakke and have squarely held that
Justice Powell’s opinion states a holding of the Court. But
the two decisions supposedly reaching a contrary conclusion
are in fact quite murky.The Fifth Circuit did hold in Hopwood that Justice
Powell’s opinion in Bakke was not entitled to precedential
status, but its opinion never once mentions Marks. The
Fifth Circuit instead seemed to believe that an opinion
signed by only one Justice could never state a holding of this
Court, and that this Court’s more recent decisions in Croson
and Adarand hold that remedying past discrimination is the
only possible “compelling interest.” Hopwood v. Texas, 78
F.3d 932, 944-45 (5th Cir.), cert. denied, 518 U.S. 1033 (1996).
Both of those propositions are clear error. Seven Fifth
Circuit judges voted for a sua sponte rehearing en banc in
Hopwood, and wrote a passionate dissent arguing that
rehearing was not merely advisable but obligatory.
24
Hopwood v. Texas, 84 F.3d 720, 721-24 (5th Cir. 1996)
(Politz, C.J. et al., dissenting from denial of rehearing en
banc). When the issue arises again,18 the Fifth Circuit may
well correct its errors without any need for this Court’s
interve ntion.In Johnson, the Eleventh Circuit discussed the
application of Marks to Bakke and appeared to conclude
that Justice Powell’s opinion does not state a holding of the
Court. Johnson v. Bd. of Regents, 263 F.3d 1234, 1247-50
(11th Cir. 2001). But the Eleventh Circuit later stressed
that it was reserving decision on the merits question of
“whether or when student body diversity may be a compelling
interest for purposes of strict scrutiny,” id. at 1251,
and rested its judgment solely on narrow tailoring grounds.
The Eleventh Circuit’s discussion of the Marks issue thus
appears to be unnecessary and irrelevant to its judgment.
And even if later panels do treat Johnson’s discussion of
Marks as a binding analysis of the Bakke judgment, it may
prove to be an irrelevant detour if the Eleventh Circuit
ultimately concludes that Justice Powell was right on the
merits.In any event, the Marks conflict would not be
certworthy even if it were not so ephemeral. First, it
involves the proper technical application of settled law in a
particular context. It is not of substantial importance
except to the extent that it has implications for the merits of
whether educational diversity qualifies as a “compelling
interest.” Second, the Marks issue is not even necessary to
the outcome of this case. Because the Sixth Circuit held
that the Law School’s admissions policy is indistinguishable
from the “Harvard plan” explicitly approved by five Justices
in Bakke, it is not necessary to decide whether Justice___________________
18 It is highly likely that a challenge to Hopwood will arise in one of a
variety of contexts because the rationale of that decision was that Croson
and Adarand prohibit consideration of race for any non-remedial purpose.
25
Powell’s rationale for endorsing the Harvard plan also
qualifies as a holding of the Court under Marks (although
the answer is surely yes).
- B. Review Of Whether The Educational Benefits
Of Diversity Constitute A “Compelling
Interest” Would Be PrematureThis Court should not grant review in this case to
reconsider, on the merits, whether the educational benefits
of diversity constitute a “compelling interest” under strict
scrutiny. Petitioner is certainly right to portray this
question as a matter of national importance. But for that
reason this Court should reopen it—if it ultimately chooses
to do so—only after the issue has been adequately
developed through litigation in the lower courts.There is as of yet no meaningful conflict on this issue.
Hopwood remains the only decis ion of any court of appeals
even nominally to reach the question whether the
educational benefits of diversity are “compelling” enough to
justify race-conscious action. And even Hopwood did not
actually engage the relevant educational evidence and
competing constitutional values; it simply relied on a
misreading of this Court’s opinion in Croson to conclude that
non-remedial compelling interests are non-existent as a
matter of law. The only new development since this Court
denied certiorari in Hopwood is that two courts of appeals
(again, the Sixth and the Ninth) have held that they do not
need to reach this question because it is resolved by Bakke.
The diversity issue has received virtually no consideration
on the merits in the lower courts, and further development
would be beneficial to this Court’s ultimate consideration.19___________________
19 Future courts may similarly decline to reach the merits of this
issue on the ground that it is resolved by Bakke, but it seems quite likely
that some courts will address the merits—at least in the alternative. See,
e.g., Pet. App. 115a-129a (Boggs, J., dissenting). And even if the courts of
appeals do ultimately refrain from evaluating the evidence of diversity’s
educational benefits en masse, this Court can decide at that time whether
(continued from next page)
to reconsider the issue without the benefit of their assistance. There is no
reason to make that decision now.
26
That principle has special force here because the record
in this case could not support the result petitioner
advocates. As her filing in this Court illustrates, petitioner
has relied throughout this litigation on the legal theory that
a “compelling interest” in diversity (indeed, a compelling
interest in anything other than remedying past
discrimination) is simply non-existent as a matter of law
after Croson and Adarand. Petitioner elected not to contest
the Law School’s extensive evidence concerning the
educational benefits of diversity, introduced virtually no
evidence questioning the magnitude of those benefits, and
indeed conceded in the district court that the benefits are
extensive and important. That tactic is hardly surprising
because the evidence of those benefits is overwhelming and
essentially uncontested within the educational community.
This Court should revisit Bakke’s determination that
diversity has compelling educational benefits only after
someone has been able to construct a plausible case against
Justice Powell’s position in the lower courts. At a minimum,
it would make little sense for this Court to revisit that issue
in a case where the petitioner has conceded the point.
- C. The Sixth Circuit’s Narrow Tailoring Analysis
Involves The Factbound Application Of Settled
Law And Does Not Conflict With The Decision
Of Any Other CircuitThe petition vaguely suggests that the Sixth Circuit’s
narrow tailoring analysis “diverges” from that of other
courts, but does not (and cannot) contend that these issues
would have been resolved differently under the precedents
of any other Circuit. The Sixth Circuit’s articulation of the
relevant narrow tailoring standards is correct and
consistent with the legal rules announced in the other cases
she cites. The “divergence” petitioner identifies simply
27
reflects the factbound application of settled, properly stated
legal rules in different settings.The Sixth Circuit’s narrow tailoring analysis concerning
the size of the “plus” given to racial or ethnic background
does not conflict with the Eleventh Circuit’s opinion in
Johnson. Pet. 24. Johnson acknowledged that an
admissions policy, like the Law School’s, which gives
flexible, individualized consideration to the ways (both racial
and non-racial) that every applicant might contribute to “the
overall diversity of the student body” would be narrowly
tailored. 263 F.3d at 1253-54. Johnson condemned the
University of Georgia’s program for awarding a completely
arbitrary numerical “bonus” on purely racial grounds, at a
stage in the admissions process where admissions files were
not read in their entirety and admissions officers were not
permitted to give similar consideration to any non-racial
diversity considerations. Id. at 1254-57. The Eleventh
Circuit stressed that Georgia’s system was a “far cry from
the Harvard plan.” Id. at 1261.Similarly, the Sixth Circuit’s scrutiny of whether the
Law School’s policy was the “functional equivalent of a
quota” does not conflict with Tuttle ex rel. Tuttle v.
Arlington County School Board, 195 F.3d 698 (4th Cir.
1999), cert. dismissed, 529 U.S. 1050 (2000). The program
invalidated in Tuttle did not seek to obtain the educational
benefits of diversity, but rather was motivated by a desire
for simple racial proportionalism, and used a lottery that
was numerically weighted by race (and race alone) to
achieve outright racial balancing. Id. at 707. As the Fourth
Circuit properly recognized, that program was both
philosophically and mathematically indistinguishable from
the naked quota employed by UC Davis in Bakke.The petition suggests that the Law School’s “focus[]” on
a “small and limited number of racial groups” has “proved
inconsistent with narrow tailoring in other cases.” Pet. 25.
28
To the extent the cited cases address this issue at all, they
suggest that race-conscious action is not narrowly tailored if
the groups that benefit appear to be defined arbitrarily or in
a manner that does not appear to further the genuine
pursuit of broad-based diversity. This Court criticized the
contracting set-asides in Croson, for example, because they
were available to too many racial groups—including some
(notably Eskimos) that bore no plausible relation to
Richmond’s stated objectives.As the Sixth Circuit properly held, the Law School’s
special commitment to enrolling African Americans, Native
Americans and Hispanics rests on the considered
educational judgment that students from these groups are
particularly likely to have had experiences of special
importance to its educational mission, and would not,
without some attention to race in admissions, be present in
significant numbers. Pet. App. 37a. The Law School
recognizes that there are other groups of people likely to
have had unique experiences in this society precisely
because of their ethnic background, such as Asian and
Jewish Americans. Insofar as such an applicant’s unique
experience suggests that the applicant would contribute
meaningfully to the diversity and life of the Law School, the
Law School’s admissions policy expressly provides that
these “diversity enhancing” experiences be considered in
the admissions process. While the Law School does not
make special effort at the admissions stage to enroll
“meaningful numbers” or a “critical mass” of members of
these groups in the law school class, that is only because
“members of those groups are already being admitted to the
law school in significant numbers” on race-neutral criteria.
Id. at 213a n.15. These are precisely the kind of careful
judgments that the cited cases call for.The Sixth Circuit’s scrutiny of the duration of the Law
School’s program was also not “much less rigorous” than
29
that employed in Tuttle and Johnson. The Tuttle
defendants articulated no “logical stopping point” for their
race-weighted lottery at all, 195 F.3d at 706, and the Fourth
Circuit determined that the goal of the program was racial
balancing—not diversity. In Johnson there was similarly
“no evidence that UGA envisions an end to its practice.” 263
F.3d at 1261. In any event, the Eleventh Circuit stated that
it did “not believe that this factor should have a great deal of
significance” in the diversity context. Id. The Sixth Circuit
held that the Law School’s policy has appropriate durational
limits because it will cease considering race as soon as it
becomes possible to assemble a critical mass of minority
students through race-neutral means. Pet. App. 38a. That
holding is reasonable and does not conflict with Tuttle or
Johnson.Finally, it would be inappropriate and premature for
this Court to grant review in order to answer the laundry
list of narrow tailoring questions that petitioner believes
“cry out for clarification.” Pet. 17. Petitioner does not even
allege a conflict on these matters—and cannot, because the
courts of appeals have thus far analyzed only two higher
education admissions programs. Questions like these should
be “clarified” through the litigation of concrete factual
situations in the lower courts.
- D. The Sixth Circuit’s De Novo Review Of Various
Ultimate Legal Conclusions And Constitutional
Mixed Questions Was Consistent With Settled
Law, And Petitioner Identifies No Conflict That
Could Justify Review By This CourtPetitioner’s conclusory assertion that the Sixth Circuit
improperly reviewed certain factual findings de novo alleges
no conflict with the decisions of this Court or any other
court, and does not even identify the factual findings that
she believes were treated improperly. This Court should
30
accordingly decline to review this matter even if it reviews
other issues in the case.
The issue also has no merit. The matters on which the
Sixth Circuit disagreed with the district court were legal
conclusions or characterizations, not historical facts. See
Pet. App. 9a (“This Court reviews de novo the district
court’s finding that the Law School’s efforts to achieve a
diverse student body . . . is unconstitutional . . . .”).
Petitioner inadvertently admits as much; for example, while
she initially implies that whether the Law School’s policy is
the “functional equivalent of a quota” is a factual finding
deserving clear error treatment (Pet. 13), she later makes it
clear that she views this question as an unsettled legal issue
that this Court should grant certiorari to clarify (id. at 17).
The Sixth Circuit’s de novo review of these issues is also
consistent with other Circuits. See, e.g., Wessmann v.
Gittens, 160 F.3d 790, 795 (1st Cir. 1998) (“[B]ecause the
issues advanced in this appeal—specifically, whether
diversity and curing vestiges of past discrimination satisfy
strict scrutiny—raise either questions of law or questions
about how the law applies to discerned facts, our review is
essentially plenary.”).CONCLUSION
For the reasons stated, the petition should be denied. If
this Court nevertheless decides to grant review in this case,
respondents agree that it would be appropriate to grant the
petition for certiorari before judgment filed in the
undergraduate case, Gratz v. Bollinger, No. 02-516, and hear
both cases on the same day, for the reasons explained in our
response in Gratz.20___________________
20 There is no conceivable justification for granting certiorari
before judgment in Gratz unless the Court grants the writ in this case. If
this Court grants the petition in Gratz for any reason, however,
respondents believe that the Court should also accept this case and hear
the two on the same day for the reasons explained in our response in
Gratz.
Dated: October 29, 2002 Respectfully submitted, MARVIN KRISLOV
JONATHAN ALGER
UNIVERSITY OF MICHIGAN
Office of the Vice President
and General Counsel
4010 Fleming Admin. Bldg.
503 Thompson St.
Ann Arbor, MI 48109
EVAN CAMINKER
UNIVERSITY OF MICHIGAN
LAW SCHOOL
625 South State Street
Ann Arbor, MI 48109
PHILIP J. KESSLER
LEONARD M. NIEHOFF
BUTZEL LONG
350 South Main, Suite 300
Ann Arbor, MI 48104MAUREEN E. MAHONEY
Counsel of Record
J. SCOTT BALLENGER
LATHAM & WATKINS
555 Eleventh Street, N.W.
Suite 1000
Washington, DC 20004
(202) 637-2200
JOHN H. PICKERING
JOHN PAYTON
BRIGIDA BENITEZ
STUART DELERY
CRAIG GOLDBLATT
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, DC 20037
Counsel for Respondents
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Questions? Comments? Please send e-mail to diversitymatters@umich.edu.
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