MEMORANDUM OF LAW IN SUPPORT OF
RENEWED MOTION BY DEFENDANTS BOLLINGER, LEHMAN, AND SHIELDS
FOR SUMMARY JUDGMENT ON GROUNDS OF QUALIFIED IMMUNITY

ARGUMENT

This lawsuit challenges a practice the Supreme Court deemed constitutional more than twenty years ago in Bakke: the “competitive consideration” of race and ethnicity, along with a range of other factors, in admissions. Because Bakke plainly allows the Law School to employ the “competitive consideration” of race to achieve the academic benefits that having a racially diverse student body brings, and because the record shows that the Law School’s admissions policies and practices are entirely consistent with that decision, the individual defendants are entitled to summary judgment on their qualified immunity defense.

Recognizing the qualified immunity of public university officials to make decisions -- so long as those decisions do not violate clearly established law -- is vitally important to safeguard the principle of academic freedom, “which is of transcendent value to all of us and not merely to the teachers concerned.” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). As Justice Powell noted in Bakke: “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.” 438 U.S. at 312.8/ This freedom, protected by the First Amendment, would be chilled if public university officials can be subjected to litigation over differences of opinion concerning education policy. So long as they comply with prevailing legal standards, university officials must not be threatened with liability for the choices they make in deciding how to select their students.

8 / See also Board of Regents of the Univ. of Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1358 (2000) (Souter, J., concurring) (“In Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985), we recognized these related conceptions: ‘Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself.’”) (quoting Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985)); Healy v. James, 408 U.S. 169, 180 (1972) (“The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new ground in reaffirming this Nation�s dedication to safeguarding academic freedom.”); Sweezy v. New Hampshire, 354 U.S. 234, 262-63 (1957) (Frankfurter, J., concurring) (noting the “four essential freedoms” of a university, including the freedom “to determine for itself … who may be admitted to study”).

I. GIVEN THE SUBSTANTIAL BURDEN TRIAL WOULD IMPOSE ON THE INDIVIDUAL DEFENDANTS, THE DECISION WHETHER TO GRANT SUMMARY JUDGMENT ON THEIR QUALIFIED IMMUNITY DEFENSE SHOULD BE MADE NOW.

“‘[G]overnment officials performing discretionary functions … [generally are shielded] from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.‘” Gardenhire v. Schubert, 205 F.3d 303, 310-11 (6th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)), cert. denied, 120 S. Ct. 980 (2000). Such officials effectively enjoy what is “an immunity from suit [and the burdens of extensive discovery] rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); See also Behrens v. Pelletier, 516 U.S. 299, 305 (1996); Scott v. Clay County, Tenn., 205 F.3d 867, 873-74 (6th Cir. 2000).

The reasons for this rule are well known: “‘where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’’” 472 U.S. at 525 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).9/ Liability for money damages might make government officials overly timid in the performance of their duties. Id. at 525-26. Qualified immunity law seeks both to address this problem and to avoid costs such as “the expenses of litigation,” the “diversion of official energy” and “the deterrence of able citizens from acceptance of public office.” Crawford-El v. Britton, 523 U.S. 574, 590-91 & n.12 (1998).

9 / Indeed, the very purpose of the doctrine of qualified immunity doctrine is to protect government officials from the in terrorem effect of personal liability that plaintiff’s counsel has trumpeted: “Unique to this suit [challenging admissions policies at the University of Michigan’s College of Literature, Science and the Arts] -- and to the corollary lawsuit that has been brought against the University of Michigan Law School -- is that if the University of Michigan loses, some of its officials -- including its president -- will be personally liable for damages. Lawyers at the Center for Individual Rights, which is representing the white student plaintiffs, believe that once university officials lose their own money in these actions, university presidents around the country will start to change their admissions procedures.” Nat Hentoff, A Challenge to Bill Lann Lee, The Village Voice, Jan. 13, 1998, at 24. Last year, plaintiff’s counsel sent handbooks to hundreds of college trustees warning that trustees, administrators, and faculty members can be held liable in their personal capacities for their school’s consideration of race in admissions. Ex. R at 9; see also Kate Zernike, Campus Affirmative Action Embattled Handbooks Encourage Student Suits, Boston Globe, Jan. 27, 1999, at A4.

Government officials are permitted to assert qualified immunity as a defense to a lawsuit for money damages by a motion to dismiss or by a motion for summary judgment. See Behrens, 516 U.S. at 305. But no matter how the defense is asserted, it is important that a court decide its application in a particular case as promptly as possible, well before the case proceeds to trial. See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[B]ecause the entitlement is an immunity from suit rather than a mere defense to liability, we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”) (quotations and citation omitted); Siegert v. Gilley, 500 U.S. 226, 232 (1991) (qualified immunity is determined at the earliest point in the litigation “to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.”). The benefits of qualified immunity -- protection from burdensome lawsuits and the distractions of protracted litigation -- are effectively lost where an individual defendant is forced to go to trial or to engage in more discovery than necessary to establish the defense. See Mitchell, 472 U.S. at 526. In this case, the individual defendants originally sought summary judgment on qualified immunity grounds more than a year ago, before the student intervenors joined the case. They have waited a reasonable period of time before renewing the motion to see whether the intervenors’ discovery would affect the record on this issue, but it is now clear that it will not. This Court should therefore decide the merits of the instant summary judgment motion as expeditiously as possible, well before the end of scheduled discovery or the submission of final merits briefs with respect to the other summary judgment motions in this case.

II. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR QUALIFIED IMMUNITY DEFENSE.

Given the “strong public interest in protecting public officials from the costs associated with the defense of damages actions,” Crawford-El, 523 U.S. at 590, the circumstances in which a suit against a public official can survive a motion to dismiss or for summary judgment are quite limited. Once a government official raises a defense of qualified immunity, a court must follow a two-pronged analysis.10/ Wilson v. Layne, 526 U.S. 603, 609 (1999). First, it must determine the precise contours of the right alleged to have been violated by government action. See Conn v. Gabbert, 526 U.S. 286, 290 (1999); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). If there is evidence of a constitutional or statutory violation, the court must then determine whether the plaintiff has come forward with “sufficient facts supported by sufficient evidence to indicate what [the public official] allegedly did was objectively unreasonable in light of [the] clearly established constitutional rights.” Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996) (quoting Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994)). See also Gardenhire, 205 F.3d at 311; Blake v. Wright, 179 F.3d 1003, 1007-08 (6th Cir. 1999).

10 / The qualified immunity analysis applies in cases involving suits brought under section 1983, as well as those brought under other statutes, such as section 1981. See Johnson v. Estate of Laccheo, 935 F.2d 109 (6th Cir. 1991) (applying qualified immunity analysis to claims brought, inter alia, under 42 U.S.C. § 1981). Because, as the following analysis demonstrates, there is no clearly established right not to have race considered as a factor in admissions decisions, and the Law School’s admissions policies and practices fully comply with the requirements set forth in Bakke, the individual defendants are entitled to qualified immunity on plaintiff’s claims arising under both section 1983 and section 1981.

A. Plaintiff Cannot Demonstrate a Clearly Established Constitutional or Statutory Right Not To Have Race Considered in University Admissions Decisions.

Plaintiff demands that the individual defendants pay money damages principally because, she argues, any consideration of race in admissions is unconstitutional. The Complaint alleges that the individual defendants “violated Plaintiff’s clear and well-established Constitutional right to receive the same consideration for admissions as applicants of other races.” Compl. ¶ 31. Far from being clearly established, however, this claim -- that race can never constitutionally be considered as a factor in admissions decisions for professional schools -- is novel and contradicted by Supreme Court precedent.

As the Supreme Court recently explained inWilson v. Layne, 526 U.S. 603 (1999), the term “clearly established” has a precise meaning in the qualified immunity context. Id. at 614-15. “[F]or purposes of qualified immunity … ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Put differently, “in the light of pre-existing law the unlawfulness must be apparent.” Id. “In this circuit, a finding of a clearly established constitutional right must generally be supported by precedent from the Supreme Court or this circuit, or in the alternative, by decisions from other circuits.” Mumford v. Zieba, 4 F.3d 429, 432 (6th Cir. 1993) (citation omitted). See also Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999) (“‘The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’”) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); Cameron v. Seitz, 38 F.3d 264, 272 (6th Cir. 1994) (“The unlawfulness of the official’s actions must be apparent. If officials of reasonable competence objectively could disagree on the law, immunity should be recognized.”) (citations omitted).

Plaintiff has not satisfied these requirements. The Supreme Court has never recognized a constitutional right not to have race considered as a factor in an admissions decision. Indeed, its decision in Bakke stands for a proposition that is the exact opposite of the argument that plaintiff advances here. Part V.C. of Justice Powell’s opinion in Bakke was joined by four other Justices (Brennan, White, Marshall and Blackmun, J.J.), establishing a majority of the Supreme Court for the following critical passage, which states Bakke’s central holding and the Court’s judgment regarding the use of race in admissions:

In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California Court’s judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.
438 U.S. at 320 (emphasis added). Thus, after Bakke, there cannot be any doubt that “a properly devised admissions program involving the competitive consideration of race and ethnic origin” is constitutional.

Unsurprisingly, there are also no decisions from this Circuit establishing the right plaintiff now asserts. In fact, the only decision of a federal appellate court that arguably provides support for the existence of such a right (at least absent a need to remedy past discrimination) is the Fifth Circuit’s decision in Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996), which held that, under more recent Supreme Court cases, the conception of diversity approved in Bakke could not be viewed as a compelling governmental interest. Hopwood, however, was wrongly decided and does not, more specifically, provide support for a contention that the individual defendants were on notice that their Admissions Policy violates “clearly established” constitutional rights in this circuit.11/ Hopwood has been criticized by other courts and many legal scholars as inconsistent with the Supreme Court’s decision in Bakke and therefore beyond the Fifth Circuit’s power.12/

11 / Indeed, in this Circuit, cases from other jurisdictions are generally not considered in determining whether a right is clearly established for qualified immunity purposes unless it is “‘so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.’” Marsh v. Arn, 937 F.2d 1056, 1068 (6th Cir. 1991) (quoting Ohio Civil Serv. Employees Ass�n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)). That cannot be the case here.

12 / See, e.g., Deborah C. Malamud, Affirmative Action, Diversity and the Black Middle Class, 68 U. Colo. L. Rev. 939, 945 (1997) (“[T]he Fifth Circuit in Hopwood v. State of Texas may have declared Bakke dead, but it lacked the power to make it so.”); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996) (criticizing the Hopwood opinion).

B. The Individual Defendants are Entitled to Qualified Immunity Because the Law School’s Admissions Policies and Practices Comply with Bakke.

Plaintiff’s fallback position is that, even if Bakke permits some consideration of race in university admissions, the Law School has strayed beyond the limits the Supreme Court set in that decision and therefore violated a "clearly established" right. Plaintiff conducted extensive discovery and probed in great detail exactly how the Law School’s admissions process works. The undisputed evidence in the record shows unequivocally that the Law School’s admissions policy complies with Bakke as written and as implemented. The individual defendants therefore are entitled to summary judgment on their qualified immunity defense even under Plaintiff’s fallback theory.

1. Justice Powell’s Controlling Opinion in Bakke Permits the Consideration of Race and Ethnic Origin as One of Many Factors in Admissions to Achieve a Diverse Student Body.

Bakke considered the constitutionality of the admissions policy of the University of California at Davis Medical School. Specifically, in clear contrast to the University of Michigan Law School’s policy, Davis operated a two-track admissions system for majority and minority applicants, in which a fixed number of seats -- 16 in a class of 100 -- were reserved exclusively for minority applicants. 438 U.S. at 275. Allan Bakke, a white applicant twice rejected by Davis, challenged the medical School’s admissions policy, claiming that it violated his rights under both the Equal Protection Clause and Title VI of the Civil Rights Act. Id. at 277-78. The California Supreme Court held that (1) the Davis plan was invalid, and Allan Bakke should therefore be admitted to the medical school; and (2) that race could not be considered at all as a factor in admissions. Id. at 279-81.

The Supreme Court sharply divided on this case. Four Justices would have reversed the lower court judgment and upheld the entire Davis system, including the reservation of a fixed number of seats exclusively for minority applicants;13/ four others would have affirmed the entire judgment, holding that Title VI of the Civil Rights Act forbids any consideration of race.14/ Justice Powell delivered the judgment of the Court and authored the pivotal opinion. That opinion invalidated the Davis admissions system, but held that a "properly devised" admissions program -- e.g., one that is flexible, does not use racial quotas, and does not separate applicants by race -- could constitutionally employ the competitive consideration of race in making admissions decisions. See Id. at 314-15. It also held that achieving the academic benefits of a diverse student body is a compelling state interest justifying the consideration of race as a factor in university admissions. See Id. Because four Justices (Brennan, White, Marshall and Blackmun, J.J.) joined Justice Powell in holding that the competitive consideration of race in admissions is constitutionally permissible, Justice Powell’s opinion represents the holding of the Court and is controlling precedent on the use of race in university admissions.15/

13 / Bakke, 438 U.S. at 324-79 (Brennan, J., joined by White, Marshall and Blackmun, J.J.).

14 / Bakke, 438 U.S. at 408-21 (Stevens, J., joined by Burger, C.J., Rehnquist and Stewart, J.J.).

15 / Justice Powell’s opinion, as the “narrowest grounds” offered in support of the result, also represents the holding of the Court under the Supreme Court’s decision in Marks v. United States, 430 U.S. 188, 193 (1977). See also Ex. H (Smith v. University of Wash. Law Sch., No. C97-335Z (W.D. Wash. Feb. 12, 1999)) (recognizing Justice Powell’s Bakke opinion as controlling under a Marks analysis). The Sixth Circuit has embraced a reading of Marks that firmly supports the conclusion that Bakke is controlling authority. See Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 132 (6th Cir. 1994) (“In light of the Supreme Court’s instruction 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.‘‘”) (citations omitted); see also Reese v. City of Columbus, 71 F.3d 619, 625 (6th Cir. 1995), cert. denied, 117 S. Ct. 386 (1996). Justice Powell’s diversity rationale qualifies as the “narrowest grounds” in support of the judgment, announced in Part V.C. of the Court’s opinion and joined by four other Justices, to reverse that part of the California Supreme Court’s judgment barring consideration of race. Justice Brennan’s approach was far broader than Powell’s because it would not have applied strict scrutiny, as Justice Powell’s opinion did, to “benign” racial classifications and would have upheld not only a Harvard-style admissions plan, but also the Davis plan at issue.

Justice Powell’s controlling opinion in Bakke articulates three important principles. First, it states that “the interest in diversity is compelling in the context of a university’s admissions program,” Id. at 314, because “our tradition and experience lend support to the view that the contribution of diversity is substantial,"” Id. at 313. Justice Powell emphasized that “[t]he atmosphere of ‘speculation, experiment and creation’ -- so essential to the quality of higher education -- is widely believed to be promoted by a diverse student body.” Id. at 312. He grounded this notion of diversity in a rich line of cases recognizing the principle of “academic freedom,” See, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Healy v. James, 408 U.S. 169, 180 (1972), which the Supreme Court has consistently reinforced in the years since Bakke. See, e.g., Board of Regents of the Univ. of Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1358 (2000), Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 836 (1995); Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225-26 (1985).

Second, Justice Powell’s opinion explains that the diversity that furthers this compelling interest is broader than, but includes, racial and ethnic diversity. Justice Powell held that a university has wide latitude to assemble a diverse student body, but emphasized that achieving the benefits of diversity could only be a compelling justification where “[e]thnic diversity … is only one element in a range of factors” that a university considers in its admissions decisions. Bakke, 438 U.S. at 314. Under Bakke, “[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial and ethnic origin is but a single though important element.” Id. at 315.

Third, while it squarely permits colleges and universities to consider race as a factor in admissions decisions, Justice Powell’s opinion says that there are specific limitations as to the manner in which race may be considered in order to serve the compelling interest it recognizes. After Bakke, the use of fixed racial quotas is clearly prohibited. Only those programs approximating the flexibility of the Harvard admissions system -- which, because it neither utilized fixed numbers nor attempted to insulate racial minority applicants from competition from other applicants, was characterized as a model constitutional program by Justice Powell -- rather than the rigidity of the Davis admissions program ultimately invalidated by Justice Powell (with the support of the four Justices who believed Title VI precluded all use of race) are permissible. Similarly, only programs that consider race as one factor in choosing among “otherwise qualified” applicants can be described as “properly devised.” This means that an admissions program must “consider all pertinent elements of diversity in light of the particular qualifications of each applicant,” though there is no requirement that it accord these elements the same weight. Id. at 317-318.

2. The Individual Defendants, Like the Educational Community As a Whole, Reasonably Understood Bakke as the Controlling Authority on Use of Race in Admission.

Given Bakke and its broad acceptance, the individual defendants in this case reasonably could assume that an admissions system designed to comply with its terms complied with governing law. As the amicus briefs submitted in support of the defendants in this case make clear, the competitive consideration of race in undergraduate and graduate admissions is widespread and constitutional.16/ "During the nearly two decades since Bakke was decided, Justice Powell’s landmark opinion has guided the admissions policies of public and private educational institutions throughout the United States." Brief for the United States as Amicus Curiae at 16.

16 / See e.g., Brief of Amici Curiae American Council on Education, et al. at 4-7; Brief of Amici Curiae Association of American Law Schools, et al. at 4; Brief of the State of Ohio as Amicus Curiae at 14.

Relying on Justice Powell’s opinion, the vast majority of law schools in this country utilize admissions programs designed -- consistent with the guidelines set forth in Bakke -- to achieve education-enhancing diversity. Indeed, both the American Bar Association and the Association of American Law Schools require, as a condition of accreditation and membership, that a law school demonstrate a commitment to having a racially diverse student body. See Ex. P (ABA Standard 211) (“Consistent with sound legal education policy and the Standards, a law school shall demonstrate, or have carried out and maintained, by concrete action, a commitment to providing full opportunities for the study of law and entry into the professions by qualified members of groups, notably racial and ethnic minorities, which have been victims of discrimination in various forms.”); Ex. Q (AALS Bylaws Section 6-4(c)) (“A member school shall seek to have a faculty, staff, and student body which are diverse with respect to race, color, and sex.”). These accrediting legal institutions are hardly likely to adopt requirements that violate clearly established constitutional rights.

Likewise, the United States, which has primary responsibility for enforcing Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6(a)(2), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, which are applicable to university admissions programs and policies, has made clear that Bakke supports the competitive consideration of race in admissions in order to attain the educational benefits of a diverse student body. For example, in this Court, as it has in others, the United States concludes that the “interest in obtaining the educational benefits of a diverse student body supports an appropriately structured plan under which [a] University may take race into consideration as one of many factors in making its admissions decisions.” Brief of the United States as Amicus Curiae at 3. Similarly, the Department of Education (“DOE”), has published guidelines in the Federal Register recognizing the continued vitality and importance of Bakke in the university context. See 59 Fed. Reg. 8756, 8761 (1994) (“[C]olleges have a First Amendment right to seek diversity in admissions to fulfill their academic mission through the ‘robust exchange of ideas’ that flows from a diverse student body.”). Universities across the country, including the University of Michigan, rely on DOE guidelines in structuring their admissions policies.

It is not surprising that this understanding of Bakke is widespread. In the years since Bakke was decided, the Supreme Court has not overruled or questioned Bakke.17/ And the academic legal community has assumed that race-conscious admissions policies are constitutional. See, e.g., Akhil Reed Amar and Neal Katyal, Bakke’s Fate, 43 UCLA L. Rev. 1745, 1779 (1996) (“[O]ur [analysis of the case law] suggests that educational affirmative action on a Harvard-plan model may pass Supreme Court muster. There are sound reasons why this is so -- reasons that we believe are at the heart of Bakke.”); Deborah C. Malamud, Affirmative Action, Diversity and the Black Middle Class, 68 U. Colo. L. Rev. 939, 945 (1997) (“Under Regents of the University of California v. Bakke, colleges and universities may use affirmative action to achieve diversity in admissions… ”).

17 / Indeed, the Supreme Court has recognized Bakke’s essential holding on a number of occasions. In her concurring opinion in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), for example, Justice O’Connor noted that “although its precise contours are uncertain, 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.” Id. at 286 (citing Bakke). Similarly, Johnson v. Transportation Agency, 480 U.S. 616 (1987), a case involving the alleged violation of Title VII of the Civil Rights Act of 1964 also recognized Bakke’s primary holding. The Court there noted that a promotion plan that considered the gender of an employee as one of a range of factors was similar to the Harvard plan “approvingly noted by Justice Powell” in Bakke. Johnson, 480 U.S. at 638. In upholding the promotion plan which considered gender as one of a range of factors, the Court noted that the plan “requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants.” Id. Thus, endorsing Bakke’s precedential value and its reasoning, a five-member majority concluded that the consideration of gender was lawful.

Moreover, the opinions of the Sixth Circuit -- which, after the decisions of the Supreme Court, give the best insight into whether the individual defendants in this case properly understood that the competitive consideration of race in admissions is constitutional -- have consistently relied on the Bakke opinion. For example, in Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757 (6th Cir. 1983), the court cited Bakke for the proposition that “affirmative action admission programs of educational institutions may take race into account, but racial quotas are prohibited.” Id. at 763. Referring to Bakke, the Sixth Circuit invalidated a court-imposed racial quota for minority teachers and expressly stated that a “wiser approach is a more flexible affirmative action program rather than a hiring quota.” Id. More recently, it relied on Bakke in upholding Cincinnati’s policy of transferring teachers to balance the racial composition of its schools “to achieve a racially integrated faculty throughout the Cincinnati public school system.” Jacobson v. Cincinnati Bd. Of Educ., 961 F.2d 100, 103 (6th Cir. 1992).18/

18 / Other courts have also agreed that Bakke is controlling precedent. See Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123, 131 (4th Cir. 1999) (assuming thatBakke is controlling authority, but applying that decision to invalidate a magnet school transfer system as not narrowly tailored); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 705 (4th Cir. 1999) (assuming thatBakke is binding precedent, but applying that decision to invalidate a school admissions system on grounds that it was not narrowly tailored to promote diversity); Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998) (assumingBakke is controlling authority, but invalidating race-conscious admissions program because the school would have achieved meaningful racial and ethnic diversity without consideration of race as a factor in admissions); Winkes v. Brown Univ., 747 F.2d 792, 799 (1st Cir. 1984) (Bakke held that “some consideration of race in a medical school’s admissions criteria was permissible, but that the use of a rigid quota was not.”); Smith v. University of Wash. Law Sch., 2 F. Supp. 2d 1324, 1334 (W.D. Wash. 1998) (“[t]he attainment of a diverse student body … is a compelling interest and constitutionally permissible goal for a university or graduate program. Thus, an institution of higher education may take race into account in achieving ‘educational diversity.’”) (citingBakke); Davis v. Halpern, 768 F. Supp. 968, 975 (E.D.N.Y. 1991) ("[w]hile the court [inBakke] explicitly rejected the use of strict numerical quotas to achieve diversity, it endorsed the plans of many colleges and universities which consider race or ethnic background as one of many factors in weighing a candidate’s strength.”); University & Community College Sys. v. Farmer, 930 P.2d 730, 734 (Nev. 1997) (Bakke held that “an attempt to attain a diverse student body through a preferential treatment admissions policy is not per se unconstitutional as long as race is one of several factors used in evaluating applicants.”) (citations omitted), cert. denied, 523 U.S. 1004 (1998).

Only the Fifth Circuit has failed to adhere to Bakke. In Hopwood v. State of Texas, 78 F.3d 932, 944 (5th Cir. 1996), that court rejected Bakke’s diversity rationale as inconsistent with more “recent Supreme Court precedent.” Its decision in that case was wrong and beyond its power. While the Supreme Court has -- since Bakke -- made clear that all racial classifications, even those that benefit racial minority groups, are subject to strict scrutiny, See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), no Supreme Court opinion has overruled or even questioned Bakke’s holding that there is a compelling interest in achieving a racially diverse student body, and that the competitive consideration of race in admissions is narrowly tailored to achieve that interest. And contrary to the Fifth Circuit’s reasoning, Justice Powell’s opinion in Bakke, as the “narrowest grounds” offered in support of the result in that case, is controlling precedent. Marks v. United States, 430 U.S. 188, 193 (1977); See also Ex. H (Smith v. University of Wash. Law Sch., No. C97-335Z (W.D. Wash. Feb. 12, 1999)).

In rejecting Bakke’s conclusion that an institution of higher education has a compelling interest in enrolling a racially diverse student body, the Fifth Circuit completely disregarded the constraints on its authority. Under existing case law, it is clear that the Hopwood court lacked the authority to override or disregard the Supreme Court’s decision in Bakke. See, e.g., Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); State Oil Company v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is this Court’s prerogative alone to overrule one of its precedents.”); Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (only the Supreme Court can overrule its own precedents); Rodriguez De Quijas v. Shearson/American Express, Inc.. 490 U.S. 477 (1989) (same). Thus, the individual defendants could not reasonably be expected to have viewed the decision in Hopwood as a change in the law requiring them to modify the Law School’s admissions policies.

3. Defendants’ Admissions Policy Falls Well Within What Bakke Permits And Therefore Does Not Violate Any “Clearly Established” Right.

The testimony of the Law School admissions personnel is unrefuted: that, as in the Harvard system approvingly discussed by Justice Powell in Bakke, race is considered as one of a number of important factors in admissions, and that the admissions office carefully examines each application and makes an individual judgment, based on the entire file, about how that applicant would contribute to the Law School class. After extensive discovery, the facts show that:

  • The Law School has no two track admissions system. Shields Dep. at 104; Munzel Dep. at 125-126; Eklund Dep. at 49.
  • The Law School does not utilize racial quotas -- either in form, or in effect. Shields Dep. at 104; Munzel Dep. at 125-126; Eklund Dep. at 49.
  • The admissions office does not physically separate applications by race. Wong Dep. at 29.
  • It does not assign minority applications to particular readers. Munzel Dep. at 60.
  • It applies the same academic standards to all of its students. Lempert Dep. at 174.
  • The Law School considers race as a single, though important factor in admissions. Shields Dep. at 23.
At the end of the day, there is thus no genuine issue of fact about what the 1992 Policy says and there is no genuine issue of fact that the admissions office followed that Policy.19/

19 / Perhaps because there is no support for her other theories of this case -- e.g., that race can never be a factor in admissions and that the Law School’s Policy does not comport withBakke -- the plaintiff also alleges that “race was one of the predominant factors (along with scores on the Law School Admissions Test and undergraduate grade point averages) used for determining admission.” Compl. ¶ 23. This argument, which relies primarily on the work of plaintiff’s expert, Professor Larntz, see Ex. N (relying on charts and grids, such as those contained in Ex. O, which the Law School once prepared in the course of its admissions efforts, but no longer utilizes), fails as well. To begin, it focuses on an issue -- the predominance of race in decisionmaking -- thatBakke does not envision that courts are to decide. Moreover, it too is unsupported by the record evidence. Stephen Raudenbush, a nationally recognized Professor of Education at the University of Michigan and one of defendants’ experts, demonstrated that, as a matter of statistics, “one cannot reasonably conclude that [race] predominates over other factors in the admissions process.” Raudenbush Supp. Expert Rep. at 5 (Mar. 3, 1999); see also Raudenbush Expert Rep. (Jan. 22, 1999); Raudenbush Supp. Expert Rep. (Feb. 24, 2000). The only conclusion that can responsibly be drawn from the data is that race is quite important in some admissions decisions and of little or no importance in others, an issue plaintiff’s own expert, Professor Larntz, has essentially conceded. See Larntz Dep. at 90; Raudenbush Dep. at 41-44.

The Law School’s compliance with the governing legal standard is not surprising given that all of the record evidence demonstrates that a major purpose of the 1992 Admissions Policy at issue here was to enable the individual defendants and others to be certain that the Law School complied with the Bakke decision.20/ In adopting the 1992 Policy, the faculty decided to adopt an approach to diversity that did not include numerical goals or targets for any group other than Michigan residents, Bollinger Dep. at 107-108, Lempert Dep. at 70, and that valued diversity not “to increase the numbers of minorities in the legal profession,” but to “provid[e] the best educational experience for students.” Bollinger Dep. at 107, Lempert Dep. at 76.

20 / When Lee Bollinger became Dean in 1987, the Law School operated a “special admissions” policy, under which the Law School sought to enroll a class that was between 10 and 12 percent minority students, both to address “the racial imbalance now existing in the legal profession,” as well as to make “the School a livelier place to learn.” Ex. I at 85. From 1979 to 1990, the admissions office also employed a “pool” system, under which approximately half of the class was admitted primarily “on the numbers,” while the other half of the class were chosen from a group of applicants with slightly lower grades and test scores, on the basis of non-quantifiable factors such as extracurricular or charitable activities, or “ethnic or national backgrounds.” Stillwagon Dep. at 22-23. In addition, where this “pool” system would not yield a class with 10 to 12 percent racial minorities -- and it frequently would not, Stillwagon Dep. at 30-31, 39-43 -- the admissions officer would, under the “special admissions” policy, admit a sufficient number of minority students to maintain the School’s goal at that time of achieving a composition of 10-12 percent minority students in entering classes. Stillwagon Dep. 37-39. Both of these practices were discontinued when the 1992 Policy was adopted. Shaw Dep. at 138-142.

The extensive and undisputed record developed in this litigation confirms that the Law School fully complies with Bakke. The individual defendants therefore are entitled to summary judgment on their qualified immunity defense. Where, as in this case, there are no facts suggesting that government officials violated a clearly established law or acted unreasonably in performing their public responsibilities, qualified immunity law requires that quick and decisive action be taken now to shield those officials from the burdens of continued litigation.



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