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

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

Briefs filed IN SUPPORT OF GRATZ, HAMACHER & CIR:

Briefs filed IN SUPPORT OF NEITHER PARTY:

Briefs filed IN SUPPORT OF RESPONDENTS:

3M, et al. (Fortune 500 Corporations)

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

American Council on Education

  • The quality of American higher education is rooted in governmental forebearance.
  • Leaders of all types of colleges and universities hold that racial and ethnic student diversity is educationally valuable.
  • Student diversity is a compelling governmental interest.
    1. Educators’ belief that student diversity advances higher education’s mission has ample basis.
    2. Diversity is essential to basic purposes of higher education, fosters the examined life, prepares students for citizenship, and enhances education for economic and scientific progress; by breaking down barriers, diversity advances a chief purpose of higher education.
    3. Racial and ethnic diversity is valuable in a student body because it is salient to the world in which we live.
    4. Research confirms that racial and ethnic diversity improves educational outcomes.
    5. Government has a compelling interest in the quality of higher education.

American Educational Research Association, et al.

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

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

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

American Jewish Committee, et al.

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

American Psychological Association

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

Amherst and Other Private Colleges

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

Authors of the Texas Ten Percent Plan

  • Percentage plans in public higher education are not effective alternatives to the use of race and national origin as factors in admissions systems.
    1. Percentage plans are not substitutes for race-based admissions.
    2. Percentage plans require certain demographic features not present in all states or in all public university systems.
    3. The Texas Plan has not increased diversity in Texas higher education back to pre-Hopwood or pre-Ten Percent Plan levels, and the gap between the pool of qualified students and enrollment has increased.
    4. The Texas Ten Percent Plan has been modestly efficacious only when institutions expend considerable resources focused on underserved high schools.
    5. Percentage plans cannot work in graduate or post-baccalaureate admissions, such as law, medical, dental, business, or masters or doctoral programs.
  • If we wish to increase the diversity of our most competitive universities, no other criterion can substitute for the use of race.

Bay Mills Indian Community, et al.

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

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

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

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

Black Women Lawyers Association of Greater Chicago

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

Carnegie Mellon University and 37 Fellow Private Colleges and Universities

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

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

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

The College Board

  • Educational judgments of admissions professionals should be accorded deference.
    1. Admissions criteria cannot be divorced from the institution’s own mission.
    2. In higher education, there can be no universal standard of merit.
  • The most reliable admissions decisions are based on multiple criteria.
    1. Reliance on any single metric would eliminate qualified candidates from consideration.
    2. Consideration of a broad set of criteria allows colleges and universities to pursue their educational missions.
  • The evidence on race-neutral alternatives such as class-conscious policies, percent plans and outreach programs, is uneven and incomplete.

Columbia, Cornell, Georgetown, Rice and Vanderbilt Universities

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

John Conyers, Jr., and Other Members of Congress

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

General Motors Corporation

  • Consideration of race and ethnicity in university admissions furthers a compelling interest in educating students and training them to compete in the global marketplace.
    1. Institutions of higher education have a compelling interest in selecting diverse student bodies.
    2. Success in today’s business world demands cross-cultural competence and the ability to view problems from multiple perspectives — skills best learned in diverse academic environments.
  • To achieve excellence in the new, diverse global economy, employees of any race, culture, or ethnicity must possess cross-cultural competence.
  • Diversity in academic institutions augments the skills — cross-cultural competence and complex thinking — that students need to help lead our country’s economic future.
  • Institutions of higher learning are ideally equipped to provide the exposure to diversity, development of cross-cultural competence, and critical thinking skills that graduates need to thrive in the business world.
  • Elimination of affirmative action in educational institutions likely would deprive businesses of well trained minority candidates who are essential to our nation’s economic success.

Harvard and Other Private Universities

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

Hayden Family

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

Howard University

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

Howard University Law Students

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

Human Rights Advocates and the University of Minnesota Human Rights Center

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

John Conyers, Jr., and Other Members of Congress

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

Latino Organizations

  • Latino students are in a unique position to enhance the diversity of ideas on college campuses in furtherance of the university’s educational mission.
    1. Latinos are a unique and distinct group in the United States.
    2. Several common characteristics of Latino students add diversity to the college educational experience, including the Spanish language and its cultural influence; educational attainment; employment and economic profile; immigration and citizenship; and racial discrimination.
  • The University of Michigan has a compelling interest in remedying the continuing effects of discrimination against Latinos.
    1. Public education bears a special responsibility in eradicating societal discrimination.
    2. Latinos encounter discrimination at all levels of the American public educational system.
    3. Latino students have suffered and continue to suffer discrimination at the University of Michigan.

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

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

Leadership Council on Civil Rights

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

MTV Networks

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

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

Massachusetts Institute of Technology, et al.

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

Media Companies

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

Members of the United States Congress

  • The Supreme Court must consider the nexus between K-12 educational opportunity and diversity in higher education.
    1. Minority children face persistent, pernicious inequities in primary and secondary public education.
    2. Congress has long recognized disparities, especially in K-12 education, that are correlated to race.
  • Racial inequities in K-12 require colleges and universities to take race and ethnicity into account in the admissions process.
    1. Disparate educational opportunities in K-12 directly impact higher education admissions.
    2. The percentage programs adopted in Texas, California, and Florida do nothing to help close the gaps.
  • Diversity is an educational and democratic imperative which requires that race be taken into account as one factor among others in the admissions process.
    1. Diversity is a continuing and compelling educational need, a prerequisite to advancement, and Bakke is still good law.
    2. Diversity is essential to the maintenance of American democracy.
    3. Accordingly, the promotion of diversity in education remains a compelling governmental interest.
    4. Reaffirming diversity as a compelling state interest is consistent with limiting principles.

Michigan Governor Jennifer Granholm

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

National Asian Pacific American Legal Consortium, et al.

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

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

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

National School Boards Association, et al.

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

National Urban League, et al.

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

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

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

New America Alliance

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

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

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

Northeastern University

  • Northeastern University cannot fulfill its educational mission without a diverse student body.
    1. Diversity is essential to Northeastern University’s mission of practice-oriented education. Our university prepares students for success in the workplace. Employers require an educated and diverse workforce. Our university is therefore meeting the employers’ needs for an educated and diverse workforce.
    2. The benefits of diversity are essential to the educational experience that Northeastern University provides.
  • Northeastern University must not forfeit its ability to define and to pursue its own educational mission.

NOW Legal Defense and Education Fund, et al.

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

Representative Richard A. Gephardt, et al.

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

Senators Thomas A. Daschle, et al.

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

Social Scientists Glenn C. Loury, et al.

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

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

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

State of New Jersey

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

United Negro College Fund and Kappa Alpha Psi

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

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

University of Pittsburgh

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

Briefs filed IN SUPPORT OF PETITIONERS:

Cato Institute

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

Center for the Advancement of Capitalism

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

Center for Equal Opportunity

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

Duane C. Ellison

  • The Gurin Report is so methodologically flawed that it cannot be considered to carry any weight as competent evidence.
    • The Gurin Report fails to show statistically significant relationships between the racial and ethnic composition of a student body and Gurin’s “educational benefits.”
    • The Gurin Report fails to employ standard tests of reliability and validity to check measurements.
    • The surveys relied upon in the Gurin Report do not meet widely accepted standards of sampling and response rates.
    • The Gurin Report does not provide for a control group to compare with the experimental group.
    • The Gurin Report statistical exclusion of Asians is a fatal design flaw.
    • There are no quantifiable criteria for educational outcomes in the Gurin Report.
    • The Gurin Report ignores one of its acknowledged variables: equal status contact.
  • Diversity policies require governmental entities to define racial and ethnic categories which are inherently arbitrary and standard less and thus subject to manipulation at the whim of authorities.
    • Racial and ethnic classifications are inherently ambiguous.
    • The same confusions and ambiguities found in government agencies exist in research studies of campus diversity.
    • The confusion and ambiguities of racial and ethnic definitions are inherent in colleges and professional school admissions policies.
    • Assigning individuals to specific racial and ethnic categories is arbitrary and thereby subject to change for political reasons.

Center for New Black Leadership

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

Michigan Association of Scholars

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

National Association of Scholars

  • The university bears a heavy burden to demonstrate that its use of racial preferences serves a compelling governmental interest.
  • The Gurin Report does not show that increased student racial diversity yields educational benefits.
  • The Gurin Report violates basic rules of statistics and consequently yields unreliable and contradictory results.
  • Other scholarship using Gurin’s primary database shows no relationship between student racial diversity and educational benefits.
  • The Gurin Report fails to consider the possibility that racial preferences produce negative educational effects.
  • Gurin admits in a supplemental report that she failed to show that student racial diversity produces educational benefits.

Pacific Legal Foundation

  • Under existing civil rights precedent, the equal protection clause prohibits non remedial uses of race classifications.
    1. Evolution of equal protection law has established strict scrutiny as the standard of review for all race-based classifications.
    2. The University of Michigan’s desire to obtain a racially balanced and diverse student body fails to provide a compelling state interest under Croson.
    3. The University’s race-based admissions policy fails to be narrowly tailored because “diversity” is a broad public policy objective unsuited to a race-based remedy.
  • The University of Michigan’s race preferences, like other forms of discrimination, undermine the essence of the equal protection clause by fostering racial stereotypes and social stigmas.

Reason Foundation

  • There is no persuasive evidence that racial preferences in admissions improve educational quality and therefore serves a compelling interest.
  • There are unintended consequences which harm minority students admitted under “diversity” preferences.
    • The “mismatch” between minority applicants and the school to which they are admitted.
    • Preferences and professional success.
    • Preferences and stigma.

State of Florida

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

United States

  • Respondents’ use of race-based admissions criteria is not justified in light of the ample race-neutral alternatives.
  • Public universities have ample means to ensure that their services are open and available to all Americans.
  • The University’s 1995-1998 admissions policies were not narrowly tailored because they operated as an express racial quota.
  • The University’s current admissions policy is also unconstitutional.
  • The University’s admission policy ignores race-neutral alternatives; represents a forbidden quota; would permit race-based discrimination in perpetuity; places an automatic, inflexible, and disproportionate emphasis on race; and unfairly burdens innocent third parties.

Ward Connerly

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

Briefs filed IN SUPPORT OF NEITHER PARTY:

Anti-Defamation League

  • The University of Michigan undergraduate and law school admissions systems violate the equal protection clause and Title IV.
  • Governmental racial classifications are presumptively unlawful.
  • The university and law school programs are not narrowly tailored.
  • A “bright-line” test is neither necessary nor desirable, and should be avoided.

Equal Employment Advisory Council

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

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