TABLE OF AUTHORITIES … … … iii

1. THIS CASE ENTAILS FUNDAMENTAL INTERESTS OF
   AMERICAN HIGHER EDUCATION. … … … 1
1. Amici Identified. … … … 1
2. Summary of Amici's Argument … … … 2
3. Amici's Interest in this Case. … … … 3
2. STUDENT DIVERSITY IMPROVES THE QUALITY OF
   HIGHER EDUCATION … … … 6
1. Diversity is Essential to Basic Purposes of Higher
   Education. … … … 6
1. Diversity fosters the examined life … … … 7
2. Diversity prepares students for citizenship … … … 10
3. Diversity enhances education for economic and
   scientific progress … … … 12
4. By breaking down barriers, diversity advances a
   chief purpose of higher education … … … 14
2. Racial and Ethnic Diversity Is Valuable in a Student Body
   Because Salient to the World in Which We Live. … … … 19
3. Research Confirms that Racial and Ethnic Diversity
   Improves Educational Outcomes. … … … 21
3. COLLEGES AND UNIVERSITIES REQUIRE AND ARE
   ENTITLED TO LATITUDE, BASED ON THEIR JUDGMENT
   AND EXPERIENCE, IN DETERMINING HOW TO
   ASSEMBLE STUDENT BODIES. … … … 25
1. The First Amendment Protects Institutions' Academic
   Freedom to Determine "Who Shall Be Admitted to Study." … … … 26
2. American Higher Education Is Strong Because Independent
   and Diverse. … … … 26
3. Admissions Policies that Foster Diversity Benefit Non-
   minority as Well as Minority Students. … … … 28
4. SUPREME COURT PRECEDENT AND THE CONSENSUS
   OF EDUCATORS SHOW THAT DIVERSITY IN HIGHER
   EDUCATION SERVES A COMPELLING INTEREST. … … … 29

CONCLUSION … … … 32

CASES:

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) … … … 30

Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978) … … … 27

Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
457 U.S. 853 (1982) … … … 10

Brewer v. West Irondequoit Central Sch. Dist., 212 F.3d 738 (2d Cir.
2000) … … … 31

Buchwald v. University of New Mexico Sch. of Medicine,
159 F.3d 487 (10th Cir. 1998) … … … 31

DeRolph v. State, 677 N.E.2d 733 (Ohio 1997) … … … 10

Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123 (4th Cir.
1999), cert. denied, 529 U.S. 1019 (2000) … … … 31

Grutter v. Bollinger, No. 97-CV75928 (E.D. Mich. Mar. 27, 2001) … … … 31

Hopwood v. Texas, 78 F. 3d 932 (5th Cir.), cert. denied, 518 U.S.
1033 (1996), appeal after remand, 95 F.3d 53, on remand, 999 F.
Supp. 2d 872 (W.D. Texas 1998), aff'd in part, rev'd in part, 236 F.3d 256
(5th Cir. 2000), petition for cert. filed (April 17, 2001). … … … 31

Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100 (6th Cir.), cert.
denied, 506 U.S. 830 (1992) … … … 30, 31

Keyishian v. Board of Regents of Univ. of N.Y., 385 U.S. 589
(1967) … … … 26

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) … … … 30

Mueller v. Allen, 463 U.S. 388 (1983) … … … 10

Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757 (6th Cir. 1983) … … … 30

Plyler v. Doe, 457 U.S. 202 (1982) … … … 14

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) … … … passim

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985) … … … 26, 27

Smith v. University of Wash. Law Sch., 233 F.3d 1188 (9th Cir.
2000), petition for cert. filed, 69 USLW 3593 (Feb. 21, 2001) … … … 31

Sweezy v. New Hampshire, 354 U.S. 234 (1957) … … … 26

Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999),
cert. dismissed, 529 U.S. 1050 (2000) … … … 31

University and Community College Sys. v. Farmer, 930 P.2d 730
(Nev. 1997), cert. denied, 523 U.S. 1004 (1998) … … … 31

Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998) … … … 31

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) … … … 30

STATUTES:

Morrill Land-Grant Act, 12 Stat. 503 (1862)
(codified as amended at 7 U.S.C. §§ 301-305, 307-308). … … … 12

Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. … … … 18,30

REGULATIONS:

34 C.F.R. § 100.3(b)(6)(ii) … … … 30

Nondiscrimination in Federally Assisted Programs; Title VI of the
Civil Rights Act of 1964, 59 Fed. Reg. 8756 (Dep't of Educ.
Policy Guidance Feb. 23, 1994) … … … 30

OTHER AUTHORITIES:

Henry Adams, The Education of Henry Adams (1927) … … … 17

Jonathan R. Alger, The Educational Value of Diversity,
83 Academe 20 (Jan. - Feb. 1997) … … … 20

Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L.
Rev. 1745 (1996) … … … 30

American Ass'n of Community Colleges, Statement on Inclusion
(Apr. 12, 1997) … … … 5

American Ass'n of State Colleges and Univs., Access, Inclusion and
Equity: Imperatives for America's Campuses (1997) … … … 5

American Ass'n of State Colleges and Univs., Policy on Racism and
Campus Diversity (Mar. 1989) … … … 5

American Ass'n of Univ. Professors, Affirmative Action,
83 Academe 38 (July-Aug. 1997) … … … 6

American Council on Educ. & American Ass'n of Univ. Professors,
Does Diversity Make a Difference? Three Research Studies on
Diversity in College Classrooms (2000) … … … 23

American Council on Educ., Making the Case for Affirmative Action
in Higher Education: What You Can Do to Safeguard
Affirmative Action on Campus and in Your Community (March,
1999) … … … 5

American Council on Educ. Bd. of Directors, Statement on
Affirmative Action and Diversity (May 25, 1995) … … … 5

Association of Am. Univs., On the Importance of Diversity in
University Admissions, N.Y. Times, Apr. 24, 1997 … … … 5

Alexander W. Astin, Diversity and Multiculturalism on the Campus:
How are Students Affected?, 25 Change 44 (Mar./Apr. 1993) … … … 22

Alexander W. Astin, What Matters in College? (1993) … … … 22

David J. Barron, The Promise of Cooley's City: Traces of Local
Constitutionalism, 147 U. Pa. L. Rev. 487 (1999) … … … 11

Roy P. Basler ed., Abraham Lincoln: Speeches and Writings 1859-
1865 (Library of America 1989) (1953) … … … 3

Robert H. Bork, The Limits of Governmental Regulation, in The
University and the State: What Role for Government in Higher
Education? (S. Hook et al. eds., 1978) … … … 27

William G. Bowen & Derek Bok, The Shape of the River (1998) … … … 13

John S. Brubacher, On the Philosophy of Higher Education (1982) … … … 12

John S. Brubacher & Willis Rudy, Higher Education in Transition: A
History of American Colleges and Universities (1958, 4th ed. 1997) … … … 17

Carnegie Comm'n on Higher Educ., Reform on Campus: Changing
Students, Changing Academic Programs (1972) … … … 27

Commission on Minority Participation in Educ and American Life,
One-Third of a Nation (1988) … … … 2

Arthur H. Compton, Foreword to Huston Smith, The Purposes of
Higher Education (1955) … … … 14

Council of Graduate Schools, Building an Inclusive Graduate
Community: A Statement of Principles, 30 Communicator 1
(June 1997) … … … 5, 6

Merle Curti, The Growth of American Thought (1964) … … … 17

Merle Curti, Human Nature in American Thought: A History (1980) … … … 18

Marvin P. Dawkins & Jomills Henry Braddock II, The Continuing
Significance of Desegregation: School Racial Composition and
African American Inclusion in American Society, 63 J. of Negro
Educ. 394 (Summer 1994) … … … 24

John Dewey, Democracy and Education (Free Press 1966) (1916) … … … 15, 16, 20

Frank Donovan ed., The John Adams Papers (1965) … … … 14, 15

Charles William Eliot, The Aims of the Higher Education, in
Educational Reform: Essays and Addresses (1905) … … … 17

Charles William Eliot, Inaugural Address as President of Harvard
College (1869) in Educational Reform: Essays and Addresses
(1905) … … … 16

Ralph Waldo Emerson, Education, in The Portable Emerson (1946) … … … 16

Ralph Waldo Emerson, The American Scholar, in The Portable
Emerson (1946) … … … 16

Benjamin Franklin, Proposals Relating to the Education of Youth in
Pennsylvania (1749, reprint 1931) … … … 15

F.W. Garforth, Educative Democracy: John Stuart Mill on
Education in Society (1980) … … … 9

Raymond V. Gilmartin, Diversity and Competitive Advantage at
Merck, Harv. Bus. Rev. (Jan. - Feb. 1999) … … … 13

Oscar Handlin & Mary F. Handlin, The American College and
American Culture: Socialization as a Function of Higher
Education (1970) … … … 17

Harvard Univ., The President's Report 1993-1995 … … … 4

Sylvia Hurtado, Linking Diversity and Educational Purpose: How
Diversity Affects the Classroom Environment and Student
Development, in Diversity Challenged: Evidence on the Impact of
Affirmative Action (Gary Orfield & Michael Kurlaender eds.,
2001) … … … 23

Robert M. Hutchins, The Higher Learning in America
(Transaction Publishers 1995) (1936) … … … 7, 12

Carl F. Kaestle, Pillars of the Republic: Common Schools and
American Society 1780-1860 (Eric Foner ed., 1983) … … … 15

Letter from Judith A. Winston, Gen. Counsel, Dep't of Educ.
to College and Univ. Counsels (Sept. 7, 1995) … … … 30

Letter from Judith A. Winston, Gen. Counsel, Dep't of Educ.
to College and Univ. Counsels (July 30, 1996) … … … 30

Letter from Walter Dellinger, Acting Solicitor Gen. to Judith A.
Winston, Gen. Counsel, Dep't of Educ. (Apr. 10, 1997). … … … 30

Alexander Meikeljohn, Education Between Two Worlds (1942) … … … 11

John Stuart Mill, On Liberty, in Three Essays
(Oxford Univ. Press 1975) (1859) … … … 12

J.H.C. Newman, The Idea of a University
(M.J. Svaglic ed., Univ. of Notre Dame Press 1982) (1873) … … … 7

Martha C. Nussbaum, Cultivating Humanity: A Classical Defense of
Reform in Liberal Education (1997) … … … 7, 8, 13

Gary Orfield & Dean Whitla, Diversity and Legal Education:
Student Experiences in Leading Law Schools, in Diversity
Challenged: Evidence on the Impact of Affirmative Action (Gary
Orfield & Michael Kurlaender eds., 2001) … … … 22, 23

Jean Piaget, Piaget's Theory, in 1 Carmichael's Manual of Child
Psychology (P.H. Mussen ed., 3d ed. Wiley 1970) … … … 8, 9

Peter B. Pufall, The Development of Thought: On Perceiving and
Knowing, in Robert Shaw & John Bransford, Perceiving, Acting,
and Knowing: Toward an Ecological Psychology (1977) … … … 8

Diane N. Ruble, A Phase Model of Transitions: Cognitive and
Motivational Consequences, 26 Advances in Experimental Social
Psych. 163 (1994) … … … 9

Neil L. Rudenstine, Why A Diverse Student Body is So Important,
The Chronicle of Higher Education B1 (Apr. 19, 1996) … … … 5

Bertrand Russell, On Education, in Steven M. Cahn, The
Philosophical Foundations of Education (1970) … … … 16

Harold T. Shapiro, Affirmative Action: A continuing discussion
-- A continuing commitment, Princeton Weekly Bulletin
(Oct. 16, 1995) … … … 5

Daryl G. Smith et al., Diversity Works: The Emerging Picture of
How Students Benefit (Ass'n of Am. Colleges and Univs. 1997) … … … 23

Daryl G. Smith et al., Paths to Success: Factors Related to the
Impact of Women's Colleges, 66 J. of Higher Educ. 245
(May/June 1995) … … … 23

Kent D. Syverud, Expert Report of Kent D. Syverud (submitted in
Grutter v. Bollinger, E.D. Mich. No. 97-CV75928) … … … 20

Octavio Villalpando, Comparing the Effects of Multiculturalism and
Diversity on Minority and White Students' Satisfaction with
College (Nov. 9, 1994) (paper presented at Annual Meeting of
Association for the Study of Higher Education, Nov. 10-13, 1994) … … … 22

Francis Wayland, Thoughts on the Present Collegiate System in the
United States (1842) … … … 17

Noah Webster, On the Education of Youth in America (1790), in
Essays on Education in the Early Republic (Frederick Rudolph
ed., 1965) … … … 15

Alfred North Whitehead, The Organisation of Thought, Educational
and Scientific (1974) … … … 16, 17

Deborah J. Wilds, Minorities in Higher Education 1999-2000:
Seventeenth Annual Status Report (2000) … … … 4

Woodrow Wilson, We Can Lead in Social Example: Report to the
Board of Trustees (June 10, 1907), in A Day of Dedication: The
Essential Writings and Speeches of Woodrow Wilson (Albert
Fried ed., 1965) … … … 18

1. THIS CASE ENTAILS FUNDAMENTAL INTERESTS OF AMERICAN
   HIGHER EDUCATION.
   1. Amici Identified.

Amici are 34 associations of colleges, universities, educators, trustees,
and other representatives of higher education in the United States. Amici
represent public, independent, large, small, urban, rural, denominational, non-
denominational, graduate, and undergraduate institutions. American higher
education institutions enroll some 14 million students (including one half million

from overseas), and are generally regarded as pre-eminent in the world. For
decades amici have worked to achieve student diversity.

Amicus American Council on Education ("ACE") represents all
sectors of higher education. Its approximately 1800 members include a substantial
majority of colleges and universities in the United States. Founded in 1918, ACE
seeks to foster high standards in higher education, believing a strong higher
education system to be the cornerstone of a democratic society. Among its
initiatives to advance student diversity, ACE had a major role in establishing the
Commission on Minority Participation in Education and American Life, chaired
by former Presidents Ford and Carter, which issued One-Third of a Nation
(1988), a report on minority matriculation, retention, and graduation. Appendix
A contains information on the other amici on this brief.

2. Summary of Amici's Argument.

Government has sound reasons to appraise skeptically even an
attenuated and well-intentioned race-consciousness in decision-making. Amici
explain here why promotion of student diversity in higher education amply meets
the burden of that skepticism and rises to the level of a compelling governmental
interest. Student diversity advances three core aims government entrusts to higher
education: To strengthen the student's powers of reason, to prepare the student
for citizenship, and to ready the student for the economic world. Each of those

purposes effectuates this basic mission of colleges and universities: To enable
students to surmount the intellectual, cultural, and experiential barriers that
impede their growth as human beings.

3. Amici's Interest in this Case.

As stewards of the nation's colleges and universities, amici's
members have learned that although no single standard of merit for admission is
correct for every institution, sound conceptions invariably define it in ways that
contribute to, and do not impede, education; advance the great conversation which
is the essence of higher education; and rely on a range of considerations, not
merely numerical measurement.

On March 6, 1860, President Lincoln spoke to the issue presented here:

If it was like two wrecked seamen on a narrow
plank, when each must push the other off or
drown himself, I would push the negro off or a
white man either, but it is not; the plank is large
enough for both . . . . This good earth is plenty
broad enough for white man and negro both, and
there is no need of either pushing the other off.

that is higher education will be sapped, and the education of all who pass through
those doors diminished.

Educators' knowledge that student diversity in the academy fosters
learning is not new. They began to discuss the benefits of diversity at least "as
early as the mid-nineteenth century." Harvard Univ., The President's Report
1993-1995, at 3. Cardinal Newman called for colleges at which "a multitude" of
students would "come together and freely mix with each other," where "they are
sure to learn one from another, even if there be no one to teach them." Id. at 4.
As educators came to see the contribution race and ethnicity diversity bring to
education, nearly all leading colleges and universities actively sought admission of
more students from underrepresented minority groups, adding race and ethnicity
to the traditional range of diversity-enhancing factors. The efforts were fruitful
and continue. See, e.g., Deborah J. Wilds, Minorities in Higher Education 1999-
2000: Seventeenth Annual Status Report 1-2 (2000).

Educators experience at close range the value of student diversity. As
Harvard's president observed,

A diverse educational environment challenges
[students] to explore ideas and arguments at a
deeper level -- to see issues from various sides, to
rethink their own premises . . . .

the Case for Affirmative Action in Higher Education: What You Can Do to
Safeguard Affirmative Action on Campus and in Your Community 24 (March,
1999); id. at 21-26 (reporting public statements by the presidents of 11 public and
independent institutions); Harold T. Shapiro, Affirmative Action: A continuing
discussion -- A continuing commitment, Princeton Weekly Bulletin (Oct. 16,
1995).

Leaders of higher education institutions of every type ^1/ hold that
diversity promotes learning. See American Ass'n of State Colls. and Univs.
("AASCU"), Policy on Racism and Campus Diversity (Mar. 1989); AASCU,
Access, Inclusion and Equity: Imperatives for America's Campuses 32 (1997); On
the Importance of Diversity in University Admissions, N.Y. Times, Apr. 24,
1997, at A27 (statement of Association of American Universities). Without it,
"the quality and texture of . . . education . . . will be significantly diminished,"
and the institutions' role hindered. Id. See also, e.g., American Ass'n of
Community Colleges, Statement on Inclusion (Apr. 12, 1997); ACE Bd. of
Directors, Statement on Affirmative Action and Diversity (May 25, 1995);
Council of Graduate Schools, Building an Inclusive Graduate Community: A

___________________
¹     A letter from a coalition of 32 higher education associations stating their
members' commitment to diversity is reprinted in Making the Case for
Affirmative Action, at 37-38.

Statement of Principles, 30 Communicator 1 (June 1997); American Ass'n of
Univ. Professors, Affirmative Action, 83 Academe 38 (July-Aug. 1997). ^2/

We describe below the basis for educators' judgment that student
diversity, including racial and ethnic diversity, is essential to higher education.
That judgment pertains to the question that we address -- whether student diversity
in higher education is a compelling governmental interest.

2. STUDENT DIVERSITY IMPROVES THE QUALITY OF
   HIGHER EDUCATION.
   1. Diversity is Essential to Basic Purposes of Higher Education.

Educators regard several aims as basic to higher education. Student
diversity helps to achieve each: To enable students to lead "the examined life;" to
prepare them to maintain the robust democracy that is their inheritance; and to
give them tools with which to sustain the nation's economic health. Each of those
aims entails breaking down barriers that isolate the student from the world he or
she needs to know.

1. Diversity fosters the examined life.

A venerable purpose of higher education is to foster "the examined
life." That is the focus of educators who view higher learning as desirable for its
own sake, apart from its economic utility. See Robert M. Hutchins, The Higher

___________________
²     Amici will provide the Court copies of any statement or publication cited in
this brief that the Court indicates it wishes to receive.

Learning in America (Transaction Publishers 1995) (1936); J.H.C. Newman, The
Idea of a University (M.J. Svaglic ed., Univ. of Notre Dame Press 1982) (1873).
These educators consider the crucial work of education to be challenging students'
embedded preconceptions, including the most deeply-held values. Only by
critically examining those preconceptions can the student gauge rationally whether
they are worthy. Educators who hold that the highest aim of colleges and
universities is to develop students' powers of reason emphasize teaching how to
think logically, how to expose fallacy, and how to test assumption through
rigorous questioning and dialectic.

These educators believe that developing the powers of analysis in this
way is not merely one among many skills to be taught; it is the chief skill, because
on it rest human understanding and freedom. Socrates thought knowledge and
freedom so essential, and so dependent on close reasoning, that the unexamined
life is not worth living. The purpose of education, held the Stoics who carried his
idea forward, is to confront the student's passivity, challenging the student's mind
to take charge of its own thought. See Martha C. Nussbaum, Cultivating
Humanity: A Classical Defense of Reform in Liberal Education 28 (1997). To
strengthen the ability to reason is to enable the student to determine what to
believe, what to say, and what to do, rather than merely to parrot thoughts, words,

and actions of convention, friends or family. Production of rational minds is a
noble higher education goal.

Diversity contributes to the process of learning, on which the powers
of reason depend. A precept of developmental psychology is that we learn by
formulating, revising, and refining conceptions of the world. Peter B. Pufall, The
Development of Thought: On Perceiving and Knowing, in Robert Shaw & John
Bransford, Perceiving, Acting, and Knowing: Toward an Ecological Psychology
173-74 (1977). We learn when shaken by new facts, beliefs, experiences, and
viewpoints. The student assimilates the new data so that they fit the existing
conception, or revises the conception to accommodate the new data. This
"disequilibration," as Jean Piaget called it, and the subsequent restoration of
cognitive balance, force learners to refine their thinking. Piaget taught that
"disequilibration" experiences have greatest impact when they come from "social
interaction." Jean Piaget, Piaget's Theory, in 1 Carmichael's Manual of Child
Psychology (P. H. Mussen ed., 3d ed. Wiley 1970). A student, confronted by a
peer who has a new or unexpected way of looking at the world, meets that
perspective as an equal, and can explore and absorb it more fully than if merely
informed of it in, for example, a lecture. See, e.g., Diane N. Ruble, A Phase
Model of Transitions: Cognitive and Motivational Consequences, 26 Advances in
Experimental Social Psych. 163, 171 (1994). Colleges and universities supply,

David Ricardo observed, "that collision which is obtained only in society and by
which a knowledge of the world and its manners is best acquired." F.W.
Garforth, Educative Democracy: John Stuart Mill on Education in Society 164
(1980).

These bedrock principles of developmental psychology, to which
educators at all levels subscribe, teach that exposing students to an extraordinary
array of peer life experiences and perspectives is critical to learning. The
familiar, which tends to reinforce preconception, is less valuable; the new and
different are food for intellectual growth. Piaget's Theory, in 1 Carmichael's
Manual of Child Psychology. Student diversity provides all learners opportunities
to develop their intellects, by exposure to increasingly complex and nuanced
models presented by peers. These new perspectives and experiences are especially
educational when encountered in direct interaction with a peer, because peer
encounters entail the give-and-take and the emotional processes that promote
complex thinking. Id.

Diversity thus awakens students from the sleepy "unexamined life"
against which Socrates warned. A campus or classroom occupied by students
from diverse backgrounds exposes each to a broader array of vantage points from
which to view his or her own values and beliefs than does a classroom of like-
minded students whose experiences, values, and beliefs are similar. Of course,

students will not and should not always accept the new perspectives and abandon
their own. Higher education teaches students to employ reason to decide for
themselves which belief is closest to the truth. And students in diverse institutions
often learn that anticipated differences in perspectives or views do not exist, or do
not correlate as expected with race or ethnicity. Preconception is thereby dispelled.

2. Diversity prepares students for citizenship.

A second purpose of higher education is to prepare students for
citizenship. An educated citizenry is the predicate of a thriving democracy.
Mueller v. Allen, 463 U.S. 388, 395 (1983); DeRolph v. State, 677 N.E.2d 733,
736 (Ohio 1997). Colleges and universities seek to develop students' capacity not
only to comprehend and reach their own informed views on issues of public
import, but also to engage in deliberative aspects of democracy -- to interact and
debate with other citizens, listen with an open mind, and persuade -- so as to
achieve collective solutions to public problems. The "Constitution presupposes
the existence of an informed citizenry prepared to participate in governmental
affairs." Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457
U.S. 853, 876 (1982) (Blackmun, J., concurring). Government has long
conceived higher education as an engine to ready students for citizenship in "a

common vessel." See David J. Barron, The Promise of Cooley's City: Traces of
Local Constitutionalism, 147 U. Pa. L. Rev. 487, 543-44 (1999).

A diverse student body demonstrably prepares students for
citizenship. (See R. 162 Appendix to defendants' motion for summary judgment,
expert report of Patricia Gurin ("Gurin Report"), pg. 18). Diversity of
backgrounds tends to broaden and give more credibility to campus discussion and
debate, by exposing students to perspectives borne of different life experiences.
Such exposure makes students better-informed voters, jurors, school board and
neighborhood association members, and engaged participants in consideration of
public affairs. Effective civic participation depends on ability to work with those
whose backgrounds are different; students educated in a diverse setting are better
prepared to work with fellow citizens from all walks of life. "Learning is not
merely the acquiring of mastery over intellectual subject matter. . . . [I]n our
schools and colleges, every citizen of the world should become 'at home' in the
human 'state.'" Alexander Meikeljohn, Education Between Two Worlds 277
(1942). Encounters with classmates whose backgrounds are different help
students apprehend better their own views. Student diversity in higher education
thus takes students

out of the narrow circle of personal and family
selfishness . . . accustoming them to the
comprehension of joint interests, the management
of joint concerns -- habituating them to act from

public or semi-public motives and guide their
conduct by aims which unite instead of isolating
them from one another.

3. Diversity enhances education for economic and scientific
   progress.

A third aim of higher education is to prepare students to contribute to
economic, scientific, and social progress, and to function effectively in the volatile
global economy. Some academics once held business and other economic
priorities irrelevant to higher education, see Hutchins, The Higher Learning in
America, at 33, a view long outmoded. The need for higher education to be
economically useful is no recent insight. Thomas Jefferson added "practical"
studies to the classical subjects in the University of Virginia curriculum. See John
S. Brubacher, On the Philosophy of Higher Education 4 (1982). In 1862,
Congress endorsed the role of higher education in providing training, through the
Morrill Land-Grant Act, which authorized agricultural and mechanical arts
colleges in every state. Undeniably, colleges and universities today must teach
students skills they need to maintain American leadership in commerce, law,
medicine, and technology.

Educators are attuned to the need to train students for the fast-
emerging international economy. Although more pressing now than ever before,

that need has roots in classical texts from which American thinking about
education derives. Asked where he came from, Diogenes answered, "I am a
citizen of the world," a concept that influenced American thought through
writings of Paine, Emerson, and Thoreau. Nussbaum, Cultivating Humanity, at
52-53.

To serve the increasingly multicultural, global economy, higher
education must prepare professionals and business leaders equipped to function
with diverse customers, clients, co-workers, and business partners. See Raymond
V. Gilmartin, Diversity and Competitive Advantage at Merck, Harv. Bus. Rev.
146 (Jan. - Feb. 1999). Students who have had scant personal interaction with
peers of different races and ethnicities are severely disadvantaged when they
graduate into a nation in which minorities generate more than $600 billion in
purchasing power and constitute more than one-third of new entrants into the
workforce. "Our success as a global community is as dependent on utilizing the
wealth of backgrounds, skills and opinions that a diverse workforce offers, as it is
on raw materials, technology and processes," said a leading business executive.
William G. Bowen & Derek Bok, The Shape of the River 12 (1998).

If the United States is to remain the world's economic pace-setter,
colleges must prepare graduates whose views are not parochial. So, too, in post-
graduate fields, such as law, the natural sciences, and medicine, where

international collaboration is increasingly essential, students today must receive
direct experience with people of different races and ethnicities. They cannot
adequately acquire it from books, and will sorely need it. See Arthur H.
Compton, Foreword to Huston Smith, The Purposes of Higher Education xiv
(1955).

4. By breaking down barriers, diversity advances a chief purpose
   of higher education.

One goal unifies the foregoing aims of higher education: To enable
students to overcome barriers that separate them from one another, divide them
from the world they need to know, and block their growth. The developing
theme of American higher education from the start has been to eradicate divisions,
distinctions, and differences that limit and impede students, and thereby to teach
critical self-reflection and impart knowledge. That theme, perhaps more than any
other, has defined the role and the achievement of higher education in our society.

"The 'American people have always regarded education and [the]
acquisition of knowledge as matters of supreme importance.'" Plyler v. Doe, 457
U.S. 202, 212 (1982). The Founders saw higher education as essential to train the
nation's leaders who, John Adams held, should be recruited not from among "the
rich or the poor, the high-born or the low-born, the industrious or the idle; but all
those who have received a liberal education." Frank Donovan ed., The John
Adams Papers 182 (1965). They saw, too, that the role of education institutions

must be to build and reinforce bonds among citizens, bonds the Founders knew
were necessary to the nation's functioning. The progenitors -- even in an era
when college was accessible only to the well-placed few -- advocated common
schools to bring together the nation's children and instill a sense of national
community, Noah Webster, On the Education of Youth in America (1790), in
Essays on Education in the Early Republic 66 (Frederick Rudolph ed., 1965), and
urged formation of a great university "where the youth of all the states may be
melted (as it were) together into one mass of citizens," Carl F. Kaestle, Pillars of
the Republic: Common Schools and American Society 1780-1860, at 7 (Eric
Foner ed. 1983) (quoting Benjamin Rush). Instilling not only "an ability" but
also "an inclination" "to serve mankind, one's country, friends and family," wrote
Franklin, is "the great Aim and End of all learning." Benjamin Franklin,
Proposals Relating to the Education of Youth in Pennsylvania 30 (1749, reprint
1931).

Removal of barriers is no incidental by-product of American higher
education. It is its essence, because "[a] democracy is more than a form of
government; it is primarily a mode of associated living" that depends on
"communicated experience." John Dewey, Democracy and Education 101 (Free
Presss 1966) (1916). We demand even more of graduates as the nation "break[s]
down . . . barriers of class, race, and national territory," because such a society

produces "more numerous and more varied points of contact" and "a greater
diversity of stimuli to which an individual has to respond." Id.

Surmounting barriers is the heart of the idea of education because it
is central to expanding horizons, developing capacities, and deepening
understanding. "The worthy fruit of academic culture is an open mind . . . ."
Charles William Eliot, Inaugural Address as President of Harvard College (1869),
in Educational Reform: Essays and Addresses 8 (1905). Recoiling from the
suggestion that "the scholar should be a recluse," Emerson wrote: "Only so much
do I know, as I have lived." Ralph Waldo Emerson, The American Scholar, in
The Portable Emerson 32 (1946). "Is it not true," he asked, "that every landscape
I behold, every friend I meet, every act I perform, every pain I suffer, leaves me a
different being than that they found me?" Ralph Waldo Emerson, Education, in
The Portable Emerson, at 251. Bertrand Russell equated intellectual "vitality"
with "interest in the outside world," which he held to be a key aim of education.
Bertrand Russell, On Education, in Steven M. Cahn, The Philosophical
Foundations of Education 295 (1970).

Education is far more than transmission of desiccated knowledge
from teacher to student. That is the outer shell, the beginning. The very word
"educate" derives from the Latin "educe", "to draw out." Ideas must be "utilised,
or tested, or thrown into fresh combinations." Alfred North Whitehead, The

Organisation of Thought, Educational and Scientific 4 (1974). "There is only one
subject-matter for education, and that is Life in all its manifestations." Id. at 13.

The history of American higher education is a progression of
overcoming barriers to learning. Examples follow. Religious barriers: Oxford
and Cambridge maintained doctrinal tests for admission until 1870. American
colleges never did. John S. Brubacher and Willis Rudy, Higher Education in
Transition: A History of American Colleges and Universities (1958, 4th ed.
1997). Geographical barriers: On the eve of the Civil War, contact in college
between a New Englander and a Southerner was valued as "a sort of education for
its own sake." Henry Adams, The Education of Henry Adams 58 (1927).
Vocational barriers: The view was widely held even in those days that colleges
owed a responsibility to American society to prepare a wide spectrum of the
population for the professions and every walk of life. See Francis Wayland,
Thoughts on the Present Collegiate System in the United States (1842) (cited in
Merle Curti, The Growth of American Thought 352 (1964)). Factional barriers:
By the late 19th century, as larger numbers advanced to higher education,
educators saw that "a great university exerts a unifying social influence." Charles
William Eliot, The Aims of the Higher Education in Educational Reform: Essays
and Addresses 234 (1905); see Oscar Handlin & Mary F. Handlin, The American
College and American Culture: Socialization as a Function of Higher Education

(1970). Class barriers: Reformers such as Horace Mann saw in universal
education the way to strengthen a sense of national community among rich,
middle class, and impoverished Americans. Merle Curti, Human Nature in
American Thought: A History 182 (1980). A decreased emphasis on class and
family status followed at elite institutions. Gender, ethnicity, and race barriers: In
the 20th century, the institutions' doors opened wider than ever before, with mass
availability of quality higher education. Large numbers of immigrants were
admitted to college. As president of Princeton, Woodrow Wilson advocated
interaction among students from different backgrounds. See Woodrow Wilson,
We Can Lead in Social Example: Report to the Board of Trustees (June 10,
1907), in A Day of Dedication: The Essential Writings and Speeches of Woodrow
Wilson 80 (Albert Fried ed., 1965). Formerly all-male leading institutions
admitted women. Progress, especially in overcoming ethnicity, race and other
barriers continued in recent decades, fostered by civil rights laws, notably the
Civil Rights Act of 1964, that prohibited exclusion -- and by government policies
that encouraged educators to compose student bodies based on the educational
benefits of inclusion for all students.

Today, facing uniquely contentious, knotty issues of race and
ethnicity, higher education stands poised to transcend this most formidable barrier,
to confront the great issue of our age. Having caught a glimpse of the fruits that

true diversity brings -- in historical terms, a fleeting glimpse -- is it not
understandable that those entrusted with the leadership of higher education warn
against a course that threatens diversity? Would it not be harsh irony if higher
education were barred from felling this last, highest barrier, in the name of laws
enacted to remove the racial and ethnic divisions among Americans? Would
history not see grave error in such a course?

2. Racial and Ethnic Diversity Is Valuable in a Student Body Because
   Salient to the World in Which We Live.

Obviously, racial and ethnic diversity is but one feature of a student
body that colleges and universities must have to achieve their purposes.
Applicants are asked to demonstrate that they are, for example, academically
prepared, industrious, curious, and accomplished. And the precise qualifications
an institution seeks depend on its nature and particular mission. Racial and ethnic
student diversity plainly is insufficient to sustain American higher education. But
it is necessary.

Race and ethnicity do not dictate a student's viewpoint, nor does any
viewpoint correlate absolutely with any group. But because it is indisputable that,
for example, being black or being white often affects how a person is treated or
perceived, students of different races and ethnic origins often bring a range of
special experiences to the classroom. The interchange of these experiences is
exactly what allows students to learn from each other. See, e.g., Kent D.

Syverud, Expert Report of Kent D. Syverud (submitted in Grutter v. Bollinger,
E.D. Mich. No. 97-CV75928). Effective communication of experience

requires getting outside of it, seeing it as another
would see it, considering what points of contact it
has with the life of another so that it may be got
into such form that he can appreciate its
meaning. . . . [O]ne has to assimilate,
imaginatively, something of another's experience
in order to tell him intelligently of one's own
experience.

Contrary to the canard voiced by opponents of diversity-promoting
admissions practices, the educational value of diversity derives not from any false
assumption that all members of one race think alike or that race is a proxy for
viewpoint. Rather, diversity enables students to discover the falsity of such
stereotyped, pernicious assumptions. See Jonathan R. Alger, The Educational
Value of Diversity, 83 Academe 20 (Jan. - Feb. 1997).

Although the lens of race and ethnicity is unique, through it myriad,
ever-changing visions are beheld. Admissions officers, even when able to learn
much about an applicant from recommendations, essays, and interviews, cannot
predict what light that applicant will shed on each issue that will be addressed in
the classroom. But by considering for admission different cross-sections of the
applicant pool, an institution can ensure that an exceedingly varied range of

perspectives is likely to be represented on campus. To bar consideration of race
and ethnicity would deprive institutions of a salient cross-section, and would reject
even the possibility that a particular black, Hispanic or native American student
will add something of value another student would not.

In seeking diversity along as many salient dimensions as possible,
colleges and universities strive to replicate the complexity and multiplicity of
human experiences that occur outside the campus gates. Thus, although neither
race nor ethnicity is by any means the only pertinent dimension of diversity, their
exclusion from the mix would create in the academy an unfaithful, distorted
model of the world that awaits students. An otherwise heterogeneous student
body if racially or ethnically homogeneous would be not genuinely diverse, but a
flawed simulacrum.

3. Research Confirms that Racial and Ethnic Diversity Improves
   Educational Outcomes.

Social science findings demonstrate the value of racial and ethnic
diversity to achievement of higher education's purposes, and show that the
interactions diversity allows yield concrete educational benefits for white as well
as minority students. Professor Alexander Astin collected data on 25,000 students
in 217 four-year colleges. He assessed attitudes, values, beliefs, career plans,
achievement, and degree completion. He analyzed how students were affected by
"Institutional Diversity Emphasis." He found that "strong emphasis on diversity"

is associated with "widespread beneficial effects on a student's cognitive and
affective development." Alexander W. Astin, Diversity and Multiculturalism on
the Campus: How are Students Affected?, 25 Change 44, 45 (Mar./Apr. 1993).
Students who interact more with students of different backgrounds, and have an
opportunity to discuss issues of race and culture, tend to be more successful in
college. Id. at 46. Socializing with members of other ethnic groups is positively
associated with many measures of academic development and achievement. Id.
"[T]he weight of the empirical evidence," Professor Astin found, "shows that the
actual effects on student development of emphasizing diversity and of student
participation in diversity activities are overwhelmingly positive." Alexander W.
Astin, What Matters in College? 431 (1993).

Students, particularly whites, who have contact across racial groups
express more satisfaction with college. Octavio Villalpando, Comparing the
Effects of Multiculturalism and Diversity on Minority and White Students'
Satisfaction with College 12 (Nov. 9, 1994) (paper presented at Annual Meeting
of Association for the Study of Higher Education, Nov. 10-13, 1994). Law
students report that racial and ethnic diversity positively affects their education.
Gary Orfield & Dean Whitla, Diversity and Legal Education: Student
Experiences in Leading Law Schools, in Diversity Challenged: Evidence on the
Impact of Affirmative Action (Gary Orfield & Michael Kurlaender eds., 2001).

Undergraduates who study with students of a different race or ethnicity report
more growth in acceptance of people of different races and cultures, and tolerance
of those with different beliefs. Sylvia Hurtado, Linking Diversity and
Educational Purpose: How Diversity Affects the Classroom Environment and
Student Development, in Diversity Challenged:Evidence on the Impact of
Affirmative Action (Gary Orfield & Michael Kurlaender eds., 2001) at 8-9.

Research also shows that institutional commitment to diversity is
linked with student academic success and relatively low racial tension on campus
(Daryl G. Smith et al., Paths to Success: Factors Related to the Impact of
Women's Colleges, 66 J. of Higher Educ. 245 (May/June 1995); Hurtado,
Linking Diversity and Educational Purpose), supports retention of minority
students (Daryl G. Smith et al., Diversity Works: The Emerging Picture of How
Students Benefit v-vii (Ass'n of Am. Colleges and Univs. 1997)), and, overall,
has powerful educational impact on white and minority students (id.; see R. 162
Gurin Report; ACE and AAUP, Does Diversity Make a Difference? Three
Research Studies on Diversity in College Classrooms (2000)). Research findings
show, too, positive effects of racially diverse education on students' subsequent
behavior at work; attendance at a racially diverse institution affects decisions
students, white and black, later make concerning those with whom to work and
socialize. Marvin P. Dawkins & Jomills Henry Braddock II, The Continuing

Significance of Desegregation: School Racial Composition and African American
Inclusion in American Society, 63 J. of Negro Educ. 394, 403 (Summer 1994).

Amicus National Association of Scholars' ("NAS") brief, and the
"study" on which it relies, are flawed, and obscure rather than illuminate the
scholarship. NAS erroneously characterizes the entire range of diversity
experiences as "racial/ethnic studies classes." NAS Brief at 6. Extensive research,
including the Gurin Report and other analyses, such as those cited above, measure
a far broader array of such experiences. (See R. 162 Supplemental Expert Report
of Patricia Y. Gurin, pg. 4 ("Gurin Supp. Report")). Professor Gurin assessed
educational outcomes by established, accepted social science research methods.
(See id. at pg. 5-10). NAS, by contrast, limits itself to a peculiarly narrow
critique of selected findings; addresses none of the other research that
demonstrates benefits of diversity, see supra at 22-24; and fails to cite any study
that finds diversity to have no educational benefit. NAS leaves undisturbed
Professor Gurin's and others' findings that diversity experiences have positive
educational effects. (See R. 162 Gurin Report, pg. 35-48; R. 162 Gurin Supp.
Report). See supra at 22-24. The NAS contention, shorn of its jargon, appears to
be that students in a diverse institution who have no communication with each

other do not benefit from the diversity. NAS could as well contend that the
student who sleeps through a lecture learns nothing from the lecturer. ^3/

A host of leading authorities, some of which this brief cites, stand for
the educational value of student diversity in higher education; that value does not
rest solely on recent social science findings. But those findings do confirm
educators' judgment that student diversity is essential to central purposes of higher
education. We address below why that judgment warrants considerable judicial
deference.

3. COLLEGES AND UNIVERSITIES REQUIRE AND ARE ENTITLED
   TO LATITUDE, BASED ON THEIR JUDGMENT AND EXPERIENCE,
   IN DETERMINING HOW TO ASSEMBLE STUDENT BODIES.

For several reasons, the Court should accord great weight to
educators' conclusion that diversity is critical to educational quality.

___________________
³     The National Capital Association of Scholars, et al.'s brief is similarly
flawed. It consists, on the one hand, of hair-splitting methodological
disagreements with Professor Gurin and, on the other, of unmoored rhetoric -- for
example, that "racial and ethnic diversity has no effect on the quality of education
at any college or university," id. at 6 -- that is implausible, refuted by research,
and in at least some respects disavowed even by the plaintiffs in this case.

1. The First Amendment Protects Institutions' Academic Freedom to
   Determine "Who Shall Be Admitted to Study."

Educators' judgments about student body composition entail
academic freedom and, as the Supreme Court has recognized, are a First
Amendment concern. Academic freedom safeguards not only "'[t]eachers and
students [who] must always remain free to inquire, to study and to evaluate,'"
Keyishian v. Board of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967)
(quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)), but also
"autonomous decisionmaking by the academy itself." Regents of Univ. of Mich.
v. Ewing, 474 U.S. 214, 226 n.12 (1985). The Supreme Court has identified
"'four essential freedoms' of a university -- to determine for itself on academic
grounds who may teach, what may be taught, how it shall be taught, and who may
be admitted to study." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312
(1978) (opinion of Powell, J.) (quoting Sweezy, 354 U.S. at 263 (Frankfurter, J.,
joined by Harlan, J., concurring in the result)). "[W]ho may be admitted to
study" is paradigmatic academic judgment, id. at 311-12, that when made to foster
students' education is the classic exercise of academic freedom.

2. American Higher Education Is Strong Because Independent and
   Diverse.

"The characteristic danger of great nations," wrote Walter Bagehot,
"is that they may at last fail from not comprehending the great institutions which
they have created." Robert H. Bork, The Limits of Governmental Regulation, in

The University and the State: What Role for Government in Higher Education?
170 (S. Hook et al. eds., 1978). A reason American colleges and universities are
the envy of the world is our nearly unique tradition of government deference to
educators' judgment about how to educate. Deference is owed educators'
judgment that diversity improves education because such matters "require 'an
expert evaluation of cumulative information and [are] not readily adapted to the
procedural tools of judicial or administrative decisionmaking.'" Ewing, 474 U.S.
at 226 (quoting Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 89-
90 (1978)). How the mix of students affects learning involves considerations
educators are best equipped to gauge. Such judgments require knowledge of
campus and classroom dynamics, cognitive processes, how to nurture students'
capacity for moral reasoning, and other specialized knowledge in which educators
are trained.

Further, such judgments depend on the institution's precise mission.
The education a small liberal arts college aims to impart may call for a student
body different than that a flagship state university needs; the student body a
historically secular university seeks may ill-suit an institution committed to a
delicate balance of Catholicism and denominational inclusiveness. And
institutions' needs evolve over time. To forbid the institutions from considering
qualified applicants' race and ethnicity would truncate the historic right of

American colleges and universities to assemble students in a way that fits the
institutions' educational philosophies -- philosophies that, with salutary effect, are
themselves extraordinarily diverse. See Carnegie Comm'n on Higher Educ.,
Reform on Campus: Changing Students, Changing Academic Programs 35 (1972).

3. Admissions Policies that Foster Diversity Benefit Non-minority as
   Well as Minority Students.

The freedom of higher education institutions to pursue diversity is
especially worthy of protection because diversity benefits all students. White
students and minorities alike lose if consideration of diversity-enhancing factors is
banned. Prohibition of race- and ethnicity-consciousness in admissions would
likely decrease dramatically the number of minorities on campuses -- an outcome
disadvantageous to the whole student body.

Opponents of race- and ethnicity-consciousness in admissions argue
that it denies admission to students who have more merit. That argument rests on
a severely flawed conception of merit in the context of admissions. In the
admissions process, institutions seek to develop the best possible mix of students
to promote learning on campus. The student who brings to higher education life
experience that enriches fellow students' understanding brings value to, and merit
for, the institution.

Colleges and universities continuously appraise that which best
benefits their entire student population, mindful that merit for admission depends

on the institution's mission and educational needs. A college whose mission is to
promote the humanities may place a premium on applicants' musical or artistic
interest and ability; a university that emphasizes agricultural studies may recruit
candidates raised on a farm (or in a city, for that matter); a sectarian institution
may be willing to admit a student whose academic achievement is less impressive,
if strong character and religious conviction are demonstrated; and an eminent
public university must respond to the educational needs of taxpayers who fund it.
Each institution must judge precisely what value to accord racial and ethnic
diversity in the spectrum of pertinent educational considerations. To prescribe for
any institution a fixed and invariable measure of merit -- such as grades and test
scores alone -- would be to deny that institution the ability to pursue its
institutional mission in the interest of all students.

4. SUPREME COURT PRECEDENT AND THE CONSENSUS OF
   EDUCATORS SHOW THAT DIVERSITY IN HIGHER EDUCATION
   SERVES A COMPELLING INTEREST.

Amici believe that Justice Powell's statement in Bakke, that "the
interest of diversity is compelling in the context of a university's admissions
program," 438 U.S. at 314, is sound law. Since Bakke, several Justices have
reaffirmed that Justice Powell's statement represented the Court's holding. See
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (observing that
diversity was found "'compelling,' at least in the context of higher education")

(O'Connor, J., concurring in part and concurring in the judgment). The Supreme
Court expressly endorsed Justice Powell's Bakke opinion in Metro Broadcasting,
Inc. v. FCC, 497 U.S. 547, 568 n.15 (1990). Although the level of scrutiny
Metro Broadcasting applied to federal programs was elevated in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995), Adarand did not overturn
Bakke regarding diversity. See id. at 258 (Stevens, J., joined by Ginsburg, J.,
dissenting); see Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA
L. Rev. 1745, 1768 (1996). ^4/

This Court has consistently followed Bakke. See Oliver v.
Kalamazoo Bd. of Educ., 706 F.2d 757, 763 (6th Cir. 1983) (citing Bakke for
proposition that "affirmative action admission programs of educational institutions
may take race into account, but racial quotas are prohibited"); Jacobson v.
Cincinnati Bd. of Educ., 961 F.2d 100, 103 (6th Cir.), cert denied, 506 U.S. 830
(1992). Other courts, too, have recognized that Bakke bound them to consider

___________________
⁴     The United States has consistently held that use of race and ethnicity as
factors in narrowly tailored decisions regarding student admissions and financial
aid is constitutional. See, e.g., 34 C.F.R. § 100.3(b)(6)(ii); Nondiscrimination in
Federally Assisted Programs; Title VI of the Civil Rights Act of 1964, 59 Fed.
Reg. 8756, 8760-62 (Dep't of Educ. Policy Guidance Feb. 23, 1994); Letter from
Judith A. Winston, Gen. Counsel, Dep't of Educ. to College and Univ. Counsels 2
(Sept. 7, 1995); Letter from Judith A. Winston, Gen. Counsel, Dep't of Educ. to
College and Univ. Counsels 1 (July 30, 1996); Letter from Walter Dellinger,
Acting Solicitor Gen. to Judith A. Winston, Gen. Counsel, Dep't of Educ. 2 (Apr.
10, 1997).

attainment of diversity a compelling interest in higher education. Smith v.
University of Wash. Law Sch., 233 F.3d 1188 (9th Cir. 2000), cert. denied, 69
USLW 3593 (May 29, 2001); University and Community College Sys. v. Farmer,
930 P.2d 730, 734 (Nev. 1997), cert. denied, 523 U.S. 1004 (1998). See also
Buchwald v. University of New Mexico Sch. of Medicine, 159 F.3d 487, 499
(10th Cir. 1998) (Justice Powell's opinion "remains the leading jurisprudential
authority in this area"). Concluding, as did the district court in Grutter v.
Bollinger, 137 F.Supp.2d 821 (E.D. Mich. 2001), that diversity in higher
education is not a compelling interest, would be at odds with several other judicial
analyses. See Smith, 233 F. 3d 1188; Brewer v. West Irondequoit Cent. Sch.
Dist., 212 F.3d. 738 (2d Cir. 2000); Eisenberg v. Montgomery County Pub.
Schs., 197 F.3d 123 (4th Cir. 1999), cert. denied, 529 U.S. 1019 (2000); Tuttle v.
Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999), cert. dismissed, 529
U.S. 1050 (2000); Wessmann v. Gittens, 160 F.3d 739 (1st Cir. 1998). But see
Hopwood v. Texas, 78 F. 3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996),
appeal after remand, 95 F.3d 53, on remand, 999 F. Supp. 2d 872 (W.D. Texas
1998), aff'd in part, rev'd in part, 236 F.3d 256 (5th Cir. 2000), petition for cert.
filed (April 17, 2001). Neither the Supreme Court nor this Court has questioned
the holding that colleges and universities have a compelling interest in seeking
student diversity.

The interest in attaining a diverse student body is compelling because
necessary to the missions of colleges and universities and the central purposes of higher education.

I hereby certify that this amicus brief is proportionately spaced, has a
typeface of 14 points or more, and is 6,983 words in length (not including tables,
this certificate, and the certificate of service).

I hereby certify that on this 23rd day of May, 2001, a copy of the
foregoing Motion for Leave to File a Brief as Amici Curiae and of the foregoing
Brief of Amici Curiae American Council on Education, et al. were dispatched by
Federal Express to the Clerk, U.S. Court of Appeals for the Sixth Circuit and to:

• American Council on Education. See description at page 2 of brief.

• American Association for Higher Education. On behalf of over 9,600
  individual members, works to strengthen higher education teaching and
  administration.

• American Association of Colleges for Teacher Education. Represents
  approximately 735 colleges of teacher education.

• American Association of Colleges of Nursing. Represents more than 525
  schools of nursing.

• American Association of Collegiate Registrars and Admissions Officers.
  Promotes standards and best practices in admissions, enrollment management,
  information technology, instructional management, and student services.

• American Association of Community Colleges. Represents 1,100 two-year
  institutions.

• American Association of State Colleges and Universities. Represents over 400
  state colleges and universities.

• American Association of University Professors. Represents some 43,000
  faculty members and research scholars; defends academic freedom and the free
  exchange of ideas in higher education.

• American College Personnel Association. Serves student affairs educators and
  administrators.

• American Dental Education Association. Represents all of the dental schools
  in the United States and Canada.

• ACT, Inc. Provides assessment, research, and guidance services, including the
  ACT Assessment, to students, parents, high schools, and colleges.

• Association of Academic Health Centers. Represents the health complexes of
  the major universities nationwide.

• Association of American Colleges and Universities. Works to advance college
  learning; its 700 members represent the spectrum of higher education
  institutions, public and private, large and small.

• Association of American Law Schools. Represents 164 law schools and shares
  with the American Bar Association responsibility for accrediting American law
  schools.

• Association of American Universities. Represents 62 public and private major
  research universities.

• Association of American Medical Colleges. Represents all 126 accredited U.S.
  medical schools.

• Association of Catholic Colleges and Universities. Facilitates exchange among
  and represents 214 Catholic institutions of higher education.

• Association of Community College Trustees. Represents over 6,000 board
  members who govern community, technical, and junior colleges.

• Association of Governing Boards of Universities and Colleges. Serves some
  30,000 trustees, regents, and other senior administrators responsible for 1,700
  colleges, universities, and independent schools.

• Association of Jesuit Colleges and Universities. Represents the 28 Jesuit
  institutions of higher education in the United States.

• College and University Personnel Association. Represents some 1,700 college
  and university human resources departments.

• Council for Advancement and Support of Education. Represents 2,900
  education institutions and other organizations.

• Council of Independent Colleges. Represents 450 independent liberal arts
  colleges and universities.

• Educational Testing Service. Develops and administers achievement and
  admissions tests.

• EDUCAUSE. Promotes higher education quality through use of information
  technologies.

• Hispanic Association of Colleges and Universities. Represents more than 270
  Hispanic-serving institutions and associate member institutions in the states and
  Puerto Rico.

• National Association for College Admission Counseling. Represents, and
  promotes ethics among, admission officers and school counselors.

• National Association of Independent Colleges and Universities. Represents
  over 900 independent colleges and universities on public policy issues before
  the federal government.

• National Association of State Universities and Land-Grant Colleges. The
  nation's oldest higher education association, represents approximately 210
  public universities and colleges enrolling 3.1 million students in all 50 states.

• National Association of Student Financial Aid Administrators. Promotes
  effective administration of student financial aid.

• National Association of Student Personnel Administrators. Serves student
  affairs administrators at all levels.

• National Council of University Research Administrators. Promotes effective
  policies and procedures related to administration of sponsored programs.

• National Education Association. A nationwide employee organization,
  represents some 2.6 million members, the vast majority of whom are employed
  by colleges, universities and public school districts.

• United Negro College Fund. Provides financial aid to students and represents
  39 private, accredited four-year historically black colleges and universities.