TABLE OF AUTHORITIES … … … iii

INTEREST OF AMICUS CURIAE … … … 1

SUMMARY OF ARGUMENT … … … 2

1. PROMOTING EDUCATIONAL DIVERSITY IS A COMPELLING GOVERNMENTAL INTEREST. … … … 3
   1. The Supreme Court's Ruling in Bakke is Binding Precedent. … … … 3
   2. Bakke Has Not Been Overruled by Subsequent Case Law. … … … 7
   3. Uncontroverted Evidence in the Court Below Supports the University's Compelling Interest in Promoting Diversity. … … … 10
2. SOCIAL SCIENCE STUDIES SUPPORT THE COMPELLING GOVERNMENTAL INTEREST IN PROMOTING DIVERSITY. … … … 13
   1. Student Body Diversity Improves Educational Outcomes. … … … 14
      1. Student Body Diversity Improves Classroom Learning Environments. … … … 14
      2. Diverse Learning Environments Promote Critical Thinking Skills. … … … 17
      3. Cross-Racial Interaction Has Positive Effects on Retention, College Satisfaction, Self-Confidence, Interpersonal Skills, and Leadership. … … … 19
      4. Student Body Diversity Promotes the Creation of Initiatives That Lead to Improved Educational Outcomes. … … … 20
   2. Student Body Diversity Promotes Democratic Values and Increased Civic Engagement. … … … 21
      1. Diverse Learning Environments Challenge Students to Consider Alternative Viewpoints and Develop Tolerance for Differences … … … 21
      2. Diverse Learning Environments Can Increase Participation in Civic Activities. … … … 23
   3. Student Body Diversity Prepares Students for a Diverse Society and Workforce. … … … 24
3. THE UNIVERSITY OF MICHIGAN'S UNDERGRADUATE ADMISSIONS POLICIES ARE NARROWLY TAILORED. … … … 27
   1. The University's Current Admissions Policy is Narrowly Tailored. … … … 27
   2. The University's 1995-1998 Admissions Policy was Narrowly Tailored. … … … 30

CONCLUSION … … … 33

CERTIFICATE OF COMPLIANCE … … … 34

CERTIFICATE OF SERVICE … … … 35

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

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

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

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

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

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

Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) … … … 7, 10

Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001) … … … 6

Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033
(1996) … … … 6

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

Jacobson v. Cincinnati Board of Education, 961 F.2d 100 (6th Cir.), cert.
denied, 506 U.S. 830 (1992) … … … 7

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

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

McDonald v. Hogness, 598 P.2d 707 (Wash. 1979), cert. denied, 445 U.S.
962 (1980) … … … 7

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

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

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

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

Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994) … … … 5

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

United States v. Michigan, 940 F.2d 143 (6th Cir. 1991) … … … 11

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

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

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

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

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

Anthony Lising Antonio, Diversity and the Influence of Friendship Groups
in College, 25 Rev. Higher Educ. (forthcoming 2001) (on file at The
Civil Rights Project › Harvard University) … … … 22

Anthony Lising Antonio, The Role of Interracial Interaction in the
Development of Leadership Skills and Cultural Knowledge and
Understanding, 42 Res. Higher Educ. 593 (2001) … … … 19

Alexander W. Astin, Diversity and Multiculturalism on the Campus: How
Are Students Affected? Change, Mar.-Apr. 1993, at 44 … … … 19

William G. Bowen & Derek Bok, The Shape of the River: Long-Term
Consequences of Considering Race in College and University
Admissions (1998) … … … 24, 26

Mitchell J. Chang, Does Racial Diversity Matter?: The Educational Impact
of a Racially Diverse Undergraduate Population, 40 J. College Student
Dev. 391 (1999) … … … 19

Compelling Interest: Examining the Evidence on Racial Dynamics in Higher
Education (Mitchell Chang, et al. eds., forthcoming 2001) (draft
available at http://www.aera.net/reports/dynampp.pdf) … … … 14

Diversity Challenged: Evidence on the Impact of Affirmative Action (Gary
Orfield & Michal Kurlaender eds. 2001) … … … 13

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

Roxanne Harvey Gudeman, Faculty Experience with Diversity: A Case
Study of Macalester College, in Diversity Challenged: Evidence on the
Impact of Affirmative Action 251 (Gary Orfield & Michal Kurlaender
eds. 2001) … … … 16, 17

Patricia Gurin, Evidence for the Educational Benefits of Diversity in Higher
Education: Response to the Critique by the National Association of
Scholars of the Expert Witness Report of Patricia Gurin in Gratz, et al.
v. Bollinger, et al. and Grutter v. Bollinger, et al. (available at
http://www.umich.edu/~urel/admissions/new/gurin.html) … … … 12

Sylvia Hurtado, et al., Enacting Diverse Learning Environments: Improving
the Climate for Racial/Ethnic Diversity in Higher Education (1999) … … … 14, 20

Sylvia Hurtado, Linking Diversity and Educational Purpose: How Diversity
Impacts the Classroom Environment and Student Development, in
Diversity Challenged: Evidence on the Impact of Affirmative Action
187 (Gary Orfield & Michal Kurlaender eds. 2001) … … … 18, 22, 26

Patricia Marin, The Educational Possibility of Multi-Racial/Multi-Ethnic
College Classrooms, in American Council on Education & American
Association of University Professors, Does Diversity Make a
Difference? Three Research Studies on Diversity in College
Classrooms 61 (2000) … … … 18

Geoffrey Maruyama & José F. Moreno, University Faculty Views About the
Value of Diversity on Campus and in the Classroom, in American
Council on Education & American Association of University
Professors, Does Diversity Make a Difference? Three Research Studies
on Diversity in College Classrooms 9 (2000). … … … 16, 17, 19

Jack Meacham, et al., Student Diversity in Classes and Educational
Outcomes: Student and Faculty Perceptions (1999) (paper presented at
American Council on Education's Symposium on Diversity and
Affirmative action; on file with The Civil Rights Project › Harvard
University) … … … 27

Jeffrey F. Milem, College, Students, and Racial Understanding, 9 Thought
& Action 51 (1994) … … … 20

Jeffrey F. Milem & Kenji Hakuta, The Benefits of Racial and Ethnic
Diversity in Higher Education, in Minorities in Higher Education:
Seventeenth Annual Status Report 39 (Deborah J. Wilds ed. 2000) … … … 14

José F. Moreno, Affirmative Actions: The Educational Influence of
Racial/Ethnic Diversity on Law School Faculty (2000) … … … 18

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

Ernest T. Pascarella, et al., Influences on Students' Openness to Diversity
and Challenge in the First Year of College, 67 J. Higher Ed. 188 (1996) … … … 20

Fed. R. Civ. P. 56(e) … … … 11

The Civil Rights Project at Harvard University submits this brief as amicus
curiae in support of Defendants Lee Bollinger, et al., urging this Court to uphold
the constitutionality of the University of Michigan's race-conscious
undergraduate admissions policies. Specifically, The Civil Rights Project asks
the Court to affirm the district court's holding that promoting educational
diversity is a compelling governmental interest, to affirm the court's holding that
the current admissions policy is narrowly tailored, and to reverse the court's
holding that the admissions policy employed from 1995 to 1998 was not
narrowly tailored.

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

A central focus of The Civil Rights Project's research has been the development of scholarship that provides insights into the impact of diversity in

higher education. Since its founding, The Project has commissioned or produced
over seventy-five studies on a range of topics, including the consequences of the
elimination of affirmative action in several states and the effects of diversity in
higher education. As a result of these studies and numerous conferences and
roundtables, two volumes focusing on legal and social science findings involving
diversity and higher education admissions have been published: Chilling
Admissions: The Affirmative Action Crisis and the Search for Alternatives (1998)
and Diversity Challenged: Evidence on the Impact of Affirmative Action (2001).

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

The district court below correctly held that the promotion of educational
diversity is a compelling governmental interest. Justice Powell's opinion in
Regents of the University of California v. Bakke, in which he held that promoting
educational diversity is a compelling interest, is binding precedent in this case.
The extensive body of social science literature demonstrating the positive effects
of student body diversity fully supports a holding that promoting diversity is a

compelling interest. Both the uncontroverted evidence introduced in the court
below and the growing number of social science studies examining racial
diversity in higher education show that student body diversity leads to improved
learning outcomes, enhanced civic engagement, and better preparation for a
diverse society and workforce.

The district court correctly held that the current undergraduate admissions
policy at the University of Michigan is narrowly tailored. The admissions policy
is a carefully defined program that employs the limited use of race to promote
diversity, consistent with the legal standards set forth in Justice Powell's opinion
in Bakke. The district court erred, however, in holding that the University's
admissions policy from 1995 to 1998 was not narrowly tailored. The previous
admissions policy fully complies with the Bakke standard and should be upheld
as constitutional.

I.       PROMOTING EDUCATIONAL DIVERSITY IS A COMPELLING
          GOVERNMENTAL INTEREST.

      A.       The Supreme Court's Ruling in Bakke is Binding Precedent.

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

struck down the medical school admissions policy at the University of
California, Davis because it reserved exclusive seats for minority applicants.
Writing in Bakke, Justice Powell held that "the interest of diversity is compelling
in the context of a university's admissions program," because it contributes to
"the robust exchange of ideas." Id. at 314-15. Basing his decision on the well-
established academic freedom of a university "to determine for itself on
academic grounds who may teach, what may be taught, how it shall be taught,
and who may be admitted to study," Justice Powell held that the University of
California invoked a constitutionally permissible goal under the Fourteenth
Amendment. Id. at 312-13 (quoting Sweezy v. New Hampshire, 354 U.S. 234,
263 (1957) (Frankfurter, J., concurring)). Justice Powell then went on to hold
that the University of California, Davis medical school admissions policy was
not narrowly tailored because it created separate tracks for minority and non-
minority applicants, but that the use of race as a "plus" factor among multiple
admissions criteria would be a constitutional means to achieve educational
diversity. Id. at 315-19.

Although five justices, including Justice Powell, voted to strike down
the medical school admissions policy at issue in Bakke, Section V.C of Justice
Powell's opinion garnered the support of four other Justices who voted to uphold
the consideration of race in higher education admissions. Id. at 320. Section

V.C of the Powell opinion states unequivocally that "the State has a substantial
interest that legitimately may be served by a properly devised admissions
program involving the competitive consideration of race and ethnic origin." Id.

While several opinions were written in Bakke, Justice Powell's opinion in
Bakke is controlling in the instant case. In Marks v. United States, the U.S.
Supreme Court held that "[w]hen a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of five Justices, 'the
holding of the Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds.'" 430 U.S. 188, 193
(1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)); see Triplett
Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir. 1994) ("Where a Justice
or Justices concurring in the judgment in such a case articulates a legal standard
which, when applied, will necessarily produce results with which a majority of
the Court from that case would agree, that standard is the law of the land.").

Justice Powell's opinion is the narrowest opinion of the Justices in Bakke,
particularly when compared to the opinion of Justice Brennan, who, along with
three other Justices, joined Justice Powell to form the majority upholding the use
of race in higher education admissions. Justice Powell called for the application
of strict scrutiny to the medical school's admissions program rather than the
intermediate scrutiny standard offered by Justice Brennan. See Bakke, 438 U.S.

at 359 (Brennan, J., concurring in part). In addition, Justice Brennan would have
upheld the admissions program based on an interest in remedying societal
discrimination, a broader standard that was criticized by Justice Powell as being
an "amorphous concept of injury that may be ageless in its reach into the past."
Id. at 307. Moreover, Justice Brennan would have upheld a more heavily
weighted use of race › a separate track for minority applicants › than the "plus"
factor policy endorsed by Justice Powell.

Justice Powell's opinion is thus the narrower of the two opinions and
should be treated as binding precedent in a case involving race-conscious
admissions. The Ninth Circuit found this to be evident in Smith v. University of
Washington Law School, stating that "apply[ing] the Marks analysis to the
opinions of Justices Powell and Brennan . . . it becomes apparent that Justice
Powell's analysis is the narrowest footing upon which a race-conscious decision
making process could stand." 233 F.3d 1188, 1200 (9th Cir. 2000), cert. denied,
69 U.S.L.W. 3593 (U.S. May 29, 2001) (No. 00-1341).

A small minority of courts › the Fifth Circuit in Hopwood v. Texas, 78
F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996), the district court in
Johnson v. Regents of the University of Georgia, 106 F. Supp. 2d 1362 (S.D. Ga.
2000), and the district court in Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D.
Mich. 2001), which is on appeal in this Court › have wrongly ignored Justice

Powell's Bakke opinion as controlling law. Other courts addressing race-
conscious admissions in education have consistently relied on Justice Powell's
opinion in Bakke.¹ Indeed, as this Court indicated in Oliver v. Kalamazoo Board
of Education, 706 F.2d 757, 763 (6th Cir. 1983), Justice Powell's opinion in
Bakke makes clear that "affirmative action admission programs of education
institutions may take race into account, but racial quotas are prohibited." See
also Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100, 103 (6th Cir.) (relying
on Justice Powell's opinion in Bakke), cert. denied, 506 U.S. 830 (1992).

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

Plaintiffs in the instant case suggest that promoting diversity cannot be a
compelling interest because more recent U.S. Supreme Court cases have in effect

___________________
¹     See, e.g., Smith v. University of Wash. Law Sch., 233 F.3d 1188, 1199-
1201 (9th Cir. 2000), cert. denied, 69 U.S.L.W. 3593 (U.S. May 29, 2001) (No.
00-1341); Gratz v. Bollinger, 122 F. Supp. 2d 811, 824 (E.D. Mich. 2000); Davis
v. Halpern, 768 F. Supp. 968, 975-79 (E.D.N.Y. 1991); McDonald v. Hogness,
598 P.2d 707, 713 (Wash. 1979), cert. denied, 445 U.S. 962 (1980); see also
DeRonde v. Regents of Univ. of Cal., 625 P.2d 220 (Cal.), cert. denied, 454 U.S.
832 (1981) (upholding race-conscious admissions plan based on both Powell
opinion and Brennan opinion); cf. University & Community College Sys. v.
Farmer, 930 P.2d 730, 734 (Nev. 1997), cert. denied, 523 U.S. 1004 (1998)
(relying on Bakke to uphold diversity-based employment plan). Several
courts
have also assumed, without deciding, that diversity is a compelling interest,
consistent with Justice Powell's Bakke opinion. See Tuttle v. Arlington County
School Bd., 195 F.3d 698, 704-05 (4th Cir. 1999), cert. dismissed, 529 U.S. 1050
(2000). Eisenberg v. Montgomery County Public Schools, 197 F.3d 123, 130 (4th
Cir.), cert. denied, 529 U.S. 1019 (1999); Wessman v. Gittens, 160 F.3d
790, 796
(1st Cir. 1998).

overruled Bakke. Recent Supreme Court cases have delineated standards for
evaluating race-conscious policies in remedial settings, see City of Richmond v.
J.A. Croson Co., 488 U.S. 469 (1989); Wygant v. Jackson Bd. of Educ., 476
U.S.
267 (1986), but no majority of the Court has ever held that remedial interests
constitute the only possible interests that can satisfy a strict scrutiny standard.
As the Seventh Circuit has indicated, a court "would be unreasonable to conclude
that no other consideration except a history of discrimination could ever warrant
a discriminatory measure unless every other consideration had been presented to
[the court] and rejected . . . ." Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir.
1996), cert. denied, 519 U.S. 1111 (1997).

Consequently, several federal courts of appeals, including this Court, have
held that non-remedial interests can constitute compelling governmental
interests. See, e.g., Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738,
753 (2d. Cir. 2000) (reducing racial isolation); Hunter v. Regents of Univ. of
Cal., 190 F.3d 1061, 1063-64 (9th Cir. 1999) (promoting research to
improve
educational quality in urban schools), cert. denied, 121 S. Ct. 186 (2000); United
States v. Ovalle, 136 F.3d 1092, 1106 (6th Cir. 1998) (ensuring that jury pools
represent a fair cross section of the community); Wittmer v. Peters, 87 F.3d 916,
919 (7th Cir. 1996) (maintaining order within prison boot camp), cert. denied,
519 U.S. 1111 (1997).

Plaintiffs' suggestion that Bakke has been overruled by subsequent case
law is entirely misplaced. A diversity-based admissions program, which is
rooted in a university's mission to pursue academic excellence and receives due
consideration under the First Amendment, is fully distinguishable from a
remedial program designed to address past discrimination. As the Ninth Circuit
has noted, the Supreme Court "has not returned to the area of university
admissions, and has not indicated that Justice Powell's approach has lost
its
vitality in that unique niche of our society." Smith v. University of Wash. Law
Sch., 233 F.3d 1188, 1200 (9th Cir. 2000), cert. denied, 69 U.S.L.W. 3593 (U.S.
May 29, 2001) (No. 00-1341). The Supreme Court has warned that "other courts
[should not] conclude [that] our more recent cases have, by implication,
overruled an earlier precedent." Agostini v. Felton, 521 U.S. 203, 237 (1997).
This Court should heed the admonition that if a Supreme Court precedent "has
direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to [the Supreme] Court the prerogative of overruling its own
decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,
484 (1989). The correct precedent in this case is Justice Powell's opinion in
Bakke, and this Court should adhere to that precedent.

      C.       Uncontroverted Evidence in the Court Below Supports the
                  University's Compelling Interest in Promoting Diversity.

The district court below correctly ruled that, as a matter of law, promoting
educational diversity is a compelling governmental interest. In doing so, the
court found "solid evidence regarding the educational benefits that flow from a
racially and ethnically diverse student body." Gratz v. Bollinger, 122 F. Supp. 2d
811, 822 (E.D. Mich. 2000). One of Defendants' experts, Professor Patricia
Gurin of the University of Michigan, analyzed three sources of data › multi-
institutional national data, the results of an extensive survey of students at the
University of Michigan, and data drawn from a specific classroom program at the
University of Michigan › and concluded that "[s]tudents who experienced the
most racial and ethnic diversity in classroom settings and in informal interactions
with peers showed the greatest engagement in active thinking processes, growth
in intellectual engagement and motivation, and growth in intellectual and
academic skills." Expert Report of Patricia Y. Gurin, Gratz v. Bollinger, No.
97-75231 (E.D. Mich.) & Grutter v. Bollinger, No. 97-75928 (E.D. Mich.), in
The Compelling Need for Diversity in Higher Education 99, 100 (1999) [hereinafter Gurin Report]. Gurin's uncontroverted study, which carefully
controlled for factors other than diversity and employed measures that have been
tested and validated extensively in the field, yielded statistically significant and

consistent results showing that both classroom learning environments and
informal student interactions are improved by student body diversity.

Plaintiffs and various amici curiae have introduced critiques of Gurin's
expert report through amicus briefs submitted to this Court and the court below.
See, e.g., Brief for Amicus Curiae National Association of Scholars &
Addendum. This Court should reject these critiques on both procedural and
substantive grounds. Procedurally, while it is appropriate for this Court to
examine research findings introduced in amicus briefs to settle a question of law,
Plaintiffs should not be allowed to use amici curiae to supplement the record in
the court below after they have conceded the absence of any factual dispute in
their motion and arguments for summary judgment. Employing amici curiae to
defeat summary judgment by attempting to create new issues of fact flouts both
the federal rules, see Fed. R. Civ. P. 56(e), and this Court's earlier rulings
limiting the appropriate role of amici curiae, see United States v. Michigan, 940
F.2d 143, 165 (6th Cir. 1991) (drawing distinction between an amicus curiae and
a named party or real party in interest). In addressing a question of law, this
Court can and should consider relevant social science findings; however, it
should not allow Plaintiffs to bypass discovery and upset summary judgment by
disturbing a record that Plaintiffs have conceded is undisputed.

Substantively, amici curiae in support of Plaintiffs offer information that is

fundamentally flawed. Operating under the assumption that only direct measures
of educational outcomes can adequately measure the value of diversity, amici
curiae propose that Gurin's study be accorded little or no weight. However, as
Gurin has documented in her extensive response to the National Association of
Scholars' critique of her report, her methodology and findings are fully
consistent with widely accepted social psychological theories and educational
research methods. See Patricia Gurin, Evidence for the Educational Benefits of
Diversity in Higher Education: Response to the Critique by the National
Association of Scholars of the Expert Witness Report of Patricia Gurin in Gratz,
et al. v. Bollinger, et al. and Grutter v. Bollinger, et al. (May 30, 2001) (available
at http://www.umich.edu/~urel/admissions/new/gurin.html). Gurin's use of
multiple databases and statistical methods measuring several educational
outcomes yielded consistent findings that linked structural diversity (percentage
of minority students), student interaction with diverse peers, and positive
educational effects. The critiques offered by amici curiae, on the other hand,
contain serious logical and methodological flaws, such as testing only the direct
effects of student numbers on educational outcomes and conducting statistical
analyses that control the variables that are themselves the mechanisms which
affect educational outcomes › in essence, assuming away the basic inquiry into
what actually causes positive educational outcomes. Id. Gurin's expert report is

fundamentally sound and should remain an uncontroverted element of the record
in this case.

Neither the Plaintiffs nor their amici curiae have offered convincing
evidence to demonstrate that diversity does not lead to positive educational
outcomes consistent with a university's basic mission. However, as documented
in Part II, infra, there is an extensive body of social science literature whose
findings underscore Gurin's findings that student body diversity promotes
positive educational outcomes › all of which support a judicial determination that
the University's interest in promoting educational diversity is compelling.

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

The district court's holding that promoting educational diversity is a
compelling governmental interest is supported by studies which show that
diversity can promote learning outcomes, democratic values and civic
engagement, and preparation for a diverse society and workforce › goals that fall
squarely within a university's basic mission. See generally Diversity
Challenged: Evidence on the Impact of Affirmative Action (Gary Orfield &
Michal Kurlaender eds. 2001) (compilation of studies on impact of race-
conscious admissions policies); Compelling Interest: Examining the Evidence on
Racial Dynamics in Higher Education (Mitchell Chang, et al. eds., forthcoming

2001) (draft available at http://www.aera.net/reports/dynampp.pdf) (overview of
research on race and higher education); Jeffrey F. Milem & Kenji Hakuta, The
Benefits of Racial and Ethnic Diversity in Higher Education, in Minorities in
Higher Education: Seventeenth Annual Status Report 39 (Deborah J. Wilds ed.
2000) (overview of research on benefits of racial diversity in higher education);
Sylvia Hurtado, et al., Enacting Diverse Learning Environments: Improving the
Climate for Racial/Ethnic Diversity in Higher Education (1999) (review of
research on racial diversity and campus climate) [hereinafter Hurtado, et al.,
Enacting Diverse Learning Environments].

      A.       Student Body Diversity Improves Educational Outcomes.

Recent studies suggest that student body diversity can produce a wide
variety of positive educational outcomes, including richer classroom
environments, improved critical thinking abilities, higher self-confidence, and
improved interpersonal and leadership skills.

            1.       Student Body Diversity Improves Classroom
                      Learning Environments.

Studies show that a racially and ethnically diverse learning environment
provides the opportunity for students to share a broader array of perspectives and
experiences. For example, a recent survey of students from the Harvard Law
School and the University of Michigan Law School supports the proposition that

student body diversity has strong effects on the classroom environment. See
Gary Orfield & Dean Whitla, Diversity and Legal Education: Student
Experiences in Leading Law Schools, in Diversity Challenged: Evidence on the
Impact of Affirmative Action 143 (Gary Orfield & Michal Kurlaender eds. 2001).
In the Orfield and Whitla law school study, the Gallup Poll surveyed 1,820 law
students at the University of Michigan and Harvard to determine the effects of
diversity; the response rate for the survey was 81 percent, which is an
exceptionally high figure. Id. at 154. When asked how diversity had affected the
way in which they and their peers reflected upon problems and solutions in class,
68% of the Harvard law students and 73% of the Michigan law students
responded that diversity had affected such discussions positively. Id. at 158.
Sixty-three percent of the Harvard students and 66% of the Michigan students
reported that racial diversity enhanced the manner in which topics were
discussed in the majority of their classes. Id. at 160.

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

classes to be superior in all three respects while only 3% believed the
homogeneous classes were superior. Id. at 166-67.

Surveys of faculty members show similar results. For example, a national
survey of faculty at major research universities (a sample of 1,210 faculty, with a
47% response rate) found that a substantial number of respondents agreed that
classroom diversity broadened the range of perspectives shared in classes;
specifically, more than two-thirds of respondents indicated that students benefit
from learning in a racially and ethnically diverse environment with respect to
exposure to new perspectives and willingness to examine their own personal
perspectives. Geoffrey Maruyama & José F. Moreno, University Faculty Views
About the Value of Diversity on Campus and in the Classroom, in American Council
on Education & American Association of University Professors, Does Diversity
Make a Difference? Three Research Studies on Diversity in College Classrooms 9,
14-16 (2000).

Similarly, in a study of the faculty at Macalester College, a liberal arts college
in Saint Paul, Minnesota, 91% of the faculty agreed that "racial-ethnic diversity in
the classroom 'allows for a broader variety of experiences to be shared.'" Roxanne
Harvey Gudeman, Faculty Experience with Diversity: A Case Study of Macalester
College, in Diversity Challenged: Evidence on the Impact of Affirmative Action 251,
258 (Gary Orfield & Michal Kurlaender eds. 2001). More specifically, 80% the

faculty felt that minority students typically raise issues not normally raised by non-
minority students, and 75% of faculty agreed that racial and ethnic issues are
discussed more substantively in diverse classroom environments. Id. Research thus
suggests that a diverse environment positively influences the ways in which students
discuss and reflect on issues relevant to their studies.

            2.       Diverse Learning Environments Promote Critical
                      Thinking Skills.

Research also indicates that students learn more and think more critically
when educated in a racially and ethnically diverse learning environment. In her
report to the court below, Gurin states: "Students learn more and think in deeper,
more complex ways in a diverse educational environment." Gurin Report, supra,
at 118. Gurin goes on to suggest that a diverse educational environment, a
curriculum which addresses racial issues, and engagement with peers from
diverse backgrounds will result in "a learning environment that fosters conscious,
effortful, deep thinking" as opposed to automatic, preconditioned responses. Id.
at 105; see also Gudeman, supra, at 271 (non-minority students tend to read
course materials more critically when part of a diverse classroom); Maruyama &
Moreno, supra, at 16 (substantial numbers in faculty survey agree that diversity
is important for developing critical thinking skills); José F. Moreno, Affirmative
Actions: The Educational Influence of Racial/Ethnic Diversity on Law School

Faculty 92 (2000) (unpublished Ph.D. dissertation, Harvard University) (law
school faculty members report that diversity helps students develop critical
thinking skills). As one researcher suggests, a higher level of thinking can be
attributed to the range of ideas and perspectives that diverse students bring to a
discussion, which, in turn, "challenge students' stereotypes, broaden their
perspectives, and stimulate critical thinking." Patricia Marin, The Educational
Possibility of Multi-Racial/Multi-Ethnic College Classrooms, in American
Council on Education & American Association of University Professors, Does
Diversity Make a Difference? Three Research Studies on Diversity in College
Classrooms 61, 69 (2000).

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

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

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

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

Recent studies have shown that a diverse student population can also lead
to diversity-based initiatives and institutional change that improve educational
outcomes. As one review of the literature notes: "The impact of diverse student
enrollments has resulted in pressure for institutional transformation › a
transformation that has affected both the academic and social life of the
institution, including such changes as the development of ethnic studies
programs, diverse student organizations, specific academic support programs,
and multicultural programs." Hurtado, et al., Enacting Diverse Learning
Environments, supra, at 20.

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

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

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

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

Other studies have found that socializing across racial lines has positive
effects on students' cultural awareness and commitment to racial understanding.
A study of undergraduates enrolled in the early 1990s found that studying with
someone from a different racial or ethnic background resulted in a positive

growth in civic outcomes such as "the acceptance of people of different
races/cultures, cultural awareness, tolerance of people with different beliefs, and
leadership abilities." Hurtado, Linking Diversity and Educational Purpose, at
198. Specific research on friendship groups developed among students on
campuses with diverse student bodies reinforces the notion that diversity can
provide students with the opportunity to develop close friendships with
individuals of different races and ethnicities. These interracial friendships
consequently become the norm for more general interracial interaction, thus
promoting greater racial understanding and awareness. Anthony Lising Antonio,
Diversity and the Influence of Friendship Groups in College, 25 Rev. Higher
Educ. (forthcoming 2001) (manuscript at 22, on file at The Civil Rights Project ›
Harvard University).

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

students reported that conflicts due to racial differences "ultimately [became]
positive learning experiences." Id. at 163.

Students in the Orfield and Whitla study also reported that diversity had a
positive impact on classes dealing with the justice system. Id. at 163. When
students were asked whether "discussions with students of different racial and
ethnic backgrounds [had] changed [their] view of the equity of the criminal
justice system," 78% of the Harvard students and 84% of the Michigan students
said that such discussions had changed their views either significantly,
substantially, or a great deal. Id.

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

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

Researchers found similar results when they conducted a longitudinal

study of students graduating from selective colleges and universities that had
used affirmative action in their admissions practices. See William G. Bowen &
Derek Bok, The Shape of the River: Long-Term Consequences of Considering
Race in College and University Admissions vi (1998). Drawing from records of
more than 80,000 students who matriculated at twenty-eight selective colleges
and universities in 1951, 1976, and 1989, the Bowen and Bok study found that
the 1976 cohort "participated in civic activities in very large numbers › nearly 90
percent of the cohort participated in one or more [civic] activity in 1995." Id. at 156.
The study showed that the students from these universities were
"noticeably more likely than the control group to participate in professional and
trade associations, college-related functions such as fund-raising and student
recruitment, cultural and arts activities, and environmental and conservation
programs." Id. at 157. Bowen and Bok also noted students' propensity to engage
in political activity after graduating from college. The study found, for instance,
that high percentages of the students, 94% of white respondents and 90% of
black respondents, voted in 1992. Id. at 174.

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

Studies also suggest that educational diversity better prepares students for
living and working in a diverse society, another outcome that is integral to a

university's mission. One of Gurin's basic conclusions was that students in
diverse learning environments "were comfortable and prepared to live and work
in a diverse society." Gurin Report, supra, at 127. Gurin found that students
who attended diverse classes and who engaged in informal interactions with
diverse peers reported feeling the most prepared for graduate school. Id. at 133.
The students who reported engaging and interacting with diverse peers felt that
"their undergraduate education help[ed] prepare them for their current job." Id.
In addition, Gurin found that diversity experiences during college had
"impressive effects on the extent to which graduates in the national study were
living racially or ethnically integrated lives in the post-college world. Students
who had taken the most diversity courses and interacted the most with diverse
peers during college had the most cross-racial interactions five years after
leaving college." Id. at 133.

The law school students in the Orfield and Whitla study reported that
diversity had affected their "ability to work more effectively and/or get along
better with members of other races." Orfield & Whitla, supra, at 159. Sixty-

eight percent of the Harvard students responded that diversity either "clearly
enhanced" or produced a "moderate enhancement" in their ability to work and
get along with members of other races. Id. Forty-eight percent of the Michigan
students perceived a clear, positive impact on their ability to work and get along

with members of diverse backgrounds. Id. at 63.

Similarly, the students in Bowen and Bok's study were asked what
difference their college experience made in "developing [their] ability to work
with, and get along with, people of different races and cultures." Bowen & Bok,
supra, at 225. Forty-six percent of the white students in the 1976 cohort
"believe[d] that their undergraduate experience was of considerable value in this
regard," and "18 percent said it helped 'a great deal.'" Id. Fifty-seven percent of
black students in the 1976 cohort "gave college credit for helping them develop
these 'getting along' skills." Id. The 1989 cohorts reported an even larger
positive effect: 63% of whites and 70% of blacks attributed their ability to work
with and get along with others, in part, to their college experiences. Id.

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

As one study summarizes: "To be competitive, in terms of entry-level

employment as well as advancement into positions of responsibility and
leadership, students must acquire the understandings and the skills necessary for
working productively and harmoniously with fellow workers and citizens who
bring widely differing backgrounds and experiences to the workplace and to their
communities." Jack Meacham, et al., Student Diversity in Classes and
Educational Outcomes: Student and Faculty Perceptions 20 (1999) (paper
presented at American Council on Education's Symposium on Diversity and
Affirmative action; on file with The Civil Rights Project › Harvard University).
Studying in a racially diverse environment provides the opportunity for students
to obtain the skills necessary to participate successfully in a diverse workforce
and society.

III.       THE UNIVERSITY OF MICHIGAN'S UNDERGRADUATE
            ADMISSIONS POLICIES ARE NARROWLY TAILORED.

      A.       The University's Current Admissions Policy is Narrowly
                  Tailored.

The district court correctly held that the University of Michigan's current
admission policy adheres to the narrow tailoring principles articulated by Justice
Powell in Bakke. 438 U.S. at 317-18. Without question, the University's
program treats every applicant as an individual in the admissions process. See id.
at 318. The University is not operating a rigid quota-style admissions program,
nor are they utilizing a minority set-aside. Instead, consistent with Justice

Powell's standards, every applicant to the school is competing for every seat in
the first-year class. Unlike the medical school admissions program at issue in
Bakke, no applicant to the University of Michigan is excluded from a specific
percentage of seats because of the applicant's race or ethnicity. Applications
from underrepresented minority applicants are reviewed by an admissions
counselor assigned to the applicant's geographic area, not a separate admissions committee, which underscores the individualized nature of the review process.

The University of Michigan takes race into account in two ways, both of
which operate in similar fashion to the "plus" factor approach approved in Bakke.
Id. at 317. Under one method, admission counselors may initially assign an
additional 20 points on a 150-point scale to students from underrepresented
minority backgrounds. Under the second method, admissions counselors may,
after a threshold review, "flag" a minority applicant, thereby keeping the
applicant in the pool for further consideration at a later time. These two practices
are valid uses of a plus factor, even when in some individual cases race may "tip
the balance" in a particular candidate's favor. See id.

The University's concept of educational diversity encompasses many
characteristics, of which race is but a single element. Underrepresented minority
applicants may receive points based on their race, but other applicants receive
points based on socioeconomic status, athletic talent, geographic factors, alumni

relationships, personal achievement, leadership and service skills, and for writing
an outstanding essay. For example, a student coming from the upper peninsula
of Michigan receives 16 points for that characteristic because students from that
geographic area are underrepresented. In a similar fashion, applications from
underrepresented minorities can be flagged, but so can applications from those
who were at the top of their class, those residing in a preferred county of
Michigan, those exhibiting unique life experiences, challenges, interests, or
talents, those from a disadvantaged background, and those who are recruited
athletes. These two elements of the admissions policy give the University the
necessary flexibility to consider "pertinent elements of diversity in light of the
particular qualifications of each applicant, and to place them on the same footing
for consideration, although not necessarily according them the same weight." Id.
at 317.

In choosing among thousands of qualified candidates, the admissions
policy allows the University to pay attention to the distribution of each class
along multiple axes. See id. at 316-17. Neither use of race employed by the
University results in academically unprepared minority applicants receiving
offers of admission or in granting unconstitutional "protection" to minority
applicants; rather, the policy uses race as one of many factors that can guide
admissions counselors in bringing to the University a population of academically

prepared students who possess the array of diverse characteristics that the
University has deemed important for the composition of its incoming class of undergraduates.

      B.       The University's 1995-1998 Admissions Policy was Narrowly
                Tailored.

The district court erred, however, in finding that the University's previous
admission policy, which was in place from 1995 to 1998, was not narrowly
tailored. The court mischaracterized the previous policy as a quota containing
"protected" seats and thus created an unnecessary distinction between the current
and the previous policies. The earlier policy was not the functional equivalent of
a quota, and did not violate Justice Powell's narrow tailoring principles in Bakke.
The two-track system in Bakke is fundamentally different from the University of
Michigan's 1995-1998 policy. No applicants, minority or nonminority, had a set
percentage of seats foreclosed to them under the Michigan policy. Rather, the
University maintained a rolling admissions policy that required it to monitor the
offers of admission along various dimensions in order to ensure diversity.

Under its rolling admission policy, the University could not, as Justice
Powell noted in Bakke, "provide a truly heterogeneous environment that reflects
the rich diversity of the United States . . . without some attention to numbers." Id.
at 323. The University sought both an academically well-qualified and diverse

student body. To attain this goal at the end of several months of admitting
students, the University was fully justified in regulating and tracking its
admittees. When an academically qualified applicant from a group with so-
called "protected" spaces was admitted, the University correspondingly reduced
the number of spaces it had sought to maintain for that group. In this way, the
University could measure, at any given point in time, its success in admitting a
diverse first-year class. If the University received an insufficient number of
academically qualified applications for a group that had spaces allotted to it, then
the spaces were open to every applicant. In addition to underrepresented
minorities, the University tracked the admission of athletes, foreign applicants,
and ROTC students, among others.

The policy entailed sufficient flexibility and operated as the functional
equivalent of a point system. It was far from a rigid quota, and did not impose a
significant burden on nonminority applicants. Nonminority applicants who were
qualified, but less competitive, might not have been admitted on the first review
while the school waited until it had a more complete picture of its applicant pool
and could make final decisions. However, no nonminority applicant would be
precluded from competing for a seat in the class. At the end of the admissions
cycle, a nonminority student might have been denied admission and a minority
student might have been admitted, but the use of race to "tip the balance" was

squarely within the Bakke framework. See id. at 317. The different codes used
for minority and nonminority applicants parallel the additional twenty points that
can be assigned under the current admissions policy. Moreover, like the current
"flagging" process, the University's postponement of a decision to reject an
underrepresented minority applicant allowed a competitive consideration of race
without excluding nonminority applicants. The University's admissions policy
during 1995 to 1998 was fully consistent with Bakke and was therefore
constitutional.

For all of the foregoing reasons, the University of Michigan's
undergraduate admissions policies should be upheld as constitutional.
Accordingly, the district court's ruling that promoting educational diversity is a
compelling governmental interest and the court's ruling that the University of
Michigan's current undergraduate admissions policy is narrowly tailored should
be affirmed. The district court's ruling that the University's policy between 1995
and 1998 was not narrowly tailored should be reversed.

Dated: June 11, 2001

I hereby certify that, on this 11th day of June, 2001, pursuant to Fed. R.
App. P. 25 and 6 Cir. R. 31, I have caused two copies of the foregoing brief of
amicus curiae The Civil Rights Project at Harvard University to be served by
United States first-class mail, postage prepaid, on the following: