The International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (hereinafter, the
UAW or the Union) submits the following Brief as Amicus Curiae with the consent
of the parties to this appeal. The UAW is an international labor union,
headquartered in Detroit, Michigan, consisting of nearly 1,000 local unions
representing approximately 1.3 million active and retired members and their
families.

The International Union, UAW submits this brief as Amicus Curiae in
order to bring to this Court's attention the UAW's historical experience
regarding the benefits of diversity. As described in Part II of this brief, that
experience has taught us that diversity serves vital interests in the workplace,
as well as in a variety of training and other organizational and institutional
environments. In addition, in Part I, we provide a brief exposition regarding
one of the legal issues presented in this case, namely the proper weight to be

given to Justice Powell's opinion in Regents of the University of California
v. Bakke, 438 U.S. 265 (1978). We fully understand that duplicative briefing
of legal issues by Amicus parties often serves no purpose other than
burdening the Court with additional paper. For that reason, we have
refrained from addressing any of the other important legal and factual issues
presented in this case. We respectfully submit, however, that the Court may
benefit from a brief additional submission on this one issue.

I. The Holding of Bakke.

A great deal of ink has been spilled on the question of how to tease
meaningful teachings from the fragmented opinions of Bakke. In addition to
the lengthy passages by the District Courts in both Gratz v. Bollinger, 122 F.
Supp. 2d. 811 (E. D. Mich. 2000) and Grutter v. Bollinger, No. 97-CN-
75928 (E.D. Mich. March 27, 2001), the issue has been discussed at length
by the Ninth Circuit in Smith v. University of Washington School of Law,
233 F.3d 1189 (9th Cir. 2000), cert. denied, 532 U.S. __, 2001 U.S. LEXIS
4011 (May 29, 2001), as well as in the two-Judge majority opinion of the
Fifth Circuit in Hopwood v. State of Texas, 78 F.3d 932 (1996). See also,
Amar and Katyal, "Bakke's Fate", 43 UCLA L. Rev. 1745 (1996).

Any analysis of Bakke, we submit, must begin with the single passage
of that opinion (other than factual recitations) which garnered the votes of
five Justices. That passage states in full as follows:

In enjoining petitioner from ever considering the race of any
applicant, however, the courts below failed to recognize that
the State has a substantial interest that legitimately may be
served by a properly devised admissions program involving
the competitive consideration of race and ethnic origin. For
this reason, so much of the California court's judgment as
enjoins petitioner from any consideration of the race of any
applicant must be reversed.

The questions left unanswered by this passage, of course, are (1) what
standards can be detected in Bakke for identifying "properly devised
admissions program[s]" which may take race and ethnic origin into account,
and (2) whether the admissions program at issue met those standards. In the
brief submission that follows, we address the first of these questions, and
demonstrate that -- for two independent reasons -- Bakke must be read to
permit affirmative action programs that allow for individualized
consideration of applications in which racial diversity is used as a "plus"

factor with respect to racial minorities, such as African-Americans, who
would otherwise be under-represented in the student body.

A. Marks v. United States.

As is by now familiar to this Court, Justice Powell's Opinion in Bakke
emphasized the goal of diversity as a critical component to a successful
higher education environment. The Opinion of Justice Brennan, joined by
Justices Blackmun, Marshall and White, on the other hand, emphasized the
goal of remediation of past societal discrimination. These five Justices
agreed on the two-sentence holding quoted above, although reaching that
consensus via different routes.

This Court is also by now familiar with the doctrine of Marks v.
United States, 430 U.S. 188 (1977). The Court there stated 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 judgment on the
narrowest grounds.'

There are many components of these two Opinions on which there can
be no doubt that Justice Powell's decision was based on "narrower" grounds
than that of Justice Brennan. Thus, Justice Powell found that any racial
classification, including an affirmative action program, would be permitted
based only on a classic "strict scrutiny" analysis. 438 U.S 287-299. Justice
Brennan, on the other hand, was more forgiving and applied "intermediate
scrutiny." 438 U.S. at 361-362. Based in part on this difference, Justice
Brennan would have permitted a much broader range of affirmative action
programs, including those -- like the Davis Medical School program at issue
in Bakke -- that utilize strict "quotas" for achieving the desired racial
balance. Justice Powell, on the other hand, eschewed the use of quotas and
expressed the view that only a narrower range of programs -- namely those
that consider all applicants on an individualized basis and use race as one of
several "diversity" factors -- would pass Constitutional muster. On these
two vital issues, therefore, it is plain that Justice Powell's decision is the
"narrowest" ground on which the five-Justice majority reached the
conclusion that "properly devised" admissions programs may take race into
account.

Plaintiffs argue that applying the Marks analysis here is impossible
because the "rationales" used by Powell and Brennan were different. (Pl.
Br. at 55). To be sure, Justice Powell stressed diversity while Justice

Brennan stressed remediation. But the Marks doctrine does not require an
examination of "rationales." In fact, if identical "rationales" were used to
reach a single holding, the entire exercise of Marks would be unnecessary.
By definition, Marks applies when different Opinions reach the same result
by different routes. The observation that different routes were used here,
then, is no basis on which to throw up one's hands and proclaim Marks
inapplicable. ¹

Instead, we submit that Marks requires that the analysis of the two
Opinions be compared in order to decide which would permit a broader
range of affirmative action programs, and which would permit a narrower
range of such programs. Justice Brennan concluded that -- given the

___________________
¹     In Marks, the Court reviewed an earlier decision in Memoirs v.
Massachusetts, 383 U.S. 413 (1966). In Memoirs, there were three opinions,
reflecting three different views of the appropriate test to be utilized to
determine the scope of permitted regulation of pornographic material. Three
of the Justices signed onto the controlling opinion, which defined obscenity
as material "utterly without redeeming social value." Another opinion,
signed by two Justices made clear that "the First Amendment provides an
absolute shield against governmental action aimed at suppressing
obscenity." Finally, Justice Stewart authored an opinion in which he
asserted that "hard core pornography may be suppressed." See discussion in Marks, 430 U.S. at 192-93.

The three approaches in Memoirs were quite different, reaching
different results by applying different analytic frameworks. But, as the
Court held in Marks, it is precisely in that situation where the Marks analysis
is necessary to properly identify the Court's holding. In other words, the
explanation of the Memoirs decisions provided in Marks leaves little doubt
that, even where the approaches of the varying opinions differ significantly,
the Marks analysis still resolves the question.

historical discrimination against African-Americans and other racial
minorities -- virtually any effort to assist those groups in the admissions
process would be a "properly devised" admissions system and would be
permitted. That analysis would permit quota systems, as well as systems
like the "Harvard Plan" (discussed below) and the system at issue here.
Justice Powell, on the other hand, made clear that, under his analysis,
"quota" systems (like that struck down in Bakke itself) were not permitted,
and only a narrower range of systems based on individualized consideration
of applications such as the "Harvard Plan" were permissible.

The fact that Powell thought that the goal of educational diversity
should be the animating principle of the analysis, while Brennan preferred to
focus on remediation, is beside the point for purposes of identifying the
holding of the Court under Marks. Instead, in this context, Marks requires
an examination of the various opinions in order to decide which would
permit the "narrowest" range of programs. Since Justice Powell's decision
plainly endorses a narrower range of programs, it should be viewed as the
holding of the Court for this purpose. ²

___________________
²     We also note one illuminating historical fact in this context. Bakke
was decided in the Supreme Court Term immediately following the Term in
which Marks was decided. Given that the Court had so recently visited the
issue of identifying the governing opinion, it can be assumed that the Court
well understood the implication of assigning Justice Powell to write the
"judgment of the Court," 438 U.S. at 269, and of identifying his Opinion as such.

B. The "Harvard Plan" Discussions

Even independent of the Marks analysis, a careful reading of the
Opinions of Justices Powell and Brennan reveal that the five Justices joining
in those Opinions endorsed admissions programs, like the Harvard Plan, that
use race as a "plus factor" in the individualized consideration of
applications, at least where (as here) the program provides the "plus factor"
only to members of racial minorities that continue to be under-represented as
a result of the lingering effects of past discrimination.

As noted above, both the Opinion of Justice Powell and that of the
Brennan group discussed the admissions program then in effect at Harvard.
Justice Powell went so far as to include the full text of that Plan as an
Appendix to his Opinion. As Justice Powell described it, under such a plan
"race or ethnic background may be deemed a 'plus' factor in a particular
applicant's file, yet it does not insulate the individual from comparison with
all other candidates for the available seats." 438 U.S. at 317. Justice Powell
held that such a program would be permitted. 438 U.S. at 318.

The Brennan group also endorsed the Harvard Plan, with its "individualized consideration" of each application, and its use of racial diversity as a "plus factor." Those four Justices stated as follows:

We also agree with Mr. Justice Powell that a plan like the
"Harvard" plan ... is constitutional under our approach, at
least so long as the use of race to achieve an integrated
student body is necessitated by the lingering effects of past discrimination.

As Justice Brennan's decision discusses at length, with respect to
African-Americans and other racial minorities, "the lingering effects of past
discrimination" are palpable, and certainly "necessitate" the use of race to
achieve an integrated student body. Thus, at least with respect to those
minorities which continue to experience "the lingering effects of past
discrimination," both Justice Brennan and Justice Powell clearly held that an
admissions program like the Harvard Plan would be permitted.

It may be argued that Justice Brennan's Opinion -- with its
requirement of "lingering effects of past discrimination" -- does not permit a
class of programs absolutely congruent with the class of programs that
would be permitted under Justice Powell's Opinion. Under Brennan's
analysis, for example, a plan that gives "plus factor" consideration to
applicants of Jewish descent might not be permitted, assuming, as is likely
under present conditions, that Jews have overcome past barriers to
admissions. That type of program might, however, be permitted under
Justice Powell's approach. Any such observation is, however, beside the

point since the plan at issue here gives "plus factor" consideration only to
members of minority groups such as African-Americans who indisputably
fall within the range of groups for which Justice Brennan's Opinion would
permit such consideration. Thus, as to these groups -- the only groups at
issue here -- both Justice Powell and Justice Brennan made clear that
affirmative action programs modeled on the Harvard Plan would be
permitted.

In sum, five Justices clearly endorsed a program which, like the
program at issue here, uses "individualized consideration" of membership in
historically under-represented racial minority groups as a "plus factor" in
evaluating applications for admission. That holding answers the legal
question presented on this issue, and no further speculation about what other
kinds of programs might be permitted under Powell's or Brennan's analysis
is necessary.

II. The Importance of Diversity To The Educational Experience

The UAW has a long and rich history of involvement with issues of
civil rights and diversity. This involvement is consistent with the Union's
historical commitment to the amelioration of societal harms, such as racial
discrimination. Over the years, this commitment has inspired the UAW's
participation in a wide variety of activities aimed at achieving the still

elusive goal of racial equality in our society. The overarching lesson learned
by the UAW as a result of these experiences has been that the recognition
and celebration of the diversity within our society, as reflected in our
membership, not only helps to create a more harmonious and productive
workplace, but also adds to the ability of the Union as an institution to serve
its purpose of affording workers the opportunity "to master their work
environment, to achieve not only improvement in their economic status but,
of equal importance, to gain from their labors a greater measure of dignity of
self-fulfillment and self-worth." See Preamble to the Constitution of the
International Union, UAW, adopted at Las Vegas, Nevada, June, 1998.

The UAW's history with the movement for civil rights in this country
began in 1946 with the establishment of the Fair Practices and Anti-
Discrimination Department and later the Women's Department. The
establishment of these departments reflected the Union's dedication to the
elimination of racial and sexual discrimination within society generally and
within the workplace specifically. In fact, in the years that followed the
creation of the Fair Practices and Anti-Discrimination Department, the
UAW played an active role in the burgeoning Civil Rights Movement,
culminating with an impressive showing of UAW participation in the 1963
March on Washington, led by legendary UAW President, Walter Reuther.

However, the UAW's dedication to ensuring the achievement of racial
equality did not end with the elimination of the Jim Crow Laws and the
passage of the Civil Rights Act of 1964. On the contrary, the UAW renewed
its dedication to equal opportunity on a variety of fronts. In the decades
since the passage of the Civil Rights Act, the Union has dedicated a great
many resources to improving racial relations in the workplace through a
variety of means including collective bargaining and workplace policy,
membership education, legislative advocacy and where necessary, litigation.

These activities have taught us the absolutely crucial nature of
appreciating diversity in the workforce and, by extension, in other
institutional and organizational settings as well. For while it is absolutely
necessary to ensure racial equality through workplace policy and law, the
goals of racial equality and harmony will never be fully achieved unless
individuals are able to work well and forge relationships with the many
diverse members of today's workforce and other institutions. And, in the
experience of the UAW, when workers successfully do so, the result is an
ability of people to work and learn together in a productive and dignified
manner.

The lessons learned by the UAW within the context of the workplace
apply with equal force in education. Indeed, the benefits of diversity are
perhaps no more apparent than within the context of education. For it is

within the academic setting that students are best able to increase their
awareness and understanding of the world by being exposed to the diversity
of our society, as reflected in the varied backgrounds of the student body. ³
While difficult to quantify, the value of this understanding to the overall
educational experience of students is not left to mere anecdote and
conjecture; it has been the subject of substantial and convincing empirical
research.

In their 1998 book entitled, The Shape of The River: Long Term
Consequences of Considering Race in College and University Admissions,
William G. Bowen and Derek Bok demonstrate the usefulness and
effectiveness of race-conscious admission policies. The authors do so
through the use of data collected by the Andrew W. Mellon Foundation,
compiling information regarding the experience of more than 80,000
undergraduate students entering one of 28 selective colleges and universities
in the Fall of 1951, 1976 and 1989. Shape of the River at xxvii-xxviii.

___________________
³     The value of diversity within education has been long recognized.
"For more than 150 years, educators have stressed its educational value.
Originally diversity was thought of mainly in terms of differences in ideas
and points of view … the dimensions of diversity subsequently expanded to
include geography, religion, nation of birth, upbringing, wealth, gender, and
race." William G. Bowen and Derek Bok, The Shape of the River: Long
Term Consequences of Considering Race in College and University
Admissions, 218-219 (Princeton University Press, 1998).

Bowen and Bok's research and analysis is extensive; however, one
component of that work is particularly instructive for our purposes.

In demonstrating the value of diversity to the educational experience
of the subject students, Bowen and Bok looked at the importance placed on
the "ability to 'work effectively' and 'get along well' with people from
different races and cultures." Shape of the River at 220. In short, the
students placed great importance on these factors, with almost half of the
1976 respondents ranking the ability to work effectively with individuals
from other races as "very important" and more than three-quarters of the respondents giving this factor one of the two highest rankings for
importance. Id. When asked to rank the value of their educational experience
in contributing to their ability to work effectively with people of other races
and cultures, the students' responses were again striking. Nearly half of the
students ranked their college experience in one of the highest two categories
in terms of how much that experience added to their ability to work
effectively with and to get along with others from different cultural and
racial backgrounds. Id at 225.

The point highlighted by Bowen and Bok's research bears emphasis.
That is, there can be little doubt of the compelling importance of diversity in
the educational experience of undergraduate and graduate students, not only
because this is what the students in fact report, but also because this is what

the experience of the UAW has demonstrated throughout its many years of
experience within the workplace and within the Union itself.

In other words, the perception of the students that their educational
experiences play an important role in their ability to maintain strong and
effective working relationships with people from different races and
cultures, an ability essential to success in today's world, is absolutely
correct. Indeed, in our experience, the ability of the members of our diverse
workforce to effectively work together, with an appreciation of our great
racial and cultural diversity, is essential to the creation of a productive,
healthy and dignified work environment. That is why the University's
interest in providing an educational atmosphere of diversity is so compelling
and why the University's Admissions Policy should be permitted.

The portions of the Order of the District Court upholding the
University's current Admissions Policy should be affirmed.

Dated: June 13, 2001

Cases

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

Grutter v. Bollinger
No. 97-CN-75928 (E.D. Mich. March 27, 2001) … … … 2

Hopwood v. State of Texas
78 F.3d 932 (1996) … … … 2

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

Memoirs v. Massachusetts
383 U.S. 413 (1966) … … … 6

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

Smith v. University of Washington School of Law
233 F.3d 1189 (9th Cir. 2000),
cert. denied, 532 U.S. __, 2001 U.S. LEXIS 4011 (May 29, 2001) … … … 2

Other Authorities

Amar and Katyal, "Bakke's Fate",
43 UCLA L. Rev. 1745 (1996) … … … 2

Constitution of the International Union, UAW
adopted at Las Vegas, Nevada, June, 1998. … … … 11

The Shape of The River: Long Term Consequences of
Considering Race in College and University Admissions,
William G. Bowen and Derek Bok … … … 13, 14