INTRODUCTION

More than twenty years ago, in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court upheld as constitutional the consideration of race and ethnicity as a factor in university admissions, concluding that a “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. at 320. In this case, Plaintiffs and their class seek to change the law as it is set forth in Bakke. They challenge the legality of the admissions policy of the University of Michigan College of Literature, Science and the Arts ("LS&A") because it includes the consideration of race and ethnic origin as one of many factors in making admissions decisions. Defendants are entitled to summary judgment because the undisputed record evidence shows that the interest in realizing the educational benefits that flow from a racially and ethnically diverse student body is compelling, and because the University’s admissions system “involving the competitive consideration of race and ethnic origin” is “properly devised” in light of that interest. Id.

This Court’s recent rulings on class certification and bifurcation have defined the summary judgment proceedings and upcoming trials in this case by dividing the litigation into two discrete phases. The first phase, for which a class has been certified only for Plaintiffs’ claims for injunctive and declaratory relief, has been limited explicitly to consideration of these claims. The second phase, for which this Court has not yet determined whether class treatment is appropriate, will then address Plaintiffs’ claims for damages. Accordingly, the first phase will examine only the University�’s current admissions system to determine whether Plaintiffs are entitled to forward-looking relief — i.e., an injunction requiring the University to alter its admissions system. The second phase, to follow the trial currently scheduled for this fall, will also address the past admissions policies and practices in the course of considering Plaintiffs’ damages claims. With this motion, Defendants renew their motion for summary judgment with respect to Plaintiffs’ claims for injunctive and declaratory relief — the only claims before the Court in the first phase of the litigation.

This case is governed by Bakke. In his pivotal and controlling opinion, Justice Powell reasoned that the interest in achieving the educational benefits that flow from a diverse student body “is compelling in the context of a University’s admissions program,” and justifies the consideration of race and ethnicity. Bakke, 438 U.S. at 315 (emphasis added). The expert testimony in the record confirms that Justice Powell was right: a racially and ethnically diverse student body, “trained through wide exposure” to a diverse group of students, Id. at 313 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)), is essential to the University’s ability to provide all of its students with an opportunity to learn, think, and live in an intellectually and socially stimulating environment, and to graduate individuals who are well-equipped to contribute to our pluralistic society. The undisputed evidence in the record also establishes that the University’s admissions practices are entirely consistent with the limits Bakke sets forth as to how and to what extent race and ethnicity can be considered in admissions. LS&A’s admissions policy includes no quotas, applies the same criteria to all students through individualized consideration of each application, and calls for race to be considered as "a single though important element," Id. at 315, to compose a diverse, highly qualified student body whose members are all fully capable of succeeding at the University.

Bakke recognized that a university has substantial academic freedom “to make its own judgments as to … the selection of its student body” — including how to foster “[t]he atmosphere of ‘speculation, experiment and creation’” that is “so essential to the quality of higher education,” and that “is widely believed to be promoted by a diverse student body.” Id. at 312 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)). Bakke was firmly grounded in a line of cases emphasizing the importance of education to our democracy, See, e.g., Brown v. Board of Education, 347 U.S. 483, 493 (1954) (identifying education as “the very foundation of good citizenship”), which in turn requires that “[o]ur Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned.” Bakke, 438 U.S. at 312 (quoting Keyishian, 385 U.S. at 603). Universities play a unique role in encouraging the “robust exchange of ideas,” Id., that springs from the expression of diverse voices. In fact, the interest of colleges and universities in exercising their academic freedom to facilitate this kind of dynamic dialogue is ingrained in the First Amendment. See Id. at 313; See also Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985) (“Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students but also … on autonomous decisionmaking by the academy itself.”) (citations omitted). The LS&A admissions policy falls within the discretion that Bakke, and the unbroken line of authority on which Bakke relied, provide to universities in making such decisions that affect their educational mission.

In the decades since Bakke, the Supreme Court has neither reversed nor even revisited its holding in that case. During this time, countless colleges and universities have not only complied with Bakke, but have relied on it affirmatively in crafting admissions systems that consider race as one of many factors in choosing from among qualified applicants. Only in the last few years have there been legal challenges to the use of race as a factor in an admissions process. Most courts that have addressed this issue have rightly assumed that Bakke remains the controlling precedent. Only one appellate court — the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) — has cast aside Bakke and decided that the competitive consideration of race to achieve a diverse and vibrant academic community is no longer constitutional. No other circuit court has followed that decision, which has been roundly criticized as wrongly decided and beyond the Fifth Circuit’s power. Defendants in this case are entitled to summary judgment because binding precedent and empirical evidence dictate that the interest in realizing the benefits of a diverse student body in a university setting is compelling, and that the University has devised and implemented its admissions procedures to achieve that end.