ARGUMENT

The undisputed record evidence demonstrates that the University’s admissions policy includes the “competitive consideration“ of race and ethnicity as one of many factors. The record also shows that the University does so consistent with its articulated objective -- to achieve the educational benefits that having a racially and ethnically diverse student body brings -- which Bakke establishes as a compelling governmental interest. Defendants therefore are entitled to summary judgment on all of Plaintiffs’ claims. See Fed. R. Civ. P. 56(c).

I. CONTROLLING PRECEDENT PERMITS THE COMPETITIVE CONSIDERATION OF RACE IN UNIVERSITY ADMISSIONS POLICIES.

The Supreme Court has long recognized the special role and significant mission of educational institutions in our democracy. Justice Holmes referred to education as “one of the first objects of public care.” Interstate Consol. St. Ry. Co. v. Massachusetts, 207 U.S. 79, 87 (1907). The Court repeatedly has acknowledged the government’s “special role as educator,“ Board of Educ. v. Pico, 457 U.S. 853, 921 (1982) (O’Connor, J., dissenting), and observed that this “special role” carries with it an obligation to take part “in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests,” Ambach v. Norwick, 441 U.S. 68, 76 (1979). Indeed, the “Constitution presupposes the existence of an informed citizenry prepared to participate in governmental affairs.” Pico, 457 U.S. at 876 (Blackmun, J., concurring). For this reason, the Court recognized that an education that encourages students to “engage in discussions and exchange views with other students,” McLaurin v. Oklahoma State Regents for Higher Educ., 339 U.S. 637, 641 (1950), is “the very foundation of good citizenship,” Brown, 347 U.S. at 493.

It was against this background that the Court in Bakke held that a university could, consistent with the Constitution, create and use “a properly devised admissions program involving the competitive consideration of race and ethnic origin.” Bakke, 438 U.S. at 320. Justice Powell’s opinion in Bakke -- the critical part of which was joined by four other Justices -- states the controlling legal standard, which the Court has not overruled, nor even questioned, in the intervening decades.

A.   "A Properly Devised Admissions Program Involving the Competitive Consideration of Race and Ethnic Origin" Is Constitutional.

Bakke addressed the constitutionality of the admissions system employed by the University of California at Davis Medical School. Davis developed and operated a two-track admissions system and a rigid quota. Sixteen seats of each year�s entering class of 100 were set aside for minorities. Before the Davis admissions committee even began to review applications, it knew that it would fill at least those 16 seats from a separate pool comprised only of minority applicants. See Bakke, 438 U.S. at 275. The California Supreme Court had held this system to be unconstitutional and had affirmed an injunction that barred Davis from considering the race of any applicant.

A sharply divided Supreme Court concluded that this type of admissions regime was unlawful but that a “properly devised” race-conscious admissions program would be permissible. Concluding that racial classifications that benefited rather than burdened groups that had suffered historical discrimination were not even subject to “strict scrutiny,” four Justices would have upheld the entire Davis admissions policy as constitutional. Bakke, 438 U.S. at 324-25 (Brennan, White, Marshall and Blackmun, JJ., concurring in the judgment in part and dissenting in part). Four other Justices would have invalidated any use of race in admissions as a violation of Title VI (without reaching the constitutional question). See Id. at 408 (Stevens, J., concurring in the judgment in part and dissenting in part, joined by Burger, C.J., and Stewart and Rehnquist, JJ.).

Justice Powell announced the judgment of the Court and authored the pivotal opinion. Unlike the group of four Justices for whom Justice Brennan wrote, Justice Powell applied strict scrutiny to the Davis plan. He concluded that public universities do have a compelling interest in achieving the benefits of a diverse student body, but that the Davis policy was not precisely tailored to serve that objective. Because of his conclusion that a properly devised admissions program would serve a compelling interest, he voted to reverse that part of the California Supreme Court’s judgment that barred all consideration of race as a factor in admissions.

Importantly, Part V.C. of Justice Powell’s opinion was joined by four other Justices (Brennan, White, Marshall and Blackmun, JJ.), establishing a majority of the Supreme Court for the following critical passage, which states Bakke’s central holding and judgment:

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.
Id. at 320 (emphasis added). Thus there is no doubt: “a properly devised admissions program involving the competitive consideration of race and ethnic origin” is constitutional. This holding, by a majority of the Court, is controlling here.

B.   Diversity Is a Compelling Interest in the Context of University Admissions.

Justice Powell also concluded in Bakke that “the interest of diversity is compelling in the context of a University’s admissions program,” 438 U.S. at 314, because “our tradition and experience lend support to the view that the contribution of diversity is substantial,” Id. at 313. Justice Powell emphasized that “[t]he atmosphere of ‘speculation, experiment and creation’ -- so essential to the quality of higher education -- is widely believed to be promoted by a diverse student body.” Id. at 312.19/ A university is a “marketplace of ideas,” which can only function if a rich variety of voices is available to offer a diversity of perspectives. This variety cultivates the “robust exchange of ideas which discovers truth ‘out of a multitude of tongues.’” Id. (citations omitted).

19 / See also Brief for the United States as Amici Curiae at 18-25; Brief of Amici Curiae American Council on Education, et al., at 7-16; Brief of Amici Curiae Association of American Law Schools, et al., at 3-16.

Because of the important role that race plays in American life, and because different individuals -- with their wide range of experiences -- are necessary to fuel a vibrant exchange of ideas, Justice Powell concluded that racial and ethnic diversity is an essential element of this mix.20/ As Justice Powell observed, “[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial and ethnic origin is but a single though important element.” Id. at 315. In fact, the Harvard admissions policy -- which a majority of the Court in Bakke approvingly cited as a model of a constitutional admissions policy -- states that Harvard seeks “variety in making its choices” among applicants and endeavors to enroll students “from disadvantaged economic, racial and ethnic groups.” Id. at 322 (Powell, J.) (appending Harvard policy to opinion); See also Id. at 326 n.1 (Brennan, J., joined by White, Marshall & Blackmun, JJ.). This “variety” adds “a critical ingredient to the effectiveness of the educational experience.” Id. at 322.

20 / Justice Powell quoted an article by William Bowen, then the President of Princeton University, and now an expert witness for the Defendants in this case, in which Bowen explained why providing students with “exposure” to a diverse group of students was essential to a University’s educational mission:

[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, “People do not learn very much when they are surrounded only by the likes of themselves.”
Bakke, 438 U.S. at 312-13 n.48.

Justice Powell grounded his conclusion in a rich heritage of cases, dating back more than two decades before the Bakke decision, that recognized that “[a]cademic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” Id. at 312. This line of cases highlights the importance of education to our democracy, emphasizing that “[n]o one should underestimate the vital role in a democracy that is played by those who guide and train our youth.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957); See also Ambach, 441 U.S. at 76. In fact, the Supreme Court has observed that “it is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Bakke, 438 U.S. at 313 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)). In an often-quoted passage, Justice Frankfurter reflected on the meaning of academic freedom in his concurring opinion in Sweezy:

It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail “the 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.
Sweezy, 354 U.S. at 263 (citation omitted). Thus, in Keyishian, the Court recognized 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.” 385 U.S. at 603.

This principle of academic freedom includes two components. First, it recognizes that the airing of diverse views, from students of diverse backgrounds, is an important part of the mission of an institution of higher education because it forms the foundation for a "robust exchange of ideas." Bakke, 483 U.S. at 312 (quoting Keyishian, 385 U.S. at 603). In Healy v. James, 408 U.S. 169, 180-81 (1972), for example, the Court noted that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom” (citation omitted). Since Bakke, the Court has repeatedly reaffirmed the significance of such free-ranging discussions to a university. In Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819 (1995), for example, the Court held that the exclusion of a particular viewpoint from campus debate would not only violate the First Amendment’s free speech guarantee, but would undermine the very purpose of education. In the university setting, the Court noted, the government “acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” Id. at 835 (citations omitted). Encouraging “free speech and creative inquiry” improves the educational experience on our nation’s campuses, which are "“vital centers for the Nation’s intellectual life.” Id. at 836; See also Board of Regents of Univ. of Wisc. v. Southworth, 120 S. Ct. 1346, 1356 (2000) (observing that a university “may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall”); Rust v. Sullivan, 500 U.S. 173, 200 (1991) (“[T]he university is a traditional sphere of free expression so fundamental to the functioning of our society.”).

The second component of academic freedom under the First Amendment is the discretion educational institutions should be accorded when making judgments that affect their educational mission, and the corresponding restraint courts should exercise when reviewing such judgments. The rationale for this sphere of independent academic decisionmaking lies both in the importance of education to our pluralistic democracy and the expertise of educators in determining how the goals of education can best be achieved. See e.g., Southworth, 120 S. Ct. at 1355 (“It is not for the Court to say what is or is not germane to the ideas to be pursued in an institution of higher learning”); Arkansas Educ. Television Comm. v. Forbes, 523 U.S. 666, 674 (1998) (noting that there are a variety of educational decisions, such as “a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum,” that may not be second-guessed in federal court on the grounds that they represent a bias in favor of or against a set of ideas); Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985) (observing that because of the principle of academic freedom, courts are “reluctan[t] to trench on the prerogatives of State and local educational institutions”); Sweezy, 354 U.S. at 263 (Frankfurter, J., concurring) (identifying the freedom of a university to “determine for itself on academic grounds . . . who may be admitted to study”).21/

21 / Under this line of authority, judicial supervision of primarily educational decisions -- such as the intricacies of a University’s admissions processes or decisions -- violates this principle of deference, intruding unnecessarily into a domain where courts lack expertise. The principle that courts will defer to the judgments of educators to determine who is qualified for admission also finds support in the Sixth Circuit. See Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100, 102 (6th Cir. 1992) (observing that “school authorities have broad discretion to implement educational policy”); Parate v. Isibor, 868 F.2d 821, 826 (6th Cir. 1989) (noting that “[a]cademic freedom thrives not only on the robust and uninhibited exchange of ideas between the individual professor and his students, but also on the ‘autonomous decisionmaking [of] . . . the academy itself.’”) (citation omitted). In fact, the Constitution of the State of Michigan reflects a similar value, in expressly vesting the authority to govern the University of Michigan in the Board of Regents of the University of Michigan, and in insulating that body from the control of the state’s political branches of government. See Mich. Const. art. 8 (1963); cf. Federated Publications, Inc. v. Board of Trustees of Michigan State Univ., 594 N.W.2d 491, 495-96 (Mich. 1999) (noting that the “Michigan Constitution confers a unique constitutional status on our public universities and their governing boards”).

Justice Powell fit comfortably into both strands of this well-established First Amendment jurisprudence when he reasoned in Bakke that “universities must be accorded the right to select those students who will contribute the most to the ‘robust exchange of ideas‘” and emphasized that, by attempting to foster diversity among its student body, a university seeks “to achieve a goal that is of paramount importance in the fulfillment of its mission.” 438 U.S. at 313.

Given what we know, and can prove, about the role of race in American history, and in American society today, Justice Powell was also on firm ground in determining that a university may properly conclude that it is better able to reflect a rich variety of experiences, backgrounds, and insights, if it is permitted to include racial and ethnic diversity among the types of diversity it values and seeks to achieve. In fact, Defendants have marshaled abundant evidence that demonstrates that Justice Powell was right about the connection between educational excellence and a racially and ethnically diverse student body -- and that the hundreds of institutions of higher learning that have relied on his opinion in crafting their admissions policies to achieve such diversity are right as well. (See Brief for the United States as Amici Curiae at 16; Brief of Amici Curiae American Council on Education, et al., at 7-16; Brief of Amici Curiae Association of American Law Schools, et al., at 3-13.) As we have explained, See supra at 9-15, racial and ethnic diversity on campus enhances the academic skills and civic preparedness of all students -- minorities and non-minorities alike. To value such diversity is not to assume that race or ethnicity determines or preordains the views of any particular person on any given subject. Indeed, there may be no better way to discredit stereotypes than by exposing students -- in a racially and ethnically diverse educational setting -- to the wide array of viewpoints that are very often held by members of a single racial or ethnic group, or to confront students with the fact that members of other racial groups share their views, where differences are expected. (See Gurin Rep. at 6, 11.)

Diversity is a “dynamic characteristic” that is central to the quality of education that the University offers, and to the fulfillment of the University’s overall mission. (Cantor Dep. at 58-59.) Plaintiffs have not disputed the significance of diversity in higher education. Instead, Plaintiffs’ counsel makes the extraordinary -- and constitutionally erroneous -- statement that “[a]ny evidence or any report that shows, or purports to show, that racial diversity has educational value is beside the point.” Peter Schmidt, U. of Michigan Turns to Scholars to Bolster Its Defense of Affirmative Action, Chronicle of Higher Educ., Apr. 2, 1999, at A38 (quoting Terence J. Pell, Center for Individual Rights); See also Jaimie Winkler, Expert Witnesses Discuss Diversity, Michigan Daily, Mar. 18, 1999, at 7a (quoting Pell to the same effect). But this common-sense -- and empirically-supportable -- judgment about the educational value of diversity lies at the heart of the Bakke opinion and is part of a respected line of Supreme Court precedent recognizing the degree of autonomy that universities have, consistent with the First Amendment, to pursue their educational mission. Defendants’ expert case, which confirms the correctness of Bakke and the wisdom of the University’s use of race in admissions, cannot be "beside the point."

C.   Bakke’s Limitations on the Consideration of Race in University Admissions.

While Justice Powell held in Bakke that public universities do have a compelling interest in achieving the benefits of a diverse student body, he concluded that the Davis policy was not precisely tailored to achieve that objective. Bakke squarely permits colleges and universities to consider race as a factor in admissions decisions but imposes limitations on the manner and extent to which race may be used.

First, on the question of manner, Justice Powell’s opinion makes clear that the “fatal flaw” in the Davis admissions system was not the fact that race was considered, but rather how it was considered: by using quotas and separate admissions systems. The Davis plan ran afoul of the Constitution because it shielded minority applicants from competition with non-minority applicants, and because it treated all applicants solely as representatives of racial or ethnic groups, rather than as individuals who could contribute to the University in a variety of ways. In an admissions system “in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” Bakke, 438 U.S. at 315 (emphasis added), minority applicants are insulated impermissibly “from comparison with all other candidates,” Id. at 317.22/ Quotas thus engender a “two-track,” segregated admissions system in which minority applicants are compared only with each other, while non-minority students are also compared only with each other, like simultaneous but separate games of musical chairs. This kind of admissions system that isolates various applicants from competition with other applicants is not compatible with the “competitive consideration” of race and ethnicity that a majority of Justices in Bakke explicitly upheld as constitutional. Id. at 320.

22 / Justice O’Connor repeated this reading of Bakke in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 496 (1989). She described the flaw identified by a majority of the Court in the Davis plan as the "complete[] eliminat[ion] [of] nonminorities from consideration for a specified percentage of opportunities." Id.

Moreover, as Justice Powell describes, quotas are a faulty means of achieving the kind of diversity that constitutes a compelling interest. In fact, reliance on quotas “misconceives the nature of the state interest that would justify consideration of race or ethnic background.” Id. at 315. Admissions systems that use quotas do not treat applicants -- of any race -- as individuals because they improperly reflect an interest in “simple ethnic diversity,” without regard to the variety of other factors that contribute both to diversity and educational excellence. Id. Quotas ignore the fact that the “diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Id.

Bakke’s prohibition on rigid quotas, or a system that operates as a “functional equivalent” of a quota, Id. at 318, does not somehow invalidate any policy that takes race into account in a systematic way in order to realize the benefits of a diverse student body. Justice Powell made clear that the mere fact that a university includes race as one of many factors in its admissions policy does not imply that the policy is unconstitutional, or that race is used as a cover for a quota or in an otherwise impermissible way. See Id. In fact, Justice Powell’s explicit approval of the Harvard admissions plan, which considered race as a “plus factor,” forecloses that argument. Referring to the Harvard policy, Powell wrote:

This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.
Id. at 318.

Furthermore, the fact that race is a decisive factor in certain applications cannot render an admissions plan in violation of Bakke. After all, the consideration of race in admissions is not an end in itself. Rather, realizing the educational benefits of a racially and ethnically diverse student body is the “end” that constitutes a compelling state interest. Therefore, the consideration of race and ethnicity in the admissions process is constitutional precisely because of -- not despite -- the fact that it is designed to enroll more minority students, resulting in a diverse student body, which is essential to a University’s mission. In addition, if this factor -- like any other factor -- made no difference in selecting a student body, no university would bother to include it as a “phantom” factor in the admissions process. Bakke, in short, means just what it says. Fixed quotas are forbidden because they insulate minorities from competing with non-minorities, under the same criteria, for admission. However, systematic efforts to achieve a racially and ethnically diverse student body do not inevitably suffer the same flaw and are not barred under Bakke.

Second, in addition to limiting the manner in which race can be considered, Bakke also limits the use of race as a factor in admissions to the extent that it eclipses all other factors by eradicating threshold qualifications. The Bakke opinion makes clear that a “properly devised” admissions system is one that considers race as a factor in choosing among qualified applicants. 438 U.S. at 320.23/ Accordingly, race cannot be weighed so heavily in the admissions process that it warrants the admission of applicants who are not deemed capable of succeeding at the university. However, Bakke does not require that all factors be weighed equally.24/ Rather, a “[proper] admissions program . . . is flexible enough to consider all 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 (emphasis added). Guided by the principle of academic freedom, See supra at 32-34, courts respect the academic judgments made by university officials who decide what the proper balance of factors, including race, should be in the admissions process and which applicants are qualified. Admissions programs that operate within the boundaries set forth in Bakke on the manner and extent to which race and ethnicity may be considered as a factor in admissions -- such as the Harvard plan cited approvingly by a majority of the Court -- are constitutional.

23 / Similarly, in United States v. Paradise, 480 U.S. 149, 183 (1987), the Court upheld a racial set-aside that had been designed to remedy a showing of past discrimination, but also set out a limitation on the extent to which race may be used: "the basic limitation, that black troopers promoted must be qualified, remains. Qualified white candidates simply have to compete with qualified black candidates." Id.

24 / It is important not to conflate the limitation on the manner in which race is used with the question of the extent to which race is used. A quota, after all, can be set quite low, while a permissible "plus factor" might have a much larger impact. Put another way, the invalidity of the Davis program did not turn on the fact that the fixed quota was set at 16 minority students in a class of 100, rather than, for example, six or two. And conversely, the Harvard plan that Justice Powell expressly endorsed would not have been constitutional if the consideration of race -- which was treated as a single though important factor -- turned out to admit unqualified minorities because the admissions system would use race "too much." See Id. at 323 (appendix to opinion of Powell, J.).

D.   Bakke Is Binding Precedent.

While Bakke produced a number of opinions, four other Justices joined Part V.C. of Justice Powell’s opinion expressly holding that “a properly devised admissions program involving the competitive consideration of race and ethnic origin” is constitutional and that, accordingly, the judgment of the California Supreme Court forbidding any use of race in admissions had to be reversed. 438 U.S. at 320. It is beyond question that this holding by a majority of the Court is binding precedent. In addition, the remainder of Justice Powell’s opinion -- as the narrowest ground offered in support of the judgment reversing the prohibition on using race as a factor in admissions, is controlling as well -- and this Court is not free to disregard it.

1.   The Supreme Court and the Sixth Circuit Have Followed Bakke.

In the decades since Bakke, members of the Supreme Court and the Sixth Circuit have viewed Justice Powell’s opinion as controlling. In her concurring opinion in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), for example, Justice O’Connor noted that “although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently ‘compelling,’ at least in the context of higher education, to support the use of racial considerations in furthering that interest.” 476 U.S. at 286 (citing Bakke).25/ Similarly, in a case involving an alleged violation of Title VII of the Civil Rights Act of 1964, Johnson v. Transportation Agency, 480 U.S. 616 (1987), the Supreme Court explicitly relied on the reasoning in the Bakke opinion to approve a promotion plan that was similar to the Harvard plan “approvingly noted by Justice Powell” in Bakke. 480 U.S. at 638. In upholding the promotion plan, which considered gender as one of a range of factors, the Court noted that the plan “requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants.” Id. This was the “competitive consideration” rationale endorsed by Bakke.26/

25 / Like Bakke, this case is about the use of race as a factor in admissions to achieve the benefits of having a racially diverse student body. Decisions involving the use of racial classifications in municipal and federal construction contracts have said that all racial classifications are subject to strict scrutiny and must be narrowly tailored to serve a compelling interest. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995); City Of Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989). Justice Powell’s pivotal opinion in Bakke is consistent with this approach: he applied “the most exacting judicial examination,” 438 U.S. at 291, and he said that the use of race must be “precisely tailored to serve a compelling governmental interest,” Id. at 299. It is therefore understandable why the Supreme Court has not questioned the core holding of Bakke.

26 / In addition, in Minnick v. California Dep’t of Corrections, 452 U.S. 105 (1981), the Supreme Court discussed the opinions in Bakke and noted that, taken together, they “unequivocally stated that race may be used as a factor in the admissions process in some circumstances.” Id. at 115. See also Id. at 116 n.18 (observing that the lower court “[r]el[ied] largely on Justice Powell’s opinion in Bakke,” and read that opinion “to permit the consideration of race to serve the compelling state interest of promoting ethnic diversity among student,” so long as the consideration of race “does not insulate [an] individual from comparison with all other candidates” and no student is “totally excluded from a specified percentage of [available seats]”).

In fact, the Supreme Court itself recognized in Bakke that Justice Powell’s opinion would be controlling. Justice Powell was assigned to announce the judgment of the Court, even though most of his opinion was not joined by any other Justice.27/ The four other Justices, led by Justice Brennan, who voted to reverse the part of the California Supreme Court’s injunction that barred all consideration of race, necessarily agreed that Justice Powell’s opinion would control. Justice Blackmun, a member of that group, said as much in his short concurring opinion. While Justice Blackmun would have approved both the Davis and Harvard systems, he took comfort in the fact that although Justice Powell voted to strike down the Davis program on narrow tailoring grounds, the result of his opinion would be dispositive on the use of race in admissions and would uphold admissions systems like Harvard’s. He said: “It is gratifying to know that the Court at least finds it constitutional for an academic institution to take race and ethnic background into consideration as one factor, among many, in the administration of its admissions program.” 438 U.S. at 406-07 (emphasis added).28/

27 / The Court’s typical practice is that, when the judgment is supported by multiple plurality opinions, the judgment is announced by the Justice who wrote the opinion gathering the greatest number of votes. See e.g., Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv. L. Rev. 1127, 1127 n.2 (1981); Note, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419, 419 n.1 (1992). Bakke, however, is not the only Supreme Court opinion in which the judgment of the Court was announced by the author of the controlling opinion, rather than the author of the plurality opinion. See Guardians Assoc. v. Civil Serv. Comm’n, 463 U.S. 582 (1983).

28 / In addition, contemporaneous observers correctly understood that the Bakke case resolved the question whether race could be considered as a factor in admissions, and that Justice Powell’s opinion -- which held that it could -- controlled the analysis. See, e.g., The Supreme Court: 1977 Term, 92 Harv. L. Rev. 131, 136 n.40 (1978) (“[The Bakke opinions] put a majority of the Court on record that a program which considers race and even the numerical balance of the class, but which does not set aside a specified number of seats for minorities, is lawful under Title VI and the 14th Amendment.”) (citation omitted); Laurence H. Tribe, Perspectives on Bakke: Equal Protection, Procedural Fairness, or Structural Justice, 92 Harv. L. Rev. 864, 864 (1979) (“The Court thus upheld the kind of affirmative action plan used by most American colleges and universities, and disallowed only the unusually mechanical . . . approach taken by the Medical School of the University of California at Davis.”); Who Won, N.Y. Times, Jun. 29, 1978, at A24 (“It is crucial, therefore, to keep the essential statement of the entire Court clearly in view. Five justices ruled that an institution may constitutionally give great weight to race or ethnicity in distributing a social good like admission to a medical school”); The Bakke Decision, Wash. Post, Jun. 29, 1978, at A26 (“Those schools that want a diverse student body -- and that is what most of them should want these days -- can have it. They can give added points in the selection process to applicants because of their race just as they give added points to applicants because they are athletes, musicians, children of alumni, artists, poor, rich or residents of places from which few applications come.”).

The Sixth Circuit has consistently relied on the Bakke opinion. In Oliver v. Kalamazoo Board of Education, 706 F.2d 757 (6th Cir. 1983), it cited Bakke for the proposition that “affirmative action admission programs of educational institutions may take race into account, but racial quotas are prohibited.” Id. at 763. Referring to Bakke, the Sixth Circuit invalidated a court-imposed racial quota for minority teachers and expressly stated that a “wiser approach is a more flexible affirmative action program rather than a hiring quota.” Id. More recently, it relied on Bakke in upholding Cincinnati’s policy of transferring teachers to balance the racial composition of its schools “to achieve a racially integrated faculty throughout the Cincinnati public school system.” Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100, 103 (6th Cir. 1992). And in United States v. Ovalle, 136 F.3d 1092, 1106 (6th Cir. 1998), the Sixth Circuit held that the government had a compelling interest in creating a jury pool representing a fair cross-section of the community, although the court invalidated the plan at issue there as not being narrowly tailored towards achieving that objective. Other courts have likewise followed the Bakke decision.29/

29 / See e.g., Eisenberg v. Montgomery County, 197 F.3d 123, 131 (4th Cir. 1999) (concluding that Bakke permits considering race in admissions and assuming that diversity is a compelling interest, but invalidating a magnet school transfer system as not narrowly tailored to achieve that objective); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 705 (4th Cir. 1999) (same as to a school admissions system); Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998) (assuming Bakke is controlling Supreme Court authority, but invalidating race-conscious admissions program because the school would have achieved meaningful racial and ethnic diversity even without consideration of race as a factor in admissions); Winkes v. Brown Univ., 747 F.2d 792, 799 (1st Cir. 1984) (“In Bakke, the Court held that some consideration of race in a medical school’s admissions criteria was permissible, but that the use of a rigid quota was not.”); Smith v. University of Wash. Law Sch., 2 F. Supp.2d 1324, 1334 (W.D. Wash. 1998) (“The attainment of a diverse student body . . . is a compelling interest and constitutionally permissible goal for a university or graduate program. Thus, an institution of higher education may take race into account in achieving ‘educational diversity.’”) (citing Bakke); Davis v. Halpern, 768 F. Supp. 968, 975 (E.D.N.Y. 1991) (“While the court [in Bakke] explicitly rejected the use of strict numerical quotas to achieve diversity, it endorsed the plans of many colleges and universities which consider race or ethnic background as one of many factors in weighing a candidate’s strength.”); University and Community College Sys. v. Farmer, 930 P.2d 730, 734 (Nev. 1997) (Bakke held that “an attempt to attain a diverse student body through a preferential treatment admissions policy is not per se unconstitutional so long as race is one of several factors used in evaluating applicants. Quotas, however, are proscribed.”) (citations omitted), cert. denied, 118 S. Ct. 1186 (1998); cf. Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738 (2d Cir. 2000) (denying preliminary injunction in challenge to race-conscious elementary school transfer program because plaintiffs were not likely to be able to establish that that program is unconstitutional).

The lone circuit court that has failed to adhere to Bakke is the Fifth Circuit. In Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), that court rejected Bakke’s diversity rationale as inconsistent with more “recent Supreme Court precedent.” Id. at 944.30/ While the Supreme Court has -- since Bakke -- held that all racial classifications, even those that benefit racial minority groups, are subject to strict scrutiny, See e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), no Supreme Court opinion overrules or even questions Bakke’s holding that there is a compelling interest in achieving a racially diverse student body. See, e.g., Smith v. University of Washington Law Sch., No. C97-335Z, (W.D. Wash. Feb. 12, 1999) (Ex. Y, at 8) (“The Supreme Court has never held that educational diversity cannot be a compelling state interest. In the absence of such a holding, this Court will follow Justice Powell’s opinion in Bakke that educational diversity ‘is a constitutionally permissible goal for an institution of higher education.‘”). Indeed, in cases both before and after Hopwood, the Supreme Court has repeatedly made clear that lower courts do not have the authority to override or disregard its decisions. See Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our decisions remain binding precedent until we See fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); State Oil Co. v. Khan, 523 U.S. 3, 20 (1997) (“[I]t is this Court’s prerogative alone to overrule one of its precedents.”); Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (only Supreme Court can overrule its own precedent); Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (same). Accordingly, the Fifth Circuit’s Hopwood decision is not only wrong, but was also beyond that Court’s authority.

30 / The Hopwood court did not engage in any meaningful consideration of the value of diversity in institutions of higher education. Although the district court made brief reference to expert reports regarding the educational benefits of diversity, the court did not analyze the substance of the evidence, and the Fifth Circuit did not consider it at all. Instead, in reaching its erroneous conclusion, the Fifth Circuit focused narrowly on whether Bakke had been overruled, sub silentio, by more recent Supreme Court decisions.

2.   The Powell Opinion Is Also Binding Precedent Because It Is the Narrowest Opinion that Supports the Judgment.

Any conceivable doubts regarding the precedential value of Justice Powell’s opinion in Bakke are further dispelled by the fact that it stands as the “narrowest ground” offered in support of the judgment in that case and is therefore binding on this Court. Lower federal courts may not simply disregard Supreme Court cases in which no single opinion was signed by five Justices. Rather, the judicial task is to identify the “narrowest” grounds that will support the judgment. As explained in Marks v. United States, 430 U.S. 188, 193 (1977), “[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.‘” Id. (citation omitted). This task is easiest where there is a “common denominator” between the broader and narrower opinions. In such cases, the “lesser included” rationale has the support of five Justices, and therefore states the law.

Yet, even where a single opinion does not stand as a “common denominator,” courts are charged with the duty of identifying the narrowest opinion to determine the controlling law. The Sixth Circuit has adopted this view, rejecting the interpretation that Marks analysis only applies when a common denominator is present in a splintered Court. In Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994), the Sixth Circuit made clear that the Marks rule applies even where “no opinion, however narrowly construed, may be said to embody a position that enjoys the support of at least five Justices who concurred in the judgment.” Id. at 134 (concluding that Justice Souter’s lone opinion in Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991), was the narrowest, and therefore the binding, opinion in that case); See also Coe v. Bell, 209 F.3d 815, 818 (6th Cir. 2000) (concluding that because a “majority of the Justices [in Ford v. Wainwright, 477 U.S. 399 (1986)] did not reach [various] issues . . . . [t]his court must look to the position taken by Justice Powell who concurred in the judgment on the most narrow grounds, for the Court’s holding on these issues”) (citing Marks). “While there is some awkwardness in attributing precedential value to an opinion of one Supreme Court justice to which no other justice adhered, it is the usual practice when that is the determinative opinion.” Triplett, 40 F.3d at 134 (internal quotation omitted). The sound reason for this practice, the court elaborated, is the lower courts’ “obligation to follow the Supreme Court’s decision coupled with the fact that Marks remains the Court’s only guidance on how lower courts should comply with this duty.” Id.

Under the Marks analysis, it is clear that the diversity rationale set out in Justice Powell’s opinion is the narrowest opinion in support of the judgment to reverse the injunction against all consideration of race in university admissions. Justice Brennan’s approach permitted a much broader use of race than Justice Powell’s: Justice Brennan would have upheld both the Davis plan as well as the Harvard plan, See Bakke, 438 U.S. at 376-79 (Brennan, J., concurring), while Justice Powell rejected the Davis set-asides, but endorsed the Harvard system’s “competitive consideration” of race and ethnicity as one of many factors. In every salient aspect, Justice Powell’s opinion is more narrowly constructed than that of Justice Brennan, and “more narrow” is the touchstone of Marks analysis in the Sixth Circuit. See, e.g., Coe, 209 F.3d at 818. Unlike Justice Brennan, who applied intermediate scrutiny and would have upheld the Davis program as a legitimate means of curing past societal discrimination, Justice Powell applied strict scrutiny and upheld the use of race only to achieve the educational benefits of diversity.31/ Indeed, Justice Powell, who approved of the Harvard plan, but rejected Davis’ fixed quota, criticized the Brennan analysis as “amorphous,” and insisted on a narrower, “more focused” justification for the use of race. See Bakke, 438 U.S. at 307. Justice Powell further criticized Justice Brennan’s position, which required a determination only that the benefited minority group has been the victim of discrimination by “society at large,” and that “there is reason to believe” the underrepresentation of that group is the “product” of that discrimination. Id. at 296 n.36. “The breadth of this hypothesis,” Justice Powell wrote, “is unprecedented in our constitutional system.” Id. (emphasis added). In City of Richmond v. J.A. Croson Co., 488 U.S. 469, 496-97 (1989), the Court said precisely the same thing about the Bakke case -- that Justice Powell properly rejected Justice Brennan’s position as reflecting an “amorphous concept,” and that by applying strict scrutiny, Justice Powell charted a more “focused” course. Id.

31 / Any admissions system that complies with the strictures of Bakke is, a priori, "precisely tailored" to achieve diversity because Justice Powell applied strict scrutiny to identify the improper tailoring in the Davis admissions plan and the successful tailoring in the Harvard plan, which he explicitly endorsed as surviving strict scrutiny. See Bakke, 438 U.S. at 316-19.

II.   THE LS&A ADMISSIONS PROCESS COMPLIES WITH THE PRINCIPLES OF Bakke.

The undisputed record evidence demonstrates both that the consideration of race in admissions is a necessary means to achieving the compelling interest in a diverse student body and that the University’s admissions system operates well within the limitations Bakke sets out as to how, and to what extent, the consideration of race is permissible.

A.   The University Cannot Achieve Meaningful Diversity Without Considering Race and Ethnicity as One of Many Factors in Admissions.

Absent the consideration of race and ethnicity in the admissions process, the University would not be able to achieve the meaningful diversity which generates the educational benefits that the University has determined are central to its mission. The statistical analyses conducted by Professor Raudenbush show that changing to a race-neutral admissions system would substantially reduce the proportion of underrepresented minority students in the entering LS&A classes. (See Raudenbush Supp. Rep., Feb. 24, 2000, at 4-5; Raudenbush Supp. Rep., Mar. 3, 1999, at 9-11.) The decision to take race into account as one of many factors in the admissions process necessarily has a more substantial impact on admissions of the underrepresented group than on the majority group. If race were not taken into account, the probability of acceptance for minority students would be cut dramatically, while non-minority students would See only a very small positive effect on their probability of admission. (See Raudenbush Supp. Rep., Mar. 3, 1999, at 11.) Under such a system, the level of racial and ethnic diversity on campus would not provide sufficient opportunities for the interactions among members of different racial and ethnic groups that are necessary to achieve the significant educational benefits of diversity. (See Gurin Supp. Rep., July 13, 2000, at 5; Raudenbush Supp. Rep., July 13, 2000, at 4-8.) Moreover, minority students would be highly likely to find themselves the only minority in classes or other settings on campus -- a circumstance that would engender feelings of isolation and adversely affect their opportunity to learn. (See Gurin Supp. Rep. at 4; Gurin Rep., App. B, at 4-6.)

Moreover, the University has not relied solely on the consideration of race in admissions to achieve diversity. (See Spencer Dep. at 189; Cantor Dep. at 68.) More than 10 years ago, the University adopted the Michigan Mandate, which sought to recruit and retain underrepresented minority students. (See Ex. D at 19.) Since then, the University has devoted considerable efforts to creating and expanding recruitment programs to attract underrepresented minority students through, for example, attendance at recruiting fairs in urban areas with large minority populations, personal contact with minority potential applicants, direct mailings, and campus visits for minority students. (See Vanhecke Dep. at 9, 11-12). Yet, these efforts produce only a small pool of qualified minority applicants, most of whom are intensely recruited by other selective colleges as well. Accordingly, given the twin forces of small pool size and low yield of qualified minority applicants, the University has had to continue to consider race in making admissions decisions in order to achieve diversity, despite its comprehensive recruiting efforts. (See Cantor Dep. at 59.)

B.   The University’s Admissions Policy Falls Well Within the Limitations that Bakke Prescribes.

At the start of this lawsuit, Plaintiffs alleged that the University “used different admissions standards based on each student�s self-identified race,” (Compl. at _¶ 19), that “[a]pplicants from disfavored racial groups were not compared directly to applicants from favored racial groups," (Id. at_ ¶ 20), and that "Defendants did not merely use race as a �plus� factor or as one of many factors to attain a diverse student body" (Id. at ¶ _22). Yet, after two and a half years of extensive discovery -- during which Defendants produced thousands of pages of documents, and Plaintiffs deposed 11 fact witnesses -- there is no evidence in the record to support any of these allegations. Admissions to LS&A comply fully with Bakke. That controlling precedent prohibits the use of quotas or their “functional equivalent,” 438 U.S. at 318, or a “two-track” admissions system, Id. at 315. The undisputed record makes clear that the University does nothing of the sort. Instead, it considers race as one of a broad array of factors used in making admissions decisions in a system without numerical quotas, goals or targets, where all applicants are considered competitively together, against the same criteria, and not separately by race.

1.   The Manner in Which Race Is Considered.

The primary flaw that Justice Powell found in the Davis system at issue in Bakke was the use of a rigid quota for the admission of minority students that led to a two-track system. The record in this case demonstrates unequivocally that the University has no fixed racial quota for minority students. Nor does the University operate a sham admissions system that is a mere “cover” for a two-track system. As the evidence shows, there is no separate admissions process, no separate admissions guidelines, and no separate waiting list for minority applicants vis-à-vis non-minority applicants. (See Spencer Dep. at 12, 290; Cantor Dep. at 83; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118; McKinney Dep. at 111, 121.) Rather, OUA counselors review the applications of minority applicants along with all other applicants in their territories, and they use the same selection index worksheet, which includes the same set of factors, for applicants of all races and ethnicities. Using the selection index, counselors award points for a variety of academic and non-academic factors and total up the points. (See Ex. Z; Ex. AA.) The resulting score is then used in making an admissions decision based on a set of parameters that apply, regardless of race, to all applications that have been entered into the OUA database as of that point in time. (See Ex. AA; Ex. EE at 3.) In addition, applications that are flagged for review by the ARC are addressed in an additional round of individualized consideration and discussion, and an admissions decision is made by the entire committee on the basis of these extended discussions. (See Id.) All applications are considered on a file-by-file basis and are analyzed according to a uniform set of factors, of which race is a “single though important” criterion. Bakke, 438 U.S. at 320.

2.   The Extent to Which Race Is Considered in Admissions.

In making decisions, the counselors consider an applicant’s race as one of many factors evaluated in the admissions process, consonant with Bakke’s instruction that race “is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.” 438 U.S. at 314. Like the Harvard admissions program cited approvingly by Justice Powell in Bakke, when OUA

reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. . . . It means only that in choosing among thousands of applicants who are not only “admissible” academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students.
Id. at 316-17 (internal citations omitted).

Applicants’ characteristics entitle them to various combinations of factors and point awards, which combine to form the selection index score.32/ Contrary to Plaintiffs’ assertion, (See Compl. at ¶ 22), no one factor predominates in the admissions process. Defendants’ expert, Professor Raudenbush, demonstrated, as a matter of statistics, that “one cannot reasonably conclude that [race] predominates over other factors in the admissions process.” (Raudenbush Supp. Rep., Mar. 3, 1999, at 6; See also Raudenbush Rep.)33/ The only conclusion that can responsibly be drawn from the data is that in some cases race is quite important, perhaps even decisive, while in other cases it is not significant or even relevant. The role that race plays varies widely, is different for members of different racial groups, and depends on a variety of other factors. (See Raudenbush Supp. Rep., Mar. 3, 1999, at 6-7.) Plaintiffs’ statistical expert, Dr. Kinley Larntz, has essentially conceded this point, having testified that factors other than race, including high school GPA and test scores, were more important in the admissions process. (See Larntz Dep. at 90.)

32 / For example, while underrepresented minorities may be awarded 20 points for their race, particular applicants may not be entitled to points awarded to legacies, or to those who attend academically exceptional schools or select strong curricula in those schools. (See Ex. Z.) Similarly, some white students may receive points for being legacies or for living in underrepresented Michigan counties (such as those in the upper peninsula), though they will not receive the 20 points awarded to underrepresented minorities (although white students may receive 20 points for attending schools with predominantly minority populations). (See Id.)

33 / Professor Raudenbush testified that, in order to draw a responsible global conclusion relating to the use of race in admissions, one would have to both consider the University’s yield rate and compare the results of the current system with those from a hypothetical system in which race was not considered. (See Raudenbush Supp. Rep., Mar. 3, 199, at 11-12.)

Applicants with high grades and test scores are very likely to be admitted, regardless of their race; students of any race with low grades and test scores would likely be rejected. (See Raudenbush Supp. Rep., Mar. 3, 1999, at 6-7.) For these applicants, at the extremes, race plays no role at all in the ultimate admissions decision. For the large group of applicants in the middle, race makes a difference in some cases and not in others. This flexible approach is one protection against relying “too much” on race in the admissions process. Moreover, it reflects Bakke’s teaching that not all factors need be weighted equally because a constitutionally permissible “admissions program . . . is flexible enough to consider all 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.” Bakke, 438 U.S. at 317.

Importantly, as Bakke requires, no applicant is admitted unless individualized review of her application indicates that she is capable of succeeding at LS&A. This is true regardless of the applicant’s race or ethnicity and regardless of whether she is admitted after individualized review by an admissions counselor alone, or after the additional review by the ARC. This requirement is another way of ensuring that race is not given “too much” weight in the admissions process. Professor Raudenbush’s analysis of the admissions data for the classes entering in 1995 through 1997 demonstrates that between 13% and 15% of the minority applicants were rejected, including some with high grades and test scores. (See Raudenbush Supp. Rep., Mar.3, 1999, at Table 2.) As a result of the confluence of the small pool of minority applicants and the low yield for admitted minority students, the University ends up admitting virtually all qualified underrepresented minorities in order to achieve diversity. (See Spencer Dep. at 83-84; Vanhecke Dep. at 36, 38.) This phenomenon is not an absolute policy or a standard of admission that calls for the admission of all qualified minority applicants; rather, it is simply a byproduct of taking race into account at all in a world with comparatively few minority applications and few qualified minority applicants. This result does not mean that the admission of minority students is not based on “competitive considerations.” In fact, all applicants to LS&A compete for admission and are evaluated against the same criteria, in which race is a “single though important factor.” (See Spencer Dep. at 107-08.) Moreover, each application is given individualized review in the context of these uniform criteria.

*     *     *    

In sum, the University of Michigan has devised an admissions process to achieve a legitimate and compelling interest in achieving the educational benefits that flow from a diverse student body. As Justice Powell explained in Bakke:

Universities . . . may make individualized decisions, in which ethnic background plays a part, under a presumption of legality and legitimate educational purpose. So long as the university proceeds on an individualized, case-by-case basis, there is no warrant for judicial interference in the academic process. If an applicant can establish that the institution does not adhere to a policy of individual comparisons, or can show that a systematic exclusion of certain groups results, the presumption of legality might be overcome, creating the necessity of proving legitimate educational purpose.
438 U.S. at 319 n.53. The record in this case warrants such a presumption of legality. Indeed, two central facts in this case, both of which are undisputed in the record, entitle the University of Michigan to summary judgment in its favor. First, the University considers race as only one of many factors in making admissions decisions. Plaintiffs can offer no evidence to prove their allegation that “Defendants did not merely use race as a ‘plus’ factor or as one of many factors to attain a diverse student body.” (Compl. _at ¶ 22.) Second, the record shows that the University has no fixed racial quotas, targets, goals, or set-asides for the admission or enrollment of minority students and no two-tier, segregated admissions process. Accordingly, the record in this case is clear that the University’s admissions policies comply with the Bakke standard.



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