1.   Whether the district court correctly applied settled
principles of stare decisis in determining that the University
of Michigan’s College of Literature, Science, and the Arts’
admissions program is constitutional under this Court’s
decision in Regents of the University of California v. Bakke,
438 U.S. 265 (1978).

2.   If this Court declines to give stare decisis effect to its
decision in Bakke, whether the educational benefits that flow
from a diverse student body to an institution of higher
education, its students, and the public it serves, are
sufficiently compelling to permit the school to consider race
and/or ethnicity as one of the many factors in making
admissions decisions through a “properly devised”
admissions program.

3.   Whether the current admissions processes of the
University of Michigan’s College of Literature, Science, and
the Arts represent such a “properly devised” admissions
program.

                                                                                                Page

QUESTIONS PRESENTED .................................................i

table OF AUTHORITIES...............................................iv

STATEMENT OF THE CASE ............................................2

      Factual Background ......................................................2

      Procedural History ........................................................9

REASONS FOR DENYING THE WRIT...........................12

1. THE PETITION SHOULD BE DENIED FOR
   THE SAME REASONS SET FORTH IN
   OPPOSITION TO CERTIORARI IN
   GRUTTER . .................................................................12
2. IF THE COURT DENIES THE PETITION IN
   GRUTTER , THE HIGH STANDARD
   APPLICABLE TO PETITIONS FOR
   CERTIORARI BEFORE JUDGMENT IS NOT
   MET. .........................................................................13
3. IF THIS COURT DOES GRANT
   CERTIORARI IN GRUTTER , IT WOULD BE
   APPROPRIATE TO GRANT CERTIORARI
   HERE, LIMITED TO THE FIRST QUESTION
   PRESENTED IN THE PETITION. ............................ 14

CONCLUSION..................................................................19

                                                                                                Page(s)

Clinton v. New York,
      524 U.S. 417 (1998) .............................................. 15

Hohn v. United States,
      524 U.S. 236 (1998) .............................................. 15

Grutter v. Bollinger,
      188 F.3d 394 (6th Cir. 1999).................................. 10

Regents of University of California v. Bakke,
      438 U.S. 265 (1978) .............................................. 10

Switzerland Cheese Ass’n v. E. Horne’s Market, Inc.,
      385 U.S. 23 (1966) ................................................ 18

Texas v. Hopwood,
      518 U.S. 1033 (1996) (mem.) ...........................16, 17

28 U.S.C. § 1292(a) ...............................................11, 18, 19

28 U.S.C. § 1292(b) ................................... 11, 15, 16, 17, 19

Fed. R. Civ. P. 23(b) ......................................................... 10

Fed. R. Civ. P. 23(f) .......................................................... 10

Fed. R. Civ. P. 54(b) ..............................................11, 12, 17

S. Ct. Rule 11 ................................................................1, 13

Robert L. Stern et al., Supreme Court Practice (8th
      ed. 2002) ..........................................................14, 15

16 Charles Alan Wright & Arthur R. Miller, Federal
      Practice and Procedure § 3924.1 .......................... 18

This case presents a challenge to the University of
Michigan’s College of Literature, Science, and the Arts’
admissions program, which takes race and ethnicity into
account as one of many factors in making admissions
decisions. Respondents, the Board of Regents of the
University of Michigan, Lee Bollinger, and James J.
Duderstadt, hereby conditionally oppose the petition for a
writ of certiorari before judgment.

Petitioners’ challenge presents the same legal issues—in
a factually distinct setting—as the petition for a writ of
certiorari in Grutter v. Bollinger, No. 02-241. That petition
presents the question whether the University of Michigan
Law School’s admissions policy is consistent with the
requirements of the Fourteenth Amendment’s Equal
Protection Clause and Title VI of the Civil Rights Act of
1964. The Grutter and Gratz lawsuits progressed on parallel
tracks before different district court judges.

Appeals in both cases proceeded simultaneously, and
were heard on the same day by the en banc Sixth Circuit.
The court of appeals’ opinion in the Grutter case, issued on
May 14, 2002, states that an opinion in Gratz would be
“forthcoming.” See Grutter Pet. App. 4a n.2. That opinion
has not yet issued.

Although this case—like Grutter —presents an issue of
national importance, certiorari is not warranted in Gratz for
the same reasons it is not warranted in Grutter . The
identified division of lower court authority on the primary
legal question presented—whether achieving the educational
benefits of diversity is a compelling interest that justifies the
consideration of race as a factor in admissions—is shallow,
limited and undeveloped.

This case also faces the additional obstacle that it seeks
certiorari before judgment in the court of appeals, which this
Court’s Rule 11 provides shall be granted only on a showing
that the “case is of such imperative public importance as to
justify the deviation from normal appellate practice and to

require immediate settlement in this Court.” Petitioners
hardly contend that this case satisfies that standard as a standalone
petition. Rather, Petitioners point to a line of cases
holding that certiorari before judgment may be appropriate
once this Court has otherwise agreed to hear another related
case presenting the same fundamental legal question.

On that point, Respondents agree that this Court should
grant review in this case if (and only if) it also grants the
petition in Grutter. In that event, the Court should limit its
review to certain of the cases pending in the court of appeals,
and in any event, limit its review to the first question
presented, which involves the important legal question of the
permissibility of the consideration of race as a factor in
higher education admissions. The questions involving
qualified immunity, the consideration of the defunct prior
admissions systems, and the district court’s exercise of its
equitable authority to grant or deny injunctive relief, should
remain in the court of appeals, for that court’s consideration
in the first instance.

To accomplish this, as described more fully below, if this
Court grants certiorari in Grutter, it should also grant
certiorari before judgment in Gratz either on the limited
question of the constitutionality of the current admissions
program of the College of Literature, Science, and the Arts,
or in certain (but not all) of the Gratz appeals now pending in
the court of appeals from the various decisions of the United
States District Court for the Eastern District of Michigan
(Duggan, J.).

Factual Background

1.   Admission to LS&A.   As a preeminent public
institution of higher education, the University of Michigan
has made an educational judgment that a student body that is
broadly diverse, including with respect to race and ethnicity,
is “an integral component of [the University’s] mission”

because it “increase[s] the intellectual vitality of [its]
education, scholarship, service, and communal life.” Pet.
App. 4a (internal quotations and citation omitted). Thus, to
“facilitate the University’s goal” of obtaining the educational
benefits of diversity, the College of Literature, Science, and
the Arts (“LS&A”) considers race and ethnicity as one of
many factors as it “strives to compose a class of students”
that is broadly diverse. Id.

LS&A shares this commitment to obtaining the
educational benefits of diversity with the University of
Michigan Law School, but it implements its commitment
through a differently-crafted admissions program, as it
receives many thousands more applications per year than the
Law School. At the time this litigation commenced, the
Office of Undergraduate Admissions (“OUA”) received and
reviewed approximately 13,500 applications to LS&A—a
figure that has since risen to over 17,000 applications per
year. To promote consistency in the review of applications,
while preserving admissions counselors’ ability to exercise
subjective judgment, OUA uses written guidelines, which are
reviewed annually and altered periodically. These guidelines
identify a range of factors, academic and otherwise, that help
reveal a student’s potential to contribute—individually, and
in conjunction with classmates—to the educational
environment at LS&A. Admission to LS&A is selective
because thousands more students apply each year than can be
admitted.

2. Current Admissions System.   LS&A put its current
admissions system into place in 1999. The district court
describes that system as being in place through 2000, the
most recent admissions season as of the time of the district
court’s decision. It remains in place today. Under this
present system, one of OUA’s approximately 20 professional
admissions counselors individually reviews each application.
Pet. App. 38a. Each counselor reviews all applications from
an assigned geographic territory. Id. “There is no separate

review or assignment of under-represented minority
applicants . . . .” Id. The counselors evaluate all applications
based on the same set of factors identified in the guidelines.
JA 1147.¹   LS&A does not employ quotas, numerical targets
or goals for admission or enrollment of minority students.
Pet. App. 34a-35a.

Counselors initially evaluate applications aided by a
“selection index” worksheet listing factors the University
believes important in composing a class. Counselors select a
numerical value for each listed factor, up to a possible total
of 150 points. JA 1118, 1147. Academic factors account for
up to 110 points. Eighty points are available for academic
GPA from tenth and eleventh grades, and 12 points are
available for standardized test scores. Id. Every applicant
from the same secondary school receives the same number of
points—up to ten—to account for the academic strength of
that school. Id. at 1118, 1148-49. In addition, counselors
subtract up to four points for an applicant who chose a
weaker curriculum when a stronger one was available, and
add up to eight points for an applicant who selected more
challenging courses. Id. at 1118, 1149-50.

Applicants receive up to 40 points for other factors that
indicate an applicant’s potential contribution to LS&A. Id. at
1118, 1150. They may receive 20 points for one of the
following: membership in an underrepresented minority
group,²   socioeconomic disadvantage, attendance at a
predominantly minority high school, athletics, or at the

___________________
¹       Citations to “JA” refer to the Joint Appendix filed in the court of
appeals.

²       LS&A considers African-Americans, Hispanics, and Native
Americans to be underrepresented minorities for purposes of considering
race or ethnicity in admissions. JA 1471. Because LS&A receives
sufficient numbers of applications from students of other racial and ethnic
groups, it can enroll meaningful numbers of such students without
conscious consideration of race or ethnicity in the admissions process.
See id. at 1445.

Provost’s discretion. Id. at 1118, 1153-54. Reflecting the
University’s commitment both to state residents and to
broader geographic diversity, counselors assign ten points for
Michigan residency, six additional points for residency in
underrepresented Michigan counties, and two points for
residency in underrepresented states. Id. at 1118, 1150-51.
Applicants receive one or four points for alumni
relationships. Id. at 1118, 1151. The personal essay can earn
up to three points. Id. at 1152. Based on an applicant’s
activities, work experience, and awards, counselors may
assign up to five points for leadership and service, and five
more points for personal achievement. Id. at 1118, 1152-53.

The counselor totals the points to calculate the selection
index score, which is entered into OUA’s database. That
score sometimes, but not always, serves as the basis for the
ultimate admissions decision. Id. at 1162.

The University recognizes that a selection index score
may not always reflect an applicant’s potential contribution
to LS&A. Therefore, as part of counselors’ complete review
of application files, OUA asks counselors to identify
applications that would benefit from review by the
Admissions Review Committee (“ARC”), which evaluates
more complex cases through an informal discussion format.
Id. at 1161-62. A counselor may, in his or her discretion,
“flag” an application for ARC discussion if the counselor
determines that the applicant: (1) is academically prepared to
do the work at LS&A; (2) has a selection index score above a
certain level; and (3) possesses at least one of a variety of
qualities or characteristics important to the University’s
composition of its freshman class, such as underrepresented
race, ethnicity, or geography; high class rank; socioeconomic
disadvantage; unique life experiences, challenges,
circumstances, interests or talents; connections to the
University community; or athletics. Pet. App. 39a-40a.

LS&A makes admissions decisions throughout the
admissions season. Those decisions are generally executed

in one of two ways. First, the Enrollment Working Group
(“EWG”), which monitors enrollment during the admissions
season, sets selection index score parameters that are used in
determining the admissions action—admit, defer, or deny—
for all reviewed applications then pending in OUA’s
database. Decisions are made periodically, and EWG adjusts
the parameters, when necessary, to pace admissions
appropriately. See JA 1162. Second, flagged applications
not admitted based on the EWG parameters are forwarded to
the ARC, which decides whether to admit, defer, or deny,
after the committee considers the applicant’s entire file. Id.

3. Discontinued Admissions Programs: 1995-1998.
The admissions programs used before 1999 differed from the
current system in three ways that, taken together, the district
court concluded were unlawful. The University has
undisputedly eliminated all three practices. Id. at 1160,
1163.

First, before the selection index, counselors used “grids”
to assist in making admissions decisions. Each grid’s
horizontal axis listed standardized test score ranges, and its
vertical axis listed ranges of “GPA2”—an index
incorporating multiple factors, including academic GPA,
school strength, curriculum rigor, and exceptional leadership
or extracurricular activities. Each grid cell listed admission
action options. Id. at 436-39.

Between 1995 and 1997, OUA accounted in different
ways for other factors—including Michigan residency,
alumni status, and race—that the University considered
important in the admissions process but that the grid structure
did not already incorporate: by creating multiple grids, by
listing different “action codes” within the same grid, and/or
by including that factor in the GPA2 index. In 1995, OUA
used four grids: (1) in-state non-minority applicants, (2) outof-
state non-minority applicants, (3) in-state minority
applicants, and (4) out-of-state minority applicants. Pet.
App. 33a. In 1996, OUA used only two grids (one for in-

state and legacy students and one for out-of-state students),
and the cells listed two rows of “action codes”—one for
underrepresented minorities and another for non-minorities.
Id. In 1997, OUA again used two grids, but considered race
in two ways: partly by factoring it into GPA2, and partly by
accounting for it in the distribution of action codes. Id.

Second, in 1999, OUA eliminated the portion of the
guidelines that permitted clerks to have rejection letters sent
to some applicants with very low grades and scores without
counselor review, while requiring counselor review for all
applicants from certain groups, including athletes, private
school students, and underrepresented minorities. JA 440-
41, 1163. Despite the guidelines’ language, however, the
clerks generally forwarded all applications to counselors
because they felt uncomfortable rejecting applicants without
counselor input. Id. at 1457-58.

Third, in 1999, LS&A discontinued its use of so-called
“protected seats” as an enrollment management technique for
its rolling admissions process. Id. at 1163. The practice had
been used because students from certain groups—such as
minorities, ROTC candidates, recruited athletes, and foreign
students—tended to apply later in the admissions season. Id.
at 1478-79. Towards the end of each admissions cycle, EWG
projected the number of applications expected from these
groups, based on the number received the prior year, so OUA
could pace admissions decisions to permit consideration of
these anticipated applications before the class was filled. Id.
at 1461-65. The groups for which EWG made projections
were called “protected categories,” and the projections were
called “protected seats.” Students from “protected
categories” who applied late in the admissions cycle were not
by any means guaranteed admission. To the contrary, OUA
evaluated them in the same way, against the same criteria, as
all other applicants, regardless of race. Id. at 1474-75.

4. Challenges to Enrolling Meaningful Numbers of
Minority Students.   LS&A vigorously recruits qualified
minority applicants. Pet. App. 42a. It does so because in
order to provide the educational benefits of racial and ethnic
diversity to all students, learning environments must include
meaningful numbers of minority students. JA 1834.

LS&A’s year-round minority recruiting efforts include
attending recruiting fairs in areas with substantial minority
populations; hosting workshops for high school counselors;
coordinating campus visits for minority high school juniors;
corresponding with individual minority candidates; and
hosting a Spring Welcome Day for admitted minority
students. Id. at 1487-88. OUA also maintains an office in
Detroit to recruit local high school students, most of whom
are African-American. Id. at 1480-81.

Despite LS&A’s efforts, recruiting alone is insufficient to
enroll a student body with meaningful numbers of
underrepresented minority students because the pool of
qualified underrepresented minority applicants is
significantly smaller than the pool of qualified non-minority
applicants. Pet. App. 42a; JA 1441, 1492. In addition,
intense competition with peer institutions for these highly
sought-after students compounds the pool size problem by
depressing the “yield”—the proportion of admitted students
who choose to enroll. JA 1492, 3991-92. As a result of the
small pool size, OUA ends up admitting virtually all
qualified underrepresented minority applicants.³   Id. at 1472-
73, 1491-92.

___________________
³       Plaintiffs’ suggestion that the University has a current policy of
admitting all qualified minority applicants is simply wrong. In their
petition, plaintiffs quote from a memo created in 1995 (Pet. 5), well
before the current admissions systems were implemented. Moreover, to
the extent that prior admissions guidelines included language discussing
the admission of all qualified minority students, it is undisputed that no
such language appears in the 1999 or 2000 admissions guidelines. Pet.
App. 113a; see also id. at 118a.

Indeed, even with these efforts, LS&A is only able to
provide some of the educational benefits of diversity because
meaningful numbers of minority students are not present in
all significant learning contexts. Id. at 1836, 1917.

Without considering race and ethnicity in admissions, the
proportion of admitted and enrolled underrepresented
minority students would drop precipitously,⁴   leaving most of
LS&A’s learning contexts with very few minority students,
or none at all. Id. at 1876, 1916. Under those circumstances,
the University could not obtain the educational benefits of
diversity. Id. at 1836.

Procedural History

Plaintiffs Jennifer Gratz and Patrick Hamacher, both of
whom are white, were unsuccessful applicants for admission
to LS&A for the classes that enrolled in 1995 and 1997,
respectively. On October 14, 1997, Plaintiffs brought this
action on behalf of a class of similarly-situated applicants.
The complaint asserted that the admissions policy of LS&A
violates the Fourteenth Amendment’s Equal Protection
Clause, Title VI of the Civil Rights Act of 1964, and 42
U.S.C. §§ 1981, 1983. The plaintiffs sought declaratory and
injunctive relief, and compensatory and punitive damages
against the Board of Regents of the University of Michigan,
as well as Lee Bollinger and James J. Duderstadt, both of
whom are former presidents of the University of Michigan.

On February 5, 1998, a group of seventeen African-
American and Latino students who applied, or intended to
apply, for admission to the University of Michigan, along
with Citizens for Affirmative Action’s Preservation, a
nonprofit organization that seeks to preserve opportunities in
higher education for African-American and Latino students,
moved to intervene as defendants in the case. The district

___________________
⁴       Despite the expected dramatic drop in underrepresented
minorities, only a slightly higher proportion of non-minority students
would be admitted. See id. at 1876.

court denied the motion to intervene. The court of appeals
reversed that denial on an interlocutory appeal (heard along
with an appeal from the denial of intervention in Grutter).
See Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999).

By an order dated December 23, 1998, the district court
certified a class, pursuant to Fed. R. Civ. P. 23(b)(2), of those
applicants who applied for and were denied admission to
LS&A and who “are members of those racial and ethnic
groups, including Caucasian, that defendants treat less
favorably on the basis of race in considering their application
for admission.” Pet. App. 3a & n.2. The district court also
bifurcated the case into separate liability and damages
phases. On September 26, 2000, the Sixth Circuit denied the
University’s petition for interlocutory review of the district
court’s certification order, pursuant to Fed. R. Civ. P. 23(f).

Following extensive discovery, on December 13, 2000,
the district court issued an opinion granting, in part, cross
motions for summary judgment. The district court
concluded, following Justice Powell’s opinion in Regents of
the Univ. of California v. Bakke, 438 U.S. 265 (1978), that
the University of Michigan has a compelling interest in
seeking to obtain the educational benefits that flow from a
student body that is diverse in many ways, including with
respect to racial and ethnic diversity. Pet. App. 27a-28a. In
reaching that conclusion, the district court also determined
that, through the unrebutted reports of nationally-renowned
experts in history, sociology, psychology, and education, the
University had presented “solid evidence” of the educational
benefits of diversity. Id. at 22a-25a.

The district court noted, however, that “Justice Powell’s
opinion in Bakke fails to set forth any bright line regarding
what constitutes a permissible consideration of race in
admissions decisions,” and that it “is often a thin line that
divides the permissible from the impermissible.” Id. at 34a.
The district court concluded that the admissions programs in
operation in 1999 and 2000 satisfied the requirements set

forth in Bakke and were therefore constitutional, whereas the
systems in place from 1995 through 1998, taken together,
“cross that thin line from the permissible to the
impermissible.” Id. (footnote omitted). The district court
also granted the individual defendants’ motions for summary
judgment on qualified immunity grounds, holding that a
reasonable official in the position of the individual
defendants might not have known that the admissions
systems in place from 1995 to 1998 would be found
unconstitutional.

On January 10, 2001, the plaintiffs and defendants jointly
requested that the district court, in connection with the entry
of an order reflecting the conclusions set forth in its
December 13, 2000 opinion, certify interlocutory crossappeals
pursuant to 28 U.S.C. § 1292(b). The district court,
by order dated January 30, 2001, did so. On February 9,
2001, the district court also entered final judgment, pursuant
to Fed. R. Civ. P. 54(b), in favor of the individual defendants
who had prevailed on their qualified immunity defenses.

Following the district court’s § 1292(b) certification of
questions arising from its January 30, 2001 order, the
plaintiffs and defendants each petitioned the court of appeals
to permit the interlocutory appeals to proceed. By order
dated March 26, 2001, the court of appeals granted the
petition and cross-petition. Those appeals are pending in the
court of appeals as Nos. 01-1416 and 01-1418. The plaintiffs
also filed a notice of appeal, No. 01-1333, pursuant to 28
U.S.C. § 1292(a), with respect to the final order dismissing
the claims against the individual defendants and denying the
requested injunctive relief. Those three appeals were subject
to consolidated briefing and argument in the court of appeals.

In a separate opinion, dated February 26, 2001, the
district court rejected the arguments advanced by the
intervening defendants that LS&A’s consideration of race as
a factor in admissions could be justified as a means to
remedy the present effects of past discrimination. By order

dated March 21, 2001, the district court also separately
entered final judgment under Fed. R. Civ. P. 54(b) with
respect to the claims of the intervening defendants, thereby
permitting those defendants to bring an interlocutory appeal
from its summary judgment rulings. The intervening
defendants filed a notice of appeal as to the district court’s
order rejecting their defenses. That appeal, No. 01-1438, was
briefed separately from the other three appeals in Gratz, but
argued along with those appeals.

All four appeals were argued before the en banc court of
appeals on December 6, 2001—the same date that the court
heard argument in Grutter . The court of appeals issued its
decision in Grutter on May 14, 2002. In that opinion, the
court of appeals noted that it would “address the challenge to
the University of Michigan’s admissions policy, Gratz v.
Bollinger, Nos. 01-1333, 01-1416, 01-1418, 01-1438, in a
forthcoming opinion.” Grutter Pet. App. 4a n.2. The court
of appeals has not yet decided the Gratz case.

1. THE PETITION SHOULD BE DENIED FOR THE
   SAME REASONS SET FORTH IN OPPOSITION
   TO CERTIORARI IN GRUTTER.

The Brief in Opposition in Grutter, submitted by
Respondents the Board of Regents of the University of
Michigan and its present and former officials, sets forth in
detail the reasons this Court should not, at this time, grant
certiorari to address the question whether institutions of
higher education may consider race and ethnicity in
admissions to obtain the educational benefits of diversity.
Respondents in this case will not repeat the reasons set forth
therein, but incorporate them by reference. Because the
division of authority among the courts of appeals is shallow
and undeveloped, it is unnecessary for this Court to intervene
at this time.

2. IF THIS COURT DENIES THE PETITION IN
   GRUTTER, THE HIGH STANDARD APPLICABLE
   TO PETITIONS FOR CERTIORARI BEFORE
   JUDGMENT IS NOT MET.

If this Court denies the petition in Grutter, it follows a
fortiori that this Court should deny this petition for certiorari
before judgment. The standard for granting certiorari before
judgment is very demanding. “A petition for a writ of
certiorari to review a case pending in a United States court of
appeals, before judgment is entered in that court, will be
granted only upon a showing that the case is of such
imperative public importance as to justify deviation from
normal appellate practice and to require immediate
determination in this Court.” S. Ct. Rule 11.

Petitioners argue that, if this Court otherwise grants
certiorari in Grutter, it should also grant this petition for
certiorari before judgment because it is a related case
presenting essentially the same legal issues. Assuming this
Court denies the petition for certiorari in Grutter, however,
nothing else even remotely suggests that Petitioners have met
the rigorous standard set forth in Rule 11 and this Court’s
cases regarding certiorari before judgment.

Petitioners contend that because this is a class action
lawsuit presenting issues of national importance, the Court
should grant certiorari before judgment. Those reasons do
not, however, distinguish this case from many other cases in
which this Court appropriately awaits resolution in the courts
of appeals before exercising its certiorari jurisdiction.
Petitioners cannot and do not suggest that Gratz presents a
better vehicle than Grutter for this Court to resolve the issues
presented in the petition—either now or after judgment in the
court of appeals. Thus, if this Court denies the petition for
certiorari in Grutter, it should deny this petition as well.

3. IF THIS COURT DOES GRANT CERTIORARI IN
   GRUTTER , IT WOULD BE APPROPRIATE TO
   GRANT CERTIORARI HERE, LIMITED TO THE
   FIRST QUESTION PRESENTED IN THE
   PETITION.

If (and only if) this Court were to grant the petition in
Grutter, Respondents agree that it would be appropriate to
grant certiorari before judgment to determine whether the
current LS&A admissions program is constitutional. This
outcome can be achieved in either of two ways. The Court
could restrict its grant of certiorari before judgment to the
appeal that presents this question (No. 01-1418).
Alternatively, if this Court grants certiorari before judgment
with respect to all four of the appeals pending in the court of
appeals, it would be appropriate for this Court to issue an
order limiting its grant of certiorari to the question of whether
the current LS&A admissions system is constitutional.

Review of the other questions presented before judgment
in the court of appeals is unwarranted, and would add
unnecessary complexity to the briefs, argument, and decision
of these cases. The application of the legal principles this
Court may announce to the prior admissions systems—as
well as the other questions presented in the petition that are
by no means independently certworthy—are more properly
left for consideration in the first instance by the court of
appeals.

Respondents thus respectfully submit that if this Court
grants certiorari in Grutter, it should grant the petition for
certiorari before judgment to hear some, but not all, of the
cases now pending in the court of appeals. Because “what
the Supreme Court is asked to do by way of granting
certiorari before judgment is to render the kind of judgment
on the merits of the appeal that the court of appeals could
have rendered,” Robert L. Stern et al., Supreme Court
Practice 76 (8th ed. 2002), and because the instant petition
for certiorari before judgment relates to four separate cases

that are pending in the court of appeals, each of the four
pending appeals is addressed separately. See Hohn v. United
States, 524 U.S. 236, 241-44 (1998) (noting that a “case” is
“in” the court of appeals when a notice of appeal is filed and
a docket entry created).

No. 01-1418.   This is the plaintiffs’ interlocutory appeal,
for which leave was granted under 28 U.S.C. § 1292(b),
challenging the district court’s conclusion that the current
operation of the LS&A admissions process (beginning in
1999) complies with applicable constitutional standards.

In the event this Court grants certiorari in Grutter,
Respondents agree that certiorari before judgment would be
appropriate in this appeal. As Petitioners note, once this
Court has granted certiorari in a particular case, it sometimes
grants certiorari before judgment to hear other cases then
pending in the lower courts presenting the same or related
questions of law arising on different facts. See Pet. 15 (citing
cases); see also Stern, supra, at 262 & n.65 (citing thirteen
such cases); cf. Clinton v. New York, 524 U.S. 417, 455
(1998) (Scalia, J., joined by O’Connor, J., dissenting)
(arguing that the Court had appellate jurisdiction over one
appeal under statute providing for expedited appeal to
Supreme Court as of right, but not in a second related case,
and suggesting that “[i]n light of the public importance of the
issues involved, and the little sense it would make for the
Government to pursue its appeal against one appellee in this
Court and against the others in the Court of Appeals, the
entire case, in my view, qualifies for certiorari review before judgment”).

As Petitioners note (Pet. 15), if this Court were to grant
the petition in Grutter, hearing both cases would provide the
Court an opportunity to resolve these important legal
questions in the context of a broader range of factual
circumstances faced by colleges and universities than would
be possible if the Court granted certiorari in only one case.

The two cases are certainly related. They have proceeded
on parallel tracks in district court and in the court of appeals.
The Board of Regents of the University of Michigan is the
principal defendant in both cases. These two separate but
related cases involve two factually distinct admissions
systems, one involving a small and extremely selective
graduate program (similar in structure to those put in place,
after Bakke, by many small and selective colleges and
graduate programs), and another involving admissions to a
large, selective public university that is required to consider
tens of thousands of applications each year. Hearing them
together would allow this Court an opportunity to provide
more helpful guidance to lower courts and to colleges and
universities charged with complying with this Court’s
decisions than would be possible if only one admissions
system were before the Court.

No. 01-1416.   This is the defendants’ interlocutory
appeal, for which leave was granted under 28 U.S.C.
§ 1292(b), challenging the district court’s determination that
the LS&A admissions systems, in place from 1995 to 1998,
taken together, were constitutionally impermissible.

Because the University of Michigan undisputedly no
longer employs the admissions systems at issue in this
appeal, Respondents do not believe this Court should sit as a
court of review, in the first instance, to hear an appeal from
the district court’s determination. If this Court were inclined
to grant certiorari at this point to decide whether and how
colleges and universities may consider race in admissions to
achieve the benefits of diversity, the Grutter case and the
appeal in No. 01-1418 would provide ample opportunity for
this Court to resolve the question in the context of
admissions systems that are currently in force. There is no
reason why this Court should exercise its rare certiorari
before judgment authority to apply the rule of law that would
emerge from these cases to admissions processes that the
University discontinued four years ago. See, e.g., Texas v.

Hopwood, 518 U.S. 1033, 1034 (1996) (mem.) (statement of
Ginsburg, J., joined by Souter, J., with respect to the denial
of certiorari) (observing, in connection with the denial of
certiorari, that “the 1992 admissions program [at the
University of Texas Law School] has long since been
discontinued and will not be reinstated.”) (internal quotations
and citation omitted).⁵

If this Court does otherwise grant certiorari in these
cases, the appeal presenting the question involving
discontinued admissions systems should properly remain in
the court of appeals, left for that court’s resolution following
this Court’s disposition of these cases.

No. 01-1333.   Prior to the court of appeals’ decision to
accept the district court’s § 1292(b) certification, plaintiffs
filed an appeal as of right with respect to (a) the district
court’s final order, pursuant to Fed. R. Civ. P. 54(b), granting
judgment on qualified immunity grounds in favor of the
individual defendants who had been sued for damages in
their individual capacities, and (b) the district court’s
summary judgment ruling denying plaintiffs’ request for an
injunction.

Plaintiffs’ challenge to the district court’s qualified
immunity ruling is wholly fact-bound and unworthy of this
Court’s review—least of all before judgment in the court of
appeals. The petition does not identify any disagreement
among the lower courts on any question of law relating to
qualified immunity standards. Under these circumstances, it
would certainly be inappropriate to leapfrog the court of
appeals in order to resolve the application of settled qualified

___________________
⁵       While the petition relies heavily on a stipulation that Petitioners
assert equates the prior and current admissions systems (Pet. 9), in fact
the stipulation addressed the change only from the “grids” to the
“selection index,” and did not relate to the use of “protected seats” or
other aspects of the prior admissions systems that the district court found
constitutionally problematic. Indeed, the district court did not adopt
Petitioners’ interpretation of the stipulation. Pet. App. 34a & n.16.

immunity principles to the facts of this case. Certiorari
before judgment should therefore be denied, with the
question of the correctness of the district court’s qualified
immunity ruling left for consideration in the first instance in
the court of appeals, following any decision by this Court on
the merits.

In addition, certiorari before judgment with respect to this
appeal would also be improper because the jurisdiction of the
court of appeals was not properly invoked. Plaintiffs did not
seek preliminary injunctive relief in the district court. For
that reason, § 1292(a)(1)’s exception to the final judgment
rule does not apply. See Switzerland Cheese Ass’n v.
E. Horne’s Market, Inc., 385 U.S. 23 (1966) (district court’s
order denying plaintiff’s motion for summary judgment
based on the existence of triable facts was not appealable
under § 1292(a)(1)); 16 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3924.1, at 156
(1996) (suggesting that § 1292(a)(1) should be confined “to
appeals from orders dealing with explicit requests for
preliminary relief”). No other basis for appellate jurisdiction
over the district court’s order denying plaintiffs’ request for
injunctive relief is presented.

Even if the court of appeals has appellate jurisdiction
over this aspect of plaintiffs’ appeal, there is no reason this
Court should hear that appeal in the first instance. Plaintiffs
ask this Court to resolve the question whether the district
court, having concluded that the LS&A’s current admissions
system was lawful while its prior admissions systems were
not, erred in declining to enjoin defendants from reinstituting
its prior admissions systems. This unexceptional exercise of
the district court’s traditional authority to grant or withhold
equitable relief in view of all of the facts and circumstances
presents no question of general applicability warranting this
Court’s review.

Thus, because the qualified immunity question is wholly
fact-bound, and because the challenge to the district court’s

denial of injunctive relief is not certworthy and rests on a
questionable jurisdictional foundation, certiorari before
judgment should be denied in appeal No. 01-1333.

No. 01-1438.   This appeal was filed by the intervening
defendants from the district court’s order rejecting the
argument that the LS&A admissions system could be
justified as a remedy for the present effects of alleged past
discrimination. The intervening defendants, who are also
Respondents herein, have separately filed a petition for a writ
of certiorari before judgment, No. 02-571, in which certiorari
is sought on the same remedial question.⁶   If (and only if)
certiorari is granted in Grutter, Respondents the Board of
Regents of the University of Michigan, Lee Bollinger, and
James J. Duderstadt do not oppose the request (either as
advanced by the Petitioners herein, or by the intervening
defendants as Petitioners in this Court in case No. 02-571),
for certiorari before judgment seeking review in this Court of
that remedial question.

For the foregoing reasons, the petition for a writ of
certiorari before judgment should be denied.

If this Court grants certiorari in the related case of
Grutter v. Bollinger, No. 02-241, however, the petition for a
writ of certiorari before judgment in this case should be
granted, limited to the plaintiffs’ § 1292(b) appeal (No. 01-
1418). The petition for certiorari before judgment should be
denied as to the plaintiffs’ § 1292(a)(1) appeal (No. 01-1333)
and the defendants’ § 1292(b) appeal (No. 01-1416). If this
Court grants certiorari before judgment with respect to any of
these appeals, Respondents do not oppose the petition
seeking certiorari before judgment to hear the questions

___________________
⁶       The petition in Patterson, No. 02-571, also purports to present the
question whether the University’s consideration of race may be justified
as serving the compelling interest of achieving the educational benefits of
diversity. Because that question is fully before the Court in connection
with this petition, it need not be independently considered in Patterson.

presented in the intervening defendants’ appeal (No. 01-
1438).

Alternatively, if certiorari is granted in Grutter, and if
this Court does not act separately on the petition with respect
to each of the separate cases now pending in the court of
appeals, it should issue an order limiting its review to the
question of whether the current LS&A admissions program is
constitutional.

Finally, if certiorari before judgment in this case is
granted, Respondents respectfully suggest that this Court
enter its order granting certiorari in this case and in Grutter
on the same date, and provide that the cases each be set for
one hour of argument on the same day.