Page

TABLE OF AUTHORITIES........................................ ii

ARGUMENT............................................................... 1

1. The University’s Use of Racial Preferences in
   Admissions Is Not Justified by a Compelling
   Interest............................................................. 1
2. The University’s Use of Racial Preferences Is
   Not Narrowly Tailored...................................... 12
3. The University’s Use of Racial Preferences
   Violates 42 U.S.C. § 1981.................................. 20

CONCLUSION............................................................ 20

                                                                                                Page

CASES:

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) .................................................. 1, 2, 8

Aiken v. City of Memphis,
37 F.3d 1155 (6th Cir. 1994)............................................11

Batson v. Kentucky, 476 U.S. 79 (1986)............................... 5

Billish v. City of Chicago,
989 F.2d 890 (7th Cir. 1993)............................................11

Brown v. Board of Education, 347 U.S. 483 (1954) .... 2, 6, 9

Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520 (1993) ............................. 12

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ........................................................ 18

Easley v. Cromartie, 532 U.S. 234 (2001)............................ 3

Ensley Branch, N.A.A.C.P. v. Seibels,
31 F.3d 1548 (11th Cir. 1994)..........................................11

Fullilove v. Klutznick, 448 U.S. 448 (1980)......................... 3

General Building Contractors Association
v. Pennsylvania, 458 U.S. 375 (1982) ............................ 20

Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) ...... 14, 18

Johnson v. Transportation Agency, Santa Clara
County, 480 U.S. 616 (1987) .......................................... 14

Metro Broadcasting, Inc. v. FCC,
497 U.S. 547 (1990) .............................................. 1, 2, 3, 8

Middleton v. City of Flint, 92 F.3d 396
(6th Cir. 1996)................................................................. 13

                                                                                                Page

Peters v. Kiff, 407 U.S. 493 (1972) ....................................... 4

Planned Parenthood v. Casey, 505 U.S. 833 (1992)........ 8, 9

Plessy v. Ferguson, 163 U.S. 537 (1896) ...................... 2, 3, 9

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

Roe v. Wade, 410 U.S. 113 (1973)......................................... 8

Rothe Develop. Corp. v. United States Department
of Defense, 262 F.3d 1306 (Fed. Cir. 2001) .................... 18

United States v. Paradise, 480 U.S. 149 (1987) ................ 17

Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977)................... 9

Ward’s Cove Packing Co. v. Atonio,
490 U.S. 642 (1989) .........................................................11

Washington v. Davis, 426 U.S. 229 (1976) .......................... 9

Wygant v. Jackson Board of Education,
476 U.S. 266 (1986) .................................................... 5, 20

STATUTES AND RULES:

42 U.S.C. § 1981 ................................................................. 20

Sup. Ct. R. 15.2................................................................... 20

MISCELLANEOUS:

William G. Bowen & Derek Bok, Response to
Review by Terrance Sandalow, 97 U. MICH. L.
Rev. 1917 (1999)................................................................ 7

WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF
THE RIVER (1998) ......................................................... 7, 19

                                                                                                Page

STEPHEN COLE & ELINOR BARBER, INCREASING
FACULTY DIVERSITY (2003)................................................ 7

Stacy Berg Dale & Alan Kreuger, Estimating the
Payoff to Attending A More Selective College: An
Application of Selection on Observables and Un-
observables, National Bureau of Economic Re-
search Working Paper No. 7322 (1999)........................... 7

Alan M. Dershowitz & Laura Hanft, Affirmative
Action And The Harvard College Diversity-
Discretion Model: Paradigm Or Pretext, 1 CAR-
DOZO L. REV. 379 (1979) ................................................. 14

JOHN H. MCWHORTER, LOSING THE RACE (2000)............... 19

Stanley Rothman, Seymour Martin Lipset & Neil
Nevitte, Does Enrollment Diversity Improve Edu-
cation?, 15 INT’L J. PUB. OP. 8 (2003) .............................. 6

Terrance Sandalow, Minority Preferences Reconsid-
ered, 97 U. MICH. L. REV. 1874 (1999)............................. 7

Terrance Sandalow, Rejoinder, 97 U. MICH. L. REV.
1923 (1999) ....................................................................... 7

Stephan Thernstrom & Abigail Thernstrom, Reflec-
tions on the Shape of the River, 46 UCLA L. REV.
1583 (1999) ....................................................................... 7

PETER WOOD, DIVERSITY: THE INVENTION OF A
CONCEPT (2003)................................................................. 7

1. The University’s Use of Racial Preferences in
   Admissions Is Not Justified by a Compelling
   Interest.

        A.     There should be no mistaking what the University
of Michigan (“ University” ) and its higher education amici
are asking this Court to rule. They seek a standard of
review for racial preferences in admissions that is defined
by vested deference in these institutions to use race and
ethnicity in the manner and to the extent that they judge
best for everyone concerned. See, e.g., Resp. Br. 21-32;
Brief for Harvard University, et al. as Amicus Curiae 28
(“ a matter of educational judgment” ); Brief for Columbia
University, et al. as Amicus Curiae 15 (“ higher degree of
deference” ); Brief for Amherst College, et al. as Amicus
Curiae 26 (“ substantial deference” ); Brief for University of
Pittsburgh, et al., as Amicus Curiae 13 (“ deference” ); Brief
for Judith Areen, et al. (Law Deans) as Amicus Curiae 25,
filed in Grutter v. Bollinger (No. 02-241) (“ substantial
deference” ). Far from having any support in the modern
precedents of this Court, the view urged by respondents
and the institutions that support them represents a
breathtaking departure from the demands of strict scru-
tiny, to which all governmental racial classifications must
be subjected. Adarand Constructors, Inc. v. Pena, 515 U.S.
200, 227 (1995).

A “ deferential” standard of review is completely
incompatible with one premised on “ skepticism” and
requiring “ a most searching examination.” Id. at 223.
The exemption from this standard that the University
seeks for itself and other educational institutions is
based on a claim that educators can be trusted to use
race only for proper purposes and then only to the
extent necessary to achieve them. This is merely a
formulation of the argument that strict scrutiny should
not apply when a racial classification is being used for
allegedly “ benign” reasons. See Metro Broad., Inc. v.

FCC, 497 U.S. 547, 564-65 (1990), overruled by Adarand,
515 U.S. at 226. Its troubles are well known. “ Policies of
racial separation and preference are almost always justi-
fied as benign, even when it is clear to any sensible ob-
server that they are not.” Metro Broad., 497 U.S. at 635
(Kennedy, J., dissenting). The policies here are certainly
not benign with respect to those individuals who are
disadvantaged by the preferences.

Moreover, a right to discriminate founded on “ aca-
demic freedom,” as respondents and their amici would
have it founded, necessarily entails the near certainty that
educators will have differing notions about what purposes
could justify differential treatment on the basis of race. A
standard of deference genuinely derived from the First
Amendment provides no principled basis for distinguish-
ing between “ good” and “ bad” academic theories for differ-
ent kinds of racial classifications.

The argument made by educators that they should be
left with the task of deciding whether and how to employ
racial classifications in the service of educating their
students is one that has been made and rightly rejected
before by this Court. It should not be given credence now,
fifty years after Brown v. Board of Education, 347 U.S.
483 (1954), even when made by those who run the Nation’s
most selective and prestigious institutions.

Hand in hand with the argument for a deferential
standard of review is the one made for subjecting racial
preferences in admissions to a test of reasonableness, like
the one employed in Plessy v. Ferguson, 163 U.S. 537, 550
(1896), that is applied to review of ordinary government
classifications. See, e.g., Brief for NOW Legal Defense and
Education Fund as Amicus Curiae 11-12, 16; Brief of
Judith Areen, et al. (Law Deans) as Amicus Curiae 3, filed
in Grutter v. Bollinger (No. 02-241).¹ It would be as wrong

___________________
¹       The Governor of the State of Michigan has even made the
remarkable argument that the Michigan Constitution cloaks the

today to apply such a standard to racial classifications as
it was to do so more than one hundred years ago in Plessy.

Ultimately it is important to understand the scope of
the discretion that respondents and their educational
amici seek permission to exercise. They seek discretion to
decide which groups get a plus for race, and which ones
get a minus. Discretion would also presumably extend to
deciding how to determine whether someone has the racial
or ethnic characteristics necessary to receive a conferred
preference, an issue that will presumably become only
more difficult (and arbitrarily resolved) as our society
becomes increasingly inter-racial.² Finally, respondents lay
claim to decide for themselves how much of the selected
type of racial and ethnic diversity to pursue to realize the
“ educational concept” on which all this race discrimination
and racial balancing are justified.³

___________________
²       See Metro Broad., 497 U.S. at 633 n.1 (Kennedy, J., dissenting)
(noting “ the difficulties, both practical and constitutional, with the task
of defining members of racial groups” ). Educational institutions will get
to grapple with the same kind of problem that was presented in Plessy,
where it was necessary to decide whether Plessy, who was seven-
eighths caucasian, was properly assigned to the separate railway car
for “ persons not of the white race.” See also Fullilove v. Klutznick, 448
U.S. 448, 534 n.5 (1980) (Stevens, J., dissenting) (“ If the National
Government is to make a serious effort to define racial classes by
criteria that can be administered objectively, it must study precedents
such as the First Regulation to the Reichs Citizenship Law of Novem-
ber 14, 1935, translated in 4 Nazi Conspiracy and Aggression, Docu-
ment No. 1417-PS, pp. 8-9 (1946).” ). See also Metro Broad., 497 U.S. at
633 n.1 (Kennedy, J., dissenting) (“ Other examples are available. See
Population Registration Act No. 30 of 1950, Statutes of the Republic of
South Africa 71 (1985).” ).

³       Respondents suggest that they may use race as a factor in
admissions as long as it is not the “ predominant” factor. Resp. Br. 20
n.29. However, the test they cite is used to determine whether race-
neutral means should be subjected to “ strict scrutiny.” See, e.g., Easley
v. Cromartie, 532 U.S. 234, 241 (2001). See also Brief for Harvard

        B.     While the University rests its plea for deferential
review on its status as an educational institution, recog-
nizing the interest it articulates as compelling is almost
certain to have implications reaching far outside the field
of education. First, if disparities among racial groups on
such matters as test scores can justify racial preferences
on a theory that the disparities are the product of histori-
cal discrimination,see Resp. Br. 32, there is no principled
reason to confine the rationale to educational testing. It
could be equally well argued, for example, that disparities
among racial groups in employment testing should justify
the same kind of disparate treatment that respondents
defend in this case (and in Grutter v. Bollinger).

Second, once one accepts the proposition that race is a
legitimate proxy for experience and that exposure to
diverse races is a compelling interest of the highest order,
there are few race preferences that cannot be justified. If
student understanding improves when exposed to margin-
ally larger numbers of preferred minorities, so should
jurors’ understanding improve. Indeed, this Court has
repeatedly explained how jurors’ diverse experiences can
aid the jury in understanding a case. Peters v. Kiff, 407
U.S. 493, 504 (1972) (Marshall, J.) (“ exclusion [of a seg-
ment of the community from jury service] deprives the
jury of a perspective on human events that may have
unsuspected importance in any case that may be pre-
sented” ); id. at 510-11 (Burger, C.J., dissenting) (“ I com-
pletely agree that juries should not be deprived of the
insights of the various segments of the community, for the
‘ common-sense judgment of a jury’ . . . is surely enriched
when all voices can be heard.” ). Yet the rule this Court
derives from that conclusion is not a rule for race-norming
predominantly-white or sex-norming predominantly-male

juries to insure that such broad perspectives are heard
and considered. Rather, the rule is one of hard and fast
race and sex neutrality. See, e.g., Batson v. Kentucky, 476
U.S. 79 (1986); cf. Wygant v. Jackson Bd. of Educ., 476
U.S. 267, 313 (1986) (Stevens, J., dissenting) (“ utterly
irrational” to conclude that race should be considered in
selecting members of a jury).⁴ The Court has not tolerated
the use of race as a factor in selecting juries when it is just
one among many factors considered, or to the point it is
not considered too much in the good faith exercise of
discretion by judges and attorneys, acting as officers of the
court. The rule should not be any different when it comes
to admissions officers making choices among individuals
in the valuable award of places in the class in our Nation’s
colleges and universities.

The claims for diversity made by the University can
also be made just as easily in the employment context.
Indeed, some of the University’s amici have already made
them. For example, General Motors, in addition to justify-
ing racial preferences in higher education to improve its
“ bottom line,” has even adopted the University’s jargon by
noting the “ manifold benefits of having a critical mass of
people of color and persons of different ethnicities in . . .
upper ranks” of corporate management. Brief for General
Motors Corporation as Amicus Curiae 12, 23; id. at 13
(noting General Motors has “ made diversity a ‘ core busi-
ness objective’ ” ); id. at 23 (“ There can be little doubt that
racial and ethnic diversity in senior leadership of the
corporate world is crucial to our Nation’s economic

___________________
⁴       The University’s suggestion that consideration of race would
somehow taint the juror’s impartiality is opaque and unexplained.
Resp. Br. 26 n.38. The ability to bring a “ new perspective” ought not to
compromise anyone’s ability to remain impartial, and the University
offers no reason why it should. And if it does, then presumably it also
would compromise a student’s ability to pursue knowledge and truth, a
pursuit which lies at the core of any educational experience and is the
end for which the much-touted “ atmosphere of speculation” is just a
means.

prospects.” ) (emphasis added). Because respondents and
the corporate amici justify racial preferences in university
admissions in large part for the benefits said to accrue to
post-school careers and in the work place, it is hard to
understand why the interest would be compelling in
assembling a student body, but not a workforce. See also
Brief for 65 Leading American Businesses as Amicus
Curiae 1 (arguing that “ diverse work force” is essential).

        C.     Respondents seek to bolster their claim for an
exception to the prohibitions of the Equal Protection
Clause with reference to social science findings on the
educational benefits for diversity. The scope of individual
rights guaranteed by the Constitution should not be a
matter to be decided in academic conferences and schol-
arly journals. The defendant school boards offered much
testimony of educators, psychiatrists, and psychologists to
support their respective positions on the great issue
decided in Brown v. Board of Education and its related
cases. See Brief for The Center for Equal Opportunity, et
al. as Amicus Curiae 21-26. That evidence did not affect
the central holding of Brown, nor could Brown ever be
subject to change on a mere showing or claim that it is no
longer supported by empirical evidence. It is no more
tolerable that respondents seek to justify their unequal
treatment of individuals like Jennifer Gratz and Patrick
Hamacher on such a basis.

It is far from the case, moreover, that there is any
consensus in the social science community about the
empirical claims made for diversity. For example, a study
published recently in a peer-reviewed journal reached
conclusions that are quite different and inconsistent with
those of respondents’ witness, Patricia Gurin,⁵ whose work

___________________
⁵       See Stanley Rothman, Seymour Martin Lipset & Neil Nevitte,
Does Enrollment Diversity Improve Education? 15 INT’L J. PUB. OP. 8
(2003).

has been widely criticized by others as well.⁶ The conclu-
sions and methodology of William Bowen and Derek Bok
in their book The Shape of The River have also been
challenged by others,⁷ including by a former Dean of
the University of Michigan Law School.⁸ A recent study
sponsored by the same Mellon Foundation that under-
wrote the project discussed in The Shape of the River
reached conclusions that racial preferences are not helpful
and, are, indeed, harmful to the intended beneficiaries.
See STEPHEN COLE & ELINOR BARBER, INCREASING FACULTY
DIVERSITY 205-06, 344 n.25 (2003). The state of controversy
on the subject is such that no constitutional principle
should depend on one set of findings or another.

        D.     Respondents have tried to bootstrap their argu-
ment that Justice Powell’s lone opinion with respect to
diversity in Regents of the University of California v.
Bakke, 438 U.S. 265 (1978), stated a majority rationale

___________________
⁶       See Brief for National Association of Scholars as Amicus Curiae 6-
30.

⁷ See, e.g., Stephan Thernstrom & Abigail Thernstrom, Reflections
on the Shape of the River 46 UCLA L. REV. 1583 (1999). For a
discussion of the history of the diversity concept, see PETER WOOD,
DIVERSITY: THE INVENTION OF A CONCEPT (2003).

⁸ See Terrance Sandalow, Minority Preferences Reconsidered, 97 U.
MICH. L. REV. 1874 (1999). The article generated a response from
Professors Bok and Bowen and a reply from Professor Sandalow.
William G. Bowen & Derek Bok, Response to Review by Terrance
Sandalow, 97 U. MICH. L. REV. 1917 (1999); Terrance Sandalow,
Rejoinder, 97 U. MICH. L. REV. 1923 (1999).

Even the seemingly uncontroversial proposition that the beneficiar-
ies of race preferences themselves are advantaged from having at-
v more selective colleges has been questioned. Stacy Berg Dale &
Alan Kreuger, Estimating the Payoff to Attending A More Selective
College: An Application of Selection on Observables and Unobservables,
National Bureau of Economic Research Working Paper No. 7322 (1999)
(using same database as Bok & Bowen, researchers conclude that
students who attended more selective colleges do not earn more than
other students who were accepted and rejected by comparable schools
but attended less selective colleges).

with their assertion that it has generated “ settled expecta-
tions,” in the manner considered in Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-55
(1992). Resp. Br. 18. This Court used the framework set
forth in Casey to consider whether it should overrule a
precedent set in a case by a 7-2 majority. It is precisely
because of the fractured nature of the Bakke opinions and
their failure to produce a majority rationale⁹ supporting a
specific non-remedial use of race that “ principles of stare
decisis, as articulated in Casey,” do not resolve the parties’
dispute. Resp. Br. 17.

In any event, the factors of reliance and stability
discussed in Casey have no application here for reasons
which relate to the nature of the rights involved and the
effect of the judicial decision with respect to them. Unlike
Casey and the case it considered, Roe v. Wade, 410 U.S.
113 (1973), Justice Powell’s opinion in Bakke, to the extent
it joined with Justice Brennan’s opinion to reverse the
California Supreme Court’s injunction against the use of
race, did not identify an individual right, but rather a
limitation on such a right (to equal protection). No indi-
vidualcan rely upon such limits because the state agency
or its superior can ignore the limit and bolster the right —
just as Virginia Tech has recently done, and just as the
states of California, Washington, and Florida have done
with the right to equal protection by forbidding racial
considerations in, among other things, university admis-
sions. Because it only declared a limit on a right, Justice
Powell’s opinion could not (even if it had been joined by
four or more other Justices) have “ call[ed] the contending

___________________
⁵      
See also Adarand, 515 U.S. at 257 (Stevens, J., dissenting)
(“ Thus, prior to Metro Broadcasting, the interest in diversity had been
mentioned in a few opinions, but it is perfectly clear that the Court had
not yet decided whether that interest had sufficient magnitude to justify
a racial classification.” ) (emphasis added).

sides of a national controversy to end their national
division by accepting a common mandate rooted in the
Constitution.” Casey, 505 U.S. at 867. The controversy
would persist because states and federal fund recipients
are free under the Constitution to bolster the right of
equal protection and to eliminate race as a consideration.
Bakke, 438 U.S. at 379 (Brennan, J.) (“ any State . . . is
generally free, as far as the Constitution is concerned, to
abjure granting any racial preferences in its admissions
program” ).¹⁰

Even if the remainder of the Casey analysis were
applicable here, where petitioner does not seek to “ over-
rule” any precedent of the Court, it would not militate in
favor of accepting “ diversity” as a compelling governmen-
tal interest justifying racial preferences. Justice Powell’s
deferential approach, for reasons already explained,
simply cannot be squared with the requirements of strict
scrutiny. Moreoever, experience has demonstrated that it
is not sensible, realistic, or “ [ ]workable,” Casey, 505 U.S.
at 855, to regard an admissions system that facially treats
applicants differently based on race and ethnicity as if it
were one that is “ facially nondiscriminatory,” Bakke, 438
U.S. at 318 (Powell, J.) (emphasis added).¹¹ It requires
an intolerable sacrifice of candor in describing actual

___________________
¹⁰       Moreover, respondents’ reliance arguments to the contrary, see
Resp. Br. 19, could have been made just as forcefully by states and
school districts that operated race-based dual school systems before
they were ruled unconstitutional in Brown v. Board of Education, 347
U.S. 483 (1954). Like Justice Powell’s opinion in Bakke, Plessy declared
a limit on the right of equal protection and did not prevent any state
from creating integrated schools.

¹¹ The cases cited by Justice Powell to demonstrate how the
presumption of “ good faith” and “ legitimate educational purpose,”
Bakke, 438 U.S. at 318-19 & n.53, of a university could be overcome
were cases involving race-neutral means. See, e.g., Village of Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977);
Washington v. Davis, 426 U.S. 229 (1976). They offer no guidance in
ascertaining how to distinguish between lawful and unlawful facial
discrimination.

admissions systems to sustain such a contradiction. It is
this fiction that explicit racial preferences in admissions
can pass a test of facial nondiscrimination that has been
the basis for justifying many a racial preference by those
wielding them, including preferences bearing little differ-
ence, even in form, from what was struck down in Bakke.
See Pet. Br. 43-45 (discussing race-based admissions
policies challenged in other cases).¹²

Finally, it is simply strange and perverse to invoke
“ settled expectations” to defend racial preferences, which
the Court has repeatedly stressed should be only “ tempo-
rary” measures since they conflict with the command of
equality contained in the Equal Protection Clause. Under
respondents’ analysis, the longer “ temporary” preferences
are in place, the stronger the argument becomes that they
should remain in place. If racial preferences justified on
“ diversity” grounds have indeed become part of the “ na-
tional culture” such that their removal would “ damage the
stability of the society,” Resp. Br. 18-19, and if these are
reasons that justify their continuance into the 21st Cen-
tury in spite of the equality guarantee, then the Nation
should abandon as pretense the notion that they are
“ temporary.”

        E.     With respect to the separate claims of the intervenors,
they never offer any evidence to dispute the district
court’s finding that remedying past discrimination was not
the purpose behind the race preferences employed by the

___________________
¹²       Respondents are certainly wrong to suggest that there is
anything like a “ consensus” in this country supporting the use of race in
college and university admissions. To the contrary, polls have repeat-
edly shown that large majorities oppose the use of race in making such
decisions. See Brief for National Association of Scholars as Amicus
Curiae 4-11, in Grutter v. Bollinger (No. 02-241) (listing polls, including
2001 joint survey by the Washington Post, Kaiser Foundation, and
Harvard University that found overwhelming opposition, across racial
lines, to use of race as a factor in college admissions); Brief for the Cato
Institute as Amicus Curiae 14-15 n.10 (same); Brief for the Center for
New Black Leadership as Amicus Curiae 7 n.6 (same).

University, a point that fatally undermines their argu-
ment. See Pet. Br. 48. Even ignoring that problem, inter-
venors never suggest how the scheme of preferences can
“ remedy” the isolated incidents of discrimination from the
staff, instructors, or campus police (Resp. Interv. Br. 12-14)
upon which they rely. Indeed, it appears that the prefer-
ences have not remedied them at all, since the intervenors
assert that those incidents continue. Id. at 14. They
apparently give no thought at all to the possibility that a
scheme of race preferences might be the cause of some of
the racial tension on campus, and have failed to identify
why the problem of discriminatory employees or fellow
students cannot be resolved in perfectly race-neutral ways
(like ridding the University of such individuals).

Intervenors also argue that the scheme of preferences
counteracts the discriminatory impact of “ economically or
politically advantageous criteria” (Resp. Interv. Br. 25)
such as geographic preferences and the preference for
alumni children. But if such preferences are validly
employed by the University, then they cannot be discrimi-
natory.¹³ If they are not valid, then they should be elimi-
nated. Intervenors cite no case for the proposition that a
state can use race preferences to counteract ongoing
discriminatory practices while doing nothing at all about
the practices themselves.¹⁴

Ultimately, the intervenors demonstrate only that the
University’s interest in diversity is not compelling. If the

___________________
¹³      
Ward’s Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989)
(“ [T]here is no requirement that the challenged practice be ‘ essential’ or
‘ indispensable’ to the employer’s business for it to pass muster: this
degree of scrutiny would be almost impossible for most employers to
meet and would result in [inter alia, race and sex quotas to avoid
lawsuits].” ).

14 All of the lower courts (including two en banc courts) that have
considered such a proposition have rejected it. Aiken v. City of Mem-
phis,37 F.3d 1155, 1164 (6th Cir. 1994) (en banc), quoting Billish v. City
of Chicago, 989 F.2d 890, 894 (7th Cir. 1993) (en banc); Ensley Branch,
N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1572 (11th Cir. 1994).

University insists that it must balance the interest in
diversity with criteria that have a discriminatory impact
against its preferred minorities, and that are of questionable
educational value (like alumni preferences), then the
University itself does not treat the interest as one “ of the
highest order.” Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 547 (1993). See also Brief for
Center for Individual Freedom as Amicus Curiae 7.

2. The University’s Use of Racial Preferences Is
   Not Narrowly Tailored.

        A.     For the first time in the more than five years that
this case has been pending, respondents have expressly
“ disavowed” the admissions system that was in place when
petitioners Jennifer Gratz and Patrick Hamacher applied
to the LSA in 1995 and 1997, respectfully. Resp. Br. 5 n.7.
They do so while contending that this Court need not
consider the lawfulness of those systems since they have
been replaced by the current point-based “ selection index”
regime and because respondents did not petition for
review of the district court’s judgment invalidating the
systems in place from 1995 to 1998.¹⁵ Resp. Br. 5 n.7.

___________________
¹⁵       Respondents vigorously defended in the district court and the
court of appeals the systems in place in 1995-1998, with the separate
race-based “ grid” guidelines (1995-1997), racially-segregated waiting
lists, exemption of the preferred minority students from automatic
rejection based on low test scores and grades, and “ protected spaces” in
the class for members of the preferred minority groups. The last three
of these egregious features were not abandoned until two years after
commencement of the filing of this lawsuit, with the implementation of
the 1999 guidelines. At least until the filing of their merits brief in this
Court, respondents had consistently expressed the view that all of these
prior forms of racial preferences were fully consistent with the consid-
eration of race as a “ plus” factor in the manner approved in Justice
Powell’s opinion in Bakke and the “ Harvard plan” described in his
opinion. This new “ disavowal” of their earlier systems undermines
respondents’ arguments that they have “ relied” on Bakke and that their

Respondents then proceed to discuss the system imple-
mented in 1999 as if it bears no relation to the earlier one,
now effectively conceded by them to be unlawful.

What respondents simply ignore is that by their own
admission the current system was statistically designed to
produce the “ same outcomes” as the former one.¹⁶ See
Defendants’ Opposition to Plaintiffs’ Motion for Partial
Summary Judgment and Memorandum in Support of
Defendants’ Cross-Motion for Summary Judgment 20, filed
May 3, 1999 (district court Record No. 81). They have
demonstrated only how easy it is to convert a preference
from one form to another. As Justice Brennan observed in
Bakke, Davis could have accomplished what it did through
a fixed award of places in the class for disadvantaged
minorities by instead “ adding a set number of points to the
admission rating of disadvantaged minority applicants.”
Bakke, 438 U.S. at 378 (Brennan, J.).¹⁷ In respondents’
case, the converse proposition is equally true. The unlaw-
fulness of the current system can thus be perceived both

___________________
¹⁶      
The history of the change from the grid system to the “ linear”
selection-index system was explained in a University document as due
to the “ anti-affirmative action climate.” App. 277.

¹⁷ The Sixth Circuit, with an apt illustration, made the same
point in another case involving racial preferences in employment:

[W]e note that quotas and preferences are easily trans-
formed from one into the other. Certainly, where the rank-
ing criteria are already known, the correspondence is exact.
In our case, if it were deemed objectionable to admit that
there was a 1:1 quota, exactly the same result could have
been reached by adding 20 points to the score of each minor-
ityapplicant. . . . A pre-existing commitment to a fixed
amount of preference . . . has the result, in any given case,
of determining exactly the proportion of the favored group
that will be selected.

on its own terms and in the way that it is simply a trans-
parent disguise for the now “ disavowed” system.¹⁸

        B.    It is hard to understand how respondents can
seriously suggest that their mechanical award of a fixed
number of points for racial status “ hews closely to the
‘ plus’ system” that Justice Powell approved in Bakke.
Resp. Br. 32. There is nothing remotely like it discussed in
either Justice Powell’s opinion or in his description of the
“ Harvard plan” discussed in (and appended to) it.¹⁹

Central to Justice Powell’s approach was the consid-
eration of race on an “ individualized, case-by-case basis.”
Bakke, 438 U.S. at 319 n.53 (Powell, J.). He wrote that
race “ may be deemed a ‘ plus’ in a particular applicant’s
file . . . [and that] [t]he file of a particular black applicant
may be examined for diversity. . . . ” Id. at 317. No reason-
able reading of this language can be considered consistent
with the University’s use of race, which amounts to
“ automatically and blindly,” Johnson v. Transp. Agency,
480 U.S. 616, 656 (1987) (O’Connor, J., concurring), giving
every member of one of the preferred groups a fixed “ plus”
for race in the award of 20 points. The only respect in
which a file is “ examined for diversity” for the purpose of
assigning the rigid “ plus” is to determine whether an

___________________
¹⁸       It is notable and telling that while the amici on the University’s
side in this case and in Grutter v. Bollinger (No. 02-241) defend in often
abstract terms an interest in “ diversity” as a justification for racial
preferences, few of them articulate in any specific way a defense of the
particular policies at issue in these cases.

¹⁹ As the dissenters noted in Grutter v. Bollinger, 288 F.3d 732, 799
(6th Cir. 2002) (Boggs, J., dissenting) (Grutter Pet. App. 137a), one can
only be “ deeply puzzled” regarding a claim that an admission system
operates just like the Harvard plan, see Resp. Br. 33-34, when there
was no evidence in Bakke about the actual operation of that plan. See
Alan M. Dershowitz & Laura Hanft, Affirmative Action and the
Harvard College Diversity-Discretion Model: Paradigm or Pretext, 1
CARDOZO L. REV. 379, 383 n.13 (1979) (noting that the percentage of
African Americans in Harvard classes from 1973 through 1981 was 7%
in every year but one, when it was 8%).

applicant has checked the box indicating that he or she is
a member of one of the preferred racial or ethnic groups.

The University’s defense of the automated and rigid
manner in which race is considered in its system gives its
game away. The stated objective is to get “ meaningful”
numbers of students from specified races, Resp. Br. 38,
regardless of their personal experiences, backgrounds, or
perspectives (since these characteristics are not looked to
in the award of points). In no sense can the University’s
racial preference be said to be narrowly tailored to achiev-
ing diversity of perspective or experience; narrowly tailor-
ing to those objectives would naturally require looking
directly for such perspectives and experiences, rather than
using race as a proxy for educational diversity. Instead,
the only objective to which the University’s racial prefer-
ences can be said to be closely tailored is achieving a
specific racial result — admission of all members of the
preferred minorities who meet the minimum academic
requirements of the University. That is what the original
grid-based guidelines were “ set” to accomplish, App. 80;
and those are the guidelines that the current selection
index system was statistically designed to reproduce. In
this respect, the University’s objective is not different from
the specific racial result that the Davis program sought,
except that Davis did not design a system intended to
admit all qualified minority students and only permitted
disadvantaged minorities to receive a special benefit.

The University tries to back away from statements of
its own admissions officers that the goal of the institution
is to admit all qualified minorities.²⁰ See Resp. Br. 5 n.6. It
does so by noting that the specific reference to this aspect
of the system was removed beginning with the 1999 policy
(again, two years after the litigation commenced). Id. The
University neglects to mention that, as noted above, the

___________________
²⁰      
See Pet. Br. 4; Cir. App. 331-39, 355-56, 362, 367, 383-84.

objective of admitting all qualified minority students is
statistically built into the guidelines, a fact the University
cannot change by simply removing a reference to it in the
policy. It should come as no surprise, then, that just as the
old system resulted in admission of “ virtually all qualified”
minority students, so too does the current one. Pet. App.
111a. It is disingenuous, in view of the record and the
respondents’ insistence everywhere else that they must
have their preferences to get their desired racial result, to
argue that this phenomenon is just a “ backward-looking
description of admissions outcomes in light of the small
pool of qualified [preferred] minority applicants.” Resp. 39.

By describing the difference in admissions outcomes
between qualified minorities receiving a preference and
other groups on the basis of the size of the racial pools,
respondents are making an even more telling point —
competition occurs within the pools, but not across them,
or at least not between the preferred and disfavored pools.
Because the University “ receives many more applications
than it has available spaces” and “ [a] great many of these
applicants are fully qualified to attend” the University,
Resp. Br. 1 (emphasis added), there is no reason why
“ virtually all” qualified members of one racial group would
be admitted while many from other groups are not, unless
the applicants are not competing in a single competitive
pool. It is a tenet of Justice Powell’s analysis, however,
that applicants from different races compete for admission
on the “ same footing.” Bakke, 438 U.S. at 317 (Pow-
ell, J.).

A system like the University’s, in which there is a
policy and practice to admit all (or “ virtually all” ) qualified
members of some racial groups, while the rest of the
applicants compete based on scarce, available spaces in
the class, App. 80-81, is self-evidently one in which applicants
do not compete on the “ same footing.” ²¹ It is instead

___________________
²¹      
The cumulative and systematic way in which applicants compete
on unequal footing based on race is demonstrated also by the use of race

a system that values one individual more than another
based on race. This is expressed by the fact the University
engages in “ intense competition with other selective
institutions for these highly sought after [preferred minor-
ity] students,” Resp. Br. 4, while thousands of those like
Jennifer Gratz and Patrick Hamacher must instead, for
reasons explained solely by race, compete against other
members of the disfavored races for a spot in the class.
Whatever it can mean to have race “ weighed fairly,”
Bakke, 438 U.S. at 318 (Powell, J.), in the award of a
valuable benefit, this surely cannot be it.

        C.    In addition to failing the test of constitutionality
that respondents hold out as the controlling one — Justice
Powell’s in Bakke — the University’s admission system falls
far short under traditional narrow-tailoring requirements.
See, e.g., United States v. Paradise, 480 U.S. 149, 171
(1987). Even if respondents’ stated interest in diversity is
assumed to be compelling, the Court’s precedents demon-
strate the importance of consideration of race-neutral
alternatives, which do not impose harms in the nature of
stereotype, stigma, and racial hostility that the use of
racial preferences entail. The record below reflects primar-
ily respondents’ ipse dixit determination that there are
no available race-neutral alternatives, rather than
any genuine consideration by respondents, before they

employed their explicit preferences, of such alternatives.
See, e.g., Rothe Develop. Corp. v. United States Dep’t of
Defense, 262 F.3d 1306, 1331 (Fed. Cir. 2001) (District
Court erred because “ it did not strictly scrutinize whether
Congress found these race-neutral alternatives ineffec-
tive.. . . On remand, the district court should conduct a
probing analysis of the efficacy of race-neutral alternatives
. . . by inquiring into any attempts at the application or
success of race-neutral alternatives prior to the reauthori-
zation of the . . . program.” ). While respondents devote
much attention to disparaging so-called “ percentage”
plans, see Resp. Br. 42-49, petitioners have not suggested
that the University be required to adopt any particular
type of policy,²² and neither have they suggested that the
University must or should admit students strictly on the
basis of rank order of grades and test scores.

The University’s preferences demonstrate no closeness
of fit between means and ends, unless the end is “ outright
racial balancing.” City of Richmond v. J.A. Croson Co., 488
U.S. 469, 507 (1989). A narrowly-tailored means of achiev-
ing the educational benefits produced by an intellectually
and experientially diverse class would look for those
characteristics directly, rather than relying on race as a
proxy in the inflexible way that the University does.
Moreover, as others have explained in exacting detail,²³ the
social science evidence relied upon by respondents does

___________________
²²       Respondents’ expressed disagreement about the wisdom of
percentage plans does not change the fact that these plans have
produced substantial empirical evidence refuting the notion that race-
neutral alternatives are incompatible with the levels of “ critical mass” for
the “ underrepresented” groups that the University’s racial preferences seek
to ensure. See Brief for the United States as Amicus Curiae 10-17, in
Grutter v. Bollinger (No. 02-241); Brief for the State of Florida et al. as
Amicus Curiae 6-8.

23 See, e.g., Grutter v. Bollinger, 288 F.3d 732, 803-06 & n.36 (6th
Cir. 2002) (Boggs, J., dissenting); Brief for National Association of
Scholars as Amicus Curiae 6-28.

not even address such questions as how much racial
diversity is needed to produce the educational benefits
deemed compelling, or how much educational benefit is
attributed to the marginal increases in racial diversity
gained with the use of the preferences.

It is certainly not plausible to regard as “ flexible” the
University’s rigid, automatic award of points for race and
its determination to admit all qualified members of the
preferred races. Respondents’ argument that the prefer-
ences have only a small effect on the groups disfavored by
them, see Resp. Br. 37 n.48, repudiates the principle that
the Constitution protects the rights of individuals, not of
racial groups, and it also ignores the fact that the same
thing could be said about the result in Bakke. ²⁴

Finally, as the district court made clear, there is
nothing temporary about respondents’ preferences,
founded as they are on an interest deemed “ permanent
and ongoing.” Pet. App. 26a. The University tries to
distance itself from the district court’s assessment by
arguing, for the first time in this case, that the “ need to
consider race and ethnicity in admissions is inherently
time-limited because it stems from the disparities in
academic qualifications, such as grades and test scores,
between minorities and non-minorities.” ²⁵ Resp. Br. 32.
This reveals an interest as indefinite in time as an interest

___________________
²⁴       For the sixteen spaces set aside by Davis, there were more than
2,000 applicants who did not receive a preference in 1973 and more
than 3,000 such applicants in 1974. Bakke, 438 U.S. at 273 n.2, 275 n.5.

²⁵ The newness of this claim by respondents is reflected by their
citation to nothing in the record on the point, with their reliance placed
instead on secondary sources suggesting that “ test score gaps have
narrowed.” Resp. Br. 32. There is also evidence that the gap has not
narrowed. See WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE
RIVER 21 (1998); Brief for the Center for New Black Leadership as
Amicus Curiae 11. Moreover, one theory for the reason that the gap has
remained or widened is that racial preferences create perverse incentives.
See, e.g., JOHN H. MCWHORTER, LOSING THE RACE 231-33 (2000).

in remedying the lingering effects of societal discrimina-
tion, see Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276
(1986), because, of course, the University has expressed it
in precisely those terms.

3. The University’s Use of Racial Preferences
   Violates 42 U.S.C. § 1981.

Respondents assert without elaboration that petition-
ers did not preserve an argument that they are entitled to
prevail under 42 U.S.C. § 1981. See Resp. Br. 19 n.25.
Petitioners raised the claim in the district court²⁶ and
never argued below that Section 1981 prohibited only the
same conduct prohibited by the Equal Protection Clause,
so there is nothing new about the contention that the
terms of the statute prohibit conduct that the Equal
Protection Clause does not. Moreover, the fact that the
Court has held that Section 1981 reaches only purposeful
conduct, General Bldg. Contractors Ass’n v. Pennsylvania,
458 U.S. 375, 389-90 (1982), does not mean that the
statute reaches only the same purposeful conduct prohib-
ited by the Fourteenth Amendment. Section 1981 remains
an independent basis on which to reverse the judgment of
the court of appeals.

For all the foregoing reasons, petitioners respectfully
request the Court to reverse the judgment of the district
court with respect to the admissions systems in place from
1999 to the present.

___________________
²⁶       See Plaintiffs’ Memorandum of Law in Support of Motion for
Partial Summary Judgment on Liability 38-39, filed May 3, 1999
(district court Record No. 77). Moreover, since the petition specifically
identified Section 1981 as a potential source of liability distinct from
any illegality based upon “ strict scrutiny” analysis under the Equal
Protection Clause (e.g., Pet. 28), respondents waived any objection by
failing to raise it in their opposition to the petition. Sup. Ct. R. 15.2.