No. 01-1438

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United States Court of Appeals
for the
Sixth Circuit

___________________________

JENNIFER GRATZ, et al.,
                                        Plaintiff-Appellees,

v.

LEE BOLLINGER, et al.,
                                        Defendants-Appellees,
and

EBONY PATTERSON, et al.,
                                        Intervening Defendants-Appellants

___________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN (DUGGAN, J.)

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FINAL BRIEF OF DEFENDANTS-APPELLEES

____________________________________________

PHILIP J. KESSLER LEONARD M. NIEHOFF BUTZEL LONG 350 South Main Street Suite 300 Ann Arbor, MI 48104 (734) 213-3625

JOHN H. PICKERING JOHN PAYTON BRIGIDA BENITEZ STUART F. DELERY ANNE HARKAVY WILMER, CUTLER & PICKERING 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000

Counsel for Defendants-Appellees

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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the table of contents in the brief of the
party. See copy of 6th Cir. R. 26.1 on page 2 of this form.)

Jennifer Gratz and Patrick Hamacher

v.

Lee Bollinger, et al.
and
Ebony Patterson, et al.

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Lee Bollinger and James J. Duderstadt* (Name of Party)
makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? No
   
   If the answer is YES, list below the identity of the parent corporation or affiliate and the
   relationship between it and the named party:
   
   
2. Is there a publicly owned corporation, not a party to the appeal, that has a financial
   interest in the outcome? No
   
   If the answer is YES, list the identity of such corporation and the nature of the financial interest:

__________/s/__________	____7/30/01____
(Signature of Counsel)	(Date)

6CA-1                         (Over)
Page 1

*         The Board of Regents, as a state entity created by the Michigan Constitution, is exempt
            from the requirements of 6 Cir. R. 26.1.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES … … … ii STATEMENT IN SUPPORT OF ORAL ARGUMENT … … … iii JURISDICTIONAL STATEMENT … … … 1 ISSUES PRESENTED … … … 1 STATEMENT OF THE CASE … … … 1 STATEMENT OF FACTS … … … 4 SUMMARY OF ARGUMENT … … … 4 ARGUMENT … … … 5 CONCLUSION … … … 5 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE APPENDIX DESIGNATIONS

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TABLE OF AUTHORITIES

CASES

Grutter v. Bollinger,
188 F.3d 394 (6th Cir. 1999) … … … 2

Johnson v. Economic Development Corp. of the County of Oakland,
241 F.3d 501, 509 (6th Cir. 2001) … … … 5

Regents of University of California v. Bakke,
438 U.S. 265 (1978) … … … 1, 2, 5

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STATEMENT IN SUPPORT OF ORAL ARGUMENT

This case presents issues of great national importance. The University of
Michigan believes that oral argument in this matter would aid the Court.

iii

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JURISDICTIONAL STATEMENT

Defendants, Lee Bollinger, James J. Duderstadt, and the Board of Regents of
the University of Michigan (the "University"), take no position on the
jurisdictional basis for the Defendant-Intervenors' appeal.

ISSUES PRESENTED

The University takes no position on the identification of issues in this
appeal, except to note that these issues are different from those identified in the
related cross-appeals of Plaintiffs and the University in Gratz v. Bollinger, Nos.
01-1333, 01-1416, and 01-1418, all of which involve the same underlying
admissions programs.

STATEMENT OF THE CASE

Like the appeals in 01-1333, 01-1416, and 01-1418, this appeal involves the
constitutionality of the admissions programs of the University of Michigan's
College of Literature, Science, and the Arts ("LSA"). In 1997, Plaintiffs Jennifer
Gratz and Patrick Hamacher brought this class action lawsuit against the
University, asserting that LSA's consideration of race and ethnicity as one of many
factors in making admissions decisions violates the Fourteenth Amendment and
Title VI of the Civil Rights Act of 1964. The University has consistently and
vigorously defended the lawfulness of LSA's programs, arguing that Regents of the
University of California v. Bakke, 438 U.S. 265 (1978), which held that the

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"competitive consideration of race and ethnic origin" is constitutional, controls this
case, id. at 320; that obtaining the educational benefits that flow from a racially
and ethnically diverse student body is a compelling state interest that justifies
considering an applicant's race in admissions; and that LSA's admissions
programs are narrowly tailored to achieve that interest.

A group of current and prospective LSA students and Citizens for
Affirmative Action's Preservation moved to intervene to support LSA's race-
conscious admissions programs on an alternative, independent basis: remedying
past and current discrimination by the University. The University has never
asserted a remedial justification for its consideration of race in admissions. This
Court permitted intervention specifically because the Defendant-Intervenors'
position was different from that taken by the University. See Grutter v. Bollinger,
188 F.3d 394, 401 (6th Cir. 1999).

Plaintiffs and the University filed cross-motions for summary judgment. The
University relied on Bakke and its controlling diversity rationale, while Plaintiffs
rejected Bakke and urged the district court to hold any consideration of race and
ethnicity unconstitutional. Defendant-Intervenors supported the University's
summary judgment motion. (See R-176, Def-Int. Response to Defs. SJ
Memorandum, JA-2247.) They also opposed Plaintiffs' motion for summary
judgment, arguing that if the court rejected the diversity rationale, Plaintiffs were

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not entitled to summary judgment because a remedial rationale provided an
independent, compelling justification for the consideration of race in admissions.
(See R-175, Def-Int. Opp. Pl. Summary Judgment, JA-2212.)

The district court addressed the diversity rationale and the remedial rationale
in separate opinions. In its December 13, 2000 opinion, the district court held that
the University's interest in obtaining the educational benefits of diversity is
compelling. (See R-206, Opinion at 15, JA-57.) It granted summary judgment to
the University with respect to the 1999-2000 admissions programs, concluding that
those programs are narrowly tailored, and granted summary judgment to the
Plaintiffs with respect to the 1995-98 programs, concluding that certain,
discontinued practices, taken together, made those programs unlawful. (See id. at
31, JA-73.) The court also dismissed the individual defendants based on qualified
immunity and certified that dismissal as a final order under Fed, R. Civ. P. 54(b).
(See R-209, Qualified Immunity Order, JA-101.) Plaintiffs appealed with respect to
the 1999-2000 admissions programs and qualified immunity (Nos. 01-1418 and
01-1333), and the University appealed with respect to the 1995-98 programs (No.
01-1416). Those three appeals are consolidated for briefing and submission. (See
Sixth Circuit Order, April 6, 2001 .) ¹

___________________
^1/       Although those three appeals do not involve the remedial rationale,
Defendant-Intervenors submitted a brief in support of the University in those
appeals. (See Final Brief of Def-Int., July 30, 2001.)

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On February 26, 2001, the district court granted summary judgment to
Plaintiffs against the Defendant-Intervenors, rejecting the sufficiency of the
remedial rationale, as a matter of law. (See R-211, Order, JA-128; R-218, Final
Judgment Order, JA-138-39.) Defendant-Intervenors' appeal from that decision
(the instant appeal) is not consolidated with the other three appeals relating to the
constitutionality of LSA's admissions programs. Although LSA's admissions
programs are the crux of this appeal, the underlying district court order did not
address any arguments asserted by the University. Accordingly, the University
entered an appearance as appellee in this appeal to provide the Court with crucial
information regarding the motivation for and operation of its admissions programs.

STATEMENT OF FACTS

The University incorporates by reference the statement of facts set forth in
its Final Brief, filed July 30, 2001, in Gratz v. Bollinger, Nos. 01-1333, 01-1416,
and 01-1418.

SUMMARY OF ARGUMENT

Resolution of this appeal requires a comprehensive understanding of the
educational judgments that underlie LSA's admissions policies, how those policies
are implemented, and how the programs in effect from 1995-2000 differ from each
other in operation. The University is in the best position to offer that information
and perspective.

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ARGUMENT

The appropriate standard of review for the issues in this appeal is de novo.
See Johnson v. Econ. Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001).

LSA's race-conscious admissions programs are constitutional because the
University's interest in obtaining the educational benefits of diversity is
compelling under the Fourteenth Amendment, and LSA's admissions programs are
narrowly tailored to advance that interest. Bakke's holding rejects the notion that
the Constitution requires race-blind admissions; rather, Bakke specifically permits
the consideration of an applicant's race and ethnicity in making admissions
decisions. See 438 U.S. at 320. Further, Justice Powell's pivotal opinion in Bakke,
which concludes that a university's interest in diversity is "compelling," id at 314,
is binding on lower courts.

The University hereby incorporates by reference the detailed arguments in
support of this position, set forth in its Final Brief in Gratz v. Bollinger, Nos. 01-
1333, 01-1416, and 01-1418. These arguments provide an independent legal
justification for LSA's admissions programs, separate from the one set forth by the
Defendant-Intervenors.

CONCLUSION

For the foregoing reasons, the University requests that this Court affirm the
district court, insofar as it upheld the constitutionality of LSA's 1999-2000

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admissions programs, on the ground that obtaining the educational benefits of
diversity is a compelling state interest, and that LSA's programs are narrowly
tailored to achieve that interest. In addition, the University requests that this Court
reverse the district court, on the same grounds, insofar as the court held the 1995-
98 admissions programs unconstitutional.

	Respectfully submitted,   ___________________________
Philip J. Kessler Leonard M. Niehoff BUTZEL LONG 350 South Main Street Suite 300 Ann Arbor, MI 48104 (734) 213-3625	John H. Pickering John Payton Brigida Benitez Stuart Delery Anne Harkavy WILMER, CUTLER & PICKERING 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000
Dated: July 30, 2001

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CERTIFICATE OF COMPLIANCE

Pursuant to FRAP 32(a)(7) and 6 Cir. 32(a), the undersigned certifies that
this brief complies with the type-volume limitations of FRAP 32(a)(7)(C).

1. Exclusive of the portions of the brief exempted by 6 Cir. 32(a)(7)(B)(iii), the
   brief contains 1073 words.
2. The brief has been prepared in proportionately spaced typeface using
   Microsoft Word Version 2000 in Times New Roman 14 point type.
3. If the Court so requests, the undersigned will provide an electronic version
   of the brief and/or a copy of the work or line printout.
4. The undersigned understands that a material misrepresentation in completing
   this certificate, or circumvention of the type-volume limits in 6 Cir. 32(a)(7)
   may result in the Court's striking the brief and imposing sanctions against
   the person signing the brief.

_________________________ John Payton

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CERTIFICATE OF SERVICE

I hereby certify that, on this 30th day of July, 2001, pursuant to FRAP 25
and 6 Cir. R. 31, I caused an original and six copies of the foregoing Brief to be
filed, by Federal Express, with:

Mr. Bryant Crutcher, Office of the Clerk
U.S. Court of Appeals for the Sixth Circuit,
Potter Stewart U.S. Courthouse
100 E. Fifth Street
Cincinnati, OH 45202-3988

I further certify that, on the same day and pursuant to the same provisions, I
caused two copies of the above brief to be served, by Fax and Federal Express, on:

David F. Herr, Esq. Kirk O. Kolbo, Esq. Maslon, Edelman, Borman & Brand 300 Norwest Center 90 South Seventh Street Minneapolis, MN 55402	Theodore M. Shaw, Esq. Olatunde C.A. Johnson, Esq. Melissa Woods, Esq. NAACP Legal Defense &       Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, NY 10013
Michael E. Rosman, Esq. Center for Individual Rights 1233 20th Street, N.W. Washington, D.C. 20036	Godfrey J. Dillard, Esq. Evans & Luptak, P.L.C. 2500 Buhl Building Detroit, MI 48226
Kerry L. Morgan, Esq. Pentiuk, Couvreur & Kobiljak Suite 230, Superior Place 20300 Superior Street Taylor, MI 48180	Christopher A. Hansen, Esq. E. Vincent Warren, Esq. ACLU Foundation 125 Broad Street, 18th Floor New York, NY 10041
	_____________________________ Anne, Harkavy, Esq. WILMER, CUTLER & PICKERING 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000

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DESIGNATION OF APPENDIX CONTENTS

Appellees, pursuant to 6 Cir. R. 28(d) and 30(b), hereby incorporate the
materials from the appendix designation to their Final Briefs in Gratz v. Bollinger,
Nos. 01-1333, 01-1416, and 01-1418, as items to be included in the Joint appendix.