No. 01-1333, 01-1416, 01-1418
____________________________________________
United States Court of Appeals
___________________________
for the
Sixth Circuit
JENNIFER GRATZ, et al.,
Plaintiffs-Appellants, (01-1333, 01-1418)
Plaintiffs-Appellees, (01-1416)
v.
LEE BOLLINGER, et al.,
Defendants-Appellees, (01-1333, 01-1418)
Defendants-Appellants, (01-1416)
and
EBONY PATTERSON, et al.,
Intervening Defendants-Appellees
(01-1333, 01-1416, 01-1418).___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
____________________________________________
FOR THE EASTERN DISTRICT OF MICHIGAN (DUGGAN, J.)
FINAL REPLY BRIEF OF APPELLEES (01-1333, 01-1418)
____________________________________________
AND APPELLANTS (01-1416)
PHILIP J. KESSLER
LEONARD M. NIEHOFF
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625JOHN H. PICKERING
JOHN PAYTON
BRIGIDA BENITEZ
STUART F. DELERY
ANNE HARKAVY
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000Counsel for Defendants-Appellees
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 INTERESTPursuant to 6th Cir. R. 26.1, Lee Bollinger and James J. Duderstadt* (Name of Party)
makes the following disclosure:
- 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:
- 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.
TABLE OF CONTENTS
TABLE OF AUTHORITIES … … … iii
ARGUMENT … … … 1
- Plaintiffs misconstrue the nature of the University's interest in
obtaining the educational benefits of diversity by attempting to
remove it from its higher education context … … … 1
- The district court was right to reject Plaintiffs' argument that the
University's interest in diversity is "inherently incapable" of being
deemed a compelling interest … … … 5
- Plaintiffs' argument that Bakke's holding should not be applied to this
case disregards lower courts' obligation to apply binding
precedent … … … 8
- Plaintiffs never challenged the University's "solid evidence" of the
educational benefits of diversity, and the district court did not err in
relying on that evidence to inform its legal conclusion that obtaining
those benefits is a compelling interest … … … 11
- Seeking to enroll meaningful numbers of minority students in order to
obtain the educational benefits of diversity does not amount
to a quota … … … 17- Plaintiffs' assertion that LSA's admissions program fails to treat
applicants as individuals is false … … … 20
- Plaintiffs' claim that LSA employs a "double standard" ignores the
realities of the applicant pool and the nature of admissions in a
selective institution of higher education … … … 23
- The individual defendants are entitled to qualified immunity … … … 26
i
- The district court was right to deny an injunction against undisputedly
defunct admissions programs where there is no threat of imminent
harm to Plaintiffs … … … 27CONCLUSION … … … 29
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ii
TABLE OF AUTHORITIES
CASES
Agostini v. Felton,
521 U.S. 203 (1997) … … … 8Barnes v. Glen Theatres, Inc.,
501 U.S. 560 (1991) … … … 9Bratton v. City of Detroit, 704 F.2d 878 (6th Cir.),
modified on other grounds,
712 F.2d 722 (6th Cir. 1983) … … … 16Brown v. Board of Education,
347 U.S. 483 (1954) … … … 3California Democratic Party v. Jones,
530 U.S. 567 (2000) … … … 5City of Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283 (1982) … … … 28City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) … … … 6Dickerson v. McClellan,
101 F.3d 1151 (6th Cir. 1996) … … … 21, 27Gratz v. Bollinger,
122 F. Supp. 2d 811 (E.D. Mich. 2000) … … … 17Grutter v. Bollinger,
137 Supp.2d 821 (E.D. Mich. 2001) … … … 17Hohn v. United States,
534 U.S. 236 (1998 … … … 8iii
Johnson v. Transportation Agency,
480 U.S. 616 (1987) … … … 8Marks v. United States,
430 U.S. 188 (1977) … … … 9Middleton v. City of Flint,
92 F.3d 396 (6th Cir. 1996) … … … 19Minnick v. California Department of Corrections,
452 U.S. 105 (1981) … … … 8Mosley v. Hairston,
920 F.2d 409 (6th Cir. 1990) … … … 29Regents of the University of Michigan v. Ewing,
474 U.S. 214 (1985) … … … 4, 26Regents of University of California v. Bakke,
438 U.S. 265 (1978) … … … passimRodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989) … … … 8Runyon v. McCrary,
427 U.S. 160 (1976) … … … 3, 4Smith v. University of Washington Law School,
233 F.3d 1188 (9th Cir. 2000), cert. denied, 121 S. Ct. 2192 (2001) … … … 11Sweatt v. Painter,
339 U.S. 629 (1950) … … … 4Sweezy v. New Hampshire,
354 U.S. 234 (1957) … … … 5Triplett Grille, Inc. v. City of Akron,
40 F.3d 129 (6th Cir. 1994) … … … 9iv
Tuttle v. Arlington County School Board,
195 F.3d 698 (4th Cir. 1999) … … … 7United States v. Paradise,
480 U.S. 149 (1987) … … … 19United States v. W.T. Grant Co.,
345 U.S. 629 (1953) … … … 28Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) … … … 6RULES
Fed. R. Civ. P. 56 and 56(c) … … … 16, 17
MISCELLANEOUS
William Bowen & Derek Bok, The Shape of the River: Long Term
Consequences of Considering Race in College and University Admissions … … … 1510A Wright & Miller, Federal Practice and Procedure § 2716 (1998) … … … 12
v
ARGUMENT
It is now clear that the essence of Plaintiffs' argument is their disregard of
the University's mission, the implementation of that mission, and the law that
controls this case. This brief responds to Plaintiffs' distortions of the meaning and
significance of Regents of the University of California v. Bakke, 438 U.S. 265
(1978), the nature of the University of Michigan's interest in diversity, and the
operation of the College of Literature, Science, and the Arts ("LSA")
admissions programs. 1/1. Plaintiffs misconstrue the nature of the University's interest in
obtaining the educational benefits of diversity by attempting to remove it from its
higher education context. The University has been very clear about the interest it
is pursuing in taking race into account in admissions: obtaining the educational
benefits of diversity -- the same interest the district court found compelling in this
case (R-206, Opinion at 15, JA-57), and Justice Powell found compelling in Bakke,
438 U.S. at 314. 2/ Plaintiffs ignore the University's description of its mission, the
relationship of diversity to that mission, and the importance of the admissions___________________
1/ This brief refers to Plaintiffs' opening brief as "Br."; to Defendants'
responsive brief as "Second Br."; and to Plaintiffs' response and reply brief as
"Third Br."2/ The University welcomes Plaintiffs' abandonment of their earlier argument
that Justice Powell's opinion was not about racial and ethnic diversity. (See Br. at
28.)1
process in fulfilling that mission -- all of which lead to the legal conclusion that the
University's interest is compelling. (Second Br. at 5-8, 27-28.) While Plaintiffs
pay no attention to the unique role that education -- particularly higher education --
plays in this country, (see id. at 36-37), the University's interest cannot properly be
understood outside that context.a. The University's interest is educational, not remedial.
Plaintiffs now acknowledge that there are consequences to "residential and K-12
segregation, racial isolation, racial stereotypes, and other social phenomena
associated with the history of race relations in this country." (Third Br. at 3.) The
University agrees, and, indeed, has said countless times that LSA considers race in
admissions against the backdrop of those conditions. Yet, the University's policy
is not animated by an intent to "address" (id.) or "ameliorate" (id. at 42) the
problems caused by this nation's legacy of discrimination and its continuing
effects, although education in a diverse environment may tend to have that result in
some ways. (E.g., R-162, Appendix, Gurin Rep. at 33, JA-1681.) Rather, the
University is educating students in a world where these conditions are facts of life,
affecting both how students learn and what universities teach.The higher education context is crucial to understanding the significance of
the interaction between the educational benefits of diversity and the continuing
prevalence of racial separation. First, some of the educational benefits of diversity2
are triggered by the existence of this racial and ethnic separation. (See, e.g., id. at
9-18, JA-1656-65.) As the University has previously explained, (Second Br. at 34-
35), interacting with people with whom one is not familiar "creates the
discrepancy, discontinuity, and disequilibrium" that "will foster active, conscious,
effortful thinking -- the kind of thinking needed for learning in institutions of
higher education." (R-162, Appendix, Gurin Rep. at 16, JA-1663.) Second, the
University's mission is to promote not only intellectual excellence, but also active
citizenship and leadership beyond the school community, in a world that is
growing increasingly diverse. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493
(1954). Accordingly, the civic benefits of diversity also advance the University's
mission. (See R-162, Appendix, Bowen Rep. at 2, 14-15, JA-1498, 1510-11; id.,
Gurin Rep. at 8, JA-1655; Amicus Br. of American Council on Education at 6-18;
Amicus Br. of General Motors at 14-26; Amicus Br. of 3M, et al.)b. The University does not claim a First Amendment "right to
discriminate." Plaintiffs have invested considerable energy in mischaracterizing
"the University's position" as defending "a First Amendment right to practice race
discrimination." 3/ (Third Br. at 32.) The University has explicitly rejected this___________________
3/ Plaintiffs' reliance on Runyon v. McCrary, 427 U.S. 160 (1976), is
misplaced. That case did not involve an institution of higher education's First
Amendment right to select its students. It addressed, instead, parents' free
association "First Amendment right to send their children to educational
institutions that promote the belief that racial segregation is desirable." Id. at 176.
(continued onto next page)
Also, like Sweatt v. Painter, 339 U.S. 629 (1950), Runyon relied on the fact that
ending the challenged practice of excluding African-American students would not
"inhibit" the school's educational mission. Id. Here, by contrast, a race-neutral
admissions policy would impair the University's ability to provide the benefits of
diversity to all students. (R-162, Appendix, Gurin Supp. Rep., 7/13/00, at 5, JA-
1836; id., Raudenbush Supp. Rep., 3/3/99, at 11-12, JA-1876-77.)3
position. (See Second Br. at 28 n.16.) The University does not claim that the First
Amendment is a trump card, or that Justice Powell somehow considered it to be
one. Indeed, in Bakke, Justice Powell cited to Sweatt v. Painter, 339 U.S. 629
(1950), and its emphasis on the educational importance of a diverse student body
for legal education, in rejecting the University of Texas' argument that it had the
right to exclude African-Americans from its law school. 438 U.S. at 313-14.
Where the consideration of race and ethnicity is "properly devised" and justified
by the compelling interest in the educational benefits of a diverse student body,
Justice Powell held that the institution is entitled to a "presumption of legality and
legitimate educational purpose." Id. at 319 n.53.Plaintiffs continue to misunderstand how the University's interest in
obtaining the educational benefits of diversity implicates the long-recognized
notion of "academic freedom," which is grounded in the First Amendment. Id. at
312; Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214 (1985). Academic
freedom does not cloak a university in immunity from constitutional violations, but
courts have recognized the "countervailing constitutional interest" that universities
invoke in selecting students to fulfill their educational mission, Bakke, 438 U.S. at4
313; the autonomy and deference afforded educators in making educational
judgments, id.; and the importance of "[an] atmosphere of speculation, experiment
and creation" in the higher education context, id. at 312 (quoting Sweezy v. New
Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)). These
principles are an essential part of what makes the interest in diversity compelling.2. The district court was right to reject Plaintiffs' argument that the
University's interest in diversity is "inherently incapable" of being deemed a
compelling interest. (Third Br. at 40.) The Supreme Court recently emphasized
that a contextual examination of "the circumstances of [the] case" is essential to
determine whether an interest is compelling. Calif. Democratic Party v. Jones,
530 U.S. 567, 584 (2000). Because the nature and contours of a particular interest
can only be understood in the specific circumstances in which that interest
operates, the compelling interest "determination is not to be made in the abstract,
by asking whether [for example,] fairness, privacy, etc., are highly significant
values; but rather by asking whether the aspect of fairness, privacy, etc., addressed
by the law at issue is highly significant." Id. The question in this case, then, is not
whether "diversity" in theory is "highly significant," but rather whether obtaining
the educational benefits of a racially and ethnically diverse student body in an
institution of higher education whose mission depends on those benefits is "highly
significant." Id.5
This framework makes clear that Plaintiffs' criticisms of the University's
interest as "amorphous" are baseless. As the University has explained, (Second Br.
at 5-6, 25-27), its interest is in identifiable, conceded educational benefits of
diversity, not in some conception of diversity in the abstract, "for its own sake."
Bakke, 438 U.S. at 307.The interests rejected as not compelling by the Supreme Court in City of
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), and Wygant v. Jackson Board
of Education, 476 U.S. 267 (1986), are clearly different from the diversity
rationale, contrary to Plaintiffs' claim that they are "indistinguishable." (Third Br.
at 3.) Those interests were deemed too "generalized," Croson, 488 U.S. at 498, to
pass muster as remedial justifications. See id. (an allegation of societal
discrimination is insufficiently specific "to determine the precise scope of the
injury it seeks to remedy") (emphasis added); Wygant, 476 U.S. at 276 (plurality
op.) ("Societal discrimination, without more, is too amorphous a basis for
imposing a racially classified remedy.") (emphasis added). Here, by contrast, the
non-remedial, educational interest in diversity does not raise the same concerns. It
is not tied to the goal of ameliorating a condition, but to educating students in
accordance with a university's mission. Further, because principles of academic
freedom, discussed above, apply uniquely in the education context, Plaintiffs'6
hyperbolic prophecies that the interest in diversity could be applied in "many
areas" (Third Br. at 3, 43-44) and is infinitely expandable are unfounded.Likewise, Plaintiffs' assertion that the interest in diversity cannot be
compelling because it has no explicit temporal limits is wrong. The University
may always seek a diverse student body, consonant with its mission, but it would
stop considering race and ethnicity in admissions if it were no longer necessary in
order to enroll a student body with meaningful numbers of minority students.
Accordingly, the district court was right to reject Plaintiffs' argument that the
interest in diversity is, a priori, incapable of supporting a race-conscious
admissions program.Plaintiffs once again muddle the two parts of the strict scrutiny inquiry,
discussing "what the Supreme Court has required for an interest to qualify as
sufficiently compelling" in their narrow tailoring section. (Third Br. at 22; Br. at
28-30.) The district court was correct in distinguishing between the two halves of
this inquiry. (R-206, Opinion at 24, JA-66.) The assessment of the interest does
not implicate durational concerns because the narrow tailoring analysis ensures
that the classification does not live on in perpetuity after the interest has been
accomplished. Plaintiffs' reliance on Tuttle v. Arlington County School Board, 195
F.3d 698, 706 (4th Cir. 1999), is misplaced. In that case, the classification, not the
interest, was subjected to a durational evaluation. (Third Br. at 22.)3. Plaintiffs' argument that Bakke's holding should not be applied to this
case disregards lower courts' obligation to apply binding precedent. In their
opening brief, Plaintiffs touted the "absence of any holding" in Bakke. (Br. at 56.)
Plaintiffs now admit that "there was a holding in Bakke," (Third Br. at 28), in
which four Justices joined Part V.C. of Justice Powell's opinion to hold that
"properly devised" race-conscious admissions programs are constitutional. 438
U.S. at 320. 4/ Nevertheless, Plaintiffs advocate that lower courts discard Bakke's
undisturbed, unmistakable holding because Part V.C. does not articulate a specific
rationale. Plaintiffs do not even acknowledge the Supreme Court's directive that
"[i]f a precedent of this Court has direct application in a case, . . . the Court of
Appeals should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989); see also Hohn v. United States, 524 U.S.
236, 252-53 (1998); Agostini v. Felton, 521 U.S. 203, 237 (1997). Their current
argument that there is a holding, but it has no application in similar cases, may be
more nuanced than their previous "absence of any holding" position, but it is no
more correct.___________________
4/ The University did not, as Plaintiffs claim, (Third Br. at 35), cite Minnick v.
California Department of Corrections, 452 U.S. 105 (1981), and Johnson v.
Transportation Agency, 480 U.S. 616 (1987), for the proposition that diversity is a
compelling interest. Rather, those cases discussed Bakke, recognized that Bakke
explicitly upheld race-conscious admissions for institutions of higher education,
and viewed the decision as authority.8
Lower courts may not, as Plaintiffs suggest, simply throw up their hands
when faced with a Supreme Court precedent containing multiple opinions with
varying rationales. Complex precedents are no less binding than simple ones. To
assist lower courts in fulfilling their obligation to follow Supreme Court
precedents, the Court has instructed that "[w]hen a fragmented Court decides a
case and no single rationale explaining the result enjoys the assent of five Justices,
the �holding of the Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds.'" Marks v. United
States, 430 U.S. 188, 193 (1977) (citation omitted).Plaintiffs treat the Marks analysis as optional. It is not. Plaintiffs'
protestations that narrowness has no meaning when opinions' rationales are
"completely different" (Third Br. at 30) are defeated by this Court's own analysis
of Barnes v. Glen Theatres, Inc., 501 U.S. 560 (1991), in Triplett Grille, Inc. v.
City of Akron, 40 F.3d 129 (6th Cir. 1994). In that case, this Court concluded that
Justice Souter's opinion, which upheld a ban on nude dancing based on "material
harms, not moral concerns," was narrower than Chief Justice Rehnquist's opinion
reaching the same result based on enforcing morality, a different rationale. Id. at
133.9
Plaintiffs ignore that Justice Powell applied strict, rather than intermediate,
scrutiny, which means that fewer interests would justify race-conscious
decisionmaking under his approach.Moreover, Plaintiffs' portrayal of the approaches of Justices Powell and
Brennan as completely disconnected is false. As Plaintiffs acknowledge, both
Justice Powell and the four Justices who joined the Brennan opinion approved the
Harvard Plan -- which was designed to achieve the educational benefits of
diversity -- as an example of a constitutional race-conscious admissions program.
Bakke, 438 U.S. at 316 (Powell, J.); id. at 326 n.1 (Brennan, J.). Justice Brennan's
endorsement of the Harvard Plan "so long as the use of race to achieve an
integrated student body is necessitated by the lingering effects of past
discrimination," id. at 326 n.1, is fully consistent with Justice Powell's conclusion
that obtaining the educational benefits of diversity is a compelling interest in part
because of the continuing salience of race in American life, id. at 312-15 (relying
on article entitled "Admissions and the Relevance of Race" by Dr. William
Bowen). As explained in more detail above and in the University's prior brief,
(Second Br. at 35-36), the "lingering effects" of discrimination and persistent racial
separation continue to drive race-conscious admissions -- not because universities
are specifically trying to fix these problems, but because those conditions provide
an opportunity for the educational benefits of diversity to emerge. Further, the10
University's mission includes preparing its students to be active leaders and
citizens in a world that includes those "lingering effects."The Ninth Circuit recently applied the Marks analysis to Bakke in Smith v.
University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000), cert. denied,
121 S. Ct. 2192 (2001) -- a case Plaintiffs fail to mention (even though the same
counsel litigated it). As the Ninth Circuit held, Justice Powell's approach is plainly
"narrower" than that of Justice Brennan. Id. at 1200.4. Plaintiffs never challenged the University's "solid evidence" of the
educational benefits of diversity, and the district court did not err in relying on that
evidence to inform its legal conclusion that obtaining those benefits is a
compelling interest. For decades, it has been the consensus in the educational
community that there are educational benefits to learning with peers different from
oneself. (Amicus Br. of American Council on Education at 4-6, 14-18; R-162,
Appendix, Gurin Rep. at App. B, JA-1731.) Observing that essential elements of
higher education are "widely believed to be promoted by a diverse student body,"
Bakke, 438 U.S. at 312, Justice Powell grounded the diversity rationale in this
learned consensus and relied on the experience and scholarship of educators from
such leading institutions as Princeton and Harvard. Id. at 313. The extensive
expert reports submitted on behalf of the University by leading scholars -- such as
William Bowen, Albert Camarillo, Eric Foner, Patricia Gurin, and Thomas Sugrue11
-- confirm that the longstanding consensus is right: a racially and ethnically
diverse student body produces educational benefits for all students -- minorities
and non-minorities alike.Plaintiffs have had over three years to contest this proposition. They did not.
Yet, Plaintiffs now argue -- on appeal and with no explanation for their reversal of
position -- that "[o]n its face, [Dr.] Gurin['s] report is so fundamentally and
methodologically flawed that it cannot support a conclusion that racial and ethnic
diversity is a compelling interest or that it produces measurable educational
benefits." (Third Br. at 46.)Plaintiffs fail to explain why they never pointed out these purported "flaws"
in the district court. 5/ Plaintiffs deposed Dr. Gurin. Yet, in response to the
University's motions for summary judgment, they did not introduce any counter-
evidence to call into question either Dr. Gurin's methodology or her conclusions.
Nor did they even mention these so-called "flaws" in any of their four summary
judgment briefs, much less argue that they should preclude summary judgment.
Indeed, several months after the National Association of Scholars ("NAS") -- the
organization on whose brief Plaintiffs now rely -- first raised some of these___________________
5/ Plaintiffs attempt to absolve themselves of any responsibility to raise these
supposed "flaws" in the district court by labeling them "open" and "obvious."
(Third Br. at 48.) A party may not, however, challenge a grant of summary
judgment by raising new arguments or advancing new theories on appeal. See 10A
Wright & Miller, Federal Practice and Procedure § 2716 (1998).12
objections in an amicus brief, Plaintiffs explicitly conceded the existence of the
educational benefits of diversity. (R-204, Transcript at 27-28, JA-4156-57.)
Plaintiffs now claim that this was no concession at all because it was merely for
purposes of summary judgment. (Third Br. at 41.) Of course, this appeal presents
the issues in precisely that posture. Plaintiffs expressly represented to the district
court that no trial was necessary, (R-204, Transcript at 57, JA-4186), and that, in
any event, they were "not going to put in a case, if this case should go to trial,
against diversity," (id. at 12-13, JA-4141-42) (emphasis added).In short, Plaintiffs' untenable argument is this: despite their concession that
diversity-related, educational benefits exist; despite the absence of any record
evidence to the contrary; and despite their failure to challenge -- in substance or
methodology -- Dr. Gurin's report, the district court should have denied summary
judgment based on purported "flaws" in that report that were so "open" and
"obvious" (Third Br. at 48) that Plaintiffs themselves never identified them.a. The University's evidence establishing the educational benefits
of diversity is undisputed and correct. The University has criticized Plaintiffs'
repudiation of their representations to the district court because Plaintiffs are
attempting to make an end-run around the Federal Rules of Civil Procedure, not
because the University is trying to protect Dr. Gurin's -- or any of its experts' --
work from scrutiny. Far from seeking to "escape review," (Third Br. at 46), the13
University welcomes the opportunity to demonstrate, again, the uncontroverted
"solid evidence" (R-206, Opinion at 20, JA-62) in support of the substantial
educational benefits of diversity.NAS' post-hoc, untested criticisms of Dr. Gurin's work -- which have
themselves been challenged as methodologically flawed, (see, e.g., Amicus Br. of
Stanford Institute for Higher Education Research at 15-22; Amicus Br. of
American Council on Education at 24) -- are meritless. Dr. Gurin's
methodological approach -- to focus on the educational outcomes of actual
interactions with diverse peers on campus -- was appropriate and consistent with
the work of many other researchers on higher education. (See Patricia Gurin,
Response to the Critique by the National Association of Scholars at
http://www.umich.edu/~urel/admissions/new/gurin.html ("Gurin Response");
Amicus Br. of Stanford Institute for Higher Education Research at 17; see also
Amicus Br. of American Council on Education at 24; Amicus Br. of Civil Rights
Project at 11-12.) As Dr. Gurin explains, "actual interaction with diverse students
is the major process through which diversity affects students. The impact of
campus diversity is not a matter of simply observing people who look different but
rather of actually interacting with students from diverse background[s] who were
not part of the pre-college environment." (Gurin Response at 6.) The basic
problem with the NAS approach is that it wrongly factors out these interactions,14
thereby excluding from analysis any benefits derived through the very "process
through which diversity affects students." (Id.) This elementary statistical error
(technically called controlling for "endogenous covariates") fatally infects
Plaintiffs' argument. (Id. at 9.)Plaintiffs try one more new tactic. Citing The Shape of the River, the
seminal work by William Bowen and Derek Bok, two of the University's experts,
Plaintiffs now claim -- without record evidence -- that any educational benefits of
diversity are negated by stigmatic harm to minority students. (Third Br. at 50-52.)
Dr. Gurin's work disproves this assertion, (R-162, Appendix, Gurin Rep. at App.
B, JA-1731-53), as does The Shape of the River itself. Here is what Dr. Bowen
and Professor Bok have to say about what their (and others') research reveals about
race-conscious admissions policies and stigmatic harm:We also tried to examine . . . the claim that [race-sensitive admissionsWilliam Bowen & Derek Bok, The Shape of the River: Long Term Consequences
policies] harm the very minority students they purport to help by
stigmatizing them. . . . This assertion withers in the light of the
evidence. Far from being stigmatized and harmed, minority students
admitted to selective colleges under race-sensitive policies have,
overall, performed very well. . . . In short, the findings in the River
have essentially disposed of the "harm-the-beneficiary" line of
argument.
of Considering Race in College and University Admissions, at xxxi (emphasis
added). (See also R-162, Appendix, Bowen Rep. at 9, JA-1505.)15
b. Plaintiffs' application of the summary judgment standard is
confused. This much is clear: (1) Rule 56 provides that a party is entitled to
summary judgment upon a showing "that there is no genuine issue as to any
material fact" and that the party "is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). (2) The parties agree that whether diversity is a compelling
interest is a question of law. (See Second Br. at 40; Third Br. at 41.) See also
Bratton v. City of Detroit, 704 F.2d 878, 898 (6th Cir.), modified on other grounds,
712 F.2d 222 (6th Cir. 1983). (3) As discussed above, the parties also agreed and
represented to the court that there were no disputed issues of fact and that a trial
would be unnecessary. Accordingly, summary judgment resolution was entirely
proper.Plaintiffs try to distance themselves from the "district court's decision to
decide on motions for summary judgment," (Third Br. at 45), when they, in fact,
invited summary judgment by urging the court to consider whether diversity is a
compelling interest as a question of law, and by telling the court that no trial was
necessary. (R-204, Transcript at 12-13, 27-28, 57, JA-4141-42, 4156-57, 4186.)
They now try to recant by implying that the district court's discussion of the "solid
evidence" (R-206, Opinion at 20, JA-62) contained in the University's experts'
reports somehow transmuted this legal question into a factual one. It did not. The
court simply relied on this evidence in deciding, as a legal matter, whether the16
University's interest in diversity was compelling. Plaintiffs conflate two separate
questions: whether the University's expert case establishes that diversity produces
educational benefits, and whether seeking those benefits constitutes a compelling
interest. 6/Even under Plaintiffs' own misguided interpretation of Rule 56, summary
judgment for the University was still warranted. The University's expert case was
uncontroverted, either by contradictory evidence submitted by Plaintiffs or by
Plaintiffs' challenges to the soundness or probity of the University's evidence. It is
true that in some cases the non-moving party can defeat summary judgment
without introducing any counterevidence, but only "where the evidentiary matter in
support of the motion does not establish �the absence of a genuine issue.'" Fed. R.
Civ. P. 56, commentary (1963). This is certainly not such a case, given the
introduction of 11 detailed, comprehensive expert reports by nationally-recognized
scholars in multiple social science disciplines.5. Seeking to enroll meaningful numbers of minority students in order to
obtain the educational benefits of diversity does not amount to a quota. Bakke
defines the requirements of narrow tailoring in race-conscious higher education___________________
6/ Indeed, having concluded -- based on largely similar evidence -- that racial
and ethnic diversity does produce educational benefits, the district court below
reached a different legal conclusion than the district court in a related case on the
question whether obtaining those benefits is a compelling interest. Compare Gratz
v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) with Grutter v. Bollinger, 137
F. Supp. 2d 821 (E.D. Mich. 2001).17
admissions programs. The University has made clear -- and Plaintiffs do not
contest -- that the educational benefits of diversity depend on the enrollment of
meaningful numbers of minority students, so that learning situations, both in and
out of the classroom, include more than token numbers of such students. (R-162,
Appendix, Gurin Supp. Rep., 7/13/00, at 3-4, JA-1834-35.) Bakke recognized this
reality in elucidating how and to what extent race may be taken into account in
admissions: while Justice Powell rejected quotas -- fixed, numerical targets or
goals that exclude applicants from competition with all other applicants based on
race -- he expressly permitted a university to pay "some attention to distribution
among many types and categories of students" and to operate its admissions
system with an "awareness of the necessity of including more than a token number
of black students," so long as it does not set a "minimum number" of minorities for
admission. Bakke, 438 U.S. at 316-17 (citation omitted). Plaintiffs' artificial
equation of the fixed, rigid Davis set-asides with the University's attempt to enroll
meaningful numbers of underrepresented minority students is wrong.The fact that an institution pays some attention to the numbers in admitting
students does not mean that it employs the functional equivalent of a quota.
Indeed, Justice Powell rejected the very argument that Plaintiffs make here -- that
"an admissions program which considers race only as one factor is simply a subtle
and more sophisticated -- but no less effective -- means of according racial18
preference than the Davis program." Id. at 318. The Harvard Plan, approved by a
majority of the Court in Bakke, recognized "that there is some relationship between
numbers and achieving the benefits to be derived from a diverse student body, and
between numbers and providing a reasonable environment for those students
admitted." Id. at 323. Accordingly, paying attention to numbers and distribution is
not only permissible, but necessary, for an admissions program that is "properly
devised" to achieve the compelling interest in obtaining the educational benefits of
diversity.Plaintiffs' repeated reliance on Middleton v. City of Flint, 92 F.3d 396 (6th
Cir. 1996) to equate the University's award of a "plus" factor with a quota is
misplaced. First, Middleton had nothing to do with diversity or higher education.
It involved an avowed quota program to remedy past discrimination in the Flint,
Michigan police force. Because Middleton's racial classifications were drawn to
further a completely different interest, it would be no surprise that the range of
permissible means would be different as well. For example, although quotas can
never be narrowly tailored to achieve diversity under Bakke, they may, in some
instances, be permissible to remedy severe past discrimination. See Middleton, 92
F.3d at 402; United States v. Paradise, 480 U.S. 149 (1987).Second, the record in this case reveals that the "plus" LSA gives for race in admissions is quite different from the hypothetical 20 points in Middleton. Under
19
Middleton, points can suffer the same flaws as quotas when they are intended to
achieve a fixed, particular percentage of minority representation. That is not the
case here. The University neither seeks nor obtains a fixed percentage of minority
representation from year to year. (E.g., R-162, Appendix, Raudenbush Supp. Rep.,
3/3/99, at 4, JA-1869.) Moreover, the concept of "20 points," in the abstract, does
not capture the extent to which race is considered in a given program. The
admissions process is much more subjective and flexible than an employment
context where the "ranking criteria" and the effect of each criterion on the ultimate
decision are known and fixed.6. Plaintiffs' assertion that LSA's admissions program fails to treat
applicants as individuals is false. Plaintiffs claim that, because every
underrepresented minority applicant receives 20 points for race or ethnicity, "the
University regards applicants not as unique individuals, but instead as members of
discrete racial �pools'" who "have value to the University simply for belonging to
the right racial group." (Third Br. at 8.) These statements cannot be squared either
with the actual operation of LSA's admissions program or with Bakke's approval
of an admissions program in which "race or ethnic background may be deemed a
�plus' in a particular applicant's file." 438 U.S. at 317. 7/___________________
7/ Plaintiffs act as though this phrase read "a particular minority applicant's
file." That is not what Justice Powell meant. He meant that considering race
(which would mean awarding a "plus" to some applicants and not others solely
(continued onto next page)
based on race) does not ineluctably insulate minority students from competition
and lead to an impermissible two-track system. One sentence later, when Justice
Powell does use the phrase "black applicant," he is explaining that applicants who
do receive a plus for race will not necessarily be admitted based on that plus factor.
Bakke, 438 U.S. at 317.20
First, Plaintiffs improperly isolate the consideration of race from its context
as only one of many factors counselors take into account in admissions. In an
individualized, file-by-file review, counselors consider an applicant's academic
high school record, the quality of the applicant's high school, the rigor of his or her
chosen curriculum, leadership in extracurricular and community activities, a
personal essay, where an applicant went to high school or grew up, and other
factors that provide insight into the contribution an applicant might make to the
educational environment. (See R-156, Affidavit-Exhibits, Ex. D, 2000 SI
Guidelines, JA-1147-54.) Counselors can also "flag" an application for review by
the Admissions Review Committee for an additional level of in-depth review of
the particulars of an applicant's file in a small-group discussion format. (Id., Ex. F,
Defs. Supp. Resp. Int. 1, at 2-3, JA-1161-62.)Second, as this comprehensive, multi-factor review process makes clear, the
fact that the University pays attention to an applicant's race does not mean that the
applicant is viewed only as a member of a racial group, just as paying attention to
an applicant's SAT score does not mean that an applicant is seen as no more than a
member of an SAT cohort.21
Third, Plaintiffs misconstrue what it means, as a practical matter, for every
underrepresented minority applicant to receive points for race. To take race into
account in this way does not mean that every award of the "plus" for race "tips the
balance" in favor of admission of the underrepresented minority applicant. The
fact that every underrepresented minority applicant receives the same "plus" does
not mean that race plays the same role in the admissions outcome for each
underrepresented minority applicant. (R-162, Appendix, Raudenbush Rep. at 4,
JA-1842; id., Raudenbush Supp. Rep., 3/3/99, at 2-3, 6, JA-1867-68, 1871.) The
"weight" given to race in the consideration of an applicant's file can only be
understood by taking into account all of the applicant's other attributes, as LSA's
admissions program does. For example, for underrepresented minority applicants
with strong academic records or a combination of other attributes, the "plus" for
race might have no effect because the applicant could be admitted without it. (R-
162, Appendix, Raudenbush Supp. Rep., 3/3/99, at 2-3, 6, JA-1867-68, 1871.) As
Justice Powell put it, "[t]he file of a particular black applicant may be examined for
his potential contribution to diversity without the factor of race being decisive."
Bakke, 438 U.S. at 317.Plaintiffs' complaint about all underrepresented minority applicants
receiving the same "plus" for race suggests that they would prefer that LSA give a
"plus" for race only to an undefined, special subset of underrepresented minorities.22
(Third Br. at 7-8.) Thus, it is Plaintiffs' misguided version of the "competitive
consideration of race" that invites -- in Plaintiffs' words -- a "skin color
competition." (Id. at 14.) This suggestion would require counselors to make
intolerable arbitrary distinctions, for example, as to which African-American
applicants were "more" African-American or were more "deserving" of a "plus."
Plaintiffs ignore the fact that race affects all members of minority groups and that
racial stereotypes do not distinguish among individuals within these groups. (See
generally R-162, Appendix, Foner Rep., JA-1571-1621; id., Camarillo Rep., JA-
1523-49.)7. Plaintiffs' claim that LSA employs a "double standard" ignores the
realities of the applicant pool and the nature of admissions in a selective institution
of higher education. Plaintiffs' use of the term "double standard" is a rhetorical
device that does not reflect the operation of LSA's admissions process nor Bakke's
teachings on the manner and extent to which race can be considered in admissions.
Plaintiffs' "double standard" boils down to nothing more than the fact that race
sometimes "tips the balance" in favor of admission for underrepresented minority
applicants, as Bakke permits. 438 U.S. at 316. In Plaintiffs' eyes, any use of race
would create a double standard.Plaintiffs' attempt to piggyback their "double standard" notion onto Bakke's
prohibition of a "two-track" or "dual" admissions system is disingenuous. By23
"two-track" or "dual" system, Justice Powell made clear that he meant a system
with race-based barriers to competition, where minority applications are reviewed
separately from non-minority applications and according to different criteria.
Bakke, 438 U.S. at 315-18.Plaintiffs use the term "double standard" to capture the statistical fact that
the average grades and test scores of admitted underrepresented minorities are
somewhat lower than the average grades and test scores of admitted non-
minorities. This phenomenon is an unavoidable consequence of the fact that,
nationally and in Michigan, average grades and test scores are lower for
underrepresented minority students. (R-182, Defs. SJ Reply, Camara Rep. at
Tables B1-B12, JA-4012-23.) Thus, for example, even if the University picked an
arbitrary SAT score and admitted all applicants with scores above 1200, regardless
of race, the average scores of the admitted underrepresented minority students
would still be lower.The other way Plaintiffs use "double standard" is equally meritless. They
assert that LSA employs a double standard because it ends up admitting virtually
all "qualified" underrepresented minorities, but not admitting all "qualified" non-
minorities. 8/ Plaintiffs' description of admissions outcomes ignores the___________________
8/ Plaintiffs assert that the University's use of the term "qualified" is
inconsistent because the University's expert, Dr. Wayne Camara, based his pool
size calculations on grades and test scores, while the University maintains that
(continued onto next page)
"qualifications" for admission are not based on grades and scores alone. (Third Br.
at 12-13, n.5.) There is no inconsistency. Dr. Camara made clear that his data was
"descriptive" and was "not intended to convey any information about how the
University of Michigan makes admissions decisions or whether any given
applicant will be admitted." (R-182, Defs.' SJ Reply, Camara Rep. at 7, JA-3985.)
As Dr. Camara explained, he defined the relevant pool size by reference to grades
and test scores because those factors are important in LSA's admissions program.
(Id. at 8, JA-3986.) That definition does not, however, conflict with the fact that
"qualifications" are not limited to grades and scores; in actually making admissions
decisions, LSA considers many other indications of a student's potential
contribution. (Id. at 3, 6-8, JA-3981, 3984-86).24
University's mission and the limited size of the pool of qualified minority
applicants.The University has many more "qualified" or "admissible" applicants than
spaces in the entering class. (R-206, Opinion at 3, JA-45.) No applicant --
regardless of race -- is guaranteed admission for meeting some threshold level of
grades and test scores, and no applicant has a "right" to be admitted. (R-162,
Appendix, Bowen Rep. at 4, 10, JA-1500,1506; R-161, Appendix, Spencer Dep. at
301-02, JA-1483-84.) In selecting students, the University must make difficult
choices to meet its "obligation to make the best possible use of the limited number
of places in each entering class so as to advance [its mission] as effectively as
possible." (R-162, Appendix, Bowen Rep. at 4, JA-1500.) These choices are
entitled to a "presumption of legality and legitimate educational purpose," Bakke,
438 U.S. at 318-19 & n.53, in accordance with the restraint courts must exercise in25
reviewing educators' academic judgments. See Regents of the Univ. of Mich. v.
Ewing, 474 U.S. 214, 225-28 (1985).The University sets out to provide all of its students with an education that
includes the benefits of diversity, which requires enrollment of a broadly diverse
class, whose members include meaningful numbers of underrepresented minority
students. Because the pool of "qualified" or "admissible" underrepresented
minority students is so small -- both as an absolute matter and in comparison to the
size of the pool of non-minority students -- the admission of virtually all of these
applicants represents the result of a commitment to provide the educational
benefits of diversity.Thus, Plaintiffs' "double standard" means nothing more than taking race into
account in admissions at a selective university that seeks the educational benefits
of diversity, in a world in which the pool of qualified underrepresented minorities
is quite small. By Plaintiffs' definition, the Harvard Plan approved in Bakke also
applied a "double standard."8. The individual defendants are entitled to qualified immunity. First,
the district court erred in concluding that certain, discontinued features of LSA's
1995-98 admissions programs were unconstitutional. Those programs complied
with Bakke's prescriptions for a "properly devised admissions program involving26
the competitive consideration of race and ethnic origin." 9/ 438 U.S. at 320. (See
Second Br. at 50-58.)Second, given the "thin line" that separates the constitutionally permissible
from the impermissible, (R-206, Opinion at 31, JA-73), and Bakke's express
permission to pay some attention to numbers in the admissions process, 438 U.S. at
316-17, Plaintiffs cannot show that it was "clearly established" that any of the
University's admissions practices were illegal, such that the individual defendants
"would have known." Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir.
1996). This is particularly true where the University's admissions programs were
consistent with the race-conscious admissions programs adopted by hundreds of
colleges and universities, relying on Bakke.9. The district court was right to deny an injunction against undisputedly
defunct admissions programs where there is no threat of imminent harm to
Plaintiffs. Plaintiffs continue to confuse a court's power to grant an injunction___________________
9/ It is no "high-wire act" to observe that a line may be drawn at some point on
a spectrum, but to dispute where it is drawn. (Third Br. at 19.) The district court
did not err in concluding that changes between the 1995-98 and the 1999-2000
admissions programs could be of constitutional significance, but it did err in
concluding that the particular changes were. Plaintiffs state that the parties'
stipulation "is an agreement that race is not considered any less" under the 1999-
2000 programs, and that the district court must have "disregarded" this stipulation
and "substituted its own fact-finding" to conclude that there were constitutional
differences. (Third Br. at 20.) Plaintiffs miss the point. Bakke limits both the
manner and extent to which race is considered, so the fact that race is not
considered "less" does not mean the different programs are constitutionally
equivalent if the manner in which race is considered changed, as it did.27
with its discretion to exercise that power. When a party seeks an injunction it
"must satisfy the court that relief is needed" by establishing "some cognizable
danger of recurrent violation, something more than the mere possibility which
serves to keep the case alive." United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953) (upholding refusal to grant injunctive relief based on past violations)
(emphasis added). Although a defendant's voluntary cessation of challenged
action (as occurred here) may not moot a case (unless the defendant can show no
reasonable possibility of resumption), it is an important factor in determining
whether a court should exercise its equitable powers to enjoin renewal of the
discontinued conduct. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283,
289 (1982).In this case, that factor weighs strongly against granting an injunction. The
University has stated unequivocally that it has eliminated the practices the district
court declared illegal. (R-156, Affidavit-Exhibits, Ex. F, Defs. Supp. Resp. Int. 1
at 4, JA-1163; R-161, Appendix, Spencer Dep. at 143-44, JA-1476-77.) Although
Plaintiffs claim that they "obviously presented some facts by which a trier could
conclude that there was a threat of future injury," (Third Br. at 26), they cite to
nothing in the record, and their conclusory statements do not show that Plaintiffs
face a real threat of future violation. The University certainly has not conceded
that it plans to resume practices that have been defunct for over three years, and the28
fact that practices have been discontinued during the litigation is unremarkable,
since LSA reviews its admissions policies annually. Plaintiffs essentially seek an
injunction on the offensive premise that the University will deliberately flout a
judicial mandate if the 1995-98 programs are ultimately declared unconstitutional.
But cf. Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990) (voluntary cessation
by government generally treated with more solicitude than voluntary cessation by
private parties). The district court did not err in denying the injunction.CONCLUSION
For the foregoing reasons, Defendants ask this Court to affirm insofar as the
district court held that the 1999-2000 LSA admissions programs are constitutional
and that the individual defendants are entitled to qualified immunity, and to reverse
insofar as it held that the 1995-98 admissions programs were unconstitutional.
Respectfully submitted,
___________________________Philip J. Kessler
Leonard M. Niehoff
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625John H. Pickering
John Payton
Brigida Benitez
Stuart Delery
Anne Harkavy
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000Dated: July 30, 2001
Pursuant to FRAP 32(a)(7) and 6 Cir. 32(a), the undersigned certifies that CERTIFICATE OF COMPLIANCE
this brief complies with the type-volume limitations of FRAP 32(a)(7)(C).
- Exclusive of the portions of the brief exempted by 6 Cir. 32(a)(7)(B)(iii), the
brief contains 6975 words.- The brief has been prepared in proportionately spaced typeface using
Microsoft Word Version 2000 in Times New Roman 14 point type.- 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.- 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
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
Reply 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 45202-3988I 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 Federal Express, on:
David F. Herr, Esq.
Kirk O. Kolbo, Esq.
Maslon, Edelman,
Borman & Brand
300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402Theodore 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 10013Michael E. Rosman, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 20036Godfrey J. Dillard, Esq.
Evans & Luptak, P.L.C.
2500 Buhl Building
Detroit, MI 48226Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180Christopher 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
DESIGNATION OF APPENDIX CONTENTS
Pursuant to Sixth Circuit Rules 28(d) and 30(b), Defendants-Appellees (01-
1333, 01-1418)/Defendants-Appellants (01-1416) hereby designate the
following filings in the district court record as items to be included in the
joint appendix.
Description of Entry Date Filed in
District CourtRecord Entry
NumberBrief of the United States as Amicus
Curiae in support of Defendants.5/27/99 94
|
|