UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JENNIFER GRATZ and
PATRICK HAMACHER
for themselves and all others
similarly situated
Plaintiffs
v.
LEE BOLLINGER, JAMES J.
DUDERSTADT, THE UNIVERSITY
OF MICHIGAN, and THE UNIVERSITY
OF MICHIGAN COLLEGE OF
LITERATURE, ARTS, AND SCIENCE,
Defendants,
and,
EBONY PATTERSON, RUBEN
MARTINEZ, LAURENT CRENSHAW.
KARLA R. WILLLAMS. LARRY
BROWN, TIFFANY HALL, KRISTEN
M.J.HARRIS, MICHAEL SMITH,
KHYLA CRAINE, NYAH
CARMICHAEL, SHANNA DUBOSE,
EBONY DAVIS, NICOLE BREWER,
KARLA HARLIN, BRIAN HARRIS,
KATRINA GIPSON, CANDACE B.N.
REYNOLDS, by and through their parents
or guardians, DENISE PATTERSON,
MOISES MARTINEZ, LARRY
CRENSHAW, HARRY J. WILLIAMS,
PATRICIA SWAN-BROWN, KAREN A.
MCDONALD, LINDA A. HARRIS,
DEANNA A. SMITH, ALICE BRENNAN,
IVY RENE CARMICHAEL, SARAH L.
DUBOSE, INGER DAVIS, BARBARA
DAWSON, ROY D. HARLIN, WYATT G.
HARRIS, GEORGE C. GIPSON, SHAWN
R.REYNOLDS, and CITIZENS FOR
AFFIRMATIVE ACTION'S
PRESERVATION,
Defendant-Intervenors.
_________________________________________/CASE NO.: 97-CV-75231-DT
HON. PATRICK J. DUGGAN
ORDER
At a session of said Court, held in the U.S.
District Courthouse, City of Detroit, County of
Wayne, State of Michigan,
On __________________________PRESENT: THE HONORABLE PATRICK J. DUGGAN
U.S. DISTRICT COURT JUDGEOn October 14, 1997, Plaintiffs filed a class action against the University of
Michigan and various University officials asserting that the University had violated
Title VI of the Civil Rights Act, as well as the Equal Protection Clause of the Fourteenth
Amendment, by considering race as a factor in admissions decisions at its College of
Literature, Science, and the Arts ("LSA"). On December 13, 2000, this Court issued an
Opinion addressing only the University Defendants' arguments that the LSA's
admissions programs pass constitutional muster as a narrowly tailored means of
achieving diversity, see Gratz v Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000), reserving
Defendant-Intervenors' argument that the LSA's admissions programs pass
constitutional muster as narrowly tailored means of remedying past and current
discrimination by the University for later consideration. For the reasons stated in an
Opinion issued this date.IT IS ORDERED that Plaintiffs' motion for summary judgment with respect to
Defendant-Intervenors' claim that the University was justified in using race as a factor
in admissions to remedy the present effects of past discrimination is GRANTED; andIT IS FURTHER ORDERED that Defendant-Intervenors' claims that the
University was justified in using race as a factor in admissions to remedy the present
effects of past discrimination are DISMISSED.
___________________________
PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGEDate:
Copies to:Kerry L. Morgan, Esq.
Kirk O. Kolbo, Esq.
Michael E. Rosman, Esq.
John Payton, Esq.
Leonard M. Niehoff, Esq.
Godfrey J. Dillard, Esq.
Theodore M. Shaw, Esq.
Christopher A. Hansen, Esq.
Brent E. Simmons, Esq.
Michael J. Steinberg, Esq.
Patricia Mendoza, Esq.
L. Michael Wicks, Esq.
Jeremiah Glassman, Esq.
Edward B. Foley, Esq.
Richard A. Wilhelm, Esq.
Philip L. Graham, Jr., Esq.
Susan I. Leffler, Esq.
Kenneth S. Geller, Esq.
Carolyn I. Polowy, Esq.
Brice M. Clagett, Esq.
Walter E. Dellinger, Esq.
Martin Michaelson, Esq.
Randall E. Mehrberg, Esq.
Deanne E. Maynard, Esq.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JENNIFER GRATZ and PATRICK
HAMACHER
for themselves and all others similarly
situated
Plaintiffs
v.
LEE BOLLINGER, JAMES J.
DUDERSTADT, THE UNIVERSITY
OF MICHIGAN, and THE UNIVERSITY
OF MICHIGAN COLLEGE OF
LITERATURE, ARTS, AND SCIENCE,
Defendants,
and,
EBONY PATTERSON, RUBEN MARTINEZ,
LAURENT CRENSHAW, KARLA R.
WILLIAMS, LARRY BROWN, TIFFANY
HALL, KRISTEN M.J. HARRIS, MICHAEL
SMITH, KHYLA CRAINE, NYAH
CARMICHAEL, SHANNA DEBOSE,
EBONY DAVIS, NICOLE BREWER,
KARLA HARLIN, BRIAN HARRIS, KATRINA
GIPSON, CANDICE B.N. REYNOLDS,
by and through their parents or guardians,
DENISE PATTERSON, MOISE MARTINEZ,
LARRY CRENSHAW, HARRY J. WILLIAMS,
PATRICIA SWAN-BROWN, KAREN A.
MCDONALD, LINDA A. HARRIS, DEANNA A.
SMITH, ALICE BRENNAN, IVY RENE
CHARMICHAEL, SARAH L. DEBOSE, INGER
DAVIS, BARBARA DAWSON, ROY D. HARLIN,
WYATT G. HARRIS, GEORGE C. GIPSON,
SHAWN R. REYNOLDS, AND CITIZENS FOR
AFFIRMATION ACTION'S PRESERVATION,
Defendant-Intervenors.
______________________________________/
CASE NO.: 97-CV-75231-DT
HON. PATRICK J. DUGGAN
On October 14, 1997, Plaintiffs filed a class action against the University of Michigan and
various University officials asserting that the University had violated Title VI of the Civil Rights
Act, as well as the Equal Protection Clause of the Fourteenth Amendment, by considering race as a
factor in admissions decisions at its College of Literature, Science, and the Arts ("LSA"). On
December 13, 2000, this Court issued an Opinion addressing only the University Defendants'
arguments that the LSA's admissions programs pass constitutional muster as a narrowly tailored
means of achieving diversity, see Gratz v Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000),
reserving Defendant-Intervenors' argument that the LSA's admissions programs pass constitutional
muster as narrowly tailored means of remedying past and current discrimination by the University
for later consideration. This Opinion shall address the Defendant-Intervenors' arguments.
Discussion As explained in the Court's prior Opinion in this matter, racial classifications are subject to
the strictest of scrutiny, under which "such classifications are constitutional only if they are narrowly
tailored measures that future compelling governmental interests." Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995). In opposition to
Plaintiffs' motion for summary judgment, Defendant-Intervenors' contend that the LSA's
admissions programs "serve[ ] the uncontroverted compelling interest in remedying LS&A's past
and current discrimination against minorities." (Def.-Intervenors' Resp. Pls.' Renewed Mot. Summ.
J. at 2-3). In particular, Defendant-Intervenors contend that the University's race-conscious
--------------- page 2 --------------- admissions policies serve to "remedy the present effects of discrimination that it has caused or
tolerated; remedy the negative racial climate that it has sustained or that has been caused by others
on the campus; and, remedy or off-set the effects of any current discrimination in which it is
engaged." (Id. at 5).In a proper case, racial classifications may be justified by a State's interest in remedying the
effects of past or present "identified" discrimination. Shaw v Hunt, 517 U.S. 899, 909, 116 S. St.
1894, 1902, 135 L. Ed. 2d 207 (1996) (citing Croson, 488 U.S. at 498-506, 109 S. St. at 724-28). To
rise to the level of "compelling", however, such as interest must meet two conditions. "First, the
discrimination must be 'identified discrimination.'"1 Id. (citing Croson, 488 U.S. at 499, 500, 505,
507, 509, 109 S. Ct. at 724-25, 725, 728, 729, 730). While states and their subdivisions may take
remedial action when they possess evidence of past or present discrimination, "'they must identify
that discrimination, public or private, with some specificity before they may use race-conscious
relief.'" Id. (quoting Croson, 488 U.S. at 504, 109 S. Ct. at 727). "Second, the institution that
makes racial distinction must have had a 'strong basis in evidence' to conclude that remedial action
was necessary, 'before it embarks on an affirmative-action program.'" Id. At 910, 116 S. Ct. at 1903
(quoting Wygant v. Jackson Bd. Of Educ., 476 U.S. 267, 277, 106 S. Ct. 1842, 90 L. Ed. 2d 260
(1986) (plurality opinion) (emphasis added)).-----------------------
1 Defendant-Intervenors assert that "courts have been more tolerant of race-conscious action taken to remedy race-based
denial of educational opportunity" and have stated that "race-conscious steps to ensure equal educational opportunity for
minorities may be constitutionally permitted even in the absence of particular identified discrimination." (Def.-
Intervenors' Resp. Pls.' Mot. At 4-5) (emphasis added). Each of the cases cited by Defendant-Intervenors, however,
involved voluntary desegregation plans designed to eliminate the vestiges of past de jure or de factor segregation in the
educational context. Defendant-Intervenors have provided no evidence that the State of Michigan ever maintained a
segregated higher education system, or that the admissions policies at issue were designed as voluntary plans to
integrate its higher education system. Therefore, the Court is satisfied that Defendant-Intervenors must present evidence
or particular identified discrimination.
--------------- page 3 --------------- "A generalized assertion of past discrimination in a particular industry or region is not
adequate because it 'provides no guidance for a legislative body to determine the precise scope of
the injury it seeks to remedy.'" Id. At 909, 116 S. Ct. at 1902-03 (quoting Croson, 488 U.S. at 498,
109 S. Ct. at 724 (O'Connor, J.)). For this reason, the Supreme Court has repeatedly stated that "an
action to alleviate the effects of societal discrimination is not a compelling interest." Id. at 909-10,
116 S. Ct. at 1903 (citing Wygant, 476 U.S. at 274-75, 276, 288, 106 S. Ct. at 1847-48, 1854).When the race-based classifications of an affirmative action plan are challenged, "the
proponents of the plan have the burden of coming forward with evidence providing a firm basis for
inferring that the…identified discrimination in fact exists and that the race-based classifications are
necessary to remedy the effects of the identified discrimination." Contractors Ass'n of E. Pa. v.
Philadelphia, 91 F. 3d 586, 597 (3d Cir.1996); see also Concrete Works of Colo. v. Denver, 36 F. 3d
1513, 1521-23 (10th Cir. 1994). Once this burden of production has been met, "the opponents of the
program must be permitted to attack the tendered evidence and offer evidence of their own tending
to show that the identified discrimination did or does not exist and/or that the means chosen as a
remedy do not 'fit' the identified discrimination." Id. Ultimately, the plaintiffs challenging the
program retain the burden of persuading the court that a violation of the Equal Protection Clause has
occurred by either persuading the court that the race-based preferences were not intended to serve
the asserted compelling interest, or that there is no strong basis in the evidence as a whole to support
the defendant's conclusion that the identified discrimination actually existed, or that the continuing
effects of such discrimination necessitated the chosen remedy. Id.The significance of the burden of persuasion differs depending upon which path the plaintiff
chooses to pursue. If the plaintiff's theory is that the race-based preferences were adopted with an
--------------- page 4 --------------- intent unrelated to remedying past discrimination, "the plaintiff has the burden of convincing the
court that the identified remedial motivation is a pretext and that the real motivation was something
else." Id. "The ultimate issue under this theory is one of fact, and the burden of persuasion on that
ultimate issue can be very important." Id. At 597-98.When the plaintiff proceeds under the theory that, "although the [defendant] may have been
thinking of past discrimination and a remedy therefor, its conclusions with respect to the existence of
discrimination and the necessity of the remedy chosen have no strong basis in evidence," the
plaintiff bears the burden of persuading the court that the facts alleged as support for the defendant's
conclusions are not accurate. Id. At 598. Under this approach, "[t]he ultimate issue as to whether a
strong basis in evidence exists is an issue of law" and, therefore, "[t]he burden of persuasion in the
traditional sense plays no role in the court's resolution of that ultimate issue." Id.Defendant-Intervenors assert that the University's race-conscious admissions policies serve
to "(1) remedy the present effects of practices of LS&A that have served to exclude African
Americans and Latinos from enrollment, (2) provide a critical mass of students to remedy LS&A's
hostile racial climate, and (3) remedy the discriminatory effects of LS&A's current admissions
criterion." (Def.-Intervenors' Resp. Pls.' Renewed Mot. Summ. J. at 7).1. The "Actual" Purpose Behind the LSA's
Race-Conscious Admissions ProgramsPlaintiffs initially assert that the Court should reject Defendant-Intervenors' arguments
because it is clear from the University Defendants' extensive briefing on this issue that the "actual
purpose" behind the University's race-conscious admissions policies was not to remedy past or
present discrimination, but rather, to achieve "diversity". (Pls.' 8/24/00 Br. At 2-7). According to
Plaintiffs, "neither the University nor the intervenors even pretend that the University was actually
--------------- page 5 --------------- motivated by the interests that intervenors ask this Court to consider. The remedial justifications are
just rationales that the intervenors believe the University might have chosen to adopt to justify their
discriminatory admissions policies." (Id. At 5) (emphasis in original).The Supreme Court has cautioned that when engaging in an Equal Protection analysis, the
Court must look behind a defendant's "articulated" reason to determine whether there is sufficient
evidence to conclude that the "articulated" reason is genuine, i.e., that the articulated reason actually
motivated the race-conscious program or policy. See, e.g., Shaw, 517 U.S. at 910, 116 S. Ct. at
1902; Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 728, 102 S. Ct. 3331, 3338, 73 L. Ed.
2d 1090 (1982). When conducting such an inquiry, the Court does not look behind the "articulated"
interest to decipher for itself whether there were other justifiable reasons that may have supported
the race-conscious program. "[A] racial classification cannot withstand strict scrutiny based upon
what 'may have motivated the [State].'" Shaw, 517 U.S. at 908 n.4, 116 S. Ct. at 1902 n. 4. The
state actor must show that the alleged objective was the "actual purpose" for the discriminatory
classification. Id.In allowing Defendant-Intervenors to join this action, the Sixth Circuit found it persuasive
"that the University is unlikely to present evidence of past discrimination by the University itself or
of the disparate impact of some current admissions criteria, and that these may be important and
relevant factors in determining the legality of a race-conscious admissions policy." Grutter v
Bollinger, 188 F. 3d 394, 398 (6th Cir. 1999). The Court shall interpret the Sixth Circuit's statement
as an indication that although the University Defendants have never claimed that the LSA's race-
conscious admissions programs were implemented to remedy past or present discrimination,
--------------- page 6 --------------- Defendant-Intervenors should be given the opportunity to present evidence that remedying
discrimination was the "actual" purpose behind the LSA's admissions programs.According to Defendant-Intervenors, "[d]espite the University's sole reliance on Bakke's
diversity rationale in this litigation, the record quite clearly shows that the University was motivated
by both diversity and remedial purposes in adopting its affirmative action program." (Def.-
Intervenors' 9/1/00 Sur-Reply at 5). It is not enough, however, that remedial measures "may have"
motivated the LSA in adopting the challenging admissions programs. As part of their burden,
Defendant-Intervenors must establish that remedial measures "actually" motivated the challenged
race-conscious programs. See Shaw, 517 U.S. at 908 n.4, 116 S. Ct. at 1902 n.4.In this Court's opinion, Defendant-Intervenors have failed to present any evidence that the
discrimination alleged by them, or the continuing effects of such discrimination, was the real
justification for the LSA's race-conscious admissions programs. Although not dispositive, the
University Defendants have never claimed that the challenged programs were implemented as a
means to remedy past discrimination. See Hogan, 458 U.S. at 727 n. 16, 102 S. Ct. at 3339 n. 16
(stating that even if court were to assume discrimination had occurred, challenged policy would
nonetheless be invalid because the state failed to establish that the legislature "intended" the
challenged policy to compensate for any perceived discrimination); Lutheran Church-Mo. Synod v.
F.C.C., 141 F.3d 344, 354 (D.C. Cir. 1998) (rejecting interest asserted by Department of Justice in
support of F.C.C. administrative regulation because "[a]s the independent agency which
promulgated the regulation in question, [the F.C.C.'s] view of the government interest it was
pursuing must be accepted").
--------------- page 7 --------------- Furthermore, the terms of the admissions policies themselves indicate that they were
developed to achieve diversity, not as a means to remedy discrimination. For example, the 1997
guidelines refer to "students who meet the spirit of contributing to a diverse class." (Pls.' 4/9/99
Exs., Ex. AA at ¶F.1) (emphasis added). The 1998, 1999, and 2000 admissions guidelines state that
"[a]dmissions is based on several factors that combine to produce a freshman class that provides a
mixture of attributes and characteristics valued by the University," and that it is the University's
"sincere belief that this mixture contributes to the education of our students, as well as fulfills the
University's mission to prepare society's future citizens and leaders." (Pls.' 4/9/99 Exs., Ex. DD at
¶I.B.4 & Ex. EE at 1 (1998); Kolbo Aff., Ex. A at ¶I.B. 4 & Ex. B at 1 (1999); Ex. C at ¶I.B.4 & Ex.
D at 2 (2000) (emphasis added)). The guidelines also state that the University was "committed to an
educational experience that involves students interacting with other students of different races and
ethnicities than their own." (Pls.' 4/9/99 Exs., Ex. EE at 7 (1998); Kolbo Aff., Ex. A at ¶I.B.4 & Ex.
B at 1 (1999); Ex. C at ¶I.B.4 & Ex. D at 2 (2000)).Moreover, Defendant-Intervenors acknowledge that the admissions policies at issue were a
result of the Michigan Mandate. (Def.-Intervenors' 9/1/00 Sur-Reply at 7). President Duderstadt has
"described the Michigan Mandate as an attempt to better respond to the diversity of the nation and
the world, by trying to change the nature of the institution itself so that all ethnic groups could be
brought fully into the life and leadership of the institution," and enacted "with the goal of building a
multicultural learning community which values, respects, and draws intellectual strength from the
rich diversity of people of different races." (Pls.' 6/1/99 Exs., Exs. H & I). In a series of letters
written in 1995, President Duderstadt explained the Michigan Mandate as the University's
"commitment to make the University of Michigan a national and world academic leader in the racial
--------------- page 8 --------------- and ethnic diversity of its faculty, students, and staff," and repeatedly referred to the University's
efforts to "achieve diversity," "better reflect ethnic, racial, and socioeconomic diversity," and "to
build a richly diverse community of students." (Pls.' 6/1/99 Exs., Exs. D, E, & F) (emphasis added).The fact that none of the evidence cited by Defendant-Intervenors even discusses past or
present discriminatory conduct toward Native Americans is further evidence that the University's
race-conscious admissions policies were not designed with a remedial purpose in mind. See Croson,
488 U.S. at 506, 109 S. Ct. at 728 (stating that the "random inclusion of racial groups that, as a
practical matter, may never have suffered from discrimination…suggests that perhaps the city's
purpose was not in fact to remedy past discrimination"). The justifications for a suspect policy or
program must be "genuine, not hypothesized or invented post hoc in response to litigation." United
States v. Virginia, 518 U.S. at 533, 116 S. Ct. at 2275."[A] tenable justification must describe actual state purposes, not rationalizations for actions
differently taken." Id. at 535, 116 S. Ct. at 2277. Defendant-Intervenors have presented no evidence
that the LSA's race-conscious admissions programs were enacted to counter the present effects of
past discriminatory policies or the discriminatory impact of the other SCUGA factors. To the
contrary, all of the evidence supports the conclusion that the University's race-conscious admissions
programs were specifically designed for the purpose advanced by the University Defendants i.e.
racial and ethnic diversity. Therefore, even if the Court were to assume that the alleged
discrimination or continuing effects thereof exists today, Defendant-Intervenors' argument would
nonetheless fail as there is no evidence that the LSA's race-conscious admissions programs were
actually put in place to remedy such discrimination. See Hogan, 458 U.S. at 727 n.16, 102 S. Ct. at
3339 n. 16.
--------------- page 9 --------------- 2. The University's History of Discrimination
Conversely, even if Defendant-Intervenors had presented evidence that the LSA's race-conscious
admissions programs were actually implemented in an effort to remedy past or current
discrimination, Defendant-Intervenors' argument would nonetheless fail because Defendant-
Intervenors have failed to establish a genuine issue of fact as to whether the identified discrimination
in fact exists or existed, as well as whether the race-conscious admissions policies are necessary to
remedy such discrimination. Defendant-Intervenors assert that the LSA's consideration of race in
admissions decisions "serves compelling interests in remedying the continuing effects of long-
standing discrimination at the University." (Id. at 6). According to Defendant-Intervenors,
"Professor James Anderson's expert report and other evidence in the record establish that since its
founding, the University has engaged in racially discriminatory and exclusionary practices against
minorities." (Id. at 7). Specifically, Defendant-Intervenors contend that:The record shows that the University tolerated the presence of a few minorities, but
that it refused to integrate them meaningfully into campus life, establishing racially
segregated housing, maintaining segregated fraternities and sororities, and — when the
University finally permitted African-American students to live on campus in
dormitories — acquiescing to white students who refused to room with them. Through
the years and to the present, minority students have struggled to maintain their
presence on campus, enduring racial incidents on campus and in classrooms, from
other students, faculty and staff. The University, even after receiving these
complaints and corroborating student experiences, either refused to act, or did so in a
woefully inadequate manner.(Id. at 7).
In his expert report, Professor James Anderson, Head of the Department of Educational Policy
Studies and Professor of History at the University, recounts the history of the University from 1817
to present. According to Professor Anderson, although the University was founded in 1817, it was
not until 1868 that the first African American students were enrolled, and up until 1930, African
--------------- page 10 --------------- Americans were systematically excluded from University-owned housing. (Anderson Rep. at 3-10).
On-campus housing remained segregated up until the 1960s.Moreover, despite the fact the Michigan Civil Rights Congress had called for an end to
discriminatory clauses in the constitutions and by-laws of all campus organizations in 1949, and in
1952 the Committee on Student Affairs accepted a proposal to eliminate discriminatory clauses
in fraternity and sorority by-laws, then University President Harlan Hatcher rejected such proposals
and allowed student organizations to continue to prohibit membership based on race, religion, or
color. (Id. at 5). According to one observer, as of 1959, no fraternity had ever accepted an African
American student. (Id. at 11). Through the late 1950's, the University refused to integrate its
housing by continuing its policy of respecting students' wishes who did not wish to live with a
student of another race. (Id. at 7).In 1966, the Defense Department conducted an investigation of the University's compliance with
Title VI of the Civil Rights Act of 1964, ultimately urging the University to increase its enrollment
of African American students, faculty, and staff. (Id. at 9). In 1967, the University's first black
professor, Professor Albert Wheeler, wrote a letter to then Vice Presidents Allan Smith and Frank
Pierpont expressing his fear that the University had developed an "unfavorable image" among the
African American community. (Id. at 15). During her deposition, a 1971 graduate of the LSA
recounts how University staff actively discouraged her from applying to the LSA, and that one
admissions counselor specifically told her that "community college might be better suited for [her]."
(Glenn Dep. At 10).During the 1970s, minority students often voiced their concern regarding the University's failure
to address campus racism and to increase minority enrollment. (Anderson Rep. At 17-19).
--------------- page 11 --------------- According to Defendant-Intervenors, throughout the 1970s and 1980s, the University "continued to
tolerate racial tensions on campus that had a devastating effect on minority enrollment, and minority
participation and sense of belonging on campus." (Def.-Intervenors' Br. Resp. Pls.' Mot. Summ. J.
at 13; Anderson Rep. At 32-34). Racial tension in the dorms became widely publicized in the early
1970s. (Anderson Rep. At 35). "Both University officials and students acknowledge[d] the severity
of racial tensions within the dormitory system, and the inadequacy of any attempt to improve them.
(Id.).A 1980 study of African American students at the University revealed that eighty-five percent of
the students surveyed had encountered racial discrimination while at the University, ninety percent
wanted more African American students at the University, and over sixty percent stated they had
little or no contact with African American faculty and staff. (Id. at 52). Expert Dr. Joe R. Feagin,
Ph.D., a graduate research professor in sociology at the University of Florida, also reports that a
1980 survey of more than two hundred black undergraduates at the University of Michigan revealed
that "most had faced verbal and other racial harassment since arrival" at the University, mostly
comprised of "total avoidance by white students and subtle actions or statements with racist
overtones." (Feagin Rep. At 9). Between 1976 and 1985, the University suffered a drastic decline
in minority enrollment, losing 34 percent of its African American students. Niara Sudakasa, Report
on Minorities, Handicappers and Women in Michigan's Colleges and Universities at 10 (1986).From 1986 to 1987, a number of racist events occurred at the University, including the
distribution of racist fliers, vandalism in the minority lounge, and racist jokes broadcast over the
University's campus radio station. (Anderson Rep. At 62; Ransby Dep. At 19-21, 33-34). An
investigation resulted in a report recognizing that African American students at the University were
--------------- page 12 --------------- "likely to be subjected to ridicule, abuse, and threat," as well as "instructors who make openly racist
comments, inside and outside of class ," and that the radio broadcasts were "only a symptom of a
pervasive atmosphere on this campus." (Anderson Rep. At 63-64).In 1995, students continued to voice concerns regarding racism on the University's campus,
citing incidents in which racist messages were scrawled on walls and sent via e-mail. (Anderson
Rep. At 74-75) Professor Anderson, however, also reports that "[g]eneral perceptions of racial
climate on campus among students of color have become more positive," and that a 1994 study
revealed that "students of color in general do not perceive tremendous tension, nor do White students
feel overwhelmed by hostility from students of color." (Id. at 76-77). According to Professor
Anderson, "perceptions of racial climate, particularly in the residence halls, are significantly more
positive in the post Michigan Mandate era." (Id. at 77).Dr. Feagin also reports of "several dozen complaints by black students and staff at the
University" describing racist incidents from 1990 through 1999, including racist graffiti, racially
derogatory remarks, white supremist group lettering, racist slurs by whites on or near campus, racist
e-mail messages, and racist literature. (Feagin Rep. At 9-10). Dr. Feagin attributes the University's
racially hostile environment to white students (Id. at 14-18), white professors' perceived attitudes
toward minority students (Id. at 21-23), negative experiences with campus security personnel (Id. at
24-26) (see also Def.-Intervenors' 8/11/00 Exs. Vol. IV, Ex. 7), and negative experiences with other white staff members (Id. at 27-28).It is also Dr. Walter Allen's expert opinion that "African American and Latino/Hispanic students
regularly experience incidents on the [University's] campus" and "describe a hostile racial
environment." (Allen Rep. At 13). According to Dr. Allen, African American and Latino students
--------------- page 13 --------------- report being the subject of racial stereotypes in the classroom and that "white faculty and white
students avoid interacting with them outside of class." (Id. at 14). Defendant-Intervenors have also
presented portions of deposition testimony from several past and present minority students, who
have each recounted incidents in which they have experienced racial hostility or stereotyping by
other students or faculty members. (Def.-Intervenors' 8/1/00 Exs., Vol. IV, Exs. 1-6).3. Present Effects of the University's Prior Discrimination
As an initial matter, the Court notes that Defendant-Intervenors have presented the Court with no
evidence that the University or the LSA ever facially discriminated against minorities in admissions
decisions. There is absolutely no evidence that minorities were ever outright excluded from
admission the University; nor is there any evidence that the University's past admissions programs
had a discriminatory impact on minority applicants.Furthermore, with the exception of racial hostility, which Defendant-Intervenors have presented
evidence of well into the 1990s, all of the University's allegedly discriminatory conduct cited by the
Defendant-Intervenors, i.e. segregated housing, segregated fraternities, and policies allowing non-
minority students to refuse to room with minority students, occurred years before the challenged
admissions policies were put in place. Where the identified discrimination has occurred in other
than the immediate past, "the inquiry into the legitimacy of race-based classification turns to
the state's basis for finding continuing effects of such past discrimination." Podberesky v. Kirwan, 956
F. 2d 52, 56 (4th Cir. 1992), vacated on other grounds, 38 F. 3d 147 (4th Cir. 1994); Wygant, 476
U.S. at 280, 106 S. Ct. at 1850; Fullilove v. Klutznick, 448 U.S. 448, 480, 100 S. Ct. 2758, 2775, 65
L. Ed. 2d 902 (1980) ("We recognize the need for careful judicial evaluation to assure that
any…program that employs racial or ethnic criteria to accomplish the objective of remedying the
--------------- page 14 --------------- present effects of past discrimination is narrowly tailored to the achievement of that goal.").
According to Defendant-Intervenors, "[t]he continuing effects of the discrimination against minority
students is evident in the fact that students of color, understandably concerned with the school's
reputation for discrimination and racial insensitivity, may be deterred from applying." (Def.-
Intervenors' Br. Resp. Pls.' Renewed Mot. Summ. J. at 17) (emphasis added).As evidence that the University's prior discriminatory policies have continually deterred African
Americans from attending the University, Defendant-Intervenors cite the fact that as the percentage
of African Americans graduating high school in Michigan rose from 8.9% in 1976 to 10.97% in
1983, the percentage of African Americans enrolled at the LSA decreased from 7.2% to 5.14%. (Id.
at 18).As the Supreme Court has recognized, reliance on statistical disparities to establish a prima facie
pattern or practice of discriminatory conduct is not appropriate where special qualifications are
required. See Croson, 488 U.S. at 501, 109 S. Ct. at 726 ("But it is equally clear that when special
qualifications are required to fill a particular job, comparisons to the general population (rather than
to the smaller group of individuals who possess the necessary qualifications) may have little
probative value.") (internal quotation omitted). "[W]here special qualifications are necessary, the
relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number
of minorities qualified to undertake the particular task." Id. at 501-02, 109 S. Ct. at 726. Defendant-
Intervenors have presented no evidence regarding the number of African Americans graduating high
school in 1976 or 1983 that were qualified to attend the University, nor, more importantly, the
number of high school graduates even interested in attending college.
--------------- page 15 --------------- Furthermore, the Court finds Defendant-Intervenors' statistical data from 1976 and 1983 to be of
little probative value with respect to whether such policies served to deter African American and
other minority students from applying to the University in 1995 when the first of the challenged
admissions programs was implemented. As Defendant-Intervenors themselves acknowledge, "[t]he
years after the passage of the Civil Rights Act of 1964 saw a marked increase in the number of
African American students attending the University." (Id. at 10). Although there were only
approximately thirty-five African Americans enrolled at the University in 1935, in 1966, African
American students constituted 1.2 percent of the University's 32,000 student population, 3.5 percent
in 1970, 6.8 percent in 1972, and 7.1 percent in 1990. The fact that the percentage of minority
students attending the University has steadily increased tends, in this Court's opinion, to indicate that
any deterrent effect the University's prior discriminatory policies and practices may have had has
dwindled in recent times.Defendant-Intervenors also assert that "[t]he parents of the children who present themselves
for admissions to Michigan today, did not have the economic and social advantage gained from
attending an institution such as Michigan, and thus cannot pass on the full range [of] advantages to
their children that many white parents, who are mre likely to have attended Michigan, can." (Def.-
Intervenors' Br. Resp. Pls.' Renewed Mot. Summ. J. at 18). Defendant-Intervenors, however, have
provided no link between any particular identified discrimination on behalf of the University and the
social or economic disadvantage of such parents. As previously discussed, generalized assertions of
past discrimination in a particular spectrum, such as college admissions, or of societal
discrimination, do not provide a strong basis for engaging in remedial action. See Shaw, 517 U.S. at
909-10, 116 S. Ct. at 1902-03.
--------------- page 16 --------------- Although Defendant-Intervenors frame their argument in terms of remedying the continuing
effects of the University's prior discrimination, it is clear from the evidence cited by Defendant-
Intervenors that the alleged deterrence stems from the past and current racial hostility on campus
and/or the University's alleged acquiescence in such hostility, not from any "identified"
discrimination by the University itself. Accordingly, the Court rejects Defendant-Intervenors'
contention that the University has a compelling interest in remedying any present effects of its own
past discrimination.4. The University's Past and Current Hostile Racial Climate.
Defendant-Intervenors have presented ample evidence that minority students at the University
have been, and continue to be subjected to, racial hostility, stereotyping, and isolation. According to
Defendant-Intervenors, "[t]his hostile environment is perpetuated by various aspects of the
University community, including other students, University staff, and professors." (Def.-
Intervenors' Br. Resp. Pls.' Renewed Mot. Summ. J. at 19). As Defendant-Intervenors explain,
"[b]y increasing the numbers of African-Americans and Latinos, race-conscious admissions provides
the critical mass of minority students required to remedy this negative social climate and the
detrimental isolation that they experience." (Id.)According to Defendant-Intervenors' experts, studies show that race-conscious admissions
programs serve to remedy this negative racial climate by creating a "critical mass" of African-
American and Latino students on campus such that African American and Latino students are "able
to form the necessary community and social support networks associated with success." (Id. at 23-
24; Allen Rep. At 7). Defendant-Intervenors further assert that "[t]his increase in numbers serves to
reduce the racial isolation that is so harmful to the educational experiences of minority students,
--------------- page 17 --------------- increase intergroup interaction, and thus help diminish negative social stereotypes and racial
hostility." (Id. at 24).As Defendant-Intervenors correctly acknowledge, although the University itself is not the cause
of the alleged hostility, it make take affirmative steps to dismantle a system of racial exclusion in
which it has become a passive participant. Croson, 488 U.S. at 492, 109 S. Ct. at 720. Defendant-
Intervenors, however, have provided no evidence that the University has been a "passive participant"
in the more recent racial episodes outlined above. As the Supreme Court has acknowledged, there is
no doubt that the sorry history of both private and public discrimination in this country has
contributed to a lack of opportunities for African Americans. This observation, however, by itself is
not sufficient to justify race-conscious measures. Id. at 499, 109 S. Ct. at 724.5. Discriminatory Effect of the University's Current Admissions Policies
Next, Defendant-Intervenors assert that the University's race-conscious admissions policies are
necessary to counteract other factors in its admissions policies that have no adverse impact on
minority applicants. (Def.-Intervenors' Br. Resp. Pls.' Renewed Mot. Summ. J. at 26-32).
Defendant-Intervenors have presented the expert reports of William T. Trent, and Drs. Jacob Silver
and James Rudolph, in support of their assertion that other factors considered in the University's
admissions policies have an adverse impact on minority applicants, specifically African Americans
and Latino Americans.According to Defendant-Intervenors, the SCUGA factors "are used to enhance the GPAs or
selection index point totals of white applicants to a significantly greater degree than for African-
American and Latino applicants, rendering the latter less competitive in the admissions process."
(Id. at 30; Trent Rep. At 7; Silver & Rudolph Rep. At 14-15). For example, African American and
--------------- page 18 --------------- Latino applicants are less likely to attend high schools that receive a high "S" (school) factor, or
offer advances courses contributing to an applicant's' "C" (curriculum) factor. (Id. at 27-28; Trent
Rep. at 4-7). Similarly, due to the University's past history of discrimination, it is less likely that a
minority student will receive any alumnus "A" (alumni) points. (Id. at 29; Trent Rep. at 7; Silver &
Rudolph Rep. At 16-17). Furthermore, minority students are less likely to reside in the forty-five
northern Michigan counties that the University identifies as under-represented under its "G"
(geography) factor.2 (Id. at 30; Trent Rep. at 7; Silver & Rudolph Rep. at 16).In this Court's opinion, Defendant-Intervenors' reliance upon the discriminatory impact of
the other SCUGA factors is misplaced as the SCUGA factors are but one component of the overall
race-conscious admissions programs that Plaintiffs seek to invalidate. Because both the allegedly
discriminatory SCUGA factors and the racial preferences are part of the same program, there is no
overall discriminatory impact.Moreover, if the current selection criteria have a discriminatory impact on minority
applicants, it seems to this Court that the narrowly tailored remedy would be to remove or
redistribute such criteria to accommodate for socially and economically disadvantages applicants of
all races and ethnicities, not to add another suspect criteria to the list. Accordingly this Court finds
Defendant-Intervenors' contention to be unpersuasive.
Conclusion Defendant-Intervenors have failed to cite any evidence that the LSA's race-conscious
admissions criteria were actually motivated by a desire to remedy any past or present discrimination
by the University. Furthermore, the Court is satisfied that the LSA's race-conscious admissions-----------------------
2 The "U" (unusual) factor includes under-represented minority status.
--------------- page 19 --------------- programs cannot be justified as measures to remedy either the current effects of past discrimination,
or the discriminatory impact of the LSA's other admissions criteria. Because Defendant-Intervenors
have failed to present sufficient evidence to create a genuine issue of material fact in support of their
claim that the LSA'a admissions programs in existence from 1995 through 1998 were a narrowly
tailored means of achieving the compelling governmental interest of remedying the present effects of
past discrimination, Plaintiffs are entitled to summary judgment on this issue. 3To survive summary judgment, the nonmoving party "is required to do more than simply
show that there is some "metaphysical doubt as to the material facts." Pierce v. Commonwealth Life
Ins. Co., 40 F. 3d 796, 800 (6th Cir. 1994) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). "The mere existence of a
scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must
be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v.
Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). The Court is
satisfied that Defendant-Intervenors have failed to sustain this burden. Therefore, Plaintiff's
motion for summary judgment with respect to Defendant-Intervenors' claim that the
University was justified in using race as a factor in admissions to remedy the present
effects of past discrimination shall be granted, and Defendant-Intervenors' claims that the
University was justified in using race as a factor in admissions to remedy the present
effects of past discrimination shall be dismissed.An Order consistent with this Opinion shall issue forthwith.
-------------------------
3 The Court notes that its decision today has no practical effect on its prior decision regarding the LSA's admissions programs in existence for 1999 and 2000, as such policies were previously found to be constitutional as a narrowly tailored means of achieving a compelling governmental interest, i.e. diversity. See Gratz, 122 F. Supp. 2d at 827-31.
--------------- page 20 ---------------
________________________________
PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGECopies to:
Date:
Copies to:
Kerry L. Morgan, Esq.
Kirk O. Kolbo, Esq.
Michael E. Rosman, Esq.
John Payton, Esq.
Leonard M. Niehoff, Esq.
Godfrey J. Dillard, Esq.
Theodore M. Shaw, Esq.
Christopher A. Hansen, Esq.
Brent E. Simmons, Esq.
Michael J. Steinberg, Esq.
Patricia Mendoza, Esq.
L. Michael Wicks, Esq.
Jeremiah Glassman, Esq.
Edward B. Foley, Esq.
Richard A. Wilhelm, Esq.
Philip L. Graham, Jr., Esq.
Susan I. Leffler, Esq.
Kenneth S. Geller, Esq.
Carolyn I. Polowy, Esq.
Brice M. Clagett, Esq.
Walter E. Dellinger, Esq.
Martin Michaelson, Esq.
Randall E. Mehrberg, Esq.
Deanne E. Maynard, Esq.