Defendants' Renewed Motion for Summary Judgement in Gratz

ARGUMENT

This lawsuit challenges a practice the Supreme Court deemed constitutional more than twenty years ago in Bakke: the “competitive consideration ” of race and ethnicity, along with a range of other factors, in admissions. Because Bakke plainly allows the University to employ the “competitive consideration ” of race to achieve the academic benefits that having a racially diverse student body brings, and because the record shows that the University ’s admissions policies and practices are entirely consistent with that decision —and therefore not “objectively unreasonable in light of clearly established constitutional rights, ” Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996) (internal quotations omitted) —the individual defendants are entitled to summary judgment on their qualified immunity defense.

Recognizing the qualified immunity of public university officials to make admissions decisions— so long as those decisions do not violate clearly established law—is vitally important to safeguard the principle of academic freedom, “which is of transcendent value to all of us and not merely to the teachers concerned. ” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). As Justice Powell noted in Bakke: “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. ” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978).¹⁵/ This freedom, protected by the First Amendment, could be chilled if public university officials can be subjected to litigation over differences of opinion concerning education policy. So long as they comply with prevailing legal standards, university officials must not be threatened with liability for the choices they make in deciding how to select their students. The important policy of permitting government officials to perform their public duties without the fear of being sued requires that, even where some doubt about the law pertaining to a particular policy or practice exists, qualified immunity be granted to such individuals. See Cameron v. Seitz, 38 F.3d 264, 272 (6th Cir. 1994) ( “The unlawfulness of the official ’s actions must be apparent. If officials of reasonable competence objectively could disagree on the law, immunity should be recognized. ”) (citations omitted). Under the qualified immunity doctrine, legal questions concerning the lawfulness of a government policy or practice must be resolved in favor of the official whose actions have been challenged. Id.

¹⁵/ See also Board of Regents of the Univ. of Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1358 (2000) (Souter, J., concurring) (“In Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985), we recognized these related conceptions: ‘Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself.’”) (quoting Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985)); Healy v. James, 408 U.S. 169, 180 (1972) (“The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.”); Sweezy v. New Hampshire, 354 U.S. 234, 262-63 (1957) (Frankfurter, J., concurring) (noting the “four essential freedoms” of a university, including the freedom “to determine for itself … who may be admitted to study”) (citation omitted).

I. GIVEN THE SUBSTANTIAL BURDEN TRIAL WOULD IMPOSE ON DEFENDANTS BOLLINGER AND DUDERSTADT, THE DECISION WHETHER TO GRANT SUMMARY JUDGMENT ON THEIR QUALIFIED IMMUNITY DEFENSE SHOULD BE MADE NOW.

“‘[G]overnment officials performing discretionary functions [generally are shielded] from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.‘” Gardenhire v. Schubert, 205 F.3d 303, 310-11 (6th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)), cert. denied, 120 S. Ct. 980 (2000). Such officials effectively enjoy “an immunity from suit [and the burdens of extensive discovery] rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). See also Behrens v. Pelletier, 516 U.S. 299, 305 (1996); Scott v. Clay County, Tenn., 205 F.3d 867, 873-74 (6th Cir. 2000).

¹⁶/ Indeed, the very purpose of the doctrine of qualified immunity doctrine is to protect government officials from the in terrorem effect of personal liability that Plaintiffs’ counsel has trumpeted: “Unique to this suit [challenging admissions policies at the University of Michigan�s College of Literature, Science and the Arts] — and to the corollary lawsuit that has been brought against the University of Michigan Law School — is that if the University of Michigan loses, some of its officials — including its president — will be personally liable for damages. Lawyers at the Center for Individual Rights in Washington, which is representing the white student plaintiffs, believe that once university officials lose their own money in these actions, university presidents around the country will start to change their admissions procedures.” Nat Hentoff, A Challenge to Bill Lann Lee, The Village Voice, Jan. 13, 1998, at 24. Last year, counsel for the Plaintiffs sent handbooks to hundreds of college trustees warning that trustees, administrators, and faculty members can be held liable in their personal capacities for their school’s consideration of race in admissions. (Ex. DD at 9); see also Kate Zernike, Campus Affirmative Action Embattled Handbooks Encourage Student Suits, Boston Globe, Jan. 27, 1999, at A4.

The reasons for this rule are well known: “‘where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken with independence and without fear of consequences.’” Mitchell, 472 U.S. at 525 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982))(internal citation omitted).¹⁶/ Liability for money damages might make government officials overly timid in the performance of their duties. Id. at 525-26. Qualified immunity law seeks both to address this problem and to avoid costs such as “the expenses of litigation,” the “diversion of official energy” and “the deterrence of able citizens from acceptance of public office.” Crawford-El v. Britton, 523 U.S. 574, 590-91 & n.12 (1998).

Government officials are permitted to assert qualified immunity as a defense to a lawsuit for money damages by a motion to dismiss or by a motion for summary judgment. See Behrens, 516 U.S. at 305. But no matter how the defense is asserted, it is important that a court decide its application in a particular case as promptly as possible, well before the case proceeds to trial. See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[B]ecause the entitlement is an immunity from suit rather than a mere defense to liability, we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”) (quotations and citation omitted); Siegert v. Gilley, 500 U.S. 226, 232 (1991) (explaining that qualified immunity is determined at the earliest point in the litigation “to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit”). The benefits of qualified immunity—protection from burdensome lawsuits and the distractions of protracted litigation— are effectively lost where an individual defendant is forced to go to trial or to engage in more discovery than necessary to establish the defense. See Mitchell, 472 U.S. at 526.

In this case, Defendants Bollinger and Duderstadt originally sought summary judgment on qualified immunity grounds more than a year ago, before the student intervenors joined the case. While it was appropriate to defer resolution of their pending summary judgment motions while the intervenors conducted discovery, the deadline for the end of discovery has now passed and the record pertaining to this issue is complete. Accordingly, this Court should now decide the merits of the instant summary judgment motion as expeditiously as possible, well before trial on Plaintiffs’ claims for forward-looking injunctive and declaratory relief, and should dismiss the individual defendants from the case.

II. DEFENDANTS BOLLINGER AND DUDERSTADT ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR QUALIFIED IMMUNITY DEFENSE.

Given the “strong public interest in protecting public officials from the costs associated with the defense of damages actions,” Crawford-El, 523 U.S. at 590, the circumstances in which a suit against a public official can survive a motion to dismiss or for summary judgment are quite limited. Once a government official raises a defense of qualified immunity, a court must follow a two-pronged analysis.¹⁷/ Wilson v. Layne, 526 U.S. 603, 609 (1999). First, it must determine the precise contours of the right alleged to have been violated by government action. See Conn v. Gabbert, 526 U.S. 286, 290 (1999); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). Second, if there is evidence of a constitutional or statutory violation, the court must then determine whether the plaintiff has come forward with “‘sufficient facts supported by sufficient evidence to indicate what [the public official] allegedly did was objectively unreasonable in light of [the] clearly established constitutional rights.’” Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996) (quoting Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994)). See also Gardenhire, 205 F.3d at 311; Blake v. Wright, 179 F.3d 1003, 1007-08 (6th Cir. 1999).

¹⁷/ The qualified immunity analysis applies in cases involving suits brought under section 1983, as well as those brought under the Constitution and statutes such as section 1981. See Johnson v. Estate of Laccheo, 935 F.2d 109 (6th Cir. 1991) (applying qualified immunity analysis to claims brought, inter alia, under 42 U.S.C. § 1981). Because, as the following analysis demonstrates, there is no clearly established right not to have race considered as a factor in admissions decisions, and LS&A’s admissions policies and practices fully comply with the requirements set forth in Bakke, the individual defendants are entitled to qualified immunity on Plaintiffs’ claims arising under both section 1983 and section 1981, as well as those arising under the Constitution.

A. Plaintiffs Cannot Demonstrate a Clearly Established Constitutional or Statutory Right Not To Have Race Considered in University Admissions Decisions.
Plaintiffs demand that the individual defendants pay money damages principally because, they argue, any consideration of race in admissions is unconstitutional. The Complaint alleges that Defendants Bollinger and Duderstadt ֻviolated plaintiffs’ clear and well-established Constitutional right to receive the same consideration for admissions as applicants of other races.” (Compl. ¶ 30.) Far from being clearly established, however, this claim— that race can never constitutionally be considered as a factor in university admissions decisions—is novel and contradicted by Supreme Court precedent.

As the Supreme Court recently explained in Wilson v. Layne, 526 U.S. 603 (1999), the term “clearly established” has a precise meaning in the qualified immunity context. Id. at 614-15. “[F]or purposes of qualified immunity … ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.‘” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999) (same). Put differently, “in the light of pre-existing law the unlawfulness must be apparent.” Wilson, 526 U.S. at 614-15 (quotations and citations omitted). “In this circuit, a finding of a clearly established constitutional right must generally be supported by precedent from the Supreme Court or this circuit, or in the alternative, by decisions from other circuits.” Mumford v. Zieba, 4 F.3d 429, 432 (6th Cir. 1993) (citation omitted).

Plaintiffs have not satisfied these requirements. The Supreme Court has never recognized a constitutional right not to have race considered as a factor in an admissions decision. Indeed, its decision in Bakke establishes the proposition that is the exact opposite of the argument that Plaintiffs advance here. Part V.C. of Justice Powell’s opinion in Bakke was joined by four other Justices (Brennan, White, Marshall and Blackmun, J.J.), establishing a majority of the Supreme Court for the following critical passage, which states Bakke’s central holding and the Court’s judgment regarding the use of race in admissions:
In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court’s judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.
438 U.S. at 320 (emphasis added). Thus, after Bakke, there cannot be any doubt that “a properly devised admissions program involving the competitive consideration of race and ethnic origin” is constitutional.

Unsurprisingly, there are also no decisions from this Circuit establishing the right Plaintiffs now assert. In fact, the only decision of a federal appellate court that arguably provides support for the existence of such a right (at least absent a need to remedy past discrimination) is the Fifth Circuit’s decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), which held that, under more recent Supreme Court cases, the conception of diversity approved in Bakke could no longer be viewed as a compelling governmental interest.¹⁸/ Hopwood, however, was wrongly decided and does not, more specifically, provide support for a contention that Defendants Bollinger and Duderstadt were on notice that the University’s admissions practices violate “clearly established” constitutional rights in this Circuit.¹⁹/ Hopwood has been criticized by other courts and many legal scholars as inconsistent with the Supreme Court’s decision in Bakke and therefore beyond the Fifth Circuit’s power.²⁰/

¹⁸/ In Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), the Court of Appeals for the District of Columbia Circuit recently held that an interest in fostering diversity in radio programming was likely not compelling. Id. at 354-56. That case, however, is not relevant here, where university admissions, rather than radio programming, is at stake. Moreover, the Lutheran Church court’s discussion of diversity was largely dicta and did not discuss Justice Powell’s controlling opinion in Bakke.

¹⁹/ Indeed, in this Circuit, cases from other jurisdictions are generally not considered in determining whether a right is clearly established for qualified immunity purposes unless it is “‘so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.’” Marsh v. Arn, 937 F.2d 1056, 1068 (6th Cir. 1991) (quoting Ohio Civil Serv. Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)). That cannot be the case here.

²⁰/ See, e.g., Deborah C. Malamud, Affirmative Action, Diversity and the Black Middle Class, 68 U. Colo. L. Rev. 939, 945 (1997) (“[T]he Fifth Circuit in Hopwood v. State of Texas may have declared Bakke dead, but it lacked the power to make it so.”); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996) (criticizing the Hopwood opinion); see also the Supreme Court decisions cited infra at 33, holding that it is the sole prerogative of the Supreme Court to decide when its decisions are no longer binding precedent.

B. Defendants Bollinger and Duderstadt Are Entitled to Qualified Immunity Because LS&A’s Admissions Policies and Practices Comply with Bakke.
Plaintiffs’ fallback position is that, even if Bakke permits some consideration of race in university admissions, the University strayed beyond the limits the Supreme Court set in that decision and therefore violated a “clearly established” right in operating its admissions system. Plaintiffs conducted extensive discovery and probed in great detail exactly how the University’s admissions process has worked in each year since 1995. The undisputed evidence in the record shows unequivocally that the University’s admissions system consistently has complied with Bakke as designed and as implemented. Defendants Bollinger and Duderstadt are therefore entitled to summary judgment on their qualified immunity defense even under Plaintiffs’ fallback theory.

1. Justice Powell’s Controlling Opinion in Bakke Permits the Consideration of Race and Ethnic Origin as One of Many Factors in Admissions to Achieve a Diverse Student Body.
Bakke considered the constitutionality of the admissions policy of the University of California at Davis Medical School. In clear contrast to the University of Michigan’s admissions program, the Davis program operated a two-track admissions system for majority and minority applicants, in which a fixed number of seats were reserved exclusively for minority applicants. 438 U.S. at 275. The Supreme Court sharply divided. Four Justices would have upheld the entire Davis system as constitutional,²¹/ and four others would have invalidated any use of race in admissions as a violation of Title VI of the Civil Rights Act of 1964 without resolving the constitutional issue.²²/ Justice Powell delivered the judgment of the Court and authored the pivotal opinion. That opinion invalidated the Davis admissions system, but held that a “properly devised” admissions program — e.g., one that is flexible, does not use racial quotas, and does not separate applicants by race—could constitutionally employ the competitive consideration of race in making admissions decisions. See id. at 314-15. It also held that achieving the academic benefits of a diverse student body is a compelling state interest justifying the consideration of race as a factor in university admissions. See id. Justice Powell’s opinion represents the holding of the Court and is controlling precedent.²³/

²¹/ Bakke, 438 U.S. at 324-79 (Brennan, J., joined by White, Marshall and Blackmun, J.J.).

²²/ Bakke, 438 U.S. at 408-21 (Stevens, J., joined by Burger, C.J., Rehnquist and Stewart, J.J.).

²³/ Justice Powell’s opinion, as the “narrowest grounds” offered in support of the result, also represents the holding of the Court under the Supreme Court’s decision in Marks v. United States, 430 U.S. 188, 193 (1977). (See also Ex. X, Smith v. University of Wash. Law Sch., No. C97-335Z (W.D. Wash. Feb. 12, 1999)(recognizing Justice Powell’s Bakke opinion as controlling under a Marks analysis)). The Sixth Circuit has embraced a reading of Marks that firmly supports the conclusion that Justice Powell’s opinion in Bakke is controlling authority. See Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 132 (6th Cir. 1994) (“In light of the Supreme Court’s instruction 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.‘‘”) (citations omitted); see also Reese v. City of Columbus, 71 F.3d 619, 625 (6th Cir. 1995), cert. denied, 117 S. Ct. 386 (1996). Justice Powell’s diversity rationale qualifies as the “narrowest grounds” in support of the judgment, announced in Part V.C. of the Court’s opinion and joined by four other Justices, to reverse that part of the California Supreme Court’s judgment barring any consideration of race. Justice Brennan’s approach was far broader than Powell’s because it would not have applied strict scrutiny, as Justice Powell’s opinion did, to “benign” racial classifications and would have upheld not only a Harvard-style admissions plan, but also the Davis plan at issue.

Justice Powell’s controlling opinion in Bakke articulates three important principles. First, it establishes that “the interest in diversity is compelling in the context of a university’s admissions program.” Id. at 314. Justice Powell grounded his view that diversity promotes the “atmosphere of ‘speculation, experiment and creation’–so essential to the quality of higher education,” id. at 312, in a rich line of cases recognizing the principle of “academic freedom,” see, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967), which the Supreme Court has consistently reinforced in the years since Bakke, see, e.g., Board of Regents of the Univ. of Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1358 (2000), Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225-26 (1985).

Second, Justice Powell’s opinion explains that the diversity that furthers this compelling interest is broader than, but includes, racial and ethnic diversity. Justice Powell held that a university has wide latitude to assemble a diverse student body, but emphasized that achieving the benefits of diversity could only be a compelling justification where “[e]thnic diversity … is only one element in a range of factors” that a university considers in its admissions decisions. Bakke, 438 U.S. at 314.

Third, while it squarely permits colleges and universities to consider race as a factor in admissions decisions, Justice Powell’s opinion says that there are specific limitations as to the manner in which race may be considered in order to serve the compelling interest it recognizes. Only programs that consider race as one factor of many in choosing among “otherwise qualified” applicants can be described as “properly devised.” Id. at 317-318. And the use of fixed racial quotas is clearly prohibited. Only those programs approximating the flexibility of the Harvard admissions system, as opposed to the rigidity of the Davis admissions program invalidated by Justice Powell (with the support of the four Justices who believed Title VI precluded all use of race) are permissible. Justice Powell characterized the Harvard system as a model constitutional program because it neither utilized fixed quotas nor attempted to insulate racial minority applicants from competition with other applicants. Id.

2. Defendants Bollinger and Duderstadt, Like the Educational Community as a Whole, Reasonably Understood Bakke as the Controlling Authority on Use of Race in Admissions.
The competitive consideration of race in university admissions is widespread among selective institutions of higher education, and generally understood in the academic community to be constitutional. Given Bakke and its broad acceptance, Defendants Bollinger and Duderstadt reasonably—and correctly—could have assumed that an admissions system designed to comply with its terms complied with governing law. (See Brief of Amici Curiae American Council on Education, et al. at 4-7; Brief of Amici Curiae Association of American Law Schools, et al. at 4; Brief of the State of Ohio as Amicus Curiae at 14.)²⁴/

²⁴/ See also Gerald R. Ford, Inclusive America Under Attack, N.Y. Times Op-Ed, Aug. 8, 1999 (highlighting the benefits of academic diversity that LS&A — President Ford’s alma mater — and other universities seek to achieve in their student bodies); former Michigan Governor William G. Milliken, Don�t Let U-M’s Racial Bridge Be Closed Off, Detroit Free Press, Local Comment, January 6, 2000 (arguing that the competitive consideration of race in admissions is constitutional and plays an important role in achieving the diversity necessary for educating students at the University of Michigan and other universities).

Relying on Justice Powell’s opinion, the vast majority of selective institutions of higher education in this country utilize admissions programs designed—consistent with the guidelines set forth in Bakke—to achieve education-enhancing diversity. “During the nearly two decades since Bakke was decided, Justice Powell’s landmark opinion has guided the admissions policies of public and private educational institutions throughout the United States.” (Brief for the United States as Amicus Curiae at 16.) Consequently, major education associations, which are hardly likely to adopt positions at odds with clearly established constitutional rights, have recognized the need and importance of educational diversity under Bakke. (See Brief of Amici Curiae American Council on Education, et al., at 16; see also Ex. E.)

Likewise, the United States, which has primary responsibility for enforcing Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6(a)(2), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, which are applicable to university admissions programs and policies, has made clear that Bakke supports the competitive consideration of race in admissions in order to attain the educational benefits of a diverse student body. For example, the United States maintains, in this case as it has in others, that the “interest in obtaining the educational benefits of a diverse student body supports an appropriately structured plan under which [a] University may take race into consideration as one of many factors in making its admissions decisions.” (Brief of the United States as Amicus Curiae at 3.) Similarly, the Department of Education (“DOE”), has published guidelines (on which universities rely in designing and implementing their admissions systems) in the Federal Register recognizing the continued vitality and importance of Bakke in the university context. See 59 Fed. Reg. 8756, 8761 (1994) (“[C]olleges have a First Amendment right to seek diversity in admissions to fulfill their academic mission through the ‘robust exchange of ideas’ that flows from a diverse student body.”).

It is not surprising that this understanding of Bakke is widespread. In the years since Bakke was decided, the Supreme Court has not overruled or questioned Bakke.²⁵/ And the academic community has concluded that race-conscious admissions policies are constitutional.²⁶/ See, e.g., Deborah C. Malamud, Affirmative Action, Diversity and the Black Middle Class, 68 U. Colo. L. Rev. 939, 945 (1997) (“Under Regents of the University of California v. Bakke, colleges and universities may use affirmative action to achieve diversity in admissions….”); Akhil Reed Amar and Neal Katyal, Bakke’s Fate, 43 UCLA L. Rev. 1745, 1779 (1996) (“[O]ur [analysis of the case law] suggests that educational affirmative action on a Harvard-plan model may pass Supreme Court muster. There are sound reasons why this is so—reasons that we believe are at the heart of Bakke.”).

²⁵/ Indeed, the Supreme Court has recognized Bakke’s essential holding on a number of occasions. In her concurring opinion in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), for example, Justice O’Connor noted that “although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently ‘compelling,’ at least in the context of higher education, to support the use of racial considerations in furthering that interest.” Id. at 286 (citing Bakke). Similarly, Johnson v. Transportation Agency, 480 U.S. 616 (1987), a case involving the alleged violation of Title VII of the Civil Rights Act of 1964 also recognized Bakke’s primary holding. The Court there noted that a promotion plan that considered the gender of an employee as one of a range of factors was similar to the Harvard plan “approvingly noted by Justice Powell” in Bakke. Johnson, 480 U.S. at 638. In upholding the promotion plan which considered gender as one of a range of factors, the Court noted that the plan “requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants.” Id. Thus, endorsing Bakke’s precedential value and its reasoning, a five-member majority concluded that the consideration of gender was lawful.

²⁶ / Scholars have also noted that, although the Supreme Court first ruled on the constitutionality of a race-based affirmative action plans in Bakke, such programs also have roots in older international human rights guarantees like the 1948 Universal Declaration of Human Rights. See, e.g., Ruth Bader Ginsburg, A Considered Opinion: Affirmative Action as an International Human Rights Dialogue, 27 Human Rights 3, 3 (2000).

Moreover, the opinions of the Sixth Circuit—which, after the decisions of the Supreme Court, give the best insight into whether the individual defendants in this case properly understood that the competitive consideration of race in admissions is constitutional—have consistently relied on the Bakke opinion. For example, in Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757 (6th Cir. 1983), the court cited Bakke for the proposition that “affirmative action admission programs of educational institutions may take race into account, but racial quotas are prohibited.” Id. at 763. Referring to Bakke, the Sixth Circuit invalidated a court-imposed racial quota for minority teachers and expressly stated that a "wiser approach is a more flexible affirmative action program rather than a hiring quota." Id. More recently, it relied on Bakke in upholding Cincinnati’s policy of transferring teachers to balance the racial composition of its schools “to achieve a racially integrated faculty throughout the Cincinnati public school system.” Jacobson v. Cincinnati Bd. Of Educ., 961 F.2d 100, 103 (6th Cir. 1992). ²⁷/

²⁷/ Other courts have also agreed that Bakke is controlling precedent. See, e.g., Eisenberg v. Montgomery County, 197 F.3d 123, 131 (4th Cir. 1999) (concluding that Bakke permits considering race in admissions and assuming that diversity is a compelling interest, but invalidating a magnet school transfer system as not narrowly tailored to achieve that objective); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 705 (4th Cir. 1999) (same as to a school admissions system); Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998) (assuming Bakke is controlling Supreme Court authority, but invalidating race-conscious admissions program because the school would have achieved meaningful racial and ethnic diversity even without consideration of race as a factor in admissions); Winkes v. Brown Univ., 747 F.2d 792, 799 (1st Cir. 1984) (”In Bakke, the Court held that some consideration of race in a medical school’s admissions criteria was permissible, but that the use of a rigid quota was not.”); Smith v. University of Wash. Law Sch., 2 F. Supp.2d 1324, 1334 (W.D. Wash. 1998) (“The attainment of a diverse student body& is a compelling interest and constitutionally permissible goal for a university or graduate program. Thus, an institution of higher education may take race into account in achieving ‘educational diversity.‘”) (citing Bakke); Davis v. Halpern, 768 F. Supp. 968, 975 (E.D.N.Y. 1991) (“While the court [in Bakke] explicitly rejected the use of strict numerical quotas to achieve diversity, it endorsed the plans of many colleges and universities which consider race or ethnic background as one of many factors in weighing a candidate’s strength.”); University and Community College Sys. v. Farmer, 930 P.2d 730, 734 (Nev. 1997) (Bakke held that “an attempt to attain a diverse student body through a preferential treatment admissions policy is not per se unconstitutional so long as race is one of several factors used in evaluating applicants. Quotas, however, are proscribed.”) (citations omitted), cert. denied, 118 S. Ct. 1186 (1998); cf. Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738 (2d Cir. 2000) (denying preliminary injunction in challenge to race-conscious elementary school transfer program because plaintiffs were not likely to be able to establish that that program is unconstitutional).

Only the Fifth Circuit has failed to adhere to Bakke. In Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996), that court rejected Bakke’s diversity rationale as inconsistent with more “recent Supreme Court precedent.” Its decision was wrong and beyond its power. While the Supreme Court has—since Bakke—made clear that all racial classifications, even those that benefit racial minority groups, are subject to strict scrutiny, see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), no Supreme Court opinion has overruled or even questioned Bakke’s holding that there is a compelling interest in achieving a racially diverse student body, and that the competitive consideration of race in admissions is narrowly tailored to achieve that interest. And contrary to the Fifth Circuit’s reasoning, Justice Powell’s opinion in Bakke, as the “narrowest grounds” offered in support of the result in that case, is controlling precedent. Marks v. United States, 430 U.S. 188, 193 (1977). (See also Ex. X, Smith v. University of Wash. Law Sch., No. C97-335Z (W.D. Wash. Feb. 12, 1999).)

In rejecting Bakke’s conclusion that an institution of higher education has a compelling interest in enrolling a racially diverse student body, the Fifth Circuit completely disregarded the constraints on its authority. Under existing case law, it is clear that the Hopwood court lacked the authority to override or disregard the Supreme Court’s decision in Bakke. See, e.g., Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is this Court’s prerogative alone to overrule one of its precedents.”); Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (only the Supreme Court can overrule its own precedents); Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) (same). Thus, Defendants Bollinger and Duderstadt could not reasonably be expected to have viewed the decision in Hopwood as a change in the law requiring them to modify the University’s admissions policies.

3. The LS&A Admissions Program Falls Well Within What Bakke Permits andTherefore Did Not Violate Any "Clearly Established" Right.
In order to sustain their claims against the individual defendants, Plaintiffs must show that they violated “clearly established” rights. The record evidence in this case, however, demonstrates that, as in the Harvard system approvingly discussed by Justice Powell in Bakke, the University employs the “competitive consideration” of race in LS&A admissions. Far from violating clearly established law, as required for liability under the qualified immunity doctrine, see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the University consistently has complied with binding precedent. In any event, the University’s good faith effort to comply with Bakke under the leadership of Defendants Bollinger and Duderstadt cannot be said to be “objectively unreasonable in light of clearly established constitutional rights.” Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996)(internal citations omitted).

After extensive discovery, the facts show that race is considered as one of a number of important factors in LS&A’s admissions program. The University’s current admissions program, which features the selection index, applies the same academic standards to all students, (Vanhecke Dep. at 99; Spencer Dep. at 107-08, 273), and does not separate applications by race, (Seltzer Dep. at 123; Knepp Dep. at 17, 29). Nor does it utilize racial quotas or their functional equivalent in making admissions decisions. (McKinney Dep. at 111, 121; Knepp Dep. at 17, 23; Spencer Dep. at 12, 189, 290; Cantor Dep. at 83; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118.) The evidence demonstrates that the University’s admissions program considers race competitively, as a single, though important factor in admissions. (Spencer Dep. at 107-08.) In sum, it fully complies with the standards set forth in Bakke. (See Inj. Claims Br. at 46-52.)

Similarly, the admissions system used by the University before 1998 also complies with Bakke. That system, which used the so-called “grids“ to implement the admissions guidelines, neither employed racial quotas, nor insulated students from competing against one another on the basis of their race. (Spencer Dep. at 12, 290; Cantor Dep. at 83; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118; McKinney Dep. at 111, 121.) Instead, it considered race as one of many factors relevant to the University’s mission: the creation of a diverse and vibrant academic community. Race was never employed as the only factor in admissions, and cannot be said to have predominated in admissions decisions.

The selection grids established a mechanism for ensuring that race did not play too large or too little of a role in the review of an application. The grids, which reflected adjustments for a number of factors now used in the selection index—e.g. such as state residency, alumni status, and race —were designed with GPA2 along one axis and standardized test scores along the other. Each grid contained basic information relating to the admissions process, and showed visually how particular guidelines factors—like race or in-state residency—affected an individual case. By using multiple grids, OUA could assess the role that race and other factors played in the consideration of an application.

As indicated previously, there is no dispute that the University considered race as a factor in admissions under the pre-1998 system. The fact that it did so through grids, instead of through a single graph or a system of points, however, is not legally significant. The University could have taken other factors, such as the quality of an applicant’s high school, out of the GPA2 calculation and used different grids for school quality. Alternatively, the University could have added points for race, alumni status, and in-state residency to the GPA2 of underrepresented minorities, legacies, and Michigan residents, and used a single grid as a guideline for admission for all students. All of these approaches would have been functionally the same and fully consistent with Bakke. In the end, the grids achieved the same results that the selection index and the other admissions options available to the University would have produced.

Likewise, the extensive record in this case establishes that the University has consistently employed an admissions system in which the selection of minority students for enrollment in LS&A is competitive. Among all the applicants who are qualified, the University must make choices, and enroll a class that reflects its educational mission and goals. Because the number of minority applicants is so small, as a practical matter, and to ensure diversity in the student body, the University ends up admitting virtually all of those underrepresented minorities who are qualified -- i.e., whose record demonstrates an ability to succeed. The University, however, has not used quotas or set-asides to ensure enrollment of a set number of underrepresented minorities. (See Spencer Dep. at 12, 290; Cantor Dep. at 83; Vanhecke Dep. at 67; Seltzer Dep. at 36, 118; McKinney Dep. at 111, 121; Knepp Dep. at 29.) The facts contained in the record bear this out. The data show that the rates for minority admission have varied from year to year. (See Raudenbush Supp. Rep., March 3, 1999, at Tables 3a-3c.)

Finally, the record shows that the “protected seats” previously used by the University to manage enrollment did not have the effect of insulating any applicant from competition with others. The University officials estimated “protected seats” not as a way of specifying particular slots for racial minorities or other groups known to apply late in the application cycle, but as a way of getting a sense of the number of applications that the University could expect from these groups. Because of its rolling admissions program, the University found it necessary to manage its enrollment to ensure that individuals from groups known regularly to apply late in the admissions cycle, such as athletes and underrepresented minorities, would have an opportunity to compete for places in the entering class. It established a process whereby the EWG projected the number of applications that the University could expect to receive from such individuals in a particular year. At no time, however, did the University protect any seat in the class from competition. The University considered race as a factor in attempting to achieve its educational mission of creating a diverse and vibrant academic community, but never diverted from its policy of evaluating each applicant on an individual basis, as Bakke requires.
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Defendants Bollinger and Duderstadt are entitled to summary judgment on their qualified immunity defense because the University’s admissions practices have been objectively reasonable and have not violated clearly established law. See Harlow, 457 U.S. at 818; Dickerson, 101 F.3d at 1158. The extensive and undisputed record developed in this litigation confirms that the University fully complied with Bakke throughout the period at issue. Plaintiffs cannot identify any facts suggesting that the individual defendants violated a clearly established law or acted unreasonably in performing their public responsibilities. As a result, qualified immunity law requires that quick and decisive action be taken to shield Defendants Bollinger and Duderstadt from the burdens of continued litigation.

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