TABLE OF CONTENTS

QUESTION PRESENTED	iii
CONTROLLING AUTHORITIES	iv
TABLE OF AUTHORITIES	v
INDEX OF EXHIBITS	x
INTRODUCTION	1
STATEMENT OF UNDISPUTED FACTS	3
A. Diversity and the University’s Educational Mission	4
B. The LS&A Admissions Process	6
1. Admissions Procedures	7
2. Managing Enrollment	15
3. Recruitment of Minority Applicants	17
ARGUMENT	19
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	21
II.  DEFENDANTS BOLLINGER AND DUDERSTADT ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR QUALIFIED IMMUNITY DEFENSE	23
A.  Plaintiffs Cannot Demonstrate a Clearly Established Constitutional or Statutory Right Not To Have Race Considered in University Admissions Decisions	24
B. Defendants Bollinger and Duderstadt Are Entitled to Qualified Immunity Because LS&A’s Admissions Policies and Practices Comply with Bakke.	26
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	27
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	29
3.  The LS&A Admissions Program Falls Well Within What Bakke Permits and Therefore Did Not Violate Any “Clearly Established” Right	34
CONCLUSION	38