Footnotes
Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment and Memorandum in Support of Defendants' Cross-Motion for Summary Judgment---Gratz & Hamacher v. Bollinger, et al.

^1/     The exhibits cited in this Memorandum are reproduced in Volume 1 of the Appendix to this Memorandum, and are cited as "Ex. A at __." Deposition testimony, organized by deponent, is reproduced in Volume 2 of the Appendix, and is cited as "Spencer Dep. at ___." Expert witness reports are reproduced in Volume 3 of the Appendix, and are cited as "Sugrue Rep. at __."
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^2/     This commitment to diversity as a way of achieving the University's educational objectives has been echoed by other parts of the University, including the faculty and the alumni association. See Senate Assembly Statement, The Value of Diversity, Jan. 26, 1998, Ex. A; Statement of National Board of Directors, University of Michigan Alumni Association, Apr. 24, 1998, Ex. B.

Indeed, diversity of all kinds has always been essential to the University of Michigan's mission. In 1879, James B. Angell, the University's third president, delivered a commencement address titled, "The Higher Education: A Plea for Making it Accessible to All." See Nancy Cantor, A Michigan Legacy: Ensuring Diversity and Democracy on Campus, Michigan Alumnus, Summer 1998, Ex. C. In that speech, Angell said that higher education is "essentially democratic in the best sense of that term." Id. Angell sought to admit students from broader segments of society, students who could come together and cross the "artificial distinctions of conventional society." Id.
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^3/     Defendants take issue with the conclusions that Plaintiffs draw from this fact. (See Pls.' Mem. at 5 (concluding that race is used to a "sweeping extent," and that University's use of race serves as evidence of "unlawful race discrimination.").) Of course, Plaintiffs' conclusions from an undisputed fact cannot and do not create a disputed issue of fact.
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^4/     Professors Foner and Camarillo, in their respective expert reports, describe the historical events and circumstances that have given rise to the conditions that Sugrue describes. Eric Foner is the DeWitt Clinton Professor of History at Columbia University and the President-Elect of the American Historical Association. He points out that race has been a crucial line of division in American society since the 17th century, and that our nation's experience with its African-American minority has shaped the way Americans view questions of race and issues of similarity and difference. (See generally Foner Rep.) Albert M. Camarillo is Professor of History and Director of the Center for Comparative Studies in Race and Ethnicity at Stanford University. His report outlines the historical patterns and legacies of racial isolation and separation of Hispanics in American society. (See generally Camarillo Rep.)
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^5/     William Bowen, one of Defendants' experts, is President of the Mellon Foundation and the former President of Princeton University. He is the co-author, along with Derek Bok (a professor at the John F. Kennedy School of Government, former President of Harvard University, and former Dean of the Harvard Law School), of The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (1998).
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^6/     Although there is no dispute about how the clerks' "automatic" process has operated, Plaintiffs have mischaracterized it. (Pls.' Mem. at 12 n.8, 15.) Most applicants -- including those from private schools, those applying to the small units, foreign students, underrepresented minorities, athletes, and, of course, those whose grades and test scores do not place them in the extreme top or bottom ranges -- have received counselor review. The fact that some students may have been admitted or rejected by a clerk without counselor review does not mean, as Plaintiffs seem to suggest, that a separate standard was used for those students. The "automatic admit" process relates only to the timing of when clerks caused certain applicants to be informed of admissions decisions, but the ultimate admissions decisions were no different. (See Spencer Dep. at 111.) In any event, the question of "automatic" rejection -- that is, rejection without counselor review -- is meaningless because, despite the guidelines that permitted clerks to cause rejection letters to be sent to applicants with very low grades and test scores without further counselor review, this process has not been used. The undisputed testimony in the record is that the policy was modified in practice several years ago because the clerks were uncomfortable making decisions to reject students without counselor input. Clerks generally have forwarded all applications to the counselors for review. (Gauss Dep. at 61-62.) Accordingly, it is quite rare that any student -- regardless of race -- has been rejected without counselor review. (Id.)
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^7/     The University of Michigan considers underrepresented minorities to be African-Americans, Hispanics, and Native Americans. (Spencer Dep. at 73.) Because the University receives a substantial pool of applications from Asian-American students, the University is able to achieve diversity with respect to such students without considering their race in the admissions process. (Provost Cantor Dep. at 72.)
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^8/     Every year OUA reviews the LS&A admissions guidelines and often makes adjustments to the process. (See Spencer Dep. at 96-97; see, e.g., Ex. N, O, P.) While some of the details have changed, the substance of the admissions policy has remained the same.
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^9/     Applicants receive far fewer points for standardized test scores than for GPA because test scores are highly correlated with GPA and therefore do not add much value to the prediction of an applicant's future academic performance. That is, standardized test scores only increase the prediction of an applicant's college freshman grades by about 3 percent or 4 percent over what can be predicted using high school grades alone. (Steele Rep. at 5.)
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^10/     Although Plaintiffs do not dispute that 20 points are awarded to underrepresented minorities, they state that "all underrepresented minorities receive a 20-point bonus solely on account of their race and ethnicity, without need to show more, i.e., socioeconomic or other disadvantage," thereby suggesting -- but never explaining why -- such a system is impermissible. (Pls.' Mem. at 15.) Plaintiffs' statement demonstrates their fundamental misunderstanding of the University's educational mission and admissions process. The University is not limiting itself to giving a "plus" factor only to minority students who are disadvantaged. Because of the importance of race in American life, and the educational benefits derived from racial diversity, the University seeks to enroll a racially diverse student body. The 20 points awarded to underrepresented minorities represent a "plus" factor like points awarded to legacies, applicants from underrepresented states, and athletes. For a further discussion of why the University's selection index is entirely consistent with the governing standards in Bakke, see infra p. 41.
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^11/     Plaintiffs do not dispute this fact. (Pls.' Mem. at 8.) But Plaintiffs' suggestion that this constitutes an improper use of the "postpone" list is a red herring. (Id.) Because of space limitations, the University places some qualified applicants on a "postpone" list. (Spencer Dep. at 102-04.) If, toward the end of the admissions cycle, there is more space in the class, students are admitted from the "postpone" list. (Id.) The fact that underrepresented minorities are admitted earlier as a recruiting device, rather than having their applications postponed, is of no legal significance. The criteria by which all students are evaluated remain the same. (See Spencer Dep. at 107-08.)
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^12/     In 1996, the four grids were collapsed into two grids: one for Michigan residents with alumni relationships and one for non-Michigan residents. (Ex. P at 1-2.)
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^13/     GPA2 only accounted for the alumni status of non-resident applicants. (See, e.g., Ex. G at 4.)
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^14/     Plaintiffs explain that with respect to the 1997 grids, the consideration given to an applicant's race was reflected in both GPA2 and the grids. (Pls.' Mem. at 13.) That is correct. But their suggestion that changes made to GPA2 and the grids for 1997 compounded the consideration given to an applicant's race (id.) is simply wrong. Moreover, that point is unsupported in the record and in their Memorandum. For the entering class of 1997, GPA2 was restructured to include points for applicants who were underrepresented minorities, had close alumni relationships, attended schools with a predominantly minority population, were socioeconomically disadvantaged, or were underrepresented in the unit to which they were applying (e.g., women applying to Engineering). (Ex. Q at 3.) The 1997 grids contained two rows of possible options: one for students in general, and one for all students whose experiences were reflected in one of these factors included in GPA2. (Ex. P at 1-2.) While the consideration given to race was reflected in both GPA2 and the grids, the degree of that consideration was divided between the GPA2 and the grids. (Ex. P at 1-2.) Despite these procedural changes, as the unrefuted testimony in the record demonstrates, the substance of the admissions guidelines and the significance of race to decisionmaking remained the same. (Spencer Dep. at 116.)
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^15/     Because of this, Plaintiffs' comparisons of the admissions decisions suggested by the grids for minority and non-minority students necessarily present an incomplete picture. (See Pls.' Mem. at 11-12.) If the GPA2 had incorporated the "plus" given for race, then the grids would be identical. Because the GPA2 does not account for race, the grids must do so. Although Plaintiffs have mischaracterized the conclusions to be drawn from the grids, the parties do not dispute how the grids operated.
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^16/     The EWG, chaired by the assistant provost for University budget and planning (Knepp Dep. at 8), comprises representatives from various University offices, including the Office of Budget and Planning, the Office of Academic Affairs, the OUA, the Office of Financial Aid, the Office of Academic Multicultural Initiatives, LS&A, and other colleges of the University. (Defs.' Resp. to Int. No. 1, at 7, Ex. R.)
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^17/     Nevertheless, Defendants take issue with some of Plaintiffs' characterizations of this process. Plaintiffs are wrong to characterize this process as a policy "to fill certain protected spaces only with underrepresented minorities." (Pls.' Mem. at 15.) The spaces do not represent specific slots in the class, but rather are designed to give OUA some advanced sense of the number of applications it is likely to receive. (Knepp Dep. at 23.) The University simply wants to be able to consider these applications in the last stages of the admissions cycle. Similarly, Plaintiffs' suggestion that minority students are insulated from competition because of protected seats is without support in the record. Underrepresented minority students who apply later in the process are evaluated using the same criteria that are applied to all students. (See Spencer Dep. at 107-08.)
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^18/     Tables displaying the fall 1995 students enrolled in LS&A demonstrate that many students were admitted for whom the guidelines did not call for admission. (Ex. T.) One such table, for instance, shows that of the non-resident, non-minority students with a 3.0 to 3.19 GPA2 who applied, across all ranges of test scores, 6.2 percent were admitted. (Id. at UMA 030398.) A strict adherence to the 1995 LS&A admissions tables would have led to the rejection of virtually of all these students. (Ex. N at 2.) Similarly, for students who had a GPA2 between 3.80 and 3.99, and SAT scores between 1000 and 1090 (which were Plaintiff Gratz's GPA2 and SAT ranges), the tables show that even though Gratz was rejected, 121 non-minority students with her grades and test scores were admitted. (Ex. T.)
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^19/     These small differences in average SAT scores are not significant. Professor Claude Steele, who is Chair of the Department of Psychology at Stanford University and one of Defendants' experts, pointed out that differences in SAT scores as large as 300 points "actually represents a very small difference in skills critical to grade performance." (Steele Rep. at 5.)
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^20/     At the time of her deposition, Gratz testified that she could not remember whether she returned the extended waiting list form. (Gratz Dep. at 153-54, 155.) In March 1999, Gratz's counsel produced documents showing that Gratz still had the original form in her possession, having never sent it to the University.
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^21/     Only about 13 percent of admitted freshmen at the University are not ranked in the top 20% of their high school class. (Ex. K at UMA 038176.)
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^22/     Like Bakke, this case is about the use of race as a factor in admissions to achieve the benefits of having a racially diverse student body. Cases addressing the use of race to remedy past discrimination do not bear on the question whether achieving the benefits of diversity in higher education is a compelling interest. Decisions involving the use of racial classifications in municipal and federal construction contracts, for example, have said that all racial classifications are subject to strict scrutiny and must be narrowly tailored to serve a compelling interest. See Adarand Constructors, Inc. v. Pe�a, 515 U.S. 200, 227 (1995); City of Richmond v. J. A. Croson, Co., 488 U.S. 469, 493 (1989). Justice Powell's pivotal opinion in Bakke is consistent with this approach: he applied "the most exacting judicial examination," 438 U.S. at 291, and he said that the use of race must be "precisely tailored to serve a compelling governmental interest," id. at 299. It is therefore understandable why the Supreme Court has not questioned the core holding of Bakke. See, e.g., Akhil Reed Amar and Neal Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745, 1746 (1996) ("Because our public universities should be places where persons from different walks of life and diverse backgrounds come together to talk with, to learn from, and to teach each other, each person's unique background and life experience may be relevant in the admissions process -- thus, absolute color-blindness is not constitutionally required in the education context.").
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^23/     Justice Powell quoted an article by William Bowen, then the President of Princeton University, and now an expert witness for the Defendants in this case, in which Bowen explained why providing students with "exposure" to a diverse group of students was essential to a university's educational mission:

[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, 'People do not learn very much when they are surrounded only by the likes of themselves.'

Bakke, 438 U.S. at 312-13 n.48.
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^24/     See also Rust v. Sullivan, 500 U.S. 173, 200 (1991) ("the university is a traditional sphere of free expression so fundamental to the functioning of our society").
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^25/     Referring to the Harvard policy, Powell wrote:

This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a 'plus' on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.

Id. at 318.
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^26/     The Court repeated that point in Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985), where it noted that because of the principle of academic freedom, courts are "reluctan[t] to trench on the prerogatives of state and local educational institutions." Indeed, the point was reaffirmed by the Supreme Court just last Term, noting in Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639 (1998), that there are a variety of educational decisions, such as "a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum," that may not be second-guessed in federal court on the grounds that they represent a bias in favor or against a particular set of ideas. Rather, principles of academic freedom counsel restraint in reviewing the academic judgments made by university officials.
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^27/     See Smith v. University of Washington Law School, Case No. C97-335Z, Ex. Y (W.D. Wash. Feb. 12, 1999) (order denying summary judgment) ("[T]he Brennan group rationale would subject race-based admissions programs to less scrutiny and would result in a broader range of race-conscious admissions programs being upheld as constitutional. The opinion of Justice Powell, which calls for strict scrutiny of racial classifications and permits race to be used in university admissions only to achieve educational diversity, is narrower in scope and application than the Brennan opinion. Thus, under Marks it should be viewed as the holding of the Court.").
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^28/     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." Johnson, 480 U.S. at 638. This was the "competitive consideration" rationale endorsed by Bakke.
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^29/     See also 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) ("[t]he 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) ("[w]hile 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).
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^30/     The Fifth Circuit in Hopwood did not engage in any meaningful consideration of the value of diversity for institutions of higher education. Evidence regarding the value of diversity was not presented to the trial court, or considered by the Fifth Circuit. Rather, the Fifth Circuit focused narrowly on whether Bakke had been overruled, sub silentio, by more recent Supreme Court decisions, and reached an erroneous conclusion.
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^31/     For example, while underrepresented minorities may be awarded 20 points for their race, they may not be entitled to points awarded to legacies, or to those who attend academically exceptional schools or select strong curricula in those schools. (See Ex. M.) Similarly, white students may receive points for being legacies or for living in underrepresented Michigan counties (such as those in the upper peninsula), though they may not receive 20 points awarded to underrepresented minorities (though white students may receive 20 points for attending schools with predominantly minority populations). (Id.)
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^32/     Plaintiffs suggest that awarding points "to the application of every member of certain racial or ethnic minority groups solely on the basis of that minority status" is somehow impermissible. (Pls.' Mem. at 23.) As discussed earlier, the University awards points for race, among other factors, precisely because it seeks to achieve racial diversity on campus. Plaintiffs fail to explain why assigning points -- rather than using another system -- is improper, but it is clear that their argument rests solely on a misinterpretation of Bakke. See supra, p. 41.
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^33/     Plaintiffs acknowledge this requirement. (See Compl. 30.)
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^34/     See also Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999) ("'The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'") (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); 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).
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^35/     Indeed, it is the very purpose of the doctrine of qualified immunity to protect government officials from the in terrorem effect of personal liability that Plaintiffs' counsel has trumpeted here: "Unique to this suit -- 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. In addition, Plaintiffs' counsel recently "sent out handbooks to 300 college trustees warning that trustees can be held personally liable if they fail to probe the activities and comments of college admissions officers to make sure that acceptance decisions are not based on race." Kate Zernike, Campus Affirmative Action Embattled Handbooks Encourage Student Suits, Boston Globe, Jan. 27, 1999, at A4.
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^36/     The individual Defendants simply never had any reason to doubt the lawfulness of relying on Bakke in making admissions decisions. Consistent with Bakke, most colleges and universities operate race-conscious admissions policies. Likewise, in guidelines published in the Federal Register, the Department of Education (DOE) 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, DOE issued the following statement concerning the Bakke opinion: "[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." 59 Fed. Reg. 8761 (1994). Universities across the country, including the University of Michigan, rely on DOE guidelines in structuring their admissions policies. Moreover, since Bakke was decided, the academic legal community has embraced Bakke as controlling precedent on the use of race in higher education admissions. Law review articles have consistently recognized Justice Powell's opinion as the Court's controlling opinion and have assumed that race-conscious admissions policies are constitutional. Indeed, in the wake of the Hopwood decision, legal scholars have largely been critical of the Fifth Circuit's opinion. See, e.g., Akhil Reed Amar and Neal Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745, 1779 (1996) ("Our [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."); Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. Colo. L. Rev. 939, 945 (1996) ("the Fifth Circuit in Hopwood v. Texas may have declared Bakke dead, but it lacked the power to do so"); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996) (criticizing Hopwood opinion). In the face of this line of scholarly authority, it cannot be suggested that it would be "apparent" to a university official that he or she could be subjected to liability for actions that comply with the Bakke opinion.
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^37/     Sovereign immunity may also be "abrogated" by Congress, exercising its power to enforce the Fourteenth Amendment. In Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360 (6th Cir. 1998), the Sixth Circuit held that Title IX represents an abrogation of state sovereign immunity. But as the Supreme Court's subsequent Lago Vista decision makes clear, the question of the scope of that abrogation is governed by Spending Clause principles: a recipient of federal funds is liable in damages only insofar as -- by accepting federal funds -- it "voluntarily and knowingly accept[s] the terms of the contract."
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