No. 02-_____
__________________________________________________
IN THE
| PATRICIA MENDOZA RUPE ALBA MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 188 W. Randolph Street Chicago, IL 60605 (312) 782-1422 |
ELAINE R. JONES Director-Counsel *THEODORE M. SHAW NORMAN J. CHACHKIN JAMES L. COTT MELISSA S. WOODS NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 99 Hudson Street,16th Fl. New York, NY 10013 (212) 965-2200 *Counsel of Record |
| BRENT E. SIMMONS ACLU FUND OF MICHIGAN 300 S. Capitol Avenue Lansing, MI 48901 (517) 371-5140 MICHAEL J. STEINBERG ACLU FUND OF MICHIGAN 60 West Hancock Street Detroit, MI 48226 (313) 578-6814 CHRISTOPHER A. HANSEN E. VINCENT WARREN AMERICAN CIVIL LIBERTIES UNION 125 Broad St., 18th Fl. New York, NY 10004 (212) 549-2500 |
GODFREY J. DILLARD MILTON R. HENRY REGINALD M. TURNER CITIZENS FOR AFFIRMATIVEACTION’S PRESERVATION P.O. Box 31-1421 Detroit, MI 48231 (313) 964-2838 |
|
QUESTION PRESENTED
Is a university policy that considers race and ethnicity
PARTIES TO THE PROCEEDING
Petitioners are Ebony Patterson, Ruben Martinez,
Respondents are Jennifer Gratz and Patrick
Additional Respondents are Lee Bollinger, James J.
TABLE OF CONTENTSPage
Question Presented for Review . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS (continued)Page
REASONS FOR GRANTING THE WRIT. . . . . . . . . . . .
|
| D. | Introduction |
|---|
At stake in these extraordinary cases (Grutter and
Gratz) is whether the University of Michigan (and, by
extension, other institutions of higher education) may
consciously consider race in its admissions decisions to achieve
the educational benefits that flow from a diverse student body
and to remedy the effects of prior discrimination in which it
participated. Meaningful but modest integration did not come
to the University fortuitously. It was and is the consequence of
affirmative efforts to overcome past discrimination and the
educationally limiting impact of racially isolated classroom and
campus settings.
As the respective plaintiffs in both Grutter and this case
have noted in their petitions for certiorari, the courts of appeals
have divided on this issue of profound national importance in
prior higher education affirmative action cases. See Gratz
Petition, No. 02-516 at 20-24 (citing cases); Grutter Petition,
No. 02-241 at 21-25 (citing cases). Both Grutter and Gratz
have fully developed records, and full representation of all
interested parties. Were the Court to grant the writs sought by
those petitioners as well as by intervenors here, it will have
before it all of the parties and questions necessary to resolve
this issue definitively.
Like the Gratz plaintiffs, petitioners believe the Court
should exercise its discretion under Rule 11 of its Rules and
grant a writ of certiorari before judgment to the United States
Court of Appeals for the Sixth Circuit, which has not yet
entered judgment on the various appeals pending before it in
the Gratz case.
Like Grutter, the Gratz case presents the vital issue of
whether diversity is a compelling governmental interest that
justifies the use of race-conscious admissions in higher
education. Both cases present an additional issue arising from
the confusion in the lower courts about the availability of
remedial justifications for the use of race as a factor in
university admissions. In both cases, the University was
understandably unwilling to admit its own past discrimination
as a justification for its policies. The Court of Appeals
recognized this, and, in ordering intervention as of right in both
cases, found that the University was “unlikely to present
evidence of past discrimination by the University itself or of the
disparate impact of some admissions criteria and . . . these may
be important and relevant factors in determining the legality of
a race-conscious admissions policy.” Grutter v. Bollinger, 188
F.3d 394, 401 (6th Cir. 1999). The district court, however, then
effectively rejected as irrelevant the “strong basis in evidence”
of discrimination presented by intervenors, see City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989),
because the University would not admit to the evidence of its
past or present discrimination.
If the Court is going to consider the diversity question,
it should grant certiorari in both Grutter and Gratz, because the
cases present the issue in different contexts. The undergraduate
admissions scheme administered by the University is typical of
a large institution in which, as a matter of expediency, the
overwhelming number of applicants leads to a rating system in
which admissions criteria are assigned numerical values. The
law school, while processing a significant number of
applicants, is nonetheless able to provide somewhat greater
individual attention to each application. Moreover, diversity at
each level of study has special importance for differing reasons.
In the undergraduate setting, student life outside the classroom,
in student organizations, in dormitories, and on athletic teams,
is as much a part of the educational experience as is the
classroom experience, and for many students, undergraduate
study offers their first exposure to heterogeneity and the rich
diversity of backgrounds that characterizes our nation. In law
schools, most classroom instruction heavily emphasizes the
clash of viewpoints and arguments as a means of developing
and sharpening analytic skills, a pedagogy that the record in
Grutter indicates is enriched by student diversity.
In addition, in order for the Court to have all relevant
issues before it, the Court should grant this petition for
certiorari. The University contends that diversity is a
compelling interest because of its educational benefits, as do
the present petitioners. However, the school’s unwillingness to
advance an equally compelling interest supporting its
admissions policy should not cause this Court to ignore the
substantial body of evidence suggesting that the University had
long treated minority applicants and students in a racially
discriminatory fashion. Here, the intervenors presented more
than sufficient proof to establish a strong basis in evidence that
remediation of past and present discrimination by the
University and its officials is also a compelling justification for
considering an applicant’s race or ethnicity as one factor in
making admissions, but that evidence was deemed irrelevant
since it was not proffered by the University.
This Court needs to resolve the implications of a rule
that prohibits others, such as intervenors here, from introducing
evidence to support a remedial justification for a university’s
policies that the institution itself has not, for whatever reason,
offered. The administration of justice will be best served by
having all issues before the Court at one time on the most
complete possible record. If the Court is going to address the
University’s admissions program, therefore, petitioners
respectfully request that the Court grant this petition, the Gratz
plaintiffs’ petition, and the petition in Grutter, and set the
matters for argument in tandem.
| A. | Prior Proceedings3 |
|---|---|
| 1. The District Court |
In 1997, the Gratz plaintiffs, two white individuals who
were denied admission to the University of Michigan’s
undergraduate School of Literature, Science, and the Arts
(“LSA”), filed this lawsuit on behalf of themselves and a class,
alleging that the University’s admissions policies unlawfully
discriminated against white applicants (JA 34). The University
answered by defending its use of race to achieve a diverse
student body (JA 148).
Also in 1997, the Grutter plaintiffs, other unsuccessful
white applicants, represented by the same lawyers as the Gratz
plaintiffs, sued the University of Michigan’s law school making
virtually identical allegations. The University answered with
the same defense. Although both cases were filed in the
Eastern District of Michigan, raised identical legal issues, and
included the same counsel, they were assigned to two different
district court judges and were not consolidated.
___________________
3
Some of the statement of facts contained in the petition herein are
based on a “Joint Summary of Undisputed Facts” that was submitted by the
parties to the district court (App.106a-118a). Additional citations herein are
to documents contained in the Joint Appendix (“JA”) filed by the parties in
the Sixth Circuit.
In 1998, various affected parties sought to intervene in
each case. Seventeen African-American and Latino high
school students and Citizens for Affirmative Action’s
Preservation (“CAAP”) moved to intervene in the Gratz case.
Intervenors sought to join the University in defending the use
of race to achieve a diverse student body. Intervenors also
sought to advance a remedial justification for the University’s
admissions policies based on past and present discrimination
against African-American and Latino applicants and students.
A number of individuals and organizations sought intervention
in the Grutter case with similar aims.
Both district court judges denied intervention.
Proposed intervenors appealed and a single panel of the Sixth
Circuit heard argument in both cases on the same day. The
Sixth Circuit reversed, finding that intervenors had substantial
legal interests at stake, and ordered intervention as of right in
both cases. Grutter v. Bollinger, 188 F.3d 394, 401 (6th Cir.
1999).
In the Gratz case, the plaintiffs and the University each
moved for summary judgment on the basis of a stipulated
record. Intervenors joined the University’s position that
diversity is a compelling state interest justifying a narrowly
tailored admissions program that considers race as one of many
factors. In addition, intervenors argued that the extensive
evidence of past and present discrimination by the University
would, by itself or in conjunction with the academic interest in
diversity, justify the use of race in admissions. Plaintiffs
admitted that a diverse student body would provide educational
benefits to all students, but nevertheless argued that these
benefits should be denied as violations of law. Plaintiffs also
argued that the remedial justification could be raised only by
the University. In the law school case, similar arguments were
made by all parties at trial.
The district court in the Gratz case ruled in favor of the
University on the issue of whether diversity was a compelling
state interest, and found that the specific current policies of the
University were narrowly tailored to that interest (App. 1a).
However, the court subsequently granted summary judgment
against intervenors, holding that since the University had not
advanced a remedial justification, its admissions practices
could not be justified on remedial grounds, regardless of proof
of discrimination. The court also found intervenors’
uncontested evidence of past and present discrimination
insufficient as a matter of law. App. 66a.4
| 2. | The Court of Appeals |
|---|
All parties appealed. The Sixth Circuit heard argument
in both cases en banc on the same day. On May 14, 2002, that
court reversed the decision in the law school case, holding that
diversity was a compelling state interest and that the law
school’s admissions policies were narrowly tailored to that
interest. Grutter v. Bollinger, 288 F.3d 732, 735 (6th Cir.
2002). The court did not address whether an interest in
remedying past discrimination is sufficiently compelling for
equal protection purposes. Id. at n.4. The court has not yet
ruled on the appeals in the undergraduate case. Id. at n.2.
Plaintiffs in the respective cases have filed petitions for
writs of certiorari to review the Court of Appeals’ ruling in the
law school case and the district court’s ruling on their summary
judgment motion in the undergraduate case. Intervenors are
___________________
4
The district court in Grutter ruled for plaintiffs, finding that
diversity was not a compelling state interest and that the specific current
policies of the University were not narrowly tailored (see App. 189a in
Grutter v. Bollinger, No. 02-241). It also rejected the intervenors’ remedial
justification arguments as an alternative basis for a race-conscious
admissions process (id.).
filing this petition so that the Court will also have before it the
remaining issue decided by the district court, respecting
intervenors’ proffered evidence to support a remedial rationale
for the University’s admissions policy.
| B. | Factual Background |
|---|
The University provided an extraordinary wealth of
evidence in both the undergraduate and the law school case to
support its assertion that there are significant benefits to an
education in a racially diverse environment. This evidence
distinguishes the value of diversity in the setting of a university,
where the program itself is enhanced by diversity, from
diversity in other settings. Intervenors will not endeavor to
catalogue that evidence here and anticipate that it will be
described by the University in its response to the Gratz
plaintiffs’ petition.5
The Gratz intervenors provided extensive and
unrebutted evidence to support the conclusion that, but for the
inclusion of race as one factor, among others, the University’s
admission criteria would have a disproportionate adverse
impact on African-American and Latino applicants, and that
such criteria are unnecessary to admit qualified students.
Additionally, intervenors submitted extensive evidence that
demonstrated a long-standing history of racial discrimination,
exclusion, and isolation at the University which is currently
manifested in a racially hostile environment on the
___________________
5
Plaintiffs did not challenge this evidence. Indeed, as the district
court observed, “[p]laintiffs have presented no argument or evidence
rebutting the University Defendants’ assertion that a racially and ethnically
diverse student body gives rise to educational benefits for both minority and
non-minority students. In fact, during oral argument, counsel for Plaintiffs
indicated his willingness to assume, for purposes of these motions, that
diversity in institutions of higher education is ‘good, important, and
valuable’” (App. 25a).
undergraduate campus. Intervenors’ evidence provides an
alternative justification for the University’s admissions
programs: remedying past and present discrimination against
African-American and Latino students and applicants. This
evidence, which the University chose not to present (but did not
contest), also provides context to the importance of diversity at
the University.
| 1. The Discriminatory Impact of the Current Selection Criteria |
|---|
Because of the number of applicants typical of large
universities, Michigan has chosen to utilize grades and test
scores using a formula (in this case reflected in the acronym
“SCUGA”) in making admissions decisions at the
undergraduate level. The University considers its own rating
of the applicant’s high school (“S”), the rigor of the curriculum
taken by the applicant (“C”), socio-economic disadvantage or
under-represented minority status (“U”), the geographic
residence of the applicant (“G”), and his or her alumni status
(“A”) (JA 3935). Plaintiffs challenged only the consideration
of race or ethnicity as part of factor “U.”
However administratively convenient they may be in
distinguishing among non-minority candidates, four of these
factors (plus the remainder of factor “U”) have a statistically
significant and consistently negative effect on the admissions
chances of African-American and Latino applicants. For
example, the University gives extra points to students who
come from the upper peninsula of Michigan or whose parents
were alumni. The additional points awarded under the
geography and alumni factors are available almost exclusively
to non-minority applicants (JA 1998, 3481). Under-represented
minority applicants are — in part because of the discrimination
that has persisted at the University — less likely to have alumni
parents or relatives, and are disproportionately first-generation
applicants to college. As a result, they do not receive the
benefit from the alumni factor that their white counterparts
receive. The geography factor also exacerbates the effect of
racial segregation in the state by giving extra points to students
who come from one of the forty-five northern Michigan
counties, all of which, in the highly segregated state of
Michigan, are overwhelmingly white (JA 3482).
The school and curriculum factors have similar
exclusionary effects due, in part, to the separate and unequal K-
12 schooling offered in Michigan (JA 3478-79, 3699). The
overwhelming number of minority high school students in
Michigan attend schools that have relatively low “S” factor
ratings, and relatively few minority students are in schools that
earn high “S” factor ratings. The “C” factor, which assigns a
greater number of points to applicants who have taken
Advanced Placement and other honors courses, produces a
similar discriminatory effect. Again, here, by virtue of the fact
that African-American and Latino children are segregated
overwhelmingly in schools that offer few, if any, honors
courses, they are unable to benefit from this factor to the same
extent as their white counterparts, even if they are achieving at
the highest levels at the schools they do attend. Thus, simply
by virtue of where they attend school, white students are able
to earn “S” and “C” factor points that a disproportionate
number of African-American and Latino students, regardless of
their aptitude, simply cannot earn.
In sum, the use of the SCUGA factors would, if race
and ethnicity were not separately considered as a factor in the
admissions process, have a statistically significant disparate
impact on minority applicants. Moreover, the use of race and
ethnicity in the admissions process needs to be understood in
the context of the University’s long history of discrimination on
campus.
| 2. The University’s History of Discrimination |
|---|
The uncontested evidence in the record reveals an
extensive history of discriminatory treatment of African-
American and Latino students by the University, the effects of
which are seen today in the continued under-representation of
such students on campus. These practices range from
maintaining segregative and exclusionary practices on campus,
refusing to take meaningful steps to recruit, enroll, and retain
minority students, to ignoring, if not sanctioning, a campus
climate that is often marked by racial hostility. Through the
years, the University minimized or sidestepped criticism of its
discriminatory practices by the federal government, state
legislators, the Regents of the University, civil rights
organizations, and its own faculty and students (JA 2261-83).
Almost every significant effort to integrate minorities into the
campus came through pressure by students and others, but it
was not until the establishment of the Michigan Mandate in
1988 that the University began a significant effort to dismantle
this pattern of racial exclusion.
| a. 1817-1964: More than a Century of University Segregation and Discrimination |
|---|
The University was founded in 1817; however, it was
not until 1868 that the first African-American students were
enrolled (JA 2265). The University segregated its own campus
housing, and excluded students of color from fraternities and
sororities into the 1960’s, with the support of the University’s
administration (JA 3757).
From 1949 to 1952, the Michigan Civil Rights Congress
and other groups called for an end to discriminatory clauses in
the constitutions and by-laws of all campus organizations (JA
2266). However, then-University President Harlan Hatcher
flatly rejected the proposal, and effectively allowed all
University organizations to continue their discriminatory
practices. In 1959, one observer noted that, as of that year,
“[n]o University fraternity chapter had ever accepted a Black
student” (JA 2272) (emphasis added).
In contrast to its resistance to ending practices that
segregated and isolated American racial and ethnic minority
students, the University took affirmative steps to integrate its
foreign students into the entire range of campus life, including
by giving them priority over African-American students in both
admissions and housing (JA 2270).
| b. 1965-1980: The First “Mandate” — The Opportunity Program |
|---|
Against the backdrop of more than one hundred years
of segregation on the Michigan campus, the University
announced the Opportunity Program, ostensibly designed to
recruit and admit socially disadvantaged students to the
University. While minority enrollment increased in the years
after the announcement of the University’s first “mandate” —
the Opportunity Program — hostility aimed at students of
color at the University persisted.6 Minority students were still
excluded from campus activities and university social traditions
(JA 2274-75, 2276, 3768).
In 1966, the Department of Defense investigated the
University’s compliance with Title VI of the 1964 Civil Rights
Act. The Department’s report reflected Michigan’s reputation
among students and faculty as a school “basically for rich white
students” and urged campus administrators to increase
recruitment of black students, faculty and staff (JA 2270-71).
___________________
6
By 1966, 400 Black students were enrolled at the University,
representing only 1.2 per cent of the total student population of about
32,000. At that time, nearly 55 per cent of Detroit’s 300,000 elementary
and secondary school students were African-American (JA 2265).
Nonetheless, the University’s administrators did little to change
its discriminatory policies.
In 1970, intense dissatisfaction with the University’s
failure to address campus racism and to increase minority
enrollment culminated in a series of student strikes. In
February of that year, a student group calling itself Black
Action Movement (“BAM I”) pressed the Regents and
University administration to substantially increase African-
American enrollment and increase financial aid so that African-
American and Latino students, disproportionately poor, could
matriculate if admitted (JA 2278-80). The enrollment proposal
won support from many, including then-Governor William
Milliken. However, University administrators rejected the
proposal. Only after the BAM I students went on “strike” did
the University agree to pursue some admissions and
recruitment efforts (JA 2284-85). After the BAM I strikes,
African-American presence on campus nearly doubled from
3.5 per cent of all students in 1970 to 6.8 per cent in 1972 (JA
2287).
However, with this modest increase in minority
enrollment, the University continued to tolerate racial tensions
on campus. Racial incidents in campus dormitories were
widespread, prompting complaints of dehumanizing treatment
of African-American students (JA 2293). Investigations of
these incidents concluded that some staff members’ racist
attitudes — that were tolerated by the University —
contributed to the problem (JA 2294-96). Rather than rectify
the hostile environment on campus, the University exacerbated
it in 1973 when it abandoned its short-lived minority admission
and recruitment programs (JA 2289). Consequently, African-
American enrollment plummeted, falling to a low of 4.9 per
cent between 1973 and 1983 — its lowest level since 1970 (JA
2291-92).
In response, in 1975, minority students organized
“BAM II,” requesting increased support services and an
effective institutional effort to address the persistent negative
racial climate on campus (JA 2298). Then-President Robben
Fleming refused both requests (JA 2299). With no minority
recruitment and admissions effort in place, well-publicized
discrimination on campus and no corresponding University
redress, enrollment and retention rates of minorities continued
to decline: between 1976 and 1985, the University lost a full
34 per cent of its African-American students (JA 3885).
| c. 1980 - 1990: The Michigan Mandate |
|---|
In 1980, a University sociology professor conducted a
study of undergraduates at Michigan that found 85 per cent of
African-Americans surveyed reported racial discrimination on
campus from their peers, administrators or professors and more
than 60 per cent stated that they had little or no contact with
African-American faculty and staff (JA 2312-13).
In 1986 and 1987, a number of racist incidents
occurred on campus — some of which would capture national
media attention — including the dissemination of a racist flyer
announcing “open season on porch monkeys . . . (regionally
known as: Jigaboos, Saucerlips, Jungle Bunnies and Spooks)”
(JA 2323) (emphasis omitted), and the broadcast of racist jokes
on WJJX, the University’s campus radio station (JA 3759-61).
The WJJX incident received national press coverage and
resulted in a hearing before the Michigan State Legislature (JA
2330). The University’s own investigation concluded that the
broadcast was “only a symptom of a pervasive atmosphere on
this campus” (JA 2327).
On the heels of these incidents, then-provost James
Duderstadt announced plans for a new initiative aimed at
quelling racial discontent at the University. Duderstadt
announced the Michigan Mandate, an effort that sought to
increase the number of students and faculty of color, to provide
“equal opportunity” and “equal access to all educational
resources to students from under-represented racial and ethnic”
groups (JA 1378-79), to remedy institutional racism on campus
(JA 1383), and to promote a more racially and ethnically
diverse campus to prepare students for an increasingly
multicultural world (JA 1376). The Mandate itself
acknowledged the “prejudice, bigotry, discrimination and even
racism” on the Michigan campus, as well as its goals of
“remov[ing] institutional barriers to full participation in the life
and leadership of [the] institution” (JA 1390).
| d. Persisting Effects of The University’s Long-Maintained Discrimination |
|---|
Notwithstanding the Michigan Mandate, the negative
and hostile climate at the University remains one of the
manifestations of its discriminatory policies. Recently, as in
previous years, the campus has been plagued by targeted racist
actions against African-American and Latino students,
including racist graffiti in the hallways of campus buildings
and in dorm rooms; racially derogatory remarks and epithets;7
and racist literature and lettering placed on campus buildings
(JA 2393, 3751). Additionally, African-American and Latino
undergraduate students endure more subtle forms of
discrimination — negative racial stereotypes by professors and
classmates, exclusion from campus clubs and social groups,
racist remarks and “jokes,” and lack of critical academic
support — all of which can erode their sense of belonging at
___________________
7
In 1998, for example, an African-American junior awoke to find
a note posted on her dorm room door with the words “two stupid bitches”
and “niggar” [sic] along with two swastika symbols. Shomari Terrelonge-
Stone, ‘U’ Prof. Studies Racial Tolerance, THE MICHIGAN DAILY ONLINE,
November 3, 1999, available at http://www.michigandaily.com (JA 3777-
79).
This Court may invoke its certiorari jurisdiction either
“before or after rendition of judgment” by a court of appeals.
28 U.S.C. § 1254(1). See also 28 U.S.C. § 2101(e) (“An
application to the Supreme Court for a writ of certiorari to
review a case before judgment has been rendered in the court
of appeals may be made at any time before judgment.”).
However, the Court’s rules counsel that “[a] petition for a writ
of certiorari to review a case pending in a United States court
of appeals, before judgment is entered in that court, will be
granted only upon a showing that the case is of such imperative
public importance as to justify deviation from normal appellate
practice and to require immediate determination in this Court.”
S. Ct. R. 11.
While the Court is “ordinarily reluctant to exercise [its]
certiorari jurisdiction” before entry of a final judgment in the
lower courts, Mazurek v. Armstrong, 520 U.S. 968, 973 (1997),
it has not hesitated to grant certiorari in such circumstances
when the issues raised are “of great significance and demand
prompt resolution.” Dames & Moore v. Regan, 453 U.S. 654,
668 (1981); see also Mistretta v. United States, 488 U.S. 361,
371 (1989) (certiorari granted before judgment in case
challenging validity of sentencing guidelines adopted under
Sentencing Reform Act of 1984 “because of the ‘imperative
public importance’ of the issue, as prescribed by the disarray
among the Federal District Courts”); Brown v. Board of
Education, 347 U.S. 497, 498 (1954) (certiorari granted before
judgment “because of the importance of the constitutional
question presented”); 17 Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice and Procedure § 4036,
at 21 (2d ed. 1988) (“certiorari before judgment is occasionally
granted simply because it is thought important that issues of
great contemporary moment be settled quickly and finally”) .
Intervenors respectfully submit that this case is of such
“imperative public importance” as to warrant deviation from
the normal appellate practice and to require determination in
this Court at this time. The issue raised by this case — the
circumstances under which it is constitutional for race or
national origin to be used as a factor in the admissions process
of public universities — has enormous implications for literally
millions of students.8 As Justice Ginsburg (joined by Justice
Souter) recently observed in a case involving the
constitutionality of the admissions process at the University of
Texas Law School: “Whether it is constitutional for a public
college or graduate school to use race or national origin as a
factor in its admissions process is an issue of great national
importance.” Texas v. Hopwood, 518 U.S. 1033, 1034 (1996)
(Opinion of Ginsburg, J., joined by Souter, J., respecting the
denial of certiorari).
With some public universities able to take account of
race and national origin in their admissions practices and others
not, as a result of the split in the courts of appeals on this
question, see Grutter Pet., No. 02-241, at 21-25; Gratz Pet.,
No. 02-516 at 20-24, and the Court’s decision in Regents of the
Univ. of California v. Bakke, 438 U.S. 265 (1978) under siege,
the time is right for this Court to announce definitive
constitutional guidelines on this crucial issue. Just as there was
“disarray” on a vital question of criminal law that impelled the
Court to grant certiorari before judgment in Mistretta, so too
(as the Eleventh Circuit recently observed) is there anything but
unanimity regarding “the status of Justice Powell’s Bakke
opinion as binding precedent on the validity of student body
diversity as an interest sufficient to justify race-based school
admissions decisions,” Johnson v. Board of Regents of Univ. of
Georgia, 263 F.3d 1234, 1249 n.13 (11th Cir. 2001) (canvassing
___________________
8
In its most recent projections, the National Center for Education
Statistics predicts that enrollment in degree-granting postsecondary
institutions will increase from 15.3 million in 2000 to 17.7 million by 2012,
an increase of 15 per cent. It also projects that enrollment in public 4-year
institutions will increase from 6.1 million in 2000 to 7.2 million in 2012, an
increase of 19 per cent. See National Center for Education Statistics,
Projections of Education Statistics to 2012 (31st ed. October 2002),
available at http://nces.ed.gov/pubs2002.
wide variety of cases that have considered binding force of
Justice Powell’s opinion).
While there have obviously been developments in the
Court’s equal protection jurisprudence since Bakke was handed
down, the Court has never returned to the subject of university
admissions, nor has it “indicated that Justice Powell’s approach
has lost its vitality in that unique niche of our society.” Smith
v. University of Washington Law Sch., 233 F.3d 1188, 1200 (9th
Cir. 2000), cert. denied, 532 U.S. 1051 (2001). Nonetheless,
some lower courts have explicitly sought guidance from this
Court on this question. See, e.g., Johnson, 263 F.3d at 1245
(“we think it important to underscore that the constitutional
viability of student body diversity as a compelling interest is an
open question, and ultimately is one that, because of its great
importance, warrants consideration by the Supreme Court”);
Wessmann v. Gittens, 160 F.3d 790, 795 (1st Cir. 1998)
(“question of precisely what interests government may
legitimately invoke to justify race-based classifications is
largely unsettled”).
We are “only a generation or so removed from the
legally enforced segregation which was used to discriminatorily
deny African Americans and other minorities access to
education.” Grutter v. Bollinger, 288 F.3d 732, 764 (6th Cir.
2002) (Clay, J., concurring). If the Court is to grant certiorari
to address this profound question of public importance, it
should do so in both Gratz and Grutter. It is hardly an
exaggeration to say that the Court’s decision in these cases will
directly affect the lives not only of this generation of students
but of generations of students to follow.
This Court has granted certiorari before judgment in
the court of appeals in those circumstances where similar
questions have been presented in related cases. In the landmark
school desegregation cases in the 1950’s, for example, there
were three cases pending in the Court involving the validity of
state school segregation practices, and the Court took judicial
notice that a separate case — Bolling v. Sharpe — challenging
segregation in the District of Columbia schools was pending in
the United States Court of Appeals for the District of Columbia
Circuit. The Court then advised that it would “entertain a
petition for certiorari” in Bolling, “which if presented and
granted will afford opportunity for argument of the case
immediately following the arguments in the three appeals now
pending.” Brown v. Board of Education, 344 U.S. 1, 3 (1952)
(per curiam). The Court subsequently granted certiorari in
Bolling one month later, and heard all of the cases together.
Bolling v. Sharpe, 344 U.S. 873 (1952). The Court has granted
certiorari before judgment in circumstances involving other
related cases as well. See, e.g., Oliphant v. Suquamish Indian
Tribe, 435 U.S. 191, 194-95 & n.5 (1978) (certiorari granted in
case in which court of appeals had ruled and in second case
presenting same question before court of appeals had ruled);
Taylor v. McElroy, 358 U.S. 918 (1958), 360 U.S. 709, 710
(1959) (certiorari before judgment granted “because of the
pendency here of Greene v. McElroy” (360 U.S. 474 (1959),
which involved essentially the same important constitutional
issues); Porter v. Dicken, 328 U.S. 252, 254 (1946) (certiorari
before judgment granted “by reason of the close relationship
of the important question raised to the question presented in
Porter v. Lee,” 328 U.S. 246 (1946)).
In addition to granting certiorari before judgment in
Gratz because it raises issues of great national importance,
there are practical reasons for doing so. Gratz and Grutter
raise many of the same constitutional questions: whether
diversity is a compelling governmental interest sufficient to
justify race-based school admissions decisions, and whether the
consideration of race is narrowly tailored to achieve that
interest. Among its evidence to support the educational
benefits that result from a racially and ethnically diverse
student body, the University proffered the same expert report
in both cases. (See JA 1648-1831.)
Grutter presents the Court with the question of the
constitutionality only of the University of Michigan’s Law
School admissions policies; it does not involve the University’s
undergraduate admissions policies. While similar in some
meaningful respects, the two admissions policies are not
identical. Law schools, because of their size, consider a far
smaller number of applicants than do large undergraduate
institutions such as the LSA. Somewhat more individualized
examination of each application is therefore often possible at
law schools, given the number of applicants; in contrast, at the
undergraduate level at most large universities, such as
Michigan, some numerical screening system (for example,
assigning “scores” to a variety of admissions factors in order to
identify groups of applicants whose academic qualifications or
lack of qualifications are sufficiently obvious to support
decisions to grant or deny admission without further
examination) is utilized to facilitate individualized review in
cases where it could make a difference. Thus, Gratz presents
a different context in which to evaluate the permissible use of
race in the admissions process.
Gratz presents an additional issue more starkly as well.
The evidence in the record shows that diversity has educational
importance not only in the classroom, but also in the myriad
educational experiences that take place outside the classroom.
Because of the nature of undergraduate education, these
benefits are of particular importance for college students.
Thus, a review of Gratz will allow this Court to evaluate fully
all of the educational benefits of diversity.
When the Court announces (or revises) a broad
constitutional rule, as it will likely do if it grants certiorari in
these cases, it would not serve the administration of justice to
have before it only the law school admissions program. The
record has been fully developed in both cases, and, in granting
certiorari in Gratz as well as Grutter, the Court would be able
to fashion constitutional rules that would provide guidance for
both undergraduate and graduate admissions programs.
The legal basis for taking race-conscious steps to
remedy past and present discrimination is well-established.
This Court has held that race-conscious remedies are
constitutionally permitted where the public actor has a “strong
basis in evidence for its conclusion that remedial action was
necessary.” City of Richmond v. J.A. Croson Co., 488 U.S.
469, 500 (1989). The standard is satisfied by the establishment
of a prima facie case of a constitutional or statutory violation.
See id. This remedial power extends not merely to correct past
and present discrimination which the public actor has caused;
it also permits race-conscious steps designed to avoid
perpetuating discrimination caused by other public or private
entities. See, e.g., id. at 492 (rejecting the argument that a
governmental body only possessed the power to remedy the
effects of its own prior discrimination, and holding that public
entities have “a compelling interest in assuring that public
dollars, drawn from the tax contributions of all citizens, do not
serve to finance the evil of private injustice”); see also Coral
Constr. v. King County, 941 F.2d 910, 916 (9th Cir. 1991).
Despite the University’s professed reliance on Bakke’s
diversity rationale in this litigation, a review of the record
shows that a strong basis in evidence exists for remedial action
to offset University admissions criteria that have an
unnecessary disparate impact on otherwise qualified African-
American and Latino applicants; to remedy the ongoing effects
of the University’s history of discrimination against minorities;
and to counter the lingering vestiges of that discrimination,
including the current negative and hostile racial climate on
campus.
The district court found this evidence both unpersuasive
and irrelevant, reflecting the uncertainty, if not confusion,
among lower courts about the “strong basis in evidence”
standard described in this Court’s opinions in Croson and in
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 291 (1986).
Granting the writ sought by present petitioners will allow the
Court to resolve that uncertainty and to clarify the law by
settling such questions as: May the “strong basis in evidence”
be presented by putative beneficiaries of race-conscious
decision-making, or only by the governmental actor? Must this
justification have been openly articulated by the governmental
actor at the time the challenged policy was first adopted? What
degree of evidentiary showing is necessary to demonstrate the
“strong basis” that will justify consideration of race or ethnicity
by a governmental entity or actor? Because, as recognized in
Wygant, public agencies are understandably reluctant to admit
prior discriminatory conduct, clarification of the law in this
area is of paramount importance and provides a persuasive
reason for granting the writ here sought. See Wygant, 476 U.S.
at 291(O’Connor, J., concurring) (noting that public employers
might be “trapped between the competing hazards of liability
to minorities if affirmative action is not taken. . . . and liability
to non-minorities if affirmative action is taken.”).
The petition for a writ of certiorari should be granted.
Respectfully submitted,
| PATRICIA MENDOZA RUPE ALBA MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 188 W. Randolph Street Chicago, IL 60605 (312) 782-1422 BRENT E. SIMMONS ACLU FUND OF MICHIGAN 300 S. Capitol Avenue Lansing, MI 48901 (517) 371-5140 MICHAEL J. STEINBERG ACLU FUND OF MICHIGAN 60 West Hancock Street Detroit, MI 48226 (313) 578-6814 CHRISTOPHER A. HANSEN E. VINCENT WARREN AMERICAN CIVIL LIBERTIES UNION 125 Broad St., 18th Fl. New York, NY 10004 (212) 549-2500 |
ELAINE R. JONES Director-Counsel *THEODORE M. SHAW NORMAN J. CHACHKIN JAMES L. COTT MELISSA S. WOODS NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 99 Hudson Street,16th Fl. New York, NY 10013 (212) 965-2200 GODFREY J. DILLARD MILTON R. HENRY REGINALD M. TURNER CITIZENS FOR AFFIRMATIVEACTION’S PRESERVATION P.O. Box 31-1421 Detroit, MI 48231 (313) 964-2838 *Counsel of Record |
Dated: October 14, 2002
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