I. PETITION FOR REHEARING

Pursuant to Supreme Court Rule 44.1, petitioner
Barbara Grutter respectfully petitions the Court for
rehearing of its judgment and decision issued on June 23,
2003. The grounds for the petition are that the Court did
not address or decide the second question presented in the
petition for certiorari, which the Court granted on Decem-
ber 2, 2002, and that it did not reveal what standard of
review the court of appeals should have employed or what
standard of review the Court itself used. Rehearing is
warranted because resolution of these unaddressed issues
has important, outcome-determinative implications for the
decision with respect to the lawfulness of the policy and
practices at issue in this case and for future cases in which
similar questions will arise.

II. DISCUSSION

The second question presented in the petition for
certiorari related to the appropriate standard for review-
ing on appeal the facts found by the district court after a
15-day bench trial in January and February 2001. The
United States Court of Appeals for the Sixth Circuit held
that the findings should be reviewed by it de novo because
“constitutional facts are at issue.” Pet. App. 9a (quoting
Womens’ Med. Prof. Corp. v. Voinovich, 130 F.3d 187, 192 (6th
Cir. 1997)). Petitioner had argued in the Sixth Circuit that
the district court’s findings could be set aside only if the court
of appeals concluded that they were “clearly erroneous.”

Because the Sixth Circuit reversed the district court’s
judgment under a de novo standard of review, the petition
for certiorari presented the following question: “Should an
appellate court required to apply strict scrutiny to gov-
ernmental race-based preferences review de novo the
district court’s findings because the fact issues are
‘constitutional’ ”? Pet. i. The Court granted the petition, see
123 S. Ct. 617 (2002), and the petitioner argued the issue
in both its opening and reply briefs to this Court. See Pet.
Br. 45-46; Pet. Reply Br. 19-20.

The Court held in this case that the admissions
policies of the University of Michigan Law School (“Law
School”) are narrowly tailored to achieve an interest in a
diverse student body. See Bench op. at 21-31. Because a
narrow-tailoring analysis necessarily entails a review of
the facts of a particular system of preferences, it is essen-
tial to ascertain how the facts are to be reviewed before an
appellate court draws legal conclusions. The district court
concluded, based on its findings of fact, that the Law
School’s use of racial preferences in its admissions policy
was not narrowly tailored to achieve an interest in diver-
sity. In at least four respects, the district court’s findings
bear directly on the narrow-tailoring analysis approved by
the Court in this case and in prior cases. These judicially-
established facts are:

1. The Law School “effectively reserve[s]” ap-
   proximately 10% of each entering class for
   members of the preferred racial or ethnic
   groups, who are “insulated from competition”
   with applicants from the non-preferred
   groups (Pet. App. 249a).
   
   
2. The Law School’s “haphazard selection” of
   which races were entitled to the preferences
   is not a “close fit” of means to ends (id. at
   249a-250a).
   
   
3. The Law School failed to consider race-
   neutral alternatives before implementing its
   racial preferences (id. at 251-252a).
   
   
4. The Law School’s policy places no durational
   limit on the use of racial preferences (id. at
   247a-248a).

The Court’s opinion does not identify the district
court’s findings as “clearly erroneous,” and the court of
appeals, as noted, did not purport to make that determina-
tion. Each of these facts is, as discussed below, incompati-
ble with the Court’s precedents on the requirements for
narrow tailoring. That they are all true with respect to the
Law School’s policy, as found by the district court, leaves
no room for a conclusion consistent with this Court’s cases

that the Law School’s use of racial preferences is narrowly
tailored to achieve an interest in diversity.

Accordingly, if the district court’s findings are not
clearly erroneous, then one of two conclusions must follow:
either the Law School’s policies are not narrowly tailored
to achieve a compelling interest in diversity, or the rever-
sal of the district court’s judgment has been upheld on the
basis of some other unstated standard of review. In the
event of the former, rehearing should be granted because
it would change the outcome of the Court’s decision up-
holding the Law School’s use of racial preferences as
narrowly tailored. If the latter is true, then rehearing
should be granted so that the Court’s opinion can be
clarified on the question of the appropriate standard of
review in cases such as this one. A rule of law that facts
found by a trier of fact in constitutional cases should be
reviewed de novo or under some standard other than the
time-honored clearly-erroneous standard would be a
dramatic departure from this Court’s precedents and
should not be permitted to arise in courts throughout the
country from mere inference or speculation derived from
the Court’s silence and implicit action.

1. The Court’s Requirements for Narrow Tailor-
   ing Are Not Met on the Facts Found by the
   District Court, Which Are Not, And Have
   Never Been Determined To Be, Clearly Er-
   roneous.
   1. The Law School’s Quota: Insulating Seats
      from Competition

With respect to the first finding noted above, the
Court’s opinion holds that an “admissions program cannot
use a quota system - it cannot ‘insulat[e] each category of
applicants with certain desired qualifications from compe-
tition with all other applicants.’ ” Bench op. at 22 (quoting
Regents of the University of California v. Bakke, 438 U.S.
265, 315 (1978) (Powell, J.)); see also Bench op. at 23
(noting that a “ ‘permissible goal’ ” is one in which race is

considered as a “plus” factor “while still ensuring that each
candidate ‘compete[s] with all other qualified applicants’ ”)
(quoting Johnson v. Transporation Agency, Santa Clara,
480 U.S. 616, 638 (1987)). The Court’s opinion does not
reconcile its holding that the Law School’s admissions
program meets this test with the district court’s finding
that in achieving its “critical mass,” seats in the class for
members of the preferred minorities are both “effectively
reserved” and “insulated from competition.” Pet. App.
249a. In so finding, the district court explicitly rejected the
Law School’s contention that “all applicants compete against
one another.” Id. at 248a; see also id. (“students of all races
are not competing against one another for each seat”). This
finding alone should suffice to meet the Court’s definition of
“quota” versus a permissible goal. Moreover, the district
court also found that the Law School uses “race to ensure the
enrollment of a certain minimum percentage of underrepre-
sented minority students,” id., that it has an “essentially
fixed minimum percentage figure” of seats for the preferred
minority students, id., and that it is “focus[ed] . . . carefully
on admitting and enrolling a particular percentage of stu-
dents from particular racial groups,” id. at 249a. See Bench
op. 22 (“Properly understood, a ‘quota’ is a program in which
a certain fixed number or proportion of opportunities are
‘reserved exclusively for certain minority groups.’ ”) (empha-
sis added) (quoting City of Richmond v. J.A. Croson Co., 488
U.S. 469, 496 (1989) (plurality opinion)).

The Court’s opinion does not explain how or why the
district court’s findings are clearly erroneous. Under this
standard, even if there is more than one permissible view
of the evidence, “the factfinder’s choice between them
cannot be clearly erroneous.” Hernandez v. New York, 500
U.S. 352, 369 (1991). The district court was not limited to
the express language of the Law School policy or the trial
testimony of its admissions officers in deciding the factual
question of whether the Law School reserved spaces in the
class and insulated them from competition (although
these, too, supported the findings). In addition, it had
detailed admissions data and statistical evidence from
which to make its findings. This Court’s mere recitation of

some evidence (or arguments of counsel) to support a
different view than that taken by the district court does
not establish the district court’s findings to be clearly
erroneous. Applying that standard, which the Court
should do on rehearing, the facts found by the district
court meet the Court’s definition of a quota and are reason
to invalidate the policy on narrow-tailoring grounds.

2. The Law School’s Arbitrary Classifica-
   tions

The district court found that the Law School’s racial
classifications were “haphazard,” and that “[n]o satisfac-
tory explanation was offered” for granting a preference to
Puerto Ricans born on the United States mainland, but
not to those raised in Puerto Rico; or to Mexican Ameri-
cans, but not to “other Hispanics.” Pet. App. 250a. The
Court’s precedents make clear that arbitrariness and
overinclusiveness or underinclusiveness of such classifica-
tions are fatal defects in the preferences. See, e.g., Croson,
488 U.S. at 506 (noting the “random inclusion of racial
groups” and the “gross overinclusiveness” of the prefer-
ences). The Law School’s Bulletin for three of the years at
issue (including the year for which Barbara Grutter
applied) explicitly acknowledges the arbitrary classifica-
tions. See Pet. App. 200a-02a; App. 74, 84. Moreover, the Law
School’s admissions data, App. 127-55, confirm separate
statistics kept for Mexican Americans and “other Hispanics”
(as do the “daily reports,” see Pet. Br. 43) as well as signifi-
cantly different admissions probabilities between these
groups.¹ Under the Court’s precedents, these arbitrary
classifications quite plainly do not “bear[ ] the hallmarks of

___________________
¹       While the Law School has in its briefs denied the existence of the
separate classifications found by the district court, see Resp. Br. 49
n.79, it did not produce any evidence at trial rebutting the facts as
found by the district court. The Law School’s post-trial assertions of
counsel are not evidence and are certainly not sufficient to support a
conclusion that the district court’s findings were clearly erroneous.

a narrowly tailored plan.” Bench op. at 22. Thus, far from
being clearly erroneous, the district court’s findings are
undisputed in the record on this point, which under the
Court’s precedents leaves no room for a conclusion that the
arbitrary classifications are narrowly tailored.

3. The Law School’s Failure to Consider
   Any Race-Neutral Alternatives Prior to
   Implementing Its Policy

The Court’s opinion in this case unambiguously
confirmed that “narrow tailoring . . . require[s] serious,
good faith consideration of workable race-neutral alterna-
tives that will achieve the diversity the university seeks.”
Bench op. at 27 (emphasis added). The district court
explicitly addressed the consideration of race-neutral
alternatives, finding as follows:

A fifth and final factor the court must note in this
connection is the law school’s apparent failure to
investigate alternative means for increasing mi-
nority involvement. . . . [T]he court heard very lit-
tle testimony from the authors of the 1992
admissions policy, or from those who have been
involved in administering it, as to whether the
deans or the faculty at the law school itself have
ever given serious consideration to race-neutral
alternatives. . . . Even if these alternatives would
not be as effective in enrolling significant num-
bers of underrepresented minority students, the
law school’s failure to consider them . . . prior to
implementing an explicitly race-conscious system
militates against a finding of narrow tailoring.

See Pet. App. 251a (emphasis added). In this regard, the
district court made essentially the same finding as the
determination of this Court in Croson. See 488 U.S. at 507
(set-aside program not narrowly tailored where “there
does not appear to have been any consideration of race-
neutral alternatives”).

There has never been a determination that this
finding of a failure to consider race-neutral alternatives

was clearly erroneous. It is amply supported by the record.
No one testified, least of all anyone affiliated with the Law
School, that it had considered race-neutral alternatives
before employing its racial preferences. There was testi-
mony and other evidence introduced at trial regarding
race-neutral alternatives employed by other universities
and law schools. In its opinion, the Court commended
consideration of these experiments in race-neutral alter-
natives to institutions currently using racial preferences in
admissions. See Bench op. 30. Yet there is no evidence in the
record that the Law School has even contemplated, much
less that it has “draw[n] on[,] the most promising aspects of
these race-neutral alternatives.” Bench op. at 30.

While this Court held that the Law School need not
consider such alternatives as a “lottery” or lowering of
overall admissions standards as a means of achieving
diversity without discriminating on the basis of race, the
Court’s opinion makes clear that race-neutral alternatives
must be considered. The district court’s finding that none
were considered by the Law School before implementing
its policy is not clearly erroneous, and this Court’s opinion
did not explain it to be otherwise.

4. The Law School’s Indefinite Considera-
   tion of Race: No “Sunset” Provision or
   “Periodic Review

The Court in this case held that all race-conscious
admissions programs must have a “termination point” and
that “[i]n the context of higher education, the durational
requirement can be met by sunset provisions” and “peri-
odic reviews to determine whether racial preferences are
still necessary to achieve student body diversity.” Bench
op. at 30.² The district court found that “there is no time

___________________
²       In positing that racial preferences in admissions should no longer
be necessary in 25 years, the Court asserted that the number of
“minority applicants with high grades and test scores has indeed
(Continued on following page)

limit on [the Law School’s] use of race in the admissions
process.” Pet. App. 247a. Far from being clearly erroneous,
there is nothing in the record to contradict the absence of a
termination point. The written policy contains no dur-
ational limit, and it contains neither the “sunset” provision
nor the “periodic reviews” called for by the Court’s opinion.
These facts, as found by the district court and readily
observed from the written policy, are not contradicted by
the Law School’s mere assertion (once again made solely
through argument of counsel in briefs or at oral argument,
rather than through admissible evidence in the record)
that it would “like nothing better than to find a race-
neutral admissions formula” some day in the future.
Bench. op. at 31 (quoting Resp. Br. at 34). More importantly,
given the absence of testimonial or documentary evidence of
any durational limits (even one of 25 years) on the Law
School’s use of race, it cannot plausibly be said that the
district court’s finding of no limits is clearly erroneous.

2. The Court’s Decision Creates Substantial
   Uncertainty About the Correct Standard of
   Review in Cases Involving “Constitutional
   Facts.

The Sixth Circuit explicitly applied a de novo stan-
dard of review to the findings of the district court when it
reversed its judgment. Pet. App. 9a. In affirming the
judgment of the court of appeals, this Court neither
addressed the appropriateness of the standard of review
employed by the court of appeals nor explained what
standard the Court used. The Court’s silence on the issue
is surprising given that the petition for certiorari directly

___________________
increased.” Bench op. 31. The Court cited not to evidence in the trial
record on this point (there is none), but instead (and again) to argu-
ments of counsel. Id. In fact, there is substantial research indicating
that the test score “gap” remains the same or has even widened. See
WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER 20-21
(1998); Amicus Curiae Brief of the Center for New Black Leadership 11.

raised the issue in the second of the two questions pre-
sented; the Court granted the petition; and the petitioner
briefed the issue in both her opening and reply briefs. The
issue is not one that could be avoided as unnecessary to
resolution of the case because the Court had to apply, and
did apply, some standard of review in reaching its decision.
But the opinion discloses nothing about what that standard
of review was.

This reason alone should be sufficient to warrant
granting the petition for rehearing. The Court’s decision
was widely anticipated and watched by courts, educational
and other institutions, and individuals throughout the
country. It will be looked to for guidance in any future case
involving claims of discrimination by educational institu-
tions or in those which achieving diversity will be offered
as a justification for race discrimination in other contexts
(e.g., employment, contracting, jury selection, etc.). But the
Sixth Circuit’s rationale for applying de novo review was
not limited to cases challenging racial preferences in
discrimination cases; it has application to all cases involv-
ing “constitutional facts.” In affirming the court of appeals,
the Court’s decision creates a fair implication that in any
future case involving “constitutional facts” tried to a finder
of fact, the standard of review on appeal is now de novo. In
effect, there would be a trial at every judicial level to
which a case is taken.

Before its decision in this case, the Court’s jurispru-
dence in this area was clear: facts found in constitutional
cases, including cases alleging discrimination, were to be
reviewed under the clearly-erroneous standard. See, e.g.,
Hernandez v. New York, 500 U.S. 352, 369 (1991). Cf. Ander-
son v. City of Bessemer, 470 U.S. 564, 573-74 (1985) (Title
VII); Pullman-Standard v. Swint, 456 U.S. 273, 286-291
(1982) (same).³ At a minimum, the Court’s decision affirming

___________________
³       As petitioner explained in her opening brief on the merits, see Pet Br.
46, the facts found by the district court were not mixed questions of law
and fact, such as those that sometimes arise in the First Amendment area.
(Continued on following page)

the court of appeals has injected uncertainty where none
existed before about the appropriate standard for review-
ing facts found in constitutional cases. The potential
confusion produced will not systematically advantage
either the defenders of racial preferences and quotas or
those who challenge them; it will simply create a greater
incentive for every party who loses at the trial level to seek
de novo review at the appellate stage. The Court should
forestall inevitable confusion and litigiousness on this issue by
granting the petition for rehearing and answering the second
question that it accepted for review on petition for certiorari.

III. CONCLUSION

For all the foregoing reasons, petitioner respectfully
requests the Court to grant her petition for rehearing.

___________________
See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485
(1984). See Hernandez v. New York, 500 U.S. at 369 (rejecting argument
that Bose and its progeny should be applied to alter the clearly-
erroneous standard of review for claims of equal protection violations).

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