No. _____
___________________________________________In The
Supreme Court of United States
_________________________BARBARA GRUTTER,
Petitioner,
v.
LEE BOLLINGER, JEFFREY LEHMAN,
DENNIS SHIELDS, and the BOARD OF
REGENTS OF THE UNIVERSITY OF MICHIGAN, et al.,
Respondents.
_________________________
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
___________________________________________|
MICHAEL E. ROSMAN HANS BADER CENTER FOR INDIVIDUAL RIGHTS Suite 300 1233 20th Street N.W. Washington, D.C. 20036 (202) 833-8400 KERRY L. MORGAN PENTIUK, COUVREUR & KOBILJAK, P.C. Suite 230, Superior Place 20300 Superior Street Taylor, Michigan 48180 (734) 374-8930 |
DAVID F. HERR KIRK O. KOLBO* R. LAWRENCE PURDY MICHAEL C. MCCARTHY KAI H. RICHTER MASLON EDELMAN BORMAN & BRAND, LLP 3300 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402-4140 (612) 672-8200 *Counsel of Record |
|
QUESTIONS PRESENTED
1. Does the University of Michigan Law School's use
2. Should an appellate court required to apply strict
PARTIES TO THE PROCEEDING
Petitioner is Barbara Grutter. She is plaintiff in the
Respondents are Lee Bollinger, Jeffrey Lehman,
The following additional respondents were defendant- Kimberly James, Farah Mongeau, Jeanette Has-
Page Questions presented ................................................... i Parties to the proceeding............................................ ii Table of authorities..................................................... v Opinions below ........................................................... 1 Jurisdiction................................................................. 1 Constitutional and statutory provisions involved ..... 1 Statement of the case ................................................. 2
Reasons for granting the writ .................................... 16
Conclusion .................................................................. 30
Page
Appendix A (Opinion (en banc) (May 14, 2002)) ........ 1a
Appendix B (Mandate for Case No. 01-1516 (June 5,
Appendix C (Mandate for Case No. 01-1447 (June 5, Appendix D (Judgment (May 14, 2002)) ....................180a Appendix E (Order (November 16, 2001))..................181a Appendix F (Order (April 5, 2001)) ............................185a
Appendix G (Findings of Fact and Conclusions of
Appendix H (Opinion and Order Denying Defendants' Appendix I (Excerpts from Trial Exhibit 143) ...........306a
Page CASES:
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 Alexander v. Sandoval, 532 U.S. 275 (2001)..................... 21
Bob Jones Univ. v. United States, 461 U.S. 574 Brown v. Board of Educ., 347 U.S. 483 (1954)............ 14, 29
City of Richmond v. J.A. Croson Co., 488 U.S. 469
Eisenberg v. Montgomery County Pub. Schs., 197
Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999) ............ 9
Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000),
Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert.
Johnson v. Board of Regents of Univ. of Georgia,
Lutheran Church — Missouri Synod v. FCC, 141 Marks v. United States, 430 U.S. 188 (1977) ......13, 15, 17, 23
McNamara v. City of Chicago, 138 F.3d 1219 (7th Palmore v. Sidoti, 466 U.S. 429 (1984).............................. 26
Page
Regents of the Univ. of California v. Bakke, 438 U.S. 265 Runyon v. McCrary, 427 U.S. 160 (1976) .......................... 29 Shaw v. Hunt, 517 U.S. 899 (1996) ................................... 22
Smith v. University of Washington Law Sch., 233
Taxman v. Board of Educ., 91 F.3d 1547 (3rd Cir. Texas v. Hopwood, 518 U.S. 1033 (1996)........................... 16
Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 United States v. Paradise, 480 U.S. 149 (1987) ................ 14 Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998). 23, 25, 28
Wygant v. Jackson Bd. of Educ., 476 U.S. 267
(1986) .................................................................. 22, 26, 27
STATUTES: 28 U.S.C. § 1254(1)............................................................... 1 42 U.S.C. § 1981 ......................................................... 1, 9, 29 42 U.S.C. § 1983 ..............................................................9, 11
42 U.S.C. § 2000d ................................................. 1, 9, 18, 29
COURT RULES: Federal Rule of Civil Procedure 23(b)(2)............................. 9 Federal Rule of Civil Procedure 24 ..................................... 9 PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully petitions for a writ of certiorari OPINIONS BELOW
The opinion of the Sixth Circuit Court of Appeals JURISDICTION
The judgment of the Court of Appeals was entered on CONSTITUTIONAL AND STATUTORY
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| 1997 - Final LSAT & GPA Admission Grid Selected Minorities (African Americans, Native Americans, Mexican Americans) |
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| Caucasian Americans |
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| Asian/Pacific Island Americans |
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| 2000 - Final LSAT & GPA Admission Grid Selected Minorities (African Americans, Native Americans, Mexican Americans) |
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| Caucasian Americans |
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| Asian/Pacific Island Americans |
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The admissions data were presented in a number of
other forms at trial. For example, plaintiff 's statistical
expert reported the median LSAT scores and undergradu-
ate
grade point averages for different racial groups. App.
at 306a-311a. He also used the admissions data to produce
a graphic that shows probabilities of admission for various
racial groups compared to Caucasian Americans based on
the Law School's "selection index" (a measure that combines
grades and test scores) for years 1995-2000. The
appendix contains these graphics for 1995. Id. at 312a-
319a. The graphs plot probabilities of admission on a
vertical axis (from zero ("0.0") to 100 percent ("1.0")) and
selection indices on a horizontal axis (from a low index of 2
to a high index of 4.). Id. The graphs demonstrate substan-
tial
differences in admissions outcomes at given selection
indices when comparing Caucasian Americans to African
Americans, Mexican Americans and Native Americans. Id.
at 312a-314a.
II. PROCEEDINGS BELOW
- The District Court
This action commenced in December 1997. The Com-
plaint
alleged that the Law School illegally discriminated
on the basis of race in violation of 42 U.S.C. §§ 1981, 1983,
and 2000d. (Complaint, JA.84-95). The district court
granted the plaintiff 's motion to certify a class under
Federal Rule of Civil Procedure 23(b)(2). In the same
order, it also bifurcated the issues of liability and damages,
with liability to be tried first. The district court had
previously denied the intervenors' motion for interven-
tion
under Federal Rule of Civil Procedure 24. The Sixth
Circuit reversed the district court's decision on intervention,
thus making the intervenors parties. Grutter v.
Bollinger, 188 F.3d 394 (6th Cir. 1999).
The district court heard the parties' motions for
summary judgment on December 22, 2000. It ruled that it
would decide as a matter of law whether diversity was a
compelling interest, and that it would conduct a trial on
(1) the extent to which race was considered in the Law
School's admissions policies; (2) whether the Law School
imposed a race-based double standard in admissions; and
(3) whether (as intervenors argued) race should be consid-
ered
in the Law School's admissions process in order to
create a "level playing field." (Summary judgment transcript,
JA.7180).
The district court conducted a 15-day bench trial
commencing January 16, 2001. It issued its 90-page
Findings of Fact and Conclusion of Law and Order on
March 27, 2001. App. at 189a-294a. Among the district
court's findings of fact were the following:
1. The Law School gives a preference based on race
to applicants from certain racial groups — African Ameri-
cans,
Mexican Americans, and Native Americans — which
it considers to be underrepresented in the Law School. Id.
at 224a.
2. The Law School's stated reason for giving the
racial preference to these groups is that it desires a ra-
cially
diverse student body, and the average LSAT test
scores and undergraduate grades of applicants from the
under-represented minority groups are lower than the
scores of students from other racial and ethnic groups, e.g.,
Caucasians and Asians, so that few from the underrepre-
sented
minority groups would be admitted in a system
"based on the numbers." Id.
3. The Law School places a "very heavy emphasis" on
an applicant's race in the admissions process. Race is an
"enormously important" and "extremely strong" factor in
the admissions process. Id. at 225a-227a.
4. The Law School seeks to enroll what it calls a
"critical mass" of underrepresented minority students. In
practice, this has meant that the Law School attempts to
enroll an entering class consisting of 10-17% under-
represented
minority students. Id. at 225a.
5. The Law School also seeks to ensure that each
year's entering class consists of a minimum of 10-12%
underrepresented minority students. This has meant that
each year, the Law School "effectively reserve[s]" approxi-
mately
10% of the entering class for students from the
underrepresented minority groups, and those numbers of
seats are "insulated from competition." Id. at 249a.
6. There is no time limit on the Law School's use of
race as a factor in the admissions process. Id. at 247a-
248a.
The district court also considered expert statistical
evidence in resolving the parties' factual dispute about the
"extent" to which race is a factor in the admissions pro-
cess.
The district court "adopt[ed]" the expert statistical
analysis of plaintiff 's expert, Dr. Kinley Larntz, Professor
Emeritus and former chairman of the Department of
Applied Statistics at the University of Minnesota. Id. at
227a. It rejected criticisms of Dr. Larntz's analysis by the
Law School's expert witness, Dr. Stephen Raudenbush, a
professor at the University of Michigan. Id. at 227a-228a.
The district court concluded as a matter of law that
the Law School's stated interest in achieving diversity in
the student body was not a compelling interest that could
justify its racial preferences in admissions. Id. at 243a. It
also found that even if diversity were compelling, the Law
School's racial preferences were not narrowly tailored to
achieve that interest. Id. at 246a-252a . The district court
also rejected the alternative arguments of intervenors. Id.
at 257a-292a. Accordingly, the district court ordered an
injunction regarding the Law School's use of race in the
admissions process. Id. at 293a.3
Defendants moved in the district court on March 28,
2001, for a stay of the district court's injunction, pending
appeal. (Motion, JA.4182-83). Defendants also filed an
___________________
3/
The district court ruled also that (1) the individual defendants
were entitled to "qualified immunity" and summary judgment in their
favor on the claims asserted against them under Title 42 U.S.C. § 1983
for damages in their individual capacities and (2) the Board of Regents
of the University of Michigan was not entitled to Eleventh Amendment
immunity from plaintiff 's claim for damages arising from Title VI
violations. App. at 252a-254a, 254a-257a. The parties did not appeal the
district court's interlocutory rulings on these issues.
Emergency Motion for Stay in the Sixth Circuit. The
district court denied the defendants' motion for stay on
April 3, 2001. The decision is reported at 137 F. Supp. 2d
874 and is included in the Appendix at 295a-305a. In the
order denying the stay, the district court noted, among
other things, that there was "overwhelming evidence" that
the Law School's admissions process was not narrowly
tailored to achieve an interest in a diverse student body.
Id. at 301a. The district court also made clear the scope of
the injunction: "This court's injunction should not be
understood as prohibiting 'any and all use of racial prefer-
ences,'
. . . but only the uses presented and argued by
defendants and intervenors in this case — namely, in order
to assemble a racially diverse class or remedy the effects of
societal discrimination." Id. at 300a-301a. A motions panel
of the Sixth Circuit nonetheless granted the stay on April
5, 2001. The decision is reported at 247 F.3d 631 and is
included in the Appendix at 185a-188a.
- The Court of Appeals
The Sixth Circuit's order staying the district court's
injunction also provided that the case would be heard by
the court on an expedited basis, with oral argument
scheduled for October 23, 2001. Id. at 188a. On May 11,
2001, plaintiff filed a petition for initial hearing en banc of
this case and Gratz v. Bollinger. On October 19, 2001, the
court issued an order granting the petition for initial
hearing en banc, and rescheduled the oral argument for
December 6, 2001.4 The decision is reported at 277 F.3d
803.
On May 14, 2002, the Sixth Circuit, in a 5-4 decision,
reversed the judgment of the district court. It did so based
on a de novo review of the district court's findings. App. at
___________________
4/
The procedural history of this case in the Sixth Circuit is
discussed in substantially more detail in the "Procedural Appendix" to
Judge Boggs' dissent. App. at 161a-169a.
9a. The court, in a majority opinion authored by Chief
Judge Martin, held that Justice Powell's opinion in Bakke
constituted binding precedent establishing "diversity" as a
compelling governmental interest sufficient under strict
scrutiny review to justify the use of racial preferences in
admissions. Id. at 16a-17a. According to the court, Justice
Powell's lone opinion with respect to diversity constituted
the rationale for the holding of this Court by application of
the analysis approved in Marks v. United States, 430 U.S.
188, 193 (1977), for interpreting decisions of the Court
with fragmented opinions. App. at 12-17a.5
The Sixth Circuit also reversed the district court's
determination that the Law School's racial preferences
were unconstitutional because they were not narrowly
tailored. Id. at 25a-38a. It held that the Law School's
stated objective of enrolling a "critical mass" of "underrep-
resented"
minority students was achieved through
considering race as a "plus" factor in the manner approved
by Justice Powell in Bakke and described in the "Harvard
plan" referenced in Justice Powell's opinion. Finding that
the Law School had no "fixed goal or target" for minority
admissions, the court rejected the district court's finding
that the Law School's "critical mass" was the functional
equivalent of a quota. Id. at 29a.
The Sixth Circuit noted that Justice Powell did not
define or discuss the size of a permissible "plus" for race
with respect to the consideration of grades and test scores
of minority applicants. Id. at 31a. Accordingly, the court
did not evaluate the district court's findings and the
statistical evidence on the size of the preference for race at
the Law School, other than to conclude that the "differ-
ence,
on average, between the standardized test scores
___________________
5/
The Sixth Circuit majority declined to address whether the
separate remedial interests proferred by intervenors were sufficiently
compelling to satisfy strict-scrutiny review. App. at 12a n.4.
and/or undergraduate grades" for minority and non-
minority
students did not render the Law School's admissions
policy unconstitutional. Id.
The last part of the Sixth Circuit's narrow-tailoring
analysis was a consideration of five factors that the dis-
trict
court had considered (as set forth in United States v.
Paradise, 480 U.S. 149, 171 (1987)) in finding that the
Law School's preferences were not narrowly tailored. App.
at 32a-38a. The Sixth Circuit first expressed "serious
reservations" about whether the district court should have
even considered these factors since they were not set forth
for consideration in Bakke. Id. at 32a. Nonetheless, it went
on to reject the district court's findings and conclusions
concerning each of the factors. Id. at 32a-38a.
Judge Clay wrote a concurring opinion that was joined
by Judges Moore, Cole, and Daughtrey. Id. at 51a-83a. The
concurring judges agreed with Chief Judge Martin's
conclusion that Justice Powell's opinion respecting diver-
sity
was binding precedent. The concurrence went further
than the majority opinion, however, by justifying the
diversity rationale on the basis of empirical evidence and
even on remedial grounds relating to the entire educa-
tional
system: "Diversity in education, at its base, is the
desegregation of a historically segregated population and
as the intervenors essentially argue, Bakke and Brown
[347 U.S. 483] must therefore be read together so as to
allow a school to consider race or ethnicity in its admis-
sions
for many reasons, including to remedy past dis-
crimination
or prevent racial bias in the educational
system." Id. at 72a-73a. Judge Clay did not explain how
this last mode of analysis could be reconciled with the
actual result in Bakke, in which the Davis special admis-
sions
program was found unlawful.
The four dissenting judges found the Law School's
preferences to be unlawful. Judge Boggs authored a
dissent, joined by Judge Batchelder and in part (all except
the Procedural Appendix) by Judge Siler, which reached
the conclusions (1) that diversity was not a compelling
interest that could justify racial preferences in admissions
and (2) that the Law School's preferences were not in any
event narrowly tailored to achieve an interest in diversity.
Id. at 83a-169a.
On the first point, Judge Boggs explained why a
Marks analysis could not yield a conclusion that Justice
Powell's diversity rationale was narrower than Justice
Brennan's "remedial" rationale, and hence why it could not
be considered a rationale for the holding of this Court. Id.
at 94a-112a. Finding that subsequent Supreme Court
opinions concerning racial preferences had not directly
confronted whether diversity in student admissions was a
compelling interest, id. at 112a-114a, Judge Boggs con-
ducted
an assessment on the merits of the diversity
rationale articulated by the Law School and concluded
that it could not constitute a compelling interest. Judge
Boggs noted first that the Law School's focus on racial
diversity "for the sake of race" was not the kind of experi-
ential
or pedagogical diversity endorsed by Justice Powell.
Id. at 121a-122a. Second, he explained why the nature of
the diversity interest — with " 'no logical stopping point' "
and "no limiting principle" — could not conceptually qualify
as a compelling interest. Id. at 124a-129a.
Judge Boggs' discussion of narrow tailoring criticized
the majority's conclusion that using race as a "plus" factor
was permissible as long as an admissions system "neither
'sets aside' an exact number of seats for racial and ethnic
minorities nor admits minorities with a specific quota of
admittees in mind." Id. at 130a. He expressed the view
that it was important to examine the size of the preference
(which the majority had not done) because he could not
believe "that a 'plus' of any size, no matter how large"
could be constitutional. Id. He found the size of the Law
School's preferences to be "staggering," id. at 89a, and
concluded that the Law School effectively maintained a
"two-track" admissions system, with students from "un-
derrepresented"
minority groups held to lower standards
for admission than students from other racial groups, id.
at 135a. Judge Boggs concluded also that the Law School's
concept of "critical mass," with the consistent levels of
minority admissions, was "functionally, and even nomi-
nally,
indistinguishable from a quota system." Id. at 144a.
Judge Boggs also found an "empirical link between . . .
'critical mass' and the values of diversity lacking." Id. at
146a. He specifically criticized the report prepared by Law
School witness Patricia Gurin (and relied upon in Judge
Clay's concurrence) on grounds, among other things, that
it did not study how much diversity was necessary to yield
the claimed benefits, and that it did not examine any
statistical correlation between increased diversity and
increased educational benefits. Id. at 146a-151a.
Finally, Judge Boggs concluded that the Law School's
preferences could not survive an inquiry into whether
race-neutral alternatives were available to achieve the
purported benefits of diversity. Id. at 152a-156a.
In a separate dissent, Judge Gilman concluded that it
was unnecessary to decide whether diversity was a compel-
ling
interest because the Law School's preferences were
not narrowly tailored. He described the Law School's
"critical mass" as "functionally indistinguishable from a
quota." Id. at 173a. Judge Gilman's opinion did not ad-
dress
(because it left unresolved whether diversity was a
compelling interest) the propriety of the district court's
injunction prohibiting the consideration of race to achieve
student body diversity.
REASONS FOR GRANTING THE WRIT
There can be no serious doubt that the use of racial
preferences in university admissions presents an issue of
great national importance. Texas v. Hopwood, 518 U.S.
1033 (1996) (Ginsburg and Souter, JJ., concurring in
denial of certiorari) ("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."). There is now also sharp and
substantial disagreement in the lower courts about the
lawfulness of using race and ethnicity as a factor in
admissions to achieve a "diverse" student body. The Sixth
and Ninth Circuits have concluded that diversity is a
compelling interest and that Justice Powell's opinion in
Bakke concerning diversity constituted a rationale for the
holding of the Court through application of the Marks
analysis. The Fifth and Eleventh Circuits have reached a
different result (see discussion infra at 22-23).
Just as the lower courts have disagreed on the existence
of a compelling interest, they have applied conflict-
ing
analyses on the issue of narrow tailoring. On its face,
moreover, the Sixth Circuit's opinion acknowledges that
there are important respects in which Justice Powell's
opinion concerning diversity left significant unresolved
questions. App. at 31a.
Indeed, many questions cry out for clarification if
diversity is a compelling interest and if Justice Powell's
formulation of it is held to be controlling, including the
following: What constitutes the "functional equivalent" of
a quota, which Justice Powell's rationale forbids? How
important are large statistical disparities on items such as
grades and standardized test scores among applicants
from different racial groups in assessing whether a race-
conscious
admissions system is unlawful? May a "plus" for
race be of any size or substance, so long as the form and
language of a "quota" or "set aside" is avoided? Do tradi-
tional
factors associated with narrow tailoring, such as the
requirement that preferences be temporary, have no
application to the diversity rationale? If universities may
select the racial groups to which they give preferences
based on "underrepresentation" of these groups in the
student body, how is diversity different in principle from
objectives of simple racial balancing or remedying the
lingering effects of societal discrimination? If achieving
diversity is a compelling interest sufficient to justify racial
preferences in education because of the beneficial effects of
obtaining diverse viewpoints, what limiting principle
prevents diversity from justifying racial preferences in
other areas of life where diverse viewpoints may also be
beneficial, like jury selection or employment in positions
with responsibility for management or creation of public
policy?
I. THE BAKKE CASE.
In Bakke, this Court found that the admissions
program of the University of California Medical School at
Davis, which set aside 16% of the places in the class for
educationally or economically disadvantaged minorities,
violated Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d. Five Justices, including Justice Powell, held that
the Davis program unlawfully considered race in the
admissions process. Justice Powell concluded that Title VI
prohibited only that conduct prohibited by the Constitu-
tion
and that the Davis admissions policy violated Alan
Bakke's rights under the Equal Protection Clause of the
Fourteenth Amendment. Justice Stevens, writing for
himself and three others, concluded that the system of
racial preferences employed by the Davis Medical School
violated the plain language of Title VI. Those Justices did
not reach the question of whether the Davis system also
violated the Constitution.
Another group of five Justices, also including Justice
Powell, reversed the judgment of the California Supreme
Court enjoining Davis from using race as a factor in
admissions under any circumstances. In this conclusion,
Justice Powell was joined by Justice Brennan, who wrote
an opinion joined by Justices Blackmun, Marshall, and
White that would have upheld the Davis admissions
system.
Justice Powell applied strict scrutiny to the Davis
program. He considered four objectives of the program
offered by Davis, and found only one to be sufficiently
compelling: an interest in "academic freedom" derived
from the First Amendment. Justice Powell concluded that
academic freedom, although not a specifically enumerated
Constitutional right, was a "special concern" of the First
Amendment and thus a sufficiently compelling interest to
meet strict scrutiny. 438 U.S. at 312 (Powell, J.). "Aca-
demic
freedom" included the freedom to determine who
would be allowed to study at a state university. Id.
While rejecting the argument that Davis's specific
program of reserving spaces for disadvantaged minorities
was necessary to achieve the robust exchange of ideas that
the Regents allegedly wanted, Justice Powell did state
that race and ethnicity could be considered as "plus"
factors by universities seeking to achieve that goal. He
cited to the text of the so-called "Harvard plan," which he
said would pass constitutional muster under his approach.
Id. at 316-18.
Justice Powell concluded that the Davis program was
guilty of a "facial intent" to discriminate. Id. at 318. He
described a "facially nondiscriminatory admissions policy"
as one "where race or ethnic background is simply one
element — to be weighed fairly against other elements — in
the selection process." Id. (emphasis added). He specifi-
cally
disapproved of an admissions system that reserved a
specified number of spaces in the class for members of
particular minority groups or that operated "as a cover for
the functional equivalent of a quota system." Id. at 315,
318.
Justice Powell found that the Davis "dual admission"
or "two-track" system, id at 314-15, in which a number of
seats in the medical school class were reserved on the
basis of an "explicit racial classification," id. at 319,
violated the Equal Protection Clause, id. at 319-20.
Although Justice Brennan seemingly rejected "strict
scrutiny," Bakke, 438 U.S. at 357 (Brennan, J.), he bor-
rowed
a scrutiny level from gender-discrimination cases
that he characterized as "strict and searching." Id. at 362.
Specifically, he required the use of race to serve important
governmental objectives and to be substantially related to
achieving those objectives. Id. at 359.
Justice Brennan concluded that the Davis program
met his "strict and searching" scrutiny analysis because
remedying the effects of past societal discrimination was a
sufficiently important governmental objective, and be-
cause
the Davis program was, in his view, substantially
related to achieving that objective. In reaching the latter
conclusion, Justice Brennan stated that remedies for past
discrimination need not be limited to victims identified by
specific proof, but that they should be limited to those
"within a general class of persons likely to have been the
victims of discrimination." Id. at 363. In finding that the
Davis program met that requirement, Justice Brennan
emphasized:
[T]he Davis admissions program does not simply
equate minority status with disadvantage.
Rather, Davis considers on an individual basis
each applicant's personal history to determine
whether he or she has likely been disadvantaged
by racial discrimination. The record makes clear
that only minority applicants likely to have been
isolated from the mainstream of American life
are considered in the special program; other mi-
nority applicants are eligible only through the
regular admissions program.
Id. at 377. Cf. Bakke, 438 U.S. at 275 n.4 (Powell, J.) (the
admissions chairman would confirm "disadvantage" of
individual applicants).6
Justice Brennan did not mention or endorse the
"academic freedom" or "diversity" rationale of Justice
Powell. He did state that something like the "Harvard
plan" would be "constitutional under our approach, at least
so long as the use of race to achieve an integrated student
body is necessitated by the lingering effects of past dis-
crimination."
Id. at 326 n.1 (emphasis added). While
recognizing that no one opinion spoke for the Court,
Justice Brennan purported to describe the "central mean-
ing"
of the various opinions without any reference to the
"academic freedom" or "diversity" rationales:
Government may take race into account when it
acts not to demean or insult any racial group, but
to remedy disadvantages cast on minorities by
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6/
Indeed, that is how Justice Brennan viewed the "Harvard plan" —
an admissions system that "openly and successfully employs a racial
criterion for the purpose of ensuring that some of the scarce places in
institutions of higher education are allocated to disadvantaged minority
students." Bakke, 438 U.S. at 379 (Brennan, J.) (emphasis added).
past racial prejudice, at least when appropriate
findings have been made by judicial, legislative,
or administrative bodies with competence to act
in this area.
Id. at 325 (emphasis added).
In the only part of Justice Powell's equal-protection
analysis that was joined by Justice Brennan, Part V-C,
nothing was said, much less endorsed, about justifying
racial preferences on grounds of diversity or academic
freedom. Id. at 320. Part V-C made explicit that five
Justices believed Davis should not be prohibited from any
consideration of race in making admissions decisions. It
did not however, purport to describe what interests would
be sufficiently compelling to justify preferences in a
"properly devised admissions program." Id.
II. THE LOWER COURTS ARE DIVIDED.
Aside from Justice Powell's opinion in Bakke, the
opinions of the Court have never before or since addressed
whether diversity is a compelling interest justifying racial
preferences in university admissions. Subsequent opinions
have included comment on the fractured nature of the
Bakke opinions. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 218 (1995) ("Bakke did not produce an
opinion for the Court."); Alexander v. Sandoval, 532 U.S.
275, 308 n.15 (2001) (Stevens, J., dissenting) (The five
Justices in Bakke who voted to overturn the injunction
imposed by the lower courts "divided over the application
of the Equal Protection Clause — and by extension Title VI
— to affirmative action cases. Therefore, it is somewhat
strange to treat the opinions of those five Justices in
Bakke as constituting a majority for any particular sub-
stantive
interpretation of Title VI").
In other contexts, this Court's more recent decisions
have recognized only one interest as sufficiently compel-
ling
to justify racial classifications: remedying past,
identified discrimination. E.g., City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 493 (1989) ("Classifications
based on race carry a danger of stigmatic harm. Unless
they are strictly reserved for remedial settings, they may
in fact promote notions of racial inferiority and lead to a
politics of racial hostility.") (O'Connor, J.); id. at 520
(Scalia, J.); Shaw v. Hunt, 517 U.S. 899, 909-10 (1996)
(voting rights and redistricting). It has expressed disap-
proval
of recognizing as "compelling" interests that are
"amorphous" and that have "no logical stopping point."
J.A. Croson Co., 488 U.S. at 498-99 (citing and quoting
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275 (1986)
(plurality opinion)).
Not surprisingly, then, the lower courts have strug-
gled
and disagreed about whether academic freedom or
diversity are interests that can justify racial preferences in
student admissions. More than half the circuit courts of
appeals have addressed the diversity rationale in some
context, most of them relating to admissions in either
elementary, secondary, or higher education.
The Fifth and Eleventh Circuits have held that
Justice Powell's opinion in Bakke with respect to diversity
did not constitute a rationale for the holding of the Court.
In Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied,
518 U.S. 1033 (1996), the Fifth Circuit determined that
Justice Powell spoke for no other Justice concerning
diversity, and that Justice Brennan had implicitly rejected
diversity as a compelling governmental interest. Id. at
944. See also Hopwood v. Texas, 236 F.3d 256, 274-75 (5th
Cir. 2000) (Wiener, Stewart, JJ.) (Justice Brennan and the
three Justices who joined his opinion in Bakke "disagreed
with [Justice Powell] as to the rationale that is necessary
to justify constitutionally the government's use of racial
preferences. . . . None of the [concurring Justices] would go
the extra step proposed by Justice Powell and approve
student body diversity as a justification for a race-based
admissions criterion."), cert. denied, 533 U.S. 929 (2001).
Concluding that this Court's precedents had not resolved
whether diversity was a compelling interest, the Fifth
Circuit analyzed the question and determined that it was
not. Hopwood, 78 F.3d at 945-46.
The Eleventh Circuit, in a case involving a challenge
to racial preferences in admissions at the University of
Georgia, reviewed the opinions in Bakke and determined
that the Marks analysis did not support a conclusion that
Justice Powell's opinion concerning diversity was the
holding of the Court. Johnson v. Board of Regents of Univ.
of Georgia, 263 F.3d 1234, 1247-49 (11th Cir. 2001); id. at
1249 ("Simply put, Justice Powell's opinion does not
establish student body diversity as a compelling interest
for purposes of this case."); id. at 1261 ("[W]e do not
believe that Justice Powell's opinion [in Bakke] is binding,
and his discussion of the Harvard Plan was entirely
dicta."). Ultimately, the Eleventh Circuit concluded that
whether diversity was a compelling interest was an "open
question," but that it need not be decided in the case
before it because the University of Georgia's racial prefer-
ences
under review were not narrowly tailored to achieve
an interest in diversity. Id. at 1250, 1254-64.
In contrast, the Sixth and Ninth Circuits have con-
cluded
that Justice Powell's opinion with respect to diver-
sity
constitutes the rationale for the holding of the Court
in Bakke through application of the Marks analysis. App.
at 12a-17a; Smith v. University of Washington Law Sch.,
233 F.3d 1188 (9th Cir. 2000), cert. denied, 532 U.S. 1051
(2001).
Other courts of appeals have noted expressly or
implicitly that this Court has not resolved whether diver-
sity
is a compelling interest. Eisenberg v. Montgomery
County Pub. Schs., 197 F.3d 123, 130 (4th Cir. 1999)
(elementary school student admissions) ("whether diver-
sity
is a compelling governmental interest remains unre-
solved"),
cert. denied, 529 U.S. 1019 (2000); Tuttle v.
Arlington County Sch. Bd., 195 F.3d 698, 704-05 (4th Cir.
1999) (same); Wessmann v. Gittens, 160 F.3d 790, 796 (1st
Cir. 1998) (middle school student admissions) ("[W]e need
not definitively resolve this conundrum [whether diversity
is compelling] today."). Cf. Taxman v. Board of Educ., 91
F.3d 1547, 1563-64 (3rd Cir. 1996) (striking down racial
preferences in faculty employment which had "sole pur-
pose"
of obtaining educational benefits believed to result
from racially diverse student faculty) (holding that
"[w]hile the benefits flowing from diversity in the educa-
tion
context are significant indeed," they did not satisfy
requirements for use of racial preferences under Title VII),
cert. granted, 521 U.S. 1117, appeal dismissed per stipulation,
522 U.S. 1010 (1997); McNamara v. City of Chicago,
138 F.3d 1219, 1222 (7th Cir.) (preferences in employment)
("whether [non-remedial] justifications are possible is
unsettled"), cert. denied, 525 U.S. 981 (1998); Lutheran
Church — Missouri Synod v. FCC, 141 F.3d 344, 354-56
(D.C. Cir. 1998) (rejecting racial diversity as a compelling
interest justifying racial preferences in the award of
broadcast licenses).
The Sixth Circuit's narrow-tailoring analysis also
diverges from the approach taken by other circuits. Most
notably, it gave no consideration to whether the size of the
preference or "plus" was consistent with the requirements
of narrow tailoring. The plaintiff had submitted much
statistical evidence on this point, which the district court
credited and relied upon. App. at 216a-222a, 227a. It was
dismissed by the Sixth Circuit on the ground that neither
the "Harvard plan" nor Justice Powell had defined limits
on the size of a permissible "plus." Id. at 31a.
In contrast, the Eleventh Circuit has recognized that
the size of the preference does bear on the question of
narrow tailoring. See Johnson v. Board of Regents of the
Univ. of Georgia, 263 F.3d at 1254 (narrow tailoring
requires, among other things, that "the policy must use
race in a way that does not give an arbitrary or dispropor-
tionate
benefit to members of the favored racial groups")
(emphasis added); id. at 1257-59 (holding that the dispro-
portionate
size of the preference granted to some races
was incompatible with narrow-tailoring requirements).
Justice Powell made clear that a race-based "two-
track"
admissions system, or one that amounted to the
"functional equivalent of a quota system" would be illegal.
Bakke, 438 U.S. at 316, 319 (Powell, J.). Concluding that
the Law School had no "fixed goal or target," App. at 29a
(emphasis added), the Sixth Circuit did not address
whether the size of the preferences had the practical effect
of creating a quota or "two-track" system. This was a
consideration that led the Fourth Circuit to strike down,
on narrow tailoring grounds, race-based assignments to a
kindergarten school. Tuttle v. Arlington County Sch. Bd.,
195 F.3d at 707 ("Although the Policy does not explicitly
set aside spots solely for certain minorities, it has practi-
cally
the same result by skewing the odds of selection in
favor of certain minorities.").
The Sixth Circuit found it permissible that the Law
Schools' preferences were focused on a small and limited
number of racial groups. App at 37a. This is a factor that
has proved inconsistent with narrow tailoring in other
cases. See, e.g., J.A. Croson Co., 488 U.S. at 506-08;
Wessmann v. Gittens, 160 F.3d 790, 798-90 (1st Cir. 1998).
Cf. Hopwood v. Texas, 78 F.3d at 966 (Wiener, J., concur-
ring).
It can be an indication that the preferences are
overinclusive, underinclusive, or both, and that they are
impermissibly the products of "unthinking racial stereo-
types
or a form of racial politics." J.A. Croson, Inc., 488
U.S. at 510. See also Wessmann v. Gittens, 160 F.3d at 798-
99.
Finally, on the questions of the availability of race-
neutral
alternatives and the indefinite duration of the Law
School's preferences, the Sixth Circuit's analysis, App. at
33a-35a, was much less rigorous than that employed by
other courts. See, e.g., Tuttle, 195 F.3d at 706; Johnson v.
Board of Regents of Univ. of Georgia, 263 F.3d at 1261; id.
at 1254 ("We have held that only as a 'last resort' may race
be used in awarding valuable public benefits . . . That
principle applies equally to the university admissions
process.").
III. &nbp; THIS CASE PRESENTS ISSUES OF FUNDA-
MENTAL
NATIONAL IMPORTANCE.
This case does indeed present, as Judge Boggs de-
scribed
it, "a straightforward instance of racial discrimina-
tion
by a state institution." App. at 83a. What the record in
this case proves is that for many students, especially those
applying to "selective" or competitive institutions, differ-
ences
in an applicant's skin color — race or ethnicity — can
have an enormous effect on admissions outcomes.
Although the case presents specific legal issues, at the
most fundamental level the question it raises is whether
our Nation's principles of equal protection and non-
discrimination
mean the same thing for all races. This
Court has said in the past that it does. See, e.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 222 (1995) (stan-
dard
of review for racial classifications is the same for all
races). But the proposition is tested again by this case, and
especially by the justifications for unequal treatment put
forth by the Law School and intervenors.
This Court has rejected as compelling certain inter-
ests
that indisputably are good and important, like reme-
dying
the lingering effects of societal discrimination and
promoting role models for school children. City of Rich-
mond
v. J.A. Croson Co., 488 U.S. 469, 470 (1989); Wygant
v. Jackson Bd. of Educ., 476 U.S. 267, 275-77 (1986)
(plurality opinion). Cf. Palmore v. Sidoti, 466 U.S. 429, 433
(1984) (consideration of "best interests" of child is a sub-
stantial
governmental interest, but cannot justify consid-
eration
of race in making custody determinations). There
may be many reasons why an interest is not sufficiently
compelling to withstand the strict scrutiny to which all
racial classifications must be subjected, but among them
certainly are that an interest is by its nature poorly
defined, without reasonably ascertainable or objective
standards or scope, or "ageless in [its] reach into the past,
and timeless in [its] ability to affect the future." Wygant,
476 U.S. at 276 (plurality opinion).
The diversity rationale articulated by the Law School
and accepted by the Sixth Circuit is one that "could be
used to 'justify' race-based decisionmaking essentially
limitless in scope and duration." J.A. Croson Co., 488 U.S.
at 498 (O'Connor, J.) (quoting Wygant, 476 U.S. at 276
(plurality opinion)). It has "no logical stopping point." J.A.
Croson, 488 U.S. at 498. Indeed, an interest founded on
"underrepresentation" could quite readily justify measures
that extend until minority representation in the classroom
"mirrors the percentage of minorities in the population as
a whole." Id. It is a rationale that gives essentially un-
checked
authority to admissions officers to define what
"diversity" or "critical mass" mean; which racial and ethnic
groups, among many, are to be considered "underrepresented"
or are to receive preferences; the size of the prefer-
ences
or "plus"; and their duration. The only limitation
would be a meaningless one, easily evaded — that the
preferences must avoid the express form of a "fixed quota."
So defined, such an interest is at least as ill-defined
and "amorphous" as an interest founded on remedying the
lingering effects of societal discrimination or fostering role
models for school children.7 Wygant, 476 U.S. at 276
(plurality opinion). See also Johnson v. Board of Regents of
Univ. of Georgia, 263 F.3d 1234, 1250 (11th Cir. 2001)
(noting that interest in student diversity is "similar" to
other interests rejected as compelling, including remedy-
ing
effects of societal discrimination and providing role
models). By accepting such a rationale as a compelling
interest, "[t]he dream of a Nation of equal citizens in a
society where race is irrelevant to personal opportunity
and achievement would be lost in a mosaic of shifting
preferences." J.A. Croson Co., 488 U.S. at 505-06.
Enshrined as a compelling interest, diversity will
instead give the Nation its first permanent legal justifica-
tion
for racial classifications. See, e.g., Gratz v. Bollinger,
122 F. Supp. 2d 811, 823-24 (E.D. Mich. 2000) (approvingly
defining an interest in diversity as a "permanent and
___________________
7/
Indeed, many would argue (the intervenors, for example) that the
same primary cause — societal discrimination — probably contributes to
a felt shortage of minority role models and to the reduced academic
performance of some minority students. It is reasonable to expect that
remedying generalized societal discrimination and increasing the
numbers of role models for minority school children would have positive
educational effects. As this Court's precedents make clear, however,
such reasoning in support of racial preferences could not pass muster
under strict scrutiny.
ongoing interest" that "lives on perpetually"), on appeal,
Nos. 01-1333, 01-1418, 01-1416). That justification, despite
the language or label applied, will be one that is indistin-
guishable
from an interest in simple racial balancing. See
Lutheran Church — Missouri Synod v. FCC, 141 F.3d 344,
356 (D.C. Cir. 1998) (noting "how much burden the term
'diversity' has been asked to bear in the latter part of the
20th Century" and that "[it] appears to have been coined
both as a permanent justification for policies seeking
racial proportionality in all walks of life ('affirmative
action' has only a temporary remedial connotation) and as
a synonym for proportional representation itself."); Wess-
mann
v. Gittens, 160 F.3d 790, 799 (1st Cir. 1998) ("Under-
representation
is merely racial balancing in disguise —
another way of suggesting that there may be optimal
proportions for the representation of races and ethnic
groups in institutions.").
The absence of a limiting principle in the diversity
rationale also raises the serious specter that it cannot
logically be confined to the higher education context. As
Judge Clay's concurring opinion demonstrates, diversity
can be used to justify a response to the effects of historical
discrimination. App. at 61a, 72a-73a. The Law School and
some of its amici have sometimes justified diversity in
education based on the segregated lives that students
allegedly live prior to entering higher education and by the
benefits that supposedly stay with students after they
have graduated and joined the workforce.
If diversity is compelling in part because of what goes
on before and after students enter higher education and
because it is an antidote to societal discrimination and
prejudice, it is hard to imagine why it should not also be
sufficiently compelling to support racial preferences in
other areas of American life. That is especially so — if it is
deemed that racial diversity brings viewpoint diversity —
where it can be persuasively argued that having "diverse"
viewpoints is beneficial. The possibilities are numerous,
including primary and secondary education, employment
in management or public policy positions, and jury selec-
tion
(where, for example, the Constitution guarantees a
defendant in a criminal proceeding a trial by a jury of his
peers). Although this case does not directly raise these
other issues, the answer (and the reasons for the answer)
to whether diversity is a compelling interest in higher
education are likely to have important implications out-
side
the higher education context.
There is also a qualitative difference between using
race to remedy past, identified instances of governmental
discrimination and using it instead to achieve "diversity."
When race is used in a narrowly-tailored manner to
remedy past, identified discrimination, it is arguably done
to right a specific wrong; to further the principle of equal-
ity
by correcting injury done to the principle in defined
instances. When, however, race is used to pursue an open-
ended
objective like "diversity," it is used in spite of the
principle of equality to further an interest in — diversity.
Covering the diversity rationale with arguments about
"academic freedom" does not offer it legitimacy under the
Constitution or the Nation's civil rights laws: This Court
has never held that educational institutions have a First
Amendment right to practice race discrimination in
admissions. Such a conclusion would be anathema to the
outcome and principles articulated in cases like Brown v.
Board of Educ., 347 U.S. 483 (1954), Runyon v. McCrary,
427 U.S. 160, 175-77 (1976) (striking down admissions
system that discriminated on the basis of race despite
First Amendment rights asserted by school on behalf of
parents), and Bob Jones Univ. v. United States, 461 U.S.
574, 603-05 (1983) (upholding IRS revocation of tax-
exempt
status of university because of its racially dis-
criminatory
admissions system).
These important issues, about whether the Law
School's preferences survive strict-scrutiny review under
the Equal Protection Clause, and whether they violate
federal civil rights statutes, Title VI (42 U.S.C. § 2000d)
and 42 U.S.C. § 1981, are squarely presented by the first
of the Questions Presented in the petition for certiorari.
In accepting review of the first Question Presented, it
would be appropriate for the Court also to address the
second question: whether the Sixth Circuit properly
conducted de novo review of the district court's findings of
fact, made after a 15-day bench trial. It cited no authority
for doing so in a case involving a district court's findings in
a discrimination case. Although de novo review of findings
in certain First Amendment cases has been found appro-
priate
— where the legal characterization of specific speech
is at issue — this Court has never held that findings in all
cases involving "constitutional facts are subject to de novo
review.
CONCLUSION
For the foregoing reasons, Barbara Grutter respect-
fully
requests the Court to grant her petition for certiorari.
| Respectfully submitted, | |
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