The University of Michigan Law School (“Law School”)
respondents pay repeated tribute to the manner in which
the Law School “engages in a highly individualized,
holistic review of each file, and gives serious consideration
to all of the ways that applicants might contribute to a
diverse educational environment.” Resp. Br. 46. See also
id. at 4, 5, 9, 11, 12, 13, 32, 43, 48. Yet, in their 50-page,
80-footnote brief, respondents mention only once by name
the individual who filed this suit, and then the reference is
a disparaging one. See Resp. Br. 47-48 n.78. One could not
learn from their brief that Ms. Grutter’s application to
their Law School described, in addition to her academic
achievements, Pet. Br. 2, a 43-year-old mother and business
entrepreneur, someone who had started her own
business ten years earlier and made it successful, someone
who had been a “first” in many of her professional
achievements, and someone interested in non-traditional
methods of education. See Cir. App. 284-92. These life
experiences would have brought a substantial amount of
genuine diversity to a law school class composed largely of
students (of whatever race or ethnicity) who come to the
school directly from college.

Far from mentioning her diversity characteristics, and
in the face of their repeated claim to consider and value
many “subjective non-racial diversity factors,” Resp. Br.
11, respondents even dismiss out-of-hand (prior to a trial
on the issue) the prospect that Ms. Grutter could be
admitted to their Law School. They reach that conclusion
solely by reference to the fact that other rejected white
applicants had the same or better grade point averages
and LSAT scores as she. Id. at 47-48 n.78. The Law School
could not be clearer in demonstrating what trivial value it
places on these “subjective non-racial diversity factors,”
especially in relation to skin color diversity, the only kind
of diversity for which it has a “commitment” to obtaining a
“critical mass.” App. 120-21.

The interest that respondents ask this Court to
recognize as a compelling justification for departing from
the command of equality contained in the Constitution is
indistinguishable from an interest in simple racial balancing.
It is a racial quota palmed off as an ethereal “educational
concept.” Resp. Br. 32 n.50. What respondents ask
for is an exception to the nondiscrimination principle for
educators, so that they can decide, with virtually unfettered
discretion, what kind and quantity of racial mix to
assemble in our colleges and universities and what weight
to assign a “plus” and (by implication) a “minus” on the
basis of immutable racial characteristics. The Court has
never before approved such a standardless justification for
racial discrimination under the exacting requirements of
strict scrutiny. It should not do so now.

1. The Law School’s Use of Racial Preferences in
   Student Admissions Violates the Equal Protection
   Clause of the Fourteenth Amendment,
   42 U.S.C. § 2000d (Title VI), and 42 U.S.C.
   § 1981.
   1. The Law School’s Racial Preferences Are
      Not Supported by a Compelling Governmental
      Interest.

1.     This Court and individual Justices have repeatedly
emphasized that state-sponsored racial preferences
impose real harms and costs on the individuals affected by
them and society at large.¹ A departure from the command

___________________
¹       See, e.g., Rice v. Cayetano, 528 U.S. 495, 517 (2000) (“[T]he use of
racial classifications is corruptive of the whole legal order democratic
elections seek to preserve. The law itself may not become the instrument
for generating the prejudice and hostility all too often directed
against persons whose particular ancestry is disclosed by their ethnic
characteristics and cultural traditions.”); id. (“One of the principal
reasons race is treated as a forbidden classification is that it demeans
the dignity and worth of a person to be judged by ancestry instead of by
his or her own merit and essential qualities.”); Shaw v. Reno, 509 U.S.

of equality contained in the Equal Protection Clause can
be justified only in an “extreme” case, and then only when
necessary as a temporary means to accomplish a compel-
ling objective. City of Richmond v. J.A. Croson Co., 488
U.S. 469, 509 (1989) (O’Connor, J.); see also id. at 519
(Kennedy, J., concurring in part and concurring in the
judgment) (noting that “strict scrutiny . . . forbids the use
even of narrowly drawn racial classifications except as a
last resort”); Shaw v. Reno, 509 U.S. 630, 644 (1993)
(racial classifications require “extraordinary justification”).
This high threshold has meant that even many laudable
goals, like remedying the effects of societal discrimination
or providing role models for minority school children,
cannot justify a state’s use of racial preferences. They
deprive innocent individuals of their “personal rights,”
guaranteed by the Fourteenth Amendment, “to be treated
with equal dignity and respect.” Croson, 488 U.S. at 493
(O’Connor, J.); Wygant v. Jackson Board of Education, 476
U.S. 267, 280-82 (1986) (plurality opinion).

Yet, nearly fifty years after Brown v. Board of Educa-
tion, 347 U.S. 483 (1954), respondents ask this Court to
endorse the use of racial preferences in higher education
admissions until “disparities” in educational qualifications
among races caused by “our Nation’s discriminatory past
have been eliminated.” Resp. Br. 15. Acceptance of respon-
dents’ indefinite justification for racial preferences in
higher education, expressly linked as it is to effects “rooted
in centuries of racial discrimination,” Resp. Br. 33, would
mark a momentous step backwards in this Court’s

“[m]odern equal protection doctrine.” Metro Broad., Inc. v.
FCC, 497 U.S. 547, 612 (1990) (O’Connor, J., dissenting).
Instead, the Court “should tolerate no retreat,” Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995), from
its precedents by rejecting as “insufficient and over expan-
sive” a basis for imposing racial preferences that is defined
in time and scope by progress made in ameliorating the
persistent effects of societal discrimination.² Wygant, 476
U.S. at 276 (plurality opinion).

2.     The timeless quality of the Law School’s asserted
interest is matched by its ill-defined and amorphous
nature. For the Law School, it is enough to justify large,
indefinite racial preferences in admissions by positing that
there are some unmeasured educational benefits to be
obtained by assembling in the student body what, in the
Law School’s sole discretion, it considers to be a “critical
mass” of students from certain specified racial and ethnic
groups. Under its approach, it is not necessary to ascertain
whether the dangers and harms, in the nature of stigma,
racial hostility and division, and perpetuation of stereo-
types, outweigh the asserted educational benefits. It is not
even necessary under the Law School’s mode of analysis to
assess (since it never does) whether the claimed benefits
attributed to the preferences, i.e., that which is over and
above what would be produced by the level of diversity in
the absence of preferences, outweigh their harms and
costs. Quite clearly, to the Law School, a “compelling”

___________________
²       Tying justification of the Law School’s racial preferences to
educational disparities caused by historical race discrimination
presents intractable problems. For example, it would require some
means of assessing whether, and to what extent, such disparities are
caused by historical race discrimination rather than by other factors so
that the preferences could be narrowly tailored accordingly. The Law
School offers no explanation for how these assessments are to be made
or who is to make them (presumably separately for different groups,
since circumstances may vary among them). Perhaps this is because
respondents are testing the waters with this argument for the first time
in the more than five years that this case has been pending.

interest for racial preferences is merely one that it believes
produces some social benefit (whether or not there is a net
gain). That simply does not satisfy the demanding re-
quirements of strict scrutiny.

The educational claims that the Law School makes for
having a “critical mass” of minority students are no better
defined than the educational claims asserted in defense of
the racial preferences struck down in Wygant. Notwithstanding
respondents’ denial to the contrary, see Resp. Br.
31 n.48, the Jackson Board of Education in Wygant most
certainly did argue that its racial preferences were justified
in part by the educational benefits of racial diversity —
in that case, diversity of the faculty.³ In its brief to this
Court, the Board explained:

The Jackson Board was convinced that the
presence of black teachers would bring an important
perspective to students and faculty, and that
such a diverse faculty would be able to relate
valuable experiences and bring new perceptions
to the classroom that would contribute to the students’
total educational experience and add a
needed balance to the faculty curriculum.⁴

___________________
³       The right of an educational institution to choose “who may teach”
is one of the “four essential freedoms” identified by Justice Frankfurter
in his opinion quoted by Justice Powell in Regents of the University of
California v. Bakke, 438 U.S. 265, 312 (1978) (Powell, J.) (quoting
Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J.,
concurring)).

⁴ Brief of Respondents in Wygant, 166 LANDMARK BRIEFS AND
ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES 119-20
(Philip B. Kurland and Gerhard Casper eds. 1987); id. at 118-19 (“The
Jackson Board . . . was concerned both with educational values and the
remedial need to integrate.”); id. at 119 (“The Jackson Board concluded
that white students should be exposed to black teachers and should be
prepared to participate in a multi-racial society.”); id. at 120-21 (“If a
state university has a compelling interest in admitting a racially
diverse student body, it would seem that a local school board has at
least as compelling an interest in attempting to secure a racially
diverse faculty.”) (footnote omitted). Throughout its brief, the Board

Both the “role model” theory articulated in Wygant
and the diversity rationale put forth by respondents here
are predicated on a theory that increased minority representation
(whether in the faculty or student body) produces
educational benefits. See Wygant, 476 U.S. at 315
(Stevens, J., dissenting) (noting that purpose of seeking
multi-ethnic representation on the teaching faculty was
“completely sound educational purpose”). There is “no
logical stopping point,” Wygant, 476 U.S. at 275 (plurality
opinion), for either of these educational justifications for
racial preferences, as they are not measured with respect
to the accomplishment of any identified remedial purpose
and “could be used to ‘justify’ race-based decisionmaking
essentially limitless in scope and duration.” Croson, 488
U.S. at 498 (quoting Wygant, 476 U.S. at 276 (plurality
opinion)). There will always be some racial or ethnic group
that is “underrepresented” to an extent that it does not
have a “critical mass,” so that there will be a need for the
kind of “year-to-year calibration,” in effect, racial balancing,
that is also inherent in the rejected role model theory.
Wygant, 476 U.S. at 275 (plurality opinion). Hence, the
conclusion that the Law School’s asserted interest in racial
diversity (i.e., “critical mass”) is not capable of being the
most compelling of reasons that it must be to survive strict
scrutiny is fully supported by the compelling-interest
analysis contained in the Court’s precedents, including
Croson and Wygant.

3.     The same conclusion can be derived from the way
in which the Law School’s stated interest in diversity is
premised on stereotypes and the use of race as a proxy for
viewpoint, notions that the Court and individual Justices

have rightly condemned as antithetical to the principle of
equality. Respondents vacillate back and forth between
arguing, on the one hand, that mere racial status is
enough to assure that a particular minority will have
viewpoints and perspectives of a kind particularly valu-
able to the Law School, see, e.g., Resp. Br. 24-25; App. 120
(Law School policy statement that members of the “hist-
orically discriminated against” racial groups are consid-
ered to have “experiences and perspectives” of “special
importance” to the Law School’s mission), and on the other
hand, acknowledging as a “fiction that race determines a
person’s ‘belief and behavior.’ ” Resp. Br. 30 (footnote
omitted) (citing Metro Broad., 497 U.S. at 618 (O’Connor,
J., dissenting)).

These two rationales are at war with one another. If
race does not determine “belief and behavior,” it makes no
sense to assume, based on nothing other than racial
status, that a member of a particular minority group will
have experiences or perspectives (“beliefs”) of “special
importance” to a school’s mission. Moreover, neither of
these rationales can be a legitimate foundation for respon-
dents’ racial preferences. Drawing racial classifications on
the premise that minority status can be equated with
viewpoint is undisputedly an impermissible basis for
drawing racial classifications. See, e.g., Miller v. Johnson,
515 U.S. 900, 914 (1995). Yet, if the Law School genuinely
recognizes that race does not “determine[ ] a person’s
‘belief and behavior,’ ” Resp. Br. 30, then the logic of its
justification for granting a racial preference as a means of
getting viewpoint diversity collapses entirely.

It is no defense to respondents’ asserted use of race as
a proxy for viewpoint that they abjure the notion that
there is “some characteristic minority viewpoint on any
issue.” Id. The same point was made with respect to the
FCC’s use of racial preferences in the award of broadcast
licenses to increase diversity of minority viewpoints in
Metro Broadcasting. 497 U.S. at 582 (“[W]e are under no
illusion that members of a particular minority group share
some cohesive, collective viewpoint.”); id. at 579 (“The
predictive judgment about the overall result of minority

entry into broadcasting is not a rigid assumption about
how minority owners will behave in every case. . . .”).
Respondents’ argument here is essentially that use of race
as a proxy for viewpoint will somehow “in the aggregate,
result in greater [viewpoint] diversity.” Id. at 579. This
reasoning reveals the extent to which respondents’ as-
serted interest is not compatible with the demands of
strict scrutiny. Id. at 620 (O’Connor, J., dissenting) (“This
reliance on the ‘aggregate’ and on probabilities confirms
that the Court has abandoned heightened scrutiny, which
requires a direct rather than approximate fit of means to
ends.”).

There are other pernicious stereotypes that underlie
respondents’ use of race as a proxy allegedly to promote
viewpoint diversity. One is the assumption that the ex-
periences of particular racial groups are of such impor-
tance and relevance that they justify granting preferences
in admissions to members of these groups. “The corollary
to this notion is plain: Individuals of unfavored racial and
ethnic backgrounds are unlikely to possess the unique
experiences and background that contribute to viewpoint
diversity.” Id. at 619. A second stereotype is found in
respondents’ assumption that many or most white stu-
dents believe that all minorities think alike. See Amicus
Curiae Brief of Law Professors Larry Alexander, et al. 14.
Even if these questionable and unattractive propositions
have “some empirical basis, equal protection principles
prohibit” respondents from relying on them to justify their
racial preferences. Metro Broad., 497 U.S. at 620
(O’Connor, J., dissenting).

4.     In arguing that a majority in Regents of the
University of California v. Bakke, 438 U.S. 265 (1978),
endorsed the Law School’s diversity rationale, respondents
have instead cobbled together their own separate rationale
that none of the Justices in Bakke endorsed. They do so by
linking and limiting the legitimacy of the diversity interest
to remedial purposes — the use of race “must cease” under
a policy like the “Harvard plan” when “the disparities in
applicants’ numerical qualifications produced by our
Nation’s discriminatory past have been eliminated.” Resp.

Br. 15. Nowhere in his opinion did Justice Powell define the
diversity interest in such terms or limit it to any remedial
context, and he expressly repudiated the effects of societal
discrimination as a basis for justifying preferences. Bakke,
438 U.S. at 307 (Powell, J.). Similarly, it requires resort to
speculation and a re-write of Justice Brennan’s opinion to
conclude that what he “mean[t]” by the “lingering effects of
societal discrimination” was “disparities in applicants’
numerical qualifications.” Resp. Br. 15.

Respondents’ argument that there is a limitation on
the diversity rationale that is contained only in Justice
Brennan’s opinion is also inconsistent with their argument
that Justice Powell’s opinion is the “narrower” one under
the analysis approved in Marks v. United States, 430 U.S.
188 (1977). In effect, respondents are now arguing that it
is Justice Brennan’s opinion, with its remedial rationale,
that is controlling. Indeed, Justice Powell’s nonremedial
articulation of the diversity rationale becomes superfluous
under respondents’ reasoning, which has it that in the
absence of the effects of lingering discrimination, racial
diversity could be achieved without resort to racial prefer-
ences. Resp. Br. at 15-16 (noting that “a racially diverse
class could then be assembled by other means,” i.e.,
without “considering race”). The absurd result produced by
respondents’ contortionist interpretation of the opinions is
that Justice Brennan’s opinion, which mentions no inter-
est in diversity,5 marks the limits of that interest in
remedial terms, even though Justice Powell, who alone in
Bakke articulated the diversity rationale, in no way
confined it to the remedial context.

___________________
⁵       Justice Brennan’s brief references to the “Harvard plan” were in a
context that limited any endorsement of the use of race in such a plan to
circumstances justified by past discrimination and a showing of disadvan-
tage on the part of a minority applicant, Bakke, 438 U.S. at 316 (Brennan,
J.), limits which are absent from the Law School’s admissions program.
Thus, whatever the “Harvard plan” (which, of course, was not before the
Court in Bakke) may have been in reality, Justice Brennan and those
Justices who joined his opinion viewed it as a remedial plan.

Ultimately, both sides can cite to law review commen-
tary and court cases for their opposing positions on what
meaning emerged from various opinions in Bakke. ⁶ Given
the fractured nature of those opinions, as noted by all the
Justices of this Court, see Pet. 28, and the sharp division
among the lower courts, id., it is hard to fathom how
respondents can genuinely persist in contending that their
view represents either “obvious” or “settled” law.⁷ Resp. Br.
16-17.

5.     In the end, the Law School’s assertion of a compelling
interest boils down to its incendiary canard that the
Law School and others like it will become “resegregated” if
they must discontinue their use of racial preferences in
admissions. Resp. Br. 13, 19-20. By “resegregation,”
respondents do not mean that minorities will be intention-
ally excluded. Rather, the provocative term is used to
indicate that these schools will admit fewer students from
the currently-favored minority groups than is the case
under the current race-based regime. Even then, respon-
dents have painted a false or wildly exaggerated picture.
This can be seen in empirical evidence from the admis-
sions offices of selective law schools that have for several
years operated under a rule foreclosing use of racial
preferences in admissions. This year’s first-year class at
Boalt Hall School of Law, which by common repute is as

___________________
⁶       The Law School contends that it was “immediately obvious” after
Bakke that Justice Powell’s diversity analysis was controlling. Resp. Br.
16-17. In fact, a number of courts either explicitly rejected this conclu-
sion, expressed doubt about it, or read Justice Brennan’s four-Justice
plurality opinion as containing the controlling rationale. See, e.g.,
Britton v. South Bend Comm. Sch., 775 F.2d 794, 803 n.12, 809 (7th Cir.
1985); Valentine v. Smith, 654 F.2d 503, 509 & n.9 (8th Cir. 1981);
United States v. City of Miami, 614 F.2d 1322, 1337-38 (5th Cir. 1980).

⁷ For additional arguments addressing respondents’ erroneous
contention that principles of stare decisis furnish a reason to accept
Justice Powell’s articulation of the diversity rationale in Bakke as
binding or “settled,” see Petioners’ Reply Brief 7-10, in Gratz v. Bollin
ger (No. 02-516).

selective as respondents’ Law School, has 19.9% represen-
tation from the “underrepresented” (African American,
Hispanic, Native American) groups, a percentage substan-
tially exceeding the “critical mass” that respondents
typically ensure through use of their preferences.⁸ For the
last several years, Boalt’s enrollments from these racial
groups have been comparable to the enrollments at re-
spondents’ school, and there is no indication that it em-
ploys any “percent” plan or has significantly diminished its
commitment to “academic selectivity.” A similar situation
exists at the law schools at the University of California at
Davis,⁹ UCLA,¹⁰ and the University of Texas.¹¹ The num-
bers belie respondents’ casual prophecies about “resegre-
gation” and assertion that race-neutral alternatives are
unavailable for highly selective professional schools.¹²

___________________
⁸       See http://www.ucop.edu/acadadv/datamgmt/lawdata/lawschl3.html.
The first-year enrollments at Boalt from the “underrepresented” groups
totaled 10.7% in 2001, 9.7% in 2000, 9.2% in 1999, and 12.3% in 1998.
Id.

⁹ 16.3% in 2002; 8.9% in 2001; 8.9% in 2000, 12.4% in 1999, and
9.3% in 1998. See http://www.ucop.edu/acadadv/datamgmt/lawschl3.
html.

¹⁰ 12.9% in 2002; 12.9% in 2001; 12.1% in 2000; 7.5% in 1999; and
9.8% in 1998. Id.

¹¹ 14.2% in 2002; 12.8% in 2001; 12% in 2000; 10.1% in 1999; and
12.5% in 1998. See http://www.utexas.edu/academic/oir/statistical_hand
book/02-03/students/s04b/. The trial court record also includes evidence
on the admissions data from California and Texas schools available as
of that date. Cir. App. 5123, 5125, 5127, 5129.

¹² Rather than basing their predictions on real world experience,
respondents rely on their own self-serving computer models, which
make assumptions far beyond removing the use of race in the admis-
sions process. These assumptions are that in a race-neutral admissions
system, the Law School will consider only test scores and grades, that it
will admit students strictly in rank order of these credentials, and that
other schools will continue to use racial preferences. Resp. Br. 6 & n.7.
Such a system would be completely different from the one they claim to
operate now, in which each file receives “highly individualized, holistic,”
id. at 46, review and in which many “subjective, non-racial diversity
factors” are considered. Id. at 11. Moreover, even under respondents’

6.     To the extent the intervenor respondents make
substantive arguments¹³ different from the Law School
respondents, they are undisguised appeals to justify the
Law School’s preferences on grounds of societal discrimi-
nation. Their contention is not that there is a history of
any identified, purposeful discrimination in admissions by
the Law School against the minority groups that receive a
preference. Rather, it is that an admissions system that
relies on criteria of grades and test scores is biased against
minorities.

First, contrary to intervenors’ misstatement, Resp.
Interv. Br. 38 (“plaintiff embraced” test scores and grades),
it is not petitioner who insists that the Law School use any
particular admissions criteria. It is the Law School that
has chosen, as it explains at length in defining “academic
selectivity,” to rely heavily on these “numerical qualifica-
tions.”¹⁴ Resp. Br. 5-6. Second, intervenors do not argue

___________________
¹³       Intervenors direct numerous ad hominem attacks at petitioner,
her counsel, and statistical expert. The brief is also replete with
misleading statements or assertions made without benefit of citation.
Thus, for example, intervenors falsely state that the district court
“conceded that the elimination of affirmative action at the Law School
would result in an immediate reduction in underrepresented minority
enrollment of over 73 percent. [Pet. App.] 223a.” Resp. Interv. Br. 6. In
fact, at the point referenced by intervenors, the district court merely
recited the testimony of a Law School witness, only to subsequently
reject it. Pet. App. 228a. See also Resp. Interv. Br. 36 (asserting that
Florida established “two new state law schools [in 2000] — one for black
students and one for Latinos”).

¹⁴ To the extent that the intervenor respondents rely on defenses of
the Law School’s racial preferences that did not actually motivate the

that the numerical criteria fail to predict, for minorities as
well as others, what they are designed to predict: first-
year grades.¹⁵ Third, if these indicators are biased and are
not educationally justified, then they should be eliminated,
not race-normed. Intervenors cite no case for the proposi-
tion that criteria shown to be biased should be used
anyway in conjunction with a preference to offset the bias.
Indeed, the courts that have addressed this argument
have appropriately rejected it. See Aiken v. City of Memp-
his, 37 F.3d 1155, 1164 (6th Cir. 1994) (en banc) (citing
Billish v. City of Chicago, 989 F.2d 890, 894 (7th Cir. 1993)
(en banc)); Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d
1548, 1572 (11th Cir. 1994).

2. The Law School’s Racial Preferences Are
   Not Narrowly Tailored.

1.     Respondents’ conception of ensuring enrollment of
a “critical mass” of students from the preferred racial and
ethnic groups is not functionally different from the formal
quota employed by Davis in Bakke. Just as the seats set
aside by Davis were available only to members of specified
races (albeit only disadvantaged individuals), only mem-
bers of certain racial or ethnic groups can contribute to the
“critical mass” that respondents’ policies are designed to
attain. Barbara Grutter, solely because of her race, is
ineligible to be considered for a space in the class based on
contribution to “critical mass.” The concept describes a
category “reserved exclusively for certain minority
groups,” Croson, 488 U.S. at 496 (O’Connor, J.), and from

___________________
¹⁵      
The evidence in the record is that they are valid predictors for
this purpose. Cir. App. 7500-02. See Washington v. Davis, 426 U.S. 229,
250 (1976) (test for entry into police training program could be corre-
lated with success in the training program rather than success as a
police officer).

which members of other racial groups are “totally ex-
cluded.” Bakke, 438 U.S. at 319 (Powell, J.).

It is also undisputed that “mass” means numbers and
that “critical” means numbers sufficient in respondents’
judgment. Attainment of the objective of “critical mass” is
hence measured in the same manner one would measure
whether a quota has been filled — with reference to
whether the numbers achieved fall above or below the
desired objective. Given that the concept of “critical mass”
as defined by respondents is inherently tied to a focus on
producing sufficient numbers (“meaningful numbers,”
Resp. Br. 4) of the preferred minority students, it is hard
to understand how respondents can protest when it is
simply pointed out that the actual admissions data con-
firm the consistent accomplishment of the numerical
objective.

It is not tenable to suggest that there should be a
constitutionally significant distinction between a system
that sets aside a “fixed” number of spaces in the class and
one that is designed to ensure that some approximate
range of spaces are to be filled by a racially defined “criti-
cal mass.” The distinction that respondents try to make
between “quotas” and “goals” is beside the point because it
is disingenuous for them to suggest that their concept of
“critical mass” merely represents “aspirational goals” or a
“hope.” Resp. Br. 38-39, 42. The Law School’s policy man-
dates enrollment of a “critical mass” of students from the
preferred minority groups, and its admissions officers
understand that they are required to comply with the
policy, as they do each year.¹⁶ The respondents’ disagree-
ment about whether there is in fact a numerical range
that represents “critical mass” is a disagreement with the

___________________
¹⁶       The policy describes a “commitment” to “ensuring” enrollment of
a critical mass each year. App. 120-21. Respondents’ admissions
director testified that she considered this to be a mandate. Cir. App.
7250.

district court’s findings, which are supported by the
testimony of the Law School’s witnesses, documents, and
admissions data,¹⁷ and are certainly not clearly erroneous.

2.     While “critical mass” describes the result that the
Law School seeks to achieve with its preferences, it is
necessary to examine the size of the preference to under-
stand how respondents achieve their desired objective. In
Bakke, the racial objective was attained through a sepa-
rate minority admissions committee that decided who
received one of the 16 reserved places in the class. In this
case, respondents instead use separate admissions stan-
dards to accomplish their objective.

It is no exaggeration to describe the size of the Law
School’s “plus” for race as “staggering” or to conclude that
the data reveal “shocking” comparisons of admissions
outcomes in many cases. Pet. App. 133a (Boggs, J., dis-
senting). On the criteria that the Law School admits are
important (and that define for them “academic selectiv-
ity”), comparably qualified students from different racial
groups have such systematically different admission
probabilities that there can be no denying the existence of
a “two-track” system. It defies understanding how respon-
dents can call these differences “modest,” especially in
those frequent cases when admission rates for members of
the favored minority groups are 80% to 100%, compared to
20% and lower for members of other groups with the same
or similar numerical credentials. See, e.g., App. 156-203;
Pet. App. 312a-319a. Respondents’ lack of candor on this
point is also shown in their willingness to argue two

___________________
¹⁷      
See Pet. Br. 4-10. Respondents contend that variations in the
admissions data across years are inconsistent with the notion that
“critical mass” constitutes the “functional equivalent” of a quota. As
Judge Boggs noted in his dissent, some variation in enrollment
numbers is to be anticipated since respondents do not have complete
control over yield. Pet. App. 142a n.29.

contradictory notions — that race is only a modest consid-
eration in its system and that removal of just that one
factor will cause “resegregation.” Resp. Br. 43-44.

Respondents ultimately, however, all but concede that
they operate a race-based two-track system by describing
their dual objectives of “academic selectivity” and racial
diversity. Id. at 1. At this point, they even abandon the
pretense of identifying their diversity interest in terms of
intellectual or experiential diversity. They make clear that
applying to the preferred minority students the same
standard on “numerical qualifications” under which 90% of
white students are admitted would prevent respondents
from achieving their racially-defined “critical mass.” Id. at
5. This could not be a clearer acknowledgment of the two-
track nature of the admissions standard.

3.     Respondents’ use of race in its system is not
remotely like the “individualized, case-by-case” considera-
tion that Justice Powell spoke of approvingly as part of an
effort to obtain an intellectually diverse class. Bakke, 438
U.S. at 319 n.53 (Powell, J.). While respondents suggest
that the extent to which race matters may vary depending
on individual circumstances, see Resp. Br. 37, the policy
which they defend is premised on an a priori judgment
that the racial status of the groups they prefer equates
with experiences and perspectives on which the Law
School places a special importance. There is no reason to
conclude that the Law School could not consider a particu-
lar applicant’s personal experiences, on an individualized
basis, even experiences that are associated with race. But
respondents’ approach is one in which race is simply used
as a proxy for experiential diversity.¹⁸ Because respondents
consider the mere “experience” of being a member of one of
the preferred racial groups a valuable contribution to

___________________
¹⁸      
Respondents practically concede as much; it is just that they
consider race to be a very good proxy, “if not perfect.” Resp. Br. 30.

educational diversity, the dissenters had it just right in
describing the system as one in which race is a “proxy for
race.” Pet. App. 121a (Boggs, J., dissenting).

By treating Justice Powell’s statement that the
“weight attributable to a particular quality may vary from
year to year,” Bakke, 438 U.S. at 317-18 (Powell, J.), as a
license to treat race as a special category, respondents
demonstrate that their real interest is racial balancing. No
other type of diversity in respondents’ system is identified as
having importance sufficient to require a “critical mass.”¹⁹
While members of the racial groups preferred by the Law
School are presumed to have experiences and perspectives
worthy of a preference, members of other racial groups are
“considered to be part of a homogeneous (and ‘over-
represented’) mass.” App. 122a (Boggs, J., dissenting).

4.     Respondents offer empty solace in the assurance
that their use of racial preferences imposes on those
groups that do not receive a preference a “small and
‘diffuse’ ” burden which “barely affects their chances at
all.” Resp. Br. 47. The same was true in Bakke, where
invalidating the system opened up only 16 seats for the
more than two or three thousand applicants from the
disfavored groups. Bakke, 438 U.S. at 273 n.2, 275 n.5
(Powell, J.). According to the Law School, those students
denied admission because of their race can attend school
elsewhere. Resp. Br. 48. But see Metro Broad., 497 U.S. at
630 (O’Connor, J., dissenting) (“It is no response to a
person denied admission at one school, or discharged from
one job, solely on the basis of race, that other schools or
employers do not discriminate.”). Of course, the same
could be said of those individuals from the preferred
minority races who would not receive offers of admission
from respondents in a nondiscriminatory admissions
system. Respondents’ argument is just one more instance

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¹⁹      
Moreover, the Law School certainly does not track other kinds of
diversity on a daily basis in the admissions season, like it does for racial
diversity.

of how their conception of our Constitution is one that
protects the right of racial groups, not individuals.

5.     Finally, as the district court found, “there is no
time limit” on respondents’ use of preferences. Pet. App.
247a. Their suggestion that the preferences will come to
an end some day merely confirms that the planned dura-
tion is indefinite, as would be any time limit defined, as
respondents now define it, with reference to the lingering
effects of societal discrimination. Resp. Br. 31.

3. C. The Law School’s Racial Preferences Vio-
   late 42 U.S.C. § 1981.

Respondents assert without elaboration that peti-
tioner did not preserve an argument that she is entitled to
prevail under 42 U.S.C. § 1981. See Resp. Br. 1 n.1. Peti-
tioner raised the claim in the district court²⁰ and never
argued below that Section 1981 prohibited only the same
conduct prohibited by the Equal Protection Clause, so
there is nothing new about the contention that the terms
of the statute prohibit conduct that the Equal Protection
Clause does not. Moreover, the fact that the Court has
held that Section 1981 reaches only purposeful conduct,
General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S.
375, 389-90 (1982), does not mean that the statute reaches
only the same purposeful conduct prohibited by the Four-
teenth Amendment. Section 1981 remains an independent
basis on which to reverse the judgment of the court of
appeals.

___________________
²⁰       See Plaintiff’s Memorandum of Law in Support of Motion for
Summary Judgment on Liability 37-38, filed May 3, 1999 (district court
Record No. 94).

1. II. The Court of Appeals Should Have Reviewed
   and Affirmed the District Court’s Findings
   Under the “Clearly Erroneous” Standard of
   Review and Should Not Have Reviewed the
   Findings De Novo.

The Law School seemingly has read right out of the
case the second question presented in the petition that
this Court granted — whether the court of appeals erred in
reviewing the district court’s findings after a trial under a
de novo, rather than the clearly erroneous, standard of
review.²¹ The Law School elides the point by contending
that there is “no genuine dispute in this case about the
historical facts,” Resp. Br. 1, but then it proceeds to dis-
pute facts actually found by the district court.

For example, respondents dispute the district court’s
finding that the Law School effectively reserves seats for
members of the favored minority groups.²² Pet. App. 249a;
Resp. Br. 41 n.9. They do so also with respect to the
district court’s findings on the identity of the racial and
ethnic groups included within the preferences. Pet. App.
249a; Resp. Br. 49 n.79. In the latter case, respondents
falsely imply that the dispute is with petitioner only, and
not with the district court. Resp. Br. 49 n.79. They persist
in suggesting that petitioner and her statistical expert
created the racial and ethnic categories into which the
evidence on admissions data is organized, when it is the

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²¹       Neither of respondents’ merits briefs identify anywhere the
second question presented for review.

²² Respondents assert that the district court’s finding that the Law
School has “effectively reserved” approximately 10% of the seats in each
entering class for the preferred minorities, Pet. App. 249a, is inconsis-
tent with its finding that there are no “fixed” number of seats reserved.
Resp. Br. 8, 40. This is disingenuous, as in the same sentence quoted by
respondents, the district court noted that “there is no principled
difference between a fixed number of seats and an essentially fixed
minimum percentage figure.” Pet. App. 248a.

Law School that not only maintains these categories, but
also keeps daily track of decisions on admissions and
acceptances for each group.²³ Finally, respondents’ asser-
tion that the “Law School has studied th[e] issue of [race-
neutral alternatives] for many years,” Resp. Br. 33-34, is
another contradiction of the district court’s findings. See
Pet. App. 251a. The mere fact that some of respondents’
witnesses testified during trial that they did not believe
race-neutral alternatives were feasible is not at all incon-
sistent with the district court’s finding that respondents
had not considered such alternatives prior to implement-
ing their preferences.

In arguing with the findings of the district court,
respondents implicitly acknowledge that those findings
are incompatible with a conclusion that respondents’ racial
preferences are lawful. By failing to directly address the
second question presented in the petition, it is reasonable
to conclude that respondents have effectively conceded
that the court of appeals erred in application of a de novo
standard of review.

For all the foregoing reasons, petitioner respectfully
requests this Court to reverse the judgment of the court of
appeals.

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²³       Respondents newly contend, with no citation to the record, that
the categories it maintains are only for compliance with legal require-
ments and ABA standards. Resp. Br. 43 n.70. This hardly explains the
need to track data daily; it also contradicts the testimony of respon-
dents’ admissions director, who made clear that the daily tracking is
used to help the Law School get its “critical mass”, Cir. App. 7334; and
more importantly, it is another instance of respondents taking issue
with a factual finding of the district court, see Pet. App. 230a, without
explaining how the finding is “clearly erroneous.”