No. 01-1516

___________________________________________

United States Court of Appeals
for the
Sixth Circuit

_________________________

BARBARA GRUTTER,
                Plaintiff-Appellees,
v.

LEE BOLLINGER, et al.,
                Defendants-Appellants,

and

KIMBERLY JAMES, et al.,
                Intervening Defendants-Appellees.

_________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN (FRIEDMAN, J.)

___________________________________________

FINAL BRIEF OF DEFENDANTS-APPELLEES

___________________________________________

PHILIP J. KESSLER, P15921
LEONARD M. NIEHOFF, P36695
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625 		JOHN H. PICKERING
JOHN PAYTON
STUART F. DELERY
CRAIG GOLDBLATT
ROBIN A. LENHARDT
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Counsel for Defendants-Appellees


UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the table of contents in the brief of the
party. See copy of 6th Cir. R. 26.1 on page 2 of this form.)

Barbara Grutter

v.

Lee Bollinger, et al.
and
Kimberly James, et al.

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Lee Bollinger, Jeffrey Lehman, and Dennis Shields* (Name of Party)
makes the following disclosure:

  1. Is said party a subsidiary or affiliate of a publicly owned corporation? No

    If the answer is YES, list below the identity of the parent corporation or affiliate and the
    relationship between it and the named party:

  2. Is there a publicly owned corporation, not a party to the appeal, that has a financial
    interest in the outcome? No

    If the answer is YES, list the identity of such corporation and the nature of the financial interest:
__________/s/__________ ____7/27/01____
(Signature of Counsel) (Date)

6CA-1                         (Over)
Page 1

*         The Board of Regents, as a state entity created by the Michigan Constitution, is exempt
            from the requirements of 6 Cir. R. 26.1.

TABLE OF CONTENTS

TABLE OF AUTHORITIES … … … ii

STATEMENT IN SUPPORT OF ORAL ARGUMENT … … … iii

JURISDICTIONAL STATEMENT … … … 1

ISSUES PRESENTED … … … 1

STATEMENT OF THE CASE … … … 1

STATEMENT OF FACTS … … … 4

SUMMARY OF ARGUMENT … … … 4

ARGUMENT … … … 5

Standard of Review 21

  1. UNDER BAKKE, THE LAW SCHOOL'S INTEREST IN
    ACHIEVING THE EDUCATIONAL BENEFITS OF A
    RACIALLY AND ETHNICALLY DIVERSE STUDENT BODY
    IS COMPELLING AND THE LAW SCHOOL'S ADMISSIONS
    PROGRAM MUST BE DEEMED NARROWLY TAILORED … … … 21

CONCLUSION … … … 5

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

APPENDIX DESIGNATIONS




TABLE OF AUTHORITIES

CASES

Grutter v. Bollinger,
188 F.3d 394 (6th Cir. 1999) … … … 1, 2

Johnson v. Economic Development Corp. of the County of Oakland,
241 F.3d 501 (6th Cir. 2000) … … … 5

Regents of University of California v. Bakke,
438 U.S. 265 (1978) … … … passim



STATEMENT IN SUPPORT OF ORAL ARGUMENT

This case presents an issue of great national importance. The University of
Michigan Law School believes that the Court would benefit from oral argument.



JURISDICTIONAL STATEMENT

Defendants take no position on the jurisdictional basis for Defendant-
Intervenors' appeal.

STATEMENT OF THE ISSUES PRESENTED

Defendants take no position on the issues identified in this appeal, except to
note that those issues are different from those identified in Defendants' related
appeal in Grutter v. Bollinger, No. 01-1447.

STATEMENT OF THE CASE

This case involves a challenge to the constitutionality of the Admissions
Policy adopted by the faculty of the University of Michigan Law School ("Law
School") in 1992. Plaintiff brought this action on behalf of herself and a class of
similarly situated individuals in 1997, alleging, inter alia, that the Law School's
consideration of race and ethnicity as a factor in making admissions decisions
under the Policy violated her Fourteenth Amendment rights and Title VI of the
Civil Rights Act of 1964. She named as defendants the Board of Regents of the
University of Michigan, and President (and former Law School Dean) Lee
Bollinger, Dean Jeffrey Lehman, and former Admissions Director Dennis Shields
in their individual capacities. The group of students and prospective law students



(collectively "Defendant-Intervenors") who filed the instant appeal intervened as
defendants. See Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999).

Since this action was filed, the Law School has rigorously defended its
admissions system as one that is constitutional under the Supreme Court's decision
in Regents of University of California v. Bakke, 438 U.S. 265 (1978), which held
that a "State has a substantial interest that legitimately may be served by a properly
devised admissions program involving the competitive consideration of race and
ethnic origin." Id. at 320. Justice Powell's controlling opinion in that case
explicitly recognized that institutions of higher education such as the Law School
have a compelling interest in achieving the educational benefits of a racially and
ethnically diverse student body. See id. at 314.

Defendant-Intervenors have also defended the constitutionality of the Law
School's admissions system. They have joined in the Law School's summary
judgment motions in this case and have opposed the summary judgment motions
submitted by Plaintiff. (See, e.g., R-240, Def. Ints.' Br. in Supp. of Defs.' Mot. for
Summ. J. and in Opp'n to Pl's. Mot. for Summ. J. ) However, they have done so
on grounds very different from those advanced by the Law School, as this Court
anticipated they would in granting them permission to intervene in this matter. See
Grutter, 188 F.3d at 401. Specifically, Defendant-Intervenors have principally
argued that interests in achieving integration and "leveling the playing field" for



underrepresented minority students provide independent justifications for the Law
School's admissions system. (See, e.g., Def. Ints.' Proof Br. at 38-44, 62-67.)

After extensive discovery and a trial in this case, the district court issued an
injunction prohibiting the Law School from "using applicants' race as a factor in
its admissions decisions." (R-311, Opinion at 90, JA-185.) In separate parts of the
opinion discussing its reasons for that injunction, the district court rejected both the
Law School's contention that its admissions program must be regarded as
constitutional under the Supreme Court's decision in Bakke, (id. at 44-54, JA-139-
49), and the Defendant-Intervenors' alternative arguments for upholding that
program, (id. at 59-89, JA-154-84).

The Law School and Defendant-Intervenors filed two separate appeals from
the district court's decision because of the differences in their grounds for
defending the Law School's admissions system. This Court consolidated those
appeals for purposes of briefing and submission, but did not do so for purposes of
decision. As a result, the instant appeal is before the Court in a unique procedural
posture: the Law School is not the party appealing the district court's decision even
though its Admissions Policy -- to include how it was adopted and how it is
implemented -- is central to the resolution of this case. The Law School
participates in this case as an appellee.



STATEMENT OF FACTS

The facts in this case are undisputed.

The Law School set forth the facts relevant to this appeal in considerable
detail in its proof brief in the related appeal in Grutter v. Bollinger, No. 01-1447,
(see Appellants' Proof Br. at 5), and adopts that statement of the facts here.

SUMMARY OF THE ARGUMENT

To understand the issues in this appeal, this Court must have a complete
understanding of the Law School's Admissions Policy and how that Policy is
implemented by the Law School's admissions professionals. The Law School has
never opposed the Defendant-Intervenors' participation in this case, but notes that
it is the entity that best understands the 1992 Policy and the reasons for its
adoption. Without its participation in this appeal, the Law School's views
regarding its admissions system and the arguments that the Law School deems
relevant to the defense of that system would not be represented by any party. The
Law School therefore submits this brief to the Court in response to the proof brief
submitted by the Defendant-Intervenors in this appeal.



ARGUMENT

I.       UNDER BAKKE, THE LAW SCHOOL'S INTEREST IN
          ACHIEVING THE EDUCATIONAL BENEFITS OF A
          RACIALLY AND ETHNICALLY DIVERSE STUDENT BODY
          IS COMPELLING AND THE LAW SCHOOL'S ADMISSIONS
          PROGRAM MUST BE DEEMED NARROWLY TAILORED.

This Court reviews the issues presented in this appeal de novo. See Johnson
v. Econ. Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001). In light of the foregoing,
the Law School hereby incorporates the legal arguments set forth in its proof brief
filed in Grutter, No. 01-1447, (see Proof Br. of Defs-Appellants in No. 01-1447),
and urges this Court to consider them in resolving this appeal. Those arguments
provide a basis for upholding the admissions program employed by the Law
School that is wholly independent from that articulated by the Defendant-
Intervenors: the compelling interest in employing the competitive consideration of
race to achieve the educational benefits of a racially and ethnically diverse student
body recognized by Justice Powell in his controlling opinion in Bakke.

CONCLUSION

For the foregoing reasons, the district court's injunction should be reversed
on the grounds that achieving the educational benefits of a diverse student body is
a compelling state interest, and the Law School's admissions system is narrowly



tailored to achieve that interest. This Court should remand this matter to the
district court with instructions to enter judgment in favor of the Law School.

  Respectfully submitted,

___________________________
Philip J. Kessler
Leonard M. Niehoff
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625 		John H. Pickering
John Payton
Stuart Delery
Craig Goldblatt
Robin A. Lenhardt
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000
Dated: July 27, 2001


CERTIFICATE OF COMPLIANCE

Pursuant to FRAP 32(a)(7) and 6 Cir. 32(a), the undersigned certifies that
this brief complies with the type-volume limitations of FRAP 32(a)(7)(C).
  1. Exclusive of the portions of the brief exempted by 6 Cir. 32(a)(7)(B)(iii), the
    brief contains 13, 904 words.
  2. The brief has been prepared in proportionately spaced typeface using
    Microsoft Word Version 2000 in Times New Roman 14 point type.
  3. If the Court so requests, the undersigned will provide an electronic version
    of the brief and/or a copy of the work or line printout.
  4. The undersigned understands that a material misrepresentation in completing
    this certificate, or circumvention of the type-volume limits in 6 Cir. 32(a)(7)
    may result in the Court's striking the brief and imposing sanctions against
    the person signing the brief.

 

 _________________________
John Payton


CERTIFICATE OF SERVICE

I hereby certify that, on this 27th day of July, 2001, pursuant to FRAP 25
and 6 Cir. R. 31, I caused an original and six copies of the foregoing Brief to be filed, by
Federal Express, with:

Mr. Bryant Crutcher, Office of the Clerk
U.S. Court of Appeals for the Sixth Circuit,
Potter Stewart U.S. Courthouse
100 E. Fifth Street
Cincinnati, OH 45202-3988

I further certify that, on the same day and pursuant to the same provisions, I
caused a copy of the above brief to be served, by Fax and Federal Express, on:

David F. Herr, Esq.
Kirk O. Kolbo, Esq.
Maslon, Edelman,
Borman & Brand
300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402 		Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180
Michael E. Rosman, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 20036 		George B. Washington, Esq.
Eileen R. Scheff, Esq.
Miranda K.S. Massie, Esq.
3800 Cadillac Tower
Detroit, MI 48226

 

 _____________________________
Robin A. Lenhardt
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000


APPELLEES' DESIGNATION OF APPENDIX CONTENTS

Appellees, pursuant to 6 Cir. R. 28(d) and 30(b), hereby incorporate the
materials from the appendix designation to their proof brief in Grutter v. Bollinger,
No. 01-1447, as items to be included in the joint appendix.

Grutter briefs — Table of Contents