Page last updated: March 25, 1999INTRODUCTION This case is controlled by the Supreme Court's decision in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). In that seminal decision the Court held that "the 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 (opinion of Powell, J., joined in this part by Brennan, White, Marshall and Blackmun, JJ.). In this case, plaintiff Barbara Grutter challenges the admissions policy of the University of Michigan Law School ("the Law School") because it includes the consideration of race and ethnic origin as a factor in admissions decisions. That policy was carefully crafted by the Law School's Faculty Admissions Committee in 1992, with full knowledge of the Bakke decision, to implement the Law School's judgment that having a racially diverse student body is essential to its educational mission. Bakke clearly permits the Law School's use of race as a factor in its admissions process. Bakke's holding that race may be considered in the admissions process was a judgment reached by five Justices of the Court. The Bakke decision also addressed the question of the means that properly may be used to achieve a diverse student body and found that the admissions policy employed by the University of California at Davis Medical School was too rigid. Justice Powell, who announced the judgment of the Court and wrote the pivotal and controlling opinion, said that the concept of diversity used by Davis was too one dimensional: "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Id. at 314. The Admissions Policy adopted by the Michigan Law School faculty suffers from none of the problems that the Court criticized in the Davis program. To the contrary, the Policy
-1-
indisputably calls for race to be considered as one of a number of important elements to achieve a diverse, highly qualified student body, all of whose members are fully capable of succeeding at the Law School.
The Law School Policy is well within the discretion that Bakke and the unbroken line of authority on which Bakke relied provide to institutions of higher education. Bakke recognized that a university has substantial academic freedom "to make its own judgments as to . . . the selection of its student body," including how to foster "[t]he atmosphere of 'speculation, experiment and creation'" that is "so essential to the quality of higher education." Id. at 312 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)). That atmosphere "is widely believed to be promoted by a diverse student body." Id. Bakke was firmly grounded in a line of cases emphasizing the importance of education to our democracy, and the nation's commitment "to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned." Id. at 312 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)). The reason for this special educational concern is clear -- as Justice Powell put it: "it is not too much to say that the 'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." Id. at 313 (quoting Keyishian, 385 U.S. at 603) (emphasis added). For this reason, Justice Powell held, "the interest of diversity is compelling in the context of a university's admissions program." Id. at 315 (emphasis added). Since Bakke, the Court has continued to recognize that universities play a unique role in encouraging the expression of diverse voices. See Regents of the University of Michigan v. Ewing, 474 U.S. 214, 226 n.12 (1985) ("Academic freedom thrives not only on
-2-
the independent and uninhibited exchange of ideas among teachers and students . . . but also . . . on autonomous decisionmaking by the academy itself."); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 835 (1995) (noting that in the university setting, the government "acts against a background of thought and experiment that is at the center of our intellectual and philosophic tradition").
The Bakke case has been relied on by hundreds of colleges, universities and law schools, including the University of Michigan, for over twenty years in devising and operating their admissions programs. The instant case is therefore only about whether the University of Michigan Law School has complied with Bakke in devising its admissions program to take race and ethnic origin into account as a "single though important factor" in admissions decisions. As the undisputed facts in the record in this case demonstrate, it has. Furthermore, the undisputed facts in the record also show that the Law School's achievement of a racially diverse student body is essential to its mission of providing all of its students with the best legal education it can offer, and providing the state of Michigan and our nation with lawyers who are, as Bakke says, "trained through wide exposure" to a diverse group of students. Id. at 312 (citation omitted). That principle is hardly novel. "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts." Sweatt v. Painter, 339 U.S. 629, 634 (1950). Defendants are entitled to summary judgment on all of plaintiff's claims. In addition, separate doctrines bar all of plaintiff's damages claims. The individual defendants enjoy qualified immunity, and cannot be liable in damages where, as here,
-3-
there is no evidence that they violated plaintiff's "clearly established" constitutional rights. A similar doctrine, protecting the recipients of federal funds from being sued for money damages where it is not "obvious" that they will be liable in damages, applies to the damages claim against the Board of Regents under Title VI. Accordingly, summary judgment in defendants' favor is appropriate on plaintiff's claim for damages, because there is no material dispute -- indeed, there is no evidence at all -- that defendants violated plaintiff's "clearly established" constitutional rights.
STATEMENT OF UNDISPUTED FACTS The University of Michigan Law School is one of the nation's premier law schools. Founded in 1859, it is among the oldest law schools in the nation and "offers a curriculum that prepares its students for legal practice anywhere in the United States and throughout much of the world." Ex. A at 8-9. 1/ Admission to the Law School is highly competitive for all applicants. To select the 339 students who enrolled in 1997, for example, the Law School received almost 3,400 applications and offered admission to 1,163 students. Ex. B at 1. 2/ The Law School therefore denies admission to a large number of applicants who present outstanding credentials.
-4-
The Law School admits only those applicants likely to succeed, based on its educational judgment and experiences with thousands of students. In choosing the best class possible, however, the Law School does not simply rank order the applicants with the highest undergraduate grade point averages and standardized test scores. Such a mechanical approach to admissions would not permit the Law School to fashion a class that would result in the achievement of its educational mission. The Law School's curriculum "reflects the view that a life in the law calls for knowledge and capacities which cannot be reduced to a single set." Ex. A at 9. Rather, the School "encourages independence and diversity of thought, which together provide the most solid intellectual and ethical basis for any professional career." Id. The process of assembling a student body to achieve these goals requires a wide range of objective and subjective judgments to select intellectually gifted, highly motivated, independent thinkers from a wide range of diverse backgrounds who are likely to become deeply committed professionals. To serve these objectives, one of the many factors that the Law School considers in making admissions decisions is how an individual applicant will contribute to the racial and ethnic diversity of the class. The Law School achieves the degree of racial and ethnic diversity that it does without using quotas, set asides, separate admissions systems, or any other technique that is even arguably proscribed by the Bakke decision. In fact, the Law School steadfastly and consciously applies that which Bakke explicitly permits -- the competitive consideration of race as one of many factors in deciding who should be admitted. 1. The Faculty Admissions Policy. This class action lawsuit challenges the Law School's admissions practices from 1995 to the present. Complaint ¶¶ 1, 10. Throughout that time, the criteria used for making
-5-
admissions decisions have been set out in the Law School's Admissions Policy (the "Policy"), see Ex. D, which was adopted by vote of the Law School faculty, on the recommendation of the faculty admissions committee, on April 24, 1992. 3/ The Law School faculty adopted and implemented the 1992 Policy well aware of the fact that the Law School's admissions decisions had to comply with the Supreme Court's decision in Bakke. Bollinger Dep. at 45-46. The Policy sets out why the Law School values a diverse student body; why racial diversity is an important component of the diversity that the School values; and how the admissions office is to achieve that diversity.
Before the 1992 Policy was adopted, no single document expressed the Law School's admissions policies, or articulated the academic values to be served by the admissions process. For example, with respect to the Law School's interest in racial and ethnic diversity, a handful of faculty resolutions from the 1960s and 1970s had established a "special admissions" program, which included a target range for the number of minority students that the Law School would seek to enroll. These aspects of the prior policy, among others, were eliminated by the adoption of the 1992 Admissions Policy. Shaw Dep. at 138-142. The 1991-92 Faculty Admissions Committee decided, after some discussion, not to include any goal or target for the admission of racial minorities. Shields Dep. at 107-108. Rather, the Policy describes the traits, qualities, and characteristics that the admissions office should consider in making admissions
-6-
decisions. The Policy is described in some detail in the pages that follow. In short, this case is about that Policy, and how the Law School's admissions office has carried it out.
a. General Objectives. The Admissions Policy establishes the goals that govern the admissions process: "to admit a group of students who individually and collectively are among the most capable students applying to American law schools in a given year. As individuals we expect our admittees not only to have substantial promise for success in law school but also to have a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others." Ex. D at 1. The Policy recognizes the important role that the students themselves play in the education of their classmates. Inside the classroom, professors "depend on prepared and articulate students to advance the discussion." Id. At the same time, much of the learning in law school takes place outside the classroom, "in informal conversations" and in the Law School's many law journals, student organizations, and "diverse political groups of the left, right and in between." Id. at 2. The Law School therefore seeks "a mix of students with varying backgrounds and experiences who will respect and learn from each other." Id. at 1. In making admissions decisions the Law School values "people who have shown the capacity to be self-educating and to contribute to the learning of those around them." Id. at 2. b. Grades, Test Scores, and Their Limitations. The Policy states that the goals of the admissions process include "maximizing competence" and selecting a class of students likely to lead "distinguished legal career[s]." Id. at 3. As the Policy recognizes, this is a difficult task. The admissions office relies on two
-7-
assumptions: first, that students who receive high grades in law school are more likely to distinguish themselves as lawyers, and, second, that there is some statistical correlation between, on the one hand, an applicant's undergraduate grades and scores on standardized test (such as the LSAT exam), and, on the other, the grades that applicant will ultimately earn in law school. The Policy notes, however, that both of these assumptions are quite imperfect. Id. at 6. In addition, the Law School believes that the educational experience in the Law School is improved, and that its students are more likely to enjoy successful careers as lawyers, if its admissions decisions result in the composition of a class of students that will create, in the Law School, a rich and vibrant learning environment.
For these reasons, the Policy establishes that grades and test scores (which are translated into an "index score") are important -- but by no means the exclusive -- admissions criteria. While the Policy recognizes that, in general terms, "the higher one's index score, the greater should be one's chances of being admitted," it does not envision or permit admissions decisions to be reduced solely to grade point averages and LSAT scores. Id. at 4. The Policy recognizes that many applicants have very high index scores. Id. "When the differences in index scores are small, we believe it is important to weigh as best we can not just the index but also such file characteristics as the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection." Id. at 5. 4/ Because each application is considered in its entirety, with an eye
-8-
towards all of the ways that a particular applicant will contribute to the Law School class, it very often turns out to be the case that applicants with lower grades and test scores "are accepted while those who seem to have more attractive credentials are denied admission." Ex. D at 7. The Policy recognizes that this pattern of decisionmaking is inevitable whenever "qualities not captured in grades and test scores figure in the evaluation of an application." 5/ Id. It should be stressed, however, that a "minimal criterion" that applies to all admissions decisions is that no student will be admitted unless it is expected that the applicant will "do well enough to graduate without serious academic problems." Id. at 2, 10.
c. Treating Each Applicant as an Individual. The Policy then considers the question of how non-quantitative factors should be considered. To that end, the Policy offers two ways in which reliance on factors that are not
-9-
reflected in the "index" serves the larger purpose of helping assemble the strongest possible law school class. Id. at 8. First, there are some applicants for whom the admissions office will have reason to doubt a prediction based exclusively on their index scores: "imagine an applicant whose undergraduate course selection seems relentlessly dull, whose personal statements and [essays] are thin or incoherent, and whose letter[s] of recommendation damn with faint praise." Id. at 4-5. Such an applicant might be denied admission despite his or her high grades and test scores. On the other hand, there are other students whom the admissions office believes are likely to excel in the study and practice of law, despite a relatively lower index score. As one example, the Policy refers to a student whose college performance outstripped what one might have predicted based on his standardized test scores, and who was applying to law school with a similarly low LSAT score. The Law School concluded that this student's performance on standardized tests would likely be a poor predictor of his academic success, and therefore admitted him despite his comparably low "index" score. Id. at 9.
Second, the admissions office, by looking beyond grades and test scores, is able to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts. In particular we seek to admit students with distinctive perspectives and experiences as well as students who are particularly likely to assume the kinds of leadership roles in the bar and make . . . contributions to society." Id. at 9-10. The Policy then provides three specific examples of applicants with quite compelling experiences and backgrounds, for whom the Admissions Committee recommended admission "influenced by diversity considerations." Id. at 10-11. After citing these examples, the Policy notes that different members of the faculty will place value on different achievements and characteristics.
-10-
"One might, for example, give substantial weight to an Olympic gold medal, a Ph.D. in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person." Id. at 11. The Policy places the principal responsibility for deciding which characteristics will enhance the law school learning environment in the hands of the Dean of Admissions and the faculty admissions committee, but goes on to state that "[t]he varied perspectives from which different [faculty] committees will interpret the concept 'diversity' should further enrich our school." Id. at 11-12.
d. The Role of Racial and Ethnic Diversity. As part of this commitment to enrolling an intellectually vibrant and diverse class of students, the Policy notes that there is "a commitment to one particular type of diversity that the school has long had and which should continue. This is a commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." Ex. D at 12. The Policy, recognizing the unique salience of race in American life, notes that students from such racial and ethnic minority groups "are particularly likely to have experiences and perspectives of special importance to our mission," and that by "enrolling a 'critical mass' of minority students, we have ensured their ability to make unique contributions to the character of the Law School." Id. While the Policy finds that the Law School's racial and ethnic diversity "has made the University of Michigan Law School a better law school than it could possibly have been otherwise," it emphasizes that the faculty do not "mean to define diversity solely in
-11-
terms of racial and ethnic status." Id. Rather, the Policy's concern with achieving racial and ethnic diversity is an inextricable part of the Law School's broader concern with enrolling "students with distinctive perspectives and experiences," in order to "enrich everyone's education and thus make a law school class stronger than the sum of its parts." Id. at 9-10.
2. The Benefits of Diversity. Jeffrey Lehman, who is the Dean of the Law School, has stated that the Law School seeks, as a central part of its educational mission, to "cultivate in our students the ability to understand an issue from many perspectives." Ex. E. Having a diverse student body, in the broadest sense of that term, contributes to achievement of this mission. But specifically, it is the Law School's judgment that, among the types of diversity to be valued, having a racially and ethnically diverse group of students will improve education, the quality of lawyering, and therefore improve our society. Dean Lehman described how racial diversity improves the classroom learning environment. "Americans of different races have different experiences in society. They have different interactions. They grow up finding themselves treated differently by other people." Lehman Dep. at 162. Because of the salient role that race plays in American life, Dean Lehman has said that it has been his experience as a teacher that students will have "different experiences as members of different races," which will affect -- though not determine -- their viewpoints and beliefs. Id. at 161, 167. The "quality of the intellectual experience that our students enjoy" is thus improved by bringing together, in the law school classroom, students with a broad array of perspectives, experiences and insights, including those derived from experiences related to race. Ex. E.
-12-
This view is widely shared in legal education and in the legal profession. For example, Kent Syverud, who is Dean of Vanderbilt Law School and Editor of the Journal of Legal Education, states in his expert report that, contrary to impressions he had earlier in his teaching career, "all law students receive an immeasurably better legal education, and become immeasurably better lawyers, in law schools and law school classes where the student body is racially heterogeneous." Syverud Expert Rep. at 2. "[R]acial heterogeneity dramatically enhances the ability of the best active, Socratic teaching to achieve its purposes" of requiring law students to "see any set of facts from different points of view." Id. at 3-4. Judge Robert B. Webster, a former President of the Michigan State Bar and former Chief Judge of the Oakland County Circuit Court, adds that racial and ethnic diversity in legal education is essential both to a law school's mission in training effective lawyers, and to the perception that our legal system is able to administer equal justice. Webster notes that "the ability to empathize and work effectively with people of diverse races and backgrounds is critical to our profession. It is an ability that must be developed as proficiently, and as soon, as it possibly can." Webster Expert Rep. at 5. Webster further notes, drawing on a number of studies of the Michigan court system, that "when diverse classes of law school students enter the legal profession it enhances the appearance that our system is just, unprejudiced, and equally available to people of all races." Id. at 5-7. Derek Bok, former Dean of Harvard Law School and former President of Harvard University, echoed this point, stating that the "bar has made clear that it views the participation of minority attorneys as essential to public confidence in the machinery of justice." Bok Expert Rep. at 23.
-13-
Additional expert testimony submitted by the Law School provides empirical proof for the common sense judgment that racial and ethnic diversity improves education. Using national and Michigan undergraduate student databases, Patricia Y. Gurin, a Professor of Psychology at the University of Michigan with over 34 years of experience in the field, conducted an extensive empirical analysis of how diversity in higher education affects students. She demonstrates that students learn better when they are educated with racially and ethnically diverse peers. Gurin's analysis shows that students who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with other students showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and improvement in a range of intellectual and academic skills. Gurin Expert Rep. at 35-38. They are also better prepared to participate more fully in our pluralistic democracy when they are educated in such a setting because they are more equipped to understand and consider multiple perspectives, deal with the conflicts that different perspectives sometimes create, and appreciate how differences can be harnessed in pursuit of the common good. Id. at 18-21. These findings are applicable to undergraduate and law school education alike. Syverud Expert Rep. at 3-4. It is no surprise that education in a racially diverse atmosphere has benefits for all students, minorities and non-minorities alike. The simple point made in this regard by defendants' experts is that race matters in American life. Indeed, in some areas, such as housing and elementary and secondary education, our society is as racially separate today as it was before Brown v. Board of Education, before the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and before the Bakke decision. As a result, Americans tend to enter college -- and many
-14-
enter law schools -- without having had meaningful and sustained contact with people from races other than their own. Rather, their views are shaped by media images and other stereotypes. Thomas J. Sugrue, Associate Professor of History and Sociology at the University of Pennsylvania and the author of a prize-winning book on postwar racial history of Detroit, submitted an expert report detailing this racial separation and its consequences. Americans of different races reside in different communities, attend separate elementary and secondary schools, and rarely have sustained, meaningful contact with one another. Sugrue Expert Rep. at 19-44. 6/ This lack of contact fosters misconceptions and mistrust on all sides and affords little or no opportunity either to break racial stereotypes or to experience the richness of different racial and ethnic communities. Id. at 67.
The consequences of this persistent racial separation are enormous. They include the profound impact of such separation on students' experiences, perspectives, and worldviews. The Law School necessarily makes its admissions decisions against this backdrop, and in recognition of this reality. Many incoming students will have had few opportunities to benefit from exposure to the ideas and perspectives of people from backgrounds and racial groups other than their own. Of course, some students will have received their undergraduate training from
-15-
racially diverse institutions. But others will not. And, even among those who did, very few (if any) will have had the opportunity to discuss in a diverse setting the specific types of issues that the law school curriculum presents. This isolation contributes to the perpetuation of racial stereotypes and, as Judge Webster observes, deprives students of a legal education that prepares graduates to contribute to a legal system that must be perceived as fair and effective by all segments of the diverse society it serves. Webster Expert Rep. at 5-7.
Bringing students from different races together in a law school class cannot help but challenge preconceived notions. Judge Webster said that his first experiences with racial diversity gave rise to "encounters [that] exposed and destroyed racial stereotypes I did not even know I harbored. . . . I found myself exposed to new perspectives, new kinds of life experiences, new ways of looking at the world." Webster Expert Rep. at 4-5. It is exactly these encounters that create the educational opportunity for more complex and active thinking. Gurin Expert Rep. at 15. For a law school, creating a diverse student body in which all students can interact with members of different groups becomes central to fulfilling its educational mission; without diversity experiences, students are unlikely to move beyond the assumptions and misconceptions created by racial separation. This showing is undisputed. Instead, plaintiff's counsel makes the extraordinary --- and constitutionally erroneous -- statement that "[a]ny evidence or any report that shows, or purports to show, that racial diversity has educational value is besides the point," Peter Schmidt, U. of Michigan Turns to Scholars to Bolster Its Defense of Affirmative Action, Chronicle of Higher Education, April 2, 1999 at A38 (quoting Terrence J. Pell, of the Center for Individual Rights). See also Jaimie Winkler, Expert Witnesses Discuss Diversity, Michigan Daily, March
-16-
18, 1999 at 7a (quoting Pell to the same effect). But, as explained below (see infra pages 27 - 31), this common sense judgment about the educational value of diversity lies at the heart of the Bakke opinion and is part of a respected line of Supreme Court precedent recognizing the degree of autonomy that universities have, consistent with the First Amendment, to pursue their educational mission. Defendants' expert case, which confirms the correctness of Bakke and the wisdom of the Law School's Admissions Policy, cannot be seen as "besides the point."
3. The Admissions Process: Implementing the Admissions Policy. All of the record evidence shows that the professional staff of the admissions office has, as it is required to do, carried out the Admissions Policy adopted by the faculty. 7/ The Law School has a relatively small staff of admissions of professionals wo work closely together in reviewing application files. The office is directed by the Assistant Dean and Director of Admissions (currently Erica Munzel), who receives assistance in reviewing files from only two or three other file readers. Most of the final decisions are made by the Assistant Dean and Director of Admissions, although Dennis Shields -- who served in that position from July 1991 until January 1998 -- at times authorized the Associate Director to make final admissions
-17-
decisions. Shields Dep. at 53-56. An Assistant Director also reviewed applicant files, but did not make final admissions decisions. Metzler Dep. at 19; Leonard Dep. at 32-33.
a. File-By-File Review. The Law School receives a large but relatively manageable number of applications each year. For the classes that enrolled between 1995 and 1997, the number of applications ranged from 3,373 to 4,063. Ex. B. Each application is accompanied by a report from the Law School Data Assembly Service, a national clearinghouse that summarizes the applicant's grades and test scores, and provides some information about the relative strength of the undergraduate institution. Metzler Dep. at 78-79. Because the admissions office receives a manageable number of applications that contain information presented in a consistent manner, the admissions office -- with its relatively small staff of professional admissions counselors -- is able to review application files without the need to rely on a set of formal guidelines (beyond the Policy itself) to direct the admissions staff in their exercise of discretion. Shields Dep. at 132. Indeed, the only document other than the Policy provided to new file readers was a brief memorandum -- Exhibit F -- written by Admissions Director Shields. See Shields Dep. at 59, 132; Metzler Dep. at 14-19. That memorandum instructs file reviewers to seek out "from an especially well credentialed pool of candidates, those that show the most promise." Ex. F at 4. Making those determinations "requires more than a mere review of the numbers (LSAT and GPA), credentials." Id. This is not to say that grades and test scores are unimportant. Indeed, as the Policy provides, the memorandum recognizes that in many cases "we will ultimately be swayed . . . by the strength of the numbers." Id. at 6. But the Law School receives applications from "an
-18-
especially well credentialed pool of candidates," id. at 4, and does not rely heavily on narrow distinctions between candidates on the basis of grades and test scores. Accordingly, because "many of the numbers will be so close to the same," the admissions staff is required to dig deeper into the application, to review the essays and letters of recommendation, "to look for candidates that show intellectual talent, leadership ability, and academic acumen which augers for a lively intellectual educational community and important contributions to the profession." Id. As Admissions Director Shields testified, "[t]his memo represents my view that every file has to be looked at and stand on its own." Shields Dep. at 84.
An applicant's grades and test scores therefore "puts a context on the file as you read it." Id. at 80. The "index score," which is derived from an applicant's undergraduate grades and LSAT score, was used primarily as a way to "sort" files, so that the admissions staff would review a "batch of files" in the same index range. Shields Dep. at 72-73; see also Metzler Dep. at 26-29. Accordingly, as the Policy provides, "if the numbers are high there's more of a chance that a person will be admitted." Shields Dep. at 81. But in the end, the Law School's process for making admissions decisions is more of an art than a science: In order to make a decision on any given applicant, an admissions counselor must "read a file and look at the essays, look at the transcripts, look at the letters of recommendation," and decide how the particular applicant will contribute to the Law School class. Shields Dep. at 23. b. "A Single Though Important Element" In the course of this individualized, file-by-file review, the admissions staff also implements the Policy by considering the way in which an applicant would contribute to the diversity of the law school class, including its racial diversity. There is no dispute that race is
-19-
one of many important factors in the admissions process. Applicants to the Law School are not required to disclose their race. But where they do, Admissions Director Shields observed, it "would be one of the things amongst all of those things that would be part of what you thought about as you made a judgment about a file." Shields Dep. at 23. In its admissions decisions, the admissions office has not defined a "critical mass" of minority students. Nor have admissions decisions been made to assure that some particular number of minority students were admitted or enrolled. Rather, the Director of Admissions makes individual admissions decisions on a file-by-file basis. Admissions Director Dennis Shields, for example, said while he was "concerned about there being a good representation of students of color in the class," Shields Dep. at 101, there was "no precision" about what a "critical mass" or a "good representation" would be. Id. 8/
c. The Data. The pool of underrepresented minority applicants to the Law School has been small. Applications from African-American students, for example, constituted between 9 percent
-20-
and 12 percent of the pool from 1992 to 1997. Ex. B. By contrast, white students represented around 56 percent of the applicants in those years. Id.
The number of minority students admitted to the Law School has varied considerably from year to year. For example, in 1994, a year in which the Law School received an unusually large number of applications from African-American students, the Law School offered admission to 138 of the 639 African-American applicants. Id. The following year, when the number of the African-American applicants declined, the number of offers also declined -- falling more than thirty percent from 138 to 97. Id. The data also show that, while there is some difference between the average grades and test scores of admitted majority and admitted minority students -- unsurprising, in light of the Law School's policy of considering race as a factor in order to achieve a diverse student body -- the average grades and test scores for all admitted students at the Law School are quite high. See Ex. G. For example, of those applicants in 1998 who were admitted to the Law School, the median LSAT and GPA of Caucasian applicants was 168 (on a scale of 120 to 180) and 3.66, while for African American applicants the medians were 159 and 3.41. 9/ This fact reflects the implementation of the Law School's policy only to admit applicants who are likely to succeed at the School and thereafter. Finally, one cannot understand the admissions process employed by highly selective institutions like the Law School without considering the proportion of students who
-21-
accept an offer of admission and choose to enroll -- the so-called "yield." The yield rates vary modestly by race and from year to year. Ex. B. The intense competition among pre-eminent law schools means that less than a third of the students admitted to the University of Michigan Law School actually enroll. For example, in 1997 the yield rate for white students was 29.9 percent. In other words, less than one in three white students offered admission to the Law School actually enrolled. For African American students, the yield rate was 25.2 percent -- only one in four students offered admission actually enrolled that year.
* * * * * Throughout this litigation, plaintiff has sought -- in the 17 depositions of fact witnesses, in defendants' responses to plaintiff's 22 interrogatories, and in the thousands upon thousands of pages of documents defendants have produced -- to find evidence that the Law School has some hidden quota for minority students; that it operates a "two track" admissions system; that it has separate standards for remaining in good academic standing; or that the minority students who attend are not fully qualified to graduate from the Law School without serious academic difficulties. Plaintiff has come up empty. At the close of extensive discovery, the following material facts cannot fairly be disputed, and entitle the defendants to summary judgment:
� The Law School has no two-track system. There is no racial quota -- either in form, or in effect. Shields Dep. at 104; Munzel Dep. at 125-126, Eklund Dep. at 49; � The admissions office does not physically separate applications by race. Wong Dep. at 29;
-22-
� It does not assign the reading of minority applications to any particular reader. Munzel Dep. at 60; and � It applies the same academic standards to all of its students. Lempert Dep. at 174. ARGUMENT Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is required when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). That is the case here. The undisputed record evidence demonstrates that the Law School's Admissions Policy entails the "competitive consideration" of race and ethnicity, along with a range of other factors, in the admissions process. The record also shows that the Policy is implemented consistent with its articulated objective -- to achieve the academic benefits that having a racially diverse student body brings. Defendants therefore are entitled to summary judgment on all of plaintiff's claims.
I. CONTROLLING PRECEDENT PERMITS THE COMPETITIVE
CONSIDERATION OF RACE IN LAW SCHOOL ADMISSIONS.The Supreme Court has, of course, long-recognized the special role, and special mission, of educational institutions in our democracy. Writing on behalf of the Court in 1907, Justice Holmes referred to education as "one of the first objects of public care." Interstate Consol. St. Ry. Co. v. Massachusetts, 207 U.S. 79, 87 (1907). The Court has repeatedly
-23-
acknowledged the government's "special role as educator," Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 921 (1982) (O'Connor, J., dissenting), and observed that this "special role" carries with it an obligation to participate "in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests," Ambach v. Norwick prepared to participate in governmental affairs." Pico, 457 U.S. at 876 (Blackmun, J., concurring). It is for this reason that the Court recognized -- in its landmark desegregation decisions -- that an education that encourages students to "engage in discussions and exchange views with other students," McLaurin v. Oklahoma State Regents for Higher Educ., 339 U.S. 637, 641 (1950), is "the very foundation of good citizenship," Brown v. Board of Educ., 347 U.S. 483, 493 (1954).
Against that backdrop, the Supreme Court held in Bakke that the goal of attaining the educational benefits of diversity is a compelling interest that justifies the consideration of race as a factor in university admissions. See Bakke 438 U.S. at 314 ("the interest of diversity is compelling in the context of a university's admissions program") (emphasis added).
A. "A Properly Devised Admissions Program Involving The Competitive
Consideration of Race and Ethnic Origin" Is Constitutional.Bakke considered the constitutionality of the admissions policy of the University of California at Davis Medical School. Specifically, in clear contrast to the University of Michigan Law School's policy, Davis operated a two-track admissions system for majority and minority applicants, in which a fixed number of seats -- 16 in a class of 100 -- were reserved exclusively for minority applicants. Id. at 275. Allan Bakke, a white applicant twice rejected by
-24-
Davis, challenged the medical school's admissions policy, claiming that it violated his rights under both the Equal Protection Clause and Title VI of the Civil Rights Act. Id. at 277-78. The California Supreme Court's decision had two essential holdings: (1) that the Davis plan was invalid, and Allan Bakke should therefore be admitted to the medical school; and (2) that race could not be considered at all as a factor in admissions.
This case sharply divided the U.S. Supreme Court. Four justices would have reversed the entire judgment and upheld the entire Davis admissions system, including the reservation of a fixed number of seats exclusively for minority applicants; 10/ four others would have affirmed the entire judgment, holding that Title VI of the Civil Rights Act forbids any consideration of race. 11/ Justice Powell delivered the judgment of the Court and authored the pivotal opinion. That opinion invalidated the Davis admissions system but held that achieving the academic benefits of a diverse student body is a compelling interest that justifies the consideration of race as a factor in university admissions. See id. at 314-15. Importantly, Part V.C. of Justice Powell's opinion was joined by four other Justices (Brennan, White, Marshall and Blackmun, JJ.), establishing a majority of the Supreme Court for the following critical
-25-
passage, which states Bakke's central holding and judgment regarding the use of race in admissions:
In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the 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. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.Id. at 320 (emphasis added). Thus, after Bakke, there cannot be any doubt that "a properly devised admissions program involving the competitive consideration of race and ethnic origin" is constitutional. And as the briefs filed in this Court by educational associations as amici curiae demonstrate, institutions of higher education have relied on that statement -- which the Court has never questioned -- in designing and operating their admissions programs for more than 20 years.B. Bakke's Three Principles. The balance of Justice Powell's Bakke opinion stands as the "narrowest grounds" offered in support of the judgment in that case and is therefore binding precedent on this Court. See Marks v. United States, 430 U.S. 188, 193 (1977). (See infra pages 37-41.) Justice Powell's opinion states three important principles: first, that attaining the educational benefits of diversity is a compelling interest that justifies the consideration of race as a factor in admissions; second, that the diversity that furthers this compelling interest is broader than, but includes, racial diversity; and third, there are specific limitations both as to the manner in which race may be
-26-
considered (no fixed racial quotas) and the extent to which race may be used (all students must be fully qualified) in order to serve the compelling interest it recognizes.
Since Bakke, the Supreme Court has not overruled or even questioned the proposition that achieving the academic benefits of diversity is a compelling state interest that justifies a properly devised race-conscious admissions system. As controlling precedent, Bakke has consistently been followed in this Circuit. It provides the sole standard for evaluating the Law School's consideration of race in its admissions decisions. 12/ 1. Diversity as a Compelling Interest. Bakke's first principle is that "the interest of diversity is compelling in the context of a university's admissions program," 438 U.S. at 314, because "our tradition and experience lend support to the view that the contribution of diversity is substantial," id. at 313. Justice Powell emphasized that "[t]he atmosphere of 'speculation, experiment and creation' -- so
-27-
essential to the quality of higher education -- is widely believed to be promoted by a diverse student body." Id. at 312. A university is a "marketplace of ideas" that only works if there is a rich variety of voices available to offer a diversity of perspectives. Because of the important role that race plays in American life, and because different individuals -- with their wide range of experiences -- are necessary to fuel a vibrant exchange of ideas, Justice Powell believed that racial diversity must be included in this mix. 13/ In stating this point, Justice Powell quoted from Sweatt v. Painter, 339 U.S. 629, 634 (1950): "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned."
The benefits of having a diverse student body therefore reflect the values protected by the First Amendment -- the "robust exchange of ideas which discovers truth out of
-28-
a multitude of tongues," Bakke, 438 U.S. at 312 (citation and internal quotation marks omitted). These values, Justice Powell noted, are essential to the mission of higher education. "[I]t is not too much to say that the 'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." Id. at 313 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)).
Justice Powell grounded Bakke's first principle -- that diversity is a compelling interest that justifies the competitive consideration of race in university admissions -- in a rich heritage of cases recognizing the principle of "academic freedom." This line of cases, dating back more than two decades before the Bakke decision, establishes that a university has an important interest in creating a campus environment that includes people from a wide array of backgrounds, perspectives, and beliefs, in order to encourage a vigorous and healthy learning environment. As Justice Powell noted, "[a]cademic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment." Bakke, 438 U.S. at 312. In Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957), the Court emphasized that "[n]o one should underestimate the vital role in a democracy that is played by those who guide and train our youth." In an often-quoted passage, Justice Frankfurter reasoned in his concurring opinion: "It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Id. at 263.
-29-
The line of cases establishing the principle of academic freedom, of which Bakke is part, recognizes that a university has an important interest in creating the type of academic environment that it believes will best promote its own academic mission. These cases further recognize, as the Bakke opinion explains, that most institutions of higher education have concluded that their missions will best be promoted by creating campus environments that are diverse in many ways, including racially. By achieving a broad diversity of experiences, backgrounds, and beliefs, these institutions create environments that promote and encourage wide ranging "creative inquiry." Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 836 (1995). In doing so, they improve the educational experience on our nation's campuses which are "vital centers for the Nation's intellectual life." Id. The Supreme Court repeatedly has reinforced these principles. In Keyishian, the Court said that "[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned." 385 U.S. at 603. And in Healy v. James, 408 U.S. 169, 180 (1972), the Court noted that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom." Justice Powell therefore drew on this tradition when he reasoned in Bakke that "universities must be accorded the right to select those students who will contribute the most to the 'robust exchange of ideas'" and emphasized that, by attempting to foster diversity among its student body, a university seeks "to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 U.S. at 313.
-30-
Since Bakke, the Court has often repeated this point in various contexts -- that the airing of diverse views, from students of diverse backgrounds, is an important part of the mission of an institution of higher education. In Rosenberger, for example, the Court held that the exclusion of a particular viewpoint from campus debate would not only violate the First Amendment's free speech guarantee, but would undermine the very purpose of education. In the university setting, the Court noted, the government "acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." Rosenberger, 515 at 836 (citations omitted). 14/ In light of the role of race in American history, and in American society, Justice Powell was on firm ground in saying that a university may properly conclude that it is better able to reflect a rich variety of experiences, backgrounds, and insights, if it is permitted to include racial diversity among the types of diversity it values, and seeks to achieve. To say this, however, is not to say that one's race determines or preordains the views that any particular person will hold regarding any given subject. Indeed, there may be no better way to debunk stereotypes than by exposing students -- in a racially diverse educational setting -- to the wide array of viewpoints that are very often held by members of a single racial or ethnic group, or to confront students with the fact that members of other racial groups have similar views to their own when differences are expected.
-31-
2. A Broad Sense Of Diversity: Race As One Of Many Factors. While Bakke's controlling opinion supports giving a university wide latitude to assemble a diverse student body, the opinion also makes clear that achieving the benefits of diversity constitutes a compelling interest where "[e]thnic diversity . . . is only one element in a range of factors" that a university considers in its admissions decisions. Bakke, 438 U.S. at 314. This is Bakke's second principle. As the Bakke opinion observed, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial and ethnic origin is but a single though important element." Id. at 315. As an example of the kind of race-conscious admissions system that would be constitutional, the Bakke opinion specifically recommended Harvard's admissions program as a model. The Harvard admissions policy, which was reproduced as an appendix to Justice Powell's opinion, states that Harvard seeks "variety in making its choices" among applicants, id. at 322, and endeavors to include students "from disadvantaged economic, racial and ethnic groups" among its student body. Id. This "variety" serves to add "a critical ingredient to the effectiveness of the educational experience." Id. 3. Bakke's Two Limitations: Quotas and Qualifications. While Bakke squarely permits colleges and universities to consider race as a factor in admissions decisions, the opinion does impose two distinct but related limitations on the manner and extent to which race may be used. On the question of manner, the opinion explains that fixed racial quotas and separate admissions systems are impermissible. It is for this reason that Justice Powell, joined by the four Justices who believed that Title VI precluded all use of race, invalidated the Davis admissions system.
-32-
This limitation on the manner in which race is used, however, should not be confused with the question of the extent to which race is used. A quota, after all, can be set quite low, while a permissible "plus factor" might turn out to be much larger. The Bakke opinion therefore separately addressed the question of the extent to which race may be used. Justice Powell reasoned that a "properly devised" admissions system only allows for the admission of qualified students. See Bakke, 438 U.S. at 320. Thus, while the Davis plan satisfied this requirement, see id. at 275-76, an admissions system would use race "too much," and therefore violate Bakke, if it called for the admission of minority applicants who were not "deemed capable of doing good work in their courses," even if it did not involve a quota. See id. at 323 (appendix to opinion of Powell, J.). a. Fixed Racial Quotas Are Prohibited. The "fatal flaw" in the Davis admissions system, according to Justice Powell's controlling opinion, was not the consideration of race, but rather the fact that minorities were rigidly insulated from competition with other applicants. Id. at 319-20. This does not mean that a university may not concern itself with the number of minority students to whom it offers admission, or that race cannot be an important factor that makes a difference in admissions decisions. Obviously, if race never made a difference in admissions decisions, it would not be a "factor" at all. Nor does Bakke prohibit universities from taking numbers into account in considering race as a factor to achieve diversity. Indeed, the Harvard admissions plan that Justice Powell held out as a model recognized that in order to "provide a truly heterogeneous environment that reflects the rich diversity of the United States," admissions decisions cannot be
-33-
made "without some attention to numbers." Id. at 323. To that end, the Harvard policy explained that:
10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.Id. at 323.As Justice Powell noted, the Harvard plan "take[s] race into account in achieving . . . educational diversity," but does not assign "a fixed number of places to a minority group." Id. at 316. In so doing, the Harvard policy treated race or ethnic background merely as a "plus" factor and did not allow race or ethnicity to "insulate" any "individual from comparison with all other candidates for the available seats." Id. at 317. 15/ The Harvard policy that the Bakke
-34-
Court approved is indistinguishable from the Law School's Policy that plaintiff asks this Court to invalidate.
b. Only Qualified Applicants. On the question of the extent to which race may be used, the Bakke opinion makes clear that a "properly devised" admissions system is one that considers race as a factor in choosing among "otherwise qualified" applicants. 438 U.S. at 314. Bakke does not require that all factors be weighed equally. Rather, a "[proper] admissions program . . . is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the 'mix' both of the student body and the applicants for the incoming class." Bakke, 438 U.S. at 317-318 (emphasis added). This point has also been made elsewhere. For example, in United States v. Paradise, 480 U.S. 149, 183 (1987), the Court upheld a racial set-aside designed to remedy a showing of past discrimination, but also set out a limitation on the extent to which race may be used: "the basic limitation, that black troopers promoted must be qualified, remains. Qualified white candidates simply have to compete with qualified black candidates." Id. In addition, in deciding which applicants for admission are qualified, the question of academic freedom again weighs in the balance, as courts will generally respect the academic judgments made by university officials. Indeed, many of the cases on which Bakke relied, as well as subsequent cases, have emphasized the autonomy of educational institutions in making these judgments. For instance, Justice Powell -- quoting Justice Frankfurter's concurrence in
-35-
Sweezy, 354 U.S. 234, 263 (1957), noted that it is the business of a university "'to determine for itself . . . who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" Bakke, 438 U.S. at 312. 16/
The notion that courts will defer to the judgments of educators to determine who is qualified for admission finds support in the Sixth Circuit. In Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100, 102 (6th Cir. 1992), for example, the court observed that "school authorities have broad discretion to implement educational policy." And in Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989), the court noted that "[a]cademic freedom thrives not only on the robust and uninhibited exchange of ideas between the individual professor and his students, but also on the 'autonomous decisionmaking [of] . . . the academy itself.'" Id. at 826 (citation omitted). In fact, the Constitution of the State of Michigan reflects a similar value, in expressly vesting the authority to govern the University of Michigan in its Board of Regents, and insulating that body from the control of the state's other political branches of government. See Mich. Const., art. 8 (1963).
-36-
C. Bakke Is Binding Precedent. Bakke squarely holds that a university or graduate program may consider race as a factor in admissions, so long as it does not use an inflexible quota. 438 U.S. 320. Cases decided since Bakke, both by the Supreme Court and the Sixth Circuit, have recognized this essential holding. In her concurring opinion in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), for example, Justice O'Connor noted that "although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently 'compelling,' at least in the context of higher education, to support the use of racial considerations in furthering that interest." Id. at 286 (citing Bakke). Similarly, in a case involving an alleged violation of Title VII of the Civil Rights Act of 1964, Johnson v. Transportation Agency, 480 U.S. 616 (1987), the Supreme Court again recognized Bakke's primary holding. The Court noted that a promotion plan that considered the gender of an employee as one of a range of factors was similar to the Harvard plan "approvingly noted by Justice Powell" in Bakke. Johnson, 480 U.S. at 638. In upholding the promotion plan which considered gender as one of a range of factors, the Court noted that the plan "requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants." Id. Thus, endorsing Bakke's precedential value and its reasoning, a five-member majority concluded that the consideration of gender was lawful. The Sixth Circuit has consistently relied on the Bakke opinion. In Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757 (6th Cir. 1983), the court cited Bakke for the proposition that "affirmative action admission programs of educational institutions may take race into
-37-
account, but racial quotas are prohibited." Id. at 763. Referring to Bakke, the Sixth Circuit invalidated a court-imposed racial quota for minority teachers and expressly stated that a "wiser approach is a more flexible affirmative action program rather than a hiring quota." Id. More recently, it relied on Bakke in upholding Cincinnati's policy of transferring teachers to balance the racial composition of its schools "to achieve a racially integrated faculty throughout the Cincinnati public school system." Jacobson, 961 F.2d at 103. Cf. United States v. Ovalle, 136 F.3d 1092, 1106 (6th Cir. 1998) ("Given the requirements of the Sixth Amendment and the importance of both the reality and the appearance of fairness in our criminal justice system, creating a jury pool that represents a fair cross section of the community is a compelling governmental interest."). Other courts have likewise followed the Bakke decision. 17/
The Fifth Circuit, however, in Hopwood v. State of Texas, 78 F.3d 932, 944 (5th Cir. 1996), rejected Bakke's diversity rationale as inconsistent with more "recent Supreme Court
-38-
precedent." That case was wrongly decided. While the Supreme Court has -- since Bakke -- made clear that all racial classifications, even those that benefit racial minority groups, are subject to strict scrutiny, see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), no Supreme Court opinion overrules Bakke's holding that there is a compelling interest in achieving a racially diverse student body. And contrary to the Fifth Circuit's reasoning, Justice Powell's opinion in Bakke, as the "narrowest grounds" offered in support of the result in that case, represents the "holding of the Court," and is controlling precedent on the use of race in university admissions. Marks v. United States, 430 U.S. 188, 193 (1977). See also Smith v. University of Washington Law School, No. C97-335Z (W.D. Wash. Feb. 12, 1999) (Ex. H) (recognizing Justice Powell's Bakke opinion as controlling under a Marks analysis).
The Sixth Circuit has embraced a reading of Marks that firmly supports the conclusion that Bakke is controlling authority. See Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 132 (6th Cir. 1994) ("In light of the Supreme Court's instruction that '[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'") (citations omitted). Justice Powell's diversity rationale certainly qualifies as the "narrowest ground" in support of the judgment, announced in Part V.C. of the Court's opinion and joined by four other Justices, to reverse that part of the California Supreme Court's judgment barring any consideration of race. Justice Brennan's approach was far broader than Powell's. Because Justice Brennan would not even apply strict scrutiny to a "benign" racial classification, he would have upheld not only a Harvard-style admissions system, but also the Davis plan at issue. Indeed,
-39-
Justice Powell, who approved of the Harvard plan, but rejected Davis' fixed quota, criticized the Brennan analysis as "amorphous," and insisted on a narrower, "more focused" justification for the use of race. See Bakke, 438 U.S. at 307. Moreover Justice O'Connor's opinion in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 496-97 (1989), says precisely the same thing about the Bakke case-- that Justice Powell properly rejected Justice Brennan's position as reflectin an "amorphous concept," and that by applying strict scrutiny (with its requirements of narrow tailoring), Justice Powell charted a more "focused" course. Id.
Disregarding the constraints on its authority, the Fifth Circuit rejected Bakke's conclusion that an institution of higher education has a compelling interest in enrolling a racially diverse student body. 18/ That conclusion was simply wrong. See, e.g., Smith, slip op. (Ex. H) at 8 ("The Supreme Court has never held that educational diversity cannot be a compelling state interest. In the absence of such a holding, this Court will follow Justice Powell's opinion in Bakke that educational diversity 'is a constitutionally permissible goal for an institution of higher education.'"). In fact, in cases both before and after Hopwood, the Supreme Court has repeatedly made clear that lower courts do not have the authority to override or disregard its decisions. See Hohn v. United States, 118 S. Ct. 1969, 1978 (1998) ("Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality."); State Oil Company v. Khan, 118 S. Ct. 275, 284 (1997) ("[I]t is
-40-
this Court's prerogative alone to overrule one of its precedents."); Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (only Supreme Court can overrule its own precedent); Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (same).
II. THE LAW SCHOOL COMPLIES WITH THE BAKKE STANDARD. Bakke holds that "a properly devised admissions program involving the competitive consideration of race and ethnic origin" is constitutional. 438 U.S. at 320. The record evidence compiled after extensive discovery in this case permits only one conclusion -- that the Law School's admissions process is just such a properly devised system. Bakke prohibits the use of race in an admissions policy that operates as "a cover for the functional equivalent of a quota system," 438 U.S. at 318, or otherwise serves as a "two-track" admissions system. The record makes clear that the Law School does nothing of the sort. Race is considered as one of many factors in the Law School's admissions process, in order to achieve the significant and demonstrable educational benefits that flow from having a diverse student body. The testimony of the Law School admissions personnel is unrefuted: that, as in the Harvard system discussed in Bakke, race is considered as one of a number of important factors in admissions, and that the admissions office carefully examines each application and makes an individualized judgment, based on the entire file, about how that applicant would contribute to the Law School class. There is no question that the manner in which the Law School considers race complies fully with Bakke. Nor is there any question regarding the extent to which race is considered. Every applicant who is admitted to the Law School is a student
-41-
whom the Law School believes will be able to complete the School's rigorous course of study with "no serious academic problems." Ex. D at 2.
The Law School's compliance with governing legal standards is not surprising given that all of the record evidence demonstrates that a major purpose of the 1992 Admissions Policy was to be certain that the Law School complied with the Bakke decision. When Lee Bollinger became Dean of the Law School in 1987, Allan Stillwagon was Assistant Dean and Director of Admissions, a position he had held since 1979. Stillwagon Dep. at 8-9. During Stillwagon's tenure as Director of Admissions, the Law School operated a "special admissions" policy, under which the Law School sought to enroll a class that was between 10 and 12 percent minority students. Stillwagon Dep. at 23-24. The stated rationale for the previous set of policies was to address "the racial imbalance now existing in the legal profession," as well as to make "the School a livelier place to learn." Ex. I at 85. Admissions Director Stillwagon said that, during his tenure from 1979 to 1990, the admissions office employed a "pool" system, under which approximately half of the class was admitted primarily "on the numbers," while the other half of the class were chosen from a group of applicants with slightly lower grades and test scores, on the basis of non-quantifiable factors such as extracurricular or charitable activities, or "remarkable or interesting ethnic or national backgrounds." Stillwagon Dep. at 22-23. In addition, where this "pool system" would not yield a class with 10 to 12 percent minority students -- and during Stillwagon's tenure it typically would not, Stillwagon Dep. at 30-31, 39-43 -- the admissions officer would, under the "special admissions" policy, admit a sufficient number of minority students to maintain the
-42-
School's goal at that time of achieving composition of 10-12 percent minority students in each entering class. See Stillwagon Dep. 37-39. 19/
The 1992 Admissions Policy emerged from a committee, appointed by then-Dean Bollinger, that served during the 1991-92 academic year. "The purpose of the [committee's] review was to examine the policy, to think about what our educational views and values were and what was required under the Constitution and the law." Bollinger Dep. at 110. Admissions Director Dennis Shields, who arrived at the Law School in the summer of 1991, said that in one of their first meetings, Bollinger expressed "general concerns about . . . not really understanding special admissions and not really approving of the way it was articulated." Shields Dep. at 37-38. The "pool system" and the "special admissions" policy, with its 10 to 12 percent target range, were both replaced by the 1992 Admissions Policy. 20/ In adopting the 1992 Policy,
-43-
the faculty decided to adopt an approach to diversity that did not include numerical goals or targets for any group other than Michigan residents, Bollinger Dep. at 107-108, Lempert Dep. at 70, and that valued diversity not "to increase the numbers of minorities in the legal profession," but rather for the "purpose of providing the best educational experience for our students." Bollinger Dep. at 107, Lempert Dep. at 76.
In the course of discovery, plaintiff all but lost interest in the 1992 Policy actually at issue in this case. The reason is obvious: that policy plainly complies with Bakke. Plaintiff has therefore spent her time conducting discovery of old policies irrelevant to this litigation, deposing former administrators not involved in the implementation or application of the current policy, and scrutinizing statements made to the ABA. 21/ At the end of the day, however, there is
-44-
no genuine issue of fact about what the 1992 Policy says; there is no genuine issue of fact that the admissions office followed that Policy; and there is no question that the 1992 Policy and its application comply with Bakke.
Because it is clear that the manner and extent of the Law School's consideration of race in admissions decisions comply fully with Bakke, the plaintiff is left to focus on a different question -- whether race can somehow be characterized as a "predominant" factor in the admissions process. Plaintiff alleges that "[d]efendants did not merely use race as a 'plus' factor" but "[r]ather, race was one of the predominant factors (along with scores on the Law School Admissions Test and undergraduate grade point averages) used for determining admission." Compl. ¶23. Bakke does not envision, however, that courts are to decide whether one factor in the admissions process "predominates" over another. Rather, in addressing the extent to which race may be used, the question is whether the school seeks to admit only qualified applicants. On this point the record is clear -- the admissions office does not admit any student whom it does not believe to be qualified to succeed at the Law School.
-45-
In any event, the record simply does not support a conclusion that race "predominates" over other factors in the admissions process. As an "important element" in the process, see, e.g., Answer ¶19, it is of course true that an applicant's potential contribution to the racial diversity of the Law School class will turn out to make a difference for some number of applicants -- just as for other applicants it will be grades, test scores, a powerful essay, or some experience, training, or talent that will counsel favor of admission. To say this is to say nothing more than that race is a factor. Presumably seeking to prove the undisputed point that race is one of many important factors in the Law School's admissions process, plaintiff's expert, Professor Larntz, has taken database information produced in this litigation and produced a series of charts. See Ex. N. These charts divide the pool of applicants into 120 cells, with each cell on the chart representing a narrow range of undergraduate grade point averages and standardized test scores. A separate chart is generated for each of the demographic groups for which data is available, in each of the four separate academic years at issue in this litigation (1995 through 1998). 22/ These charts demonstrate that, if all you know about an applicant is his or her (1) undergraduate grade point average; (2) LSAT score; and (3) race, it turns out that being a member of an underrepresented minority greatly increases the chances of a small number of applicants of being admitted. Based on some, but not all, of the data in these charts, see Larntz Dep. at 119-120, Larntz concluded that "membership in certain ethnic groups is an extremely strong factor in the decision for acceptance." Ex. N at 9.
-46-
Stephen Raudenbush, nationally recognized Professor of Education at the University of Michigan and one of defendants' experts, demonstrated that, as a matter of statistics, "one cannot reasonably conclude that [race] predominates over other factors in the admissions process." Raudenbush Supp. Expert Rep. at 5. 23/ The only conclusion that can responsibly be drawn from the data is that race is quite important in some admissions decisions and of little or no importance in others. Plaintiff's own expert, Professor Larntz, analyzed the same data and conceded that "[f]or the applicants as a whole . . . I think grade point average and LSAT are more important than any other factors" in the admissions process. Larntz Dep. at 90. By definition, a factor cannot "predominate" if it is not even the most significant consideration in the process. The "extent" to which race is considered in the admissions process cannot fairly be measured by examining plaintiff's charts, or by comparing the grades and test scores of majority and minority students. This artificial two-dimensional comparison necessarily excludes the many other factors that bear on admissions decisions. Professor Raudenbush pointed out that any analysis of the extent to which the Law School considers race is put in perspective by the fact that the overall proportion of minority students admitted is similar to the admissions rates for majority students. Raudenbush Expert Rep. at 6; Raudenbush Supp. Expert Rep. at 2. For instance, in 1997, the Law School offered admission to 38.1 percent of the Caucasian applicants, but to only 31.1 percent of the African
-47-
American applicants. See Ex. B. These basic descriptive statistics belie the notion that race is a "predominant" factor in the process.
Indeed, Professor Raudenbush noted that in order to draw a responsible global conclusion relating to the use of race in admissions, one would have to compare the results from the current admissions system with those from a hypothetical system in which race was not considered. Raudenbush Dep. at 41-44. Professor Larntz has not conducted such an analysis. Professor Raudenbush observed that the minority applicant pool represents a small proportion of the total group of applicants to the Law School. Accordingly, if the Law School were to abandon its policy of considering race as a factor in admissions, the likelihood that any given minority applicant would be admitted would decline dramatically, while at the same time the likelihood that any given majority applicant would be admitted would increase only slightly. Raudenbush Supp. Expert Rep. at 6-11. In addition, in examining the extent of the Law School's consideration of race as a factor, one must also recognize that the University of Michigan Law School competes for top students -- both majority and minority -- with its peer institutions. This competition is reflected in the fact that the yield rate, or the percentage of admitted students who accept the Law School's offer of admission, is somewhat lower for minority students than for majority students. That lower yield rate presumably reflects the fact that -- even in light of the somewhat lower grades and test scores earned by some of those minority applicants to whom the Law School offers admission -- many of those students are declining the University of Michigan's offer of admission, electing instead to attend another highly-regarded law school. Ex. B; Raudenbush Expert Rep. at 6.
-48-
* * * * * Plaintiff can argue either that any consideration of race is unlawful, or that the Law School has strayed from the competitive consideration of race permitted by Bakke. But neither position gets the plaintiff past this motion for summary judgment. Plaintiff's challenge to any use of race in admissions is foreclosed by Bakke's holding, where a majority of the Court expressly permitted the "competitive consideration" of race as a factor in admissions; and plaintiff's claim that the Law School violates Bakke just cannot be squared with the undisputed facts in the record. The extensive record developed in this litigation confirms that the Law School fully complies with Bakke. It is clear that race is considered as one among many factors in the Law School's admissions process, in order to achieve a diverse student body. Summary judgment in the defendants' favor is therefore appropriate on all of plaintiff's claims.
III. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO SUMMARY
JUDGMENT ON THEIR QUALIFIED IMMUNITY DEFENSE.The individual defendants, who have been sued in their personal capacities for money damages, are also entitled to summary judgment on the strength of their qualified immunity defense. As set forth above, the Law School's Admissions Policy is a flexible one that involves the competitive consideration of race and ethnic origin. Because the plaintiff cannot come forward with evidence sufficient to permit a reasonable factfinder to conclude that the Law School's Admissions Policy was inconsistent with the Bakke opinion, the individual defendants are entitled to summary judgment with respect to their claim for qualified immunity. Under long-standing doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not
-49-
violate clearly established statutory or constitutional rights of which a reasonable person would have known." Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) ("[T]he first step in any qualified immunity analysis is to determine whether a clearly established statutory or constitutional right has been violated.") (citation omitted); Conn v. Gabbert, No. 97-1802, 1999 WL 181181, *3 (U.S. Apr. 5, 1999) (same). 24/ For a plaintiff "to make a successful § 1983 claim, '[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Dickerson, 101 F.3d at 1158 (quoting Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992)). In other words, the unlawfulness of the official's conduct "must be apparent." Id 25/
As courts have consistently recognized, "there is a strong public interest in protecting public officials from the costs associated with the defense of damages actions." 26/
-50-
Crawford-El v. Britton, 118 S. Ct. 1584, 1592-1593 (1998). These costs include "the expenses of litigation," the "diversion of official energy" and "the deterrence of able citizens from acceptance of public office." Id. at 1593 n.12 (quoting Harlow, 457 U.S. at 814). The qualified immunity defense therefore "permits insubstantial lawsuits" brought against individual defendants "to be quickly terminated," because judging defendant's conduct against "the state of the law at the time of the challenged conduct" is a matter that "normally can be resolved on summary judgment." Id. at 1593. Moreover, the qualified immunity defense is a recognition that it would simply be unjust to impose personal liability for monetary damages for conduct that conformed with then-prevailing legal rules. As the Supreme Court emphasized last Term in Crawford-E, supra, the defense "avoids the unfairness of imposing liability on a defendant who 'could not reasonably be expected to anticipate subsequent legal developments, nor . . . fairly be said to 'know' that the law forbade conduct not previously identified as unlawful.'" Id. (quoting Harlow, 457 U.S. at 818).
Once a government official raises a defense of qualified immunity by filing a motion for summary judgment, the analysis proceeds in two steps. First, a court is to determine the contours of plaintiff's "clearly established" rights. Second, the court is to determine whether the plaintiff has come forward with "'sufficient facts supported by sufficient evidence to indicate
-51-
what [the officer] allegedly did was objectively unreasonable in light of [the] clearly established constitutional rights.'" Dickerson, supra, 101 F.3d at 1158 (quoting Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994)); Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir. 1994) (same).
The first step of this analysis is quite simple. "In this circuit, a finding of a clearly established constitutional right must generally be supported by precedent from the Supreme Court or this circuit, or in the alternative, by decisions from other circuits." Mumford v. Zieba, 4 F.3d 429, 432 (6th Cir. 1993) (citation omitted). 27/ It is the plaintiff's obligation "to establish, 'in the light of pre-existing law' that the unlawfulness . . . was apparent." Rich v. City of Mayfield Heights, 955 F.2d 1092, 1097 (6th Cir. 1992) (citation omitted). Plaintiff cannot meet this obligation. 28/
-52-
As demonstrated above (see supra pp. 24 - 26), the Supreme Court's holding in Bakke permits the "competitive consideration" of race as a factor in admission, but forbids the imposition of an inflexible quota or a process that insulates minority applicants from competition with the balance of the applicant pool. See Bakke, 438 U.S. at 311-324. There is not, as there could not be, any contrary authority in the Sixth Circuit. The record in this case also demonstrates that the University of Michigan has not violated plaintiff's "clearly established" constitutional rights. While the plaintiff alleges that applicants "from disfavored racial groups were not compared directly to applicants from favored racial groups," Complaint ¶ 21, and that defendants "did not merely use race as a 'plus' factor," Complaint ¶ 23, there is no evidence in the record to support these allegations. Its absence is quite easily explainable: the allegations just are not true. The record makes clear that, as shown
-53-
above, the Law School's Admissions Policy -- both on its face and as applied -- entails precisely the competitive consideration of race as a factor that Bakke approves. Because the plaintiff is unable to come forward with sufficient evidence to permit a reasonable factfinder to conclude that the individual defendants have violated her clearly established constitutional rights, these individual defendants are entitled to summary judgment on plaintiff's damages claims.
IV. THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S DAMAGES CLAIMS UNDER TITLE VI OF THE CIVIL RIGHTS ACT Plaintiff seeks damages from the Board of Regents of the University of Michigan, invoking Title VI of the Civil Rights Act. See Complaint ¶ 33. The Board of Regents, an arm of the state of Michigan, is generally immune under the Eleventh Amendment from being sued for damages in federal court. See Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 217 n.3 (1985); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Estate of Ritter v. University of Mich., 851 F.2d 846, 847 n.4 (6th Cir. 1988). A state may waive its immunity from suit as a condition on its receipt of federal funds. The Supreme Court has made clear that Title VI, like Title IX, provides a damages action against entities that receive federal funds. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992). "The two statutes [Title VI and Title IX] operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds." Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989, 1997 (1998). Title VI also expressly abrogates the Board of Regents' sovereign immunity. 42 U.S.C. § 2000d-7. Thus, by accepting federal funds,
-54-
the Board of Regents of the University of Michigan consents to being sued for damages in federal court.
The question that remains, however, is the scope of that agreement. As the Court noted in Lago Vista, the statute's "contractual nature has implications for our construction of the scope of available remedies." Lago Vista, 118 S. Ct. at 1998. Accordingly, a court "examine[s] closely the propriety of private actions holding the recipient liable in monetary damages for noncompliance with the condition." Id. Specifically, where a state's liability is inferred from its acceptance of federal funds, the state must "voluntarily and knowingly accept[] the terms of the 'contract.'" Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 29/ Because there can "be no knowing acceptance if a State is unaware of the conditions," id., a damages action is permitted under Title VI only where it would be "obvious that the grantee was aware that it was administering the program in violation of the [law]." Guardians Ass'n. v. Civil Serv. Comm'n, 463 U.S. 582, 598 (1983). In other words, damages are not available against the recipient of federal funds if the recipient is not on notice that its conduct will subject it to liability in damages. The Court's opinions in Guardians, Franklin, Pennhurst and Lago Vista thus forbid the imposition of a damages remedy against the recipient of federal funds where the
-55-
recipient's conduct does not violate clearly established legal principles. Cf. United States v. Lanier, 520 U.S. 259, 270 (1997) (where Congress would not intend to impose liability without giving defendant "fair warning," liability will not be imposed unless "the contours of the right violated are sufficiently clear that a reasonable official would understand that what he is doing violates that right") (citation omitted). This standard bars these claims for damages against the Board of Regents. Where, as here, a recipient of federal funds establishes policies that are fully consistent with the Supreme Court's statement of the governing legal principles (Bakke), it is "sensible to assume that Congress did not envision a recipient's liability in damages." Lago Vist, 118 S. Ct. at 1992.
As demonstrated more fully above (supra pp. 4 - 23), the University of Michigan Law School's Admissions Policy under which defendants denied plaintiff's application for admission is a flexible policy involving the competitive consideration of race and ethnicity in the admissions process. The Policy complies fully with the decision in Bakke, and therefore cannot be said to be in violation of "clearly established" legal rules. Therefore, at the very least, the Board of Regents of the University of Michigan (like the individual defendants, who enjoy a "qualified immunity") is entitled to summary judgment on plaintiff's claims for monetary damages.
-56-
CONCLUSION For the foregoing reasons, summary judgment should be entered for all of the defendants on all of plaintiff's claims.
Dated: May 3, 1999 Respectfully submitted,
______________________________
John H. Pickering
John Payton
Jane Sherburne
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000AND
Philip J. Kessler
P15921
Leonard M. Niehoff
P36695
BUTZEL LONG
350 South Main Street, Suite 300
Ann Arbor, MI 48104
(734) 213-3625
-57-
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
________________________________ BARBARA GRUTTER
Plaintiff, v.
LEE BOLLINGER, et al.,
Defendants.
________________________________
)
)
)
) Civil Action No. 97-75928
)
) Hon. Bernard Friedman
)
) Hon. Virginia Morgan
)
)
)
CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of May, 1999, I caused copies of Defendants' Motion for Summary Judgment and Defendants' Memorandum of Law in Support of Motion for Summary Judgment to be served by first-class mail, postage pre-paid, on:
Kirk Kolbo, Esq.
Maslon, Edelman, Borman & Brand
3300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402Michael E. Rosman, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, DC 20036Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak, P.C.
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180-6303
______________________________
Craig Golblatt
|
|