Footnotes
1/ The documents and materials cited in this Memorandum are reproduced in Volume 1 of the Appendix hereto, and are cited, e.g., as "Ex. A at __." Referenced deposition testimony, organized by deponent, is reproduced in Volume 2 of the Appendix, and is cited, e.g., as "Shields Dep. at __." Expert witness reports are reproduced in Volume 3 of the Appendix, and are cited, e.g., as "Syverud Expert Rep. at __." Return to text
2/ As the Law School's Bulletin describes, "First-year students are admitted to begin law school in late May and in September. From 80 to 90 students are admitted to begin in the 'summer section,' and approximately 250 more are admitted to begin in the fall. Admission standards for the two groups are identical." Ex. C at 86. Return to text
3/Every member of the 1991-92 faculty admissions committee was deposed. They were: Professor (now Dean) Jeffrey S. Lehman, Professors Donald Herzog, Richard O. Lempert, and Donald H. Regan, then-Professor Theodore M. Shaw, then-Assistant Dean and Director of Admissions Dennis J. Shields, and then-Associate Dean for Student Affairs Susan M. Eklund. Return to text
4/ The Policy also addresses the question of who should exercise the discretion to rely on non-quantitative factors in making admissions decisions. In this regard, until he left the Law School in 1990, Assistant Dean and Director of Admissions Allan Stillwagon made most admissions decision on his own. See Stillwagon Dep. at 17-18. The Policy thus explains that "until about two years ago," the Dean of Admissions and his staff made most of the admissions decisions "with little formal input from the faculty." Ex. D at 7. "During the last two years," however, "the Dean of Admissions has consulted with the faculty on a portion of the admissions decisions. This has allowed the faculty as represented by its admissions committee to tell its Dean of Admissions how a mix of faculty evaluate the different kinds of strengths and weaknesses that are found in applicant files." Id. at 7-8. After receiving such guidance from the faculty, the Director of Admissions, in turn, can "keep these considerations in mind in dealing with files that only he and his staff read." Id. at 8. The Policy further stated that such faculty involvement "is quite valuable and propose[d] that the admissions committee continue to read files and advise the Dean of Admissions." Id. at 8. Return to text
5/ The Admissions Policy makes specific reference to the Law School's commitment to residents of the State of Michigan, in light of the "special claims of Michigan residents to a Michigan Law School education." Ex. D at 2. As "part of a publicly funded university," the faculty concluded, a "reasonable proportion of our places should go to Michigan residents, even if some have qualifications lower than those of some applicants from outside Michigan." Id. In fact, the Dean of the Law School informed the Director of Admissions, each year, what proportion of the class should be made up of Michigan residents. Shields Dep. at 92-95. Return to text
6/ Professors Foner and Camarillo, in their respective expert reports, describe the historical events and circumstances that have given rise to the conditions that Sugrue describes. Eric Foner is the DeWitt Clinton Professor of History at Columbia University and the President-Elect of the American Historical Association. He points out that race has been a crucial line of division in American society since the 17th century, and that our nation's experience with its African-American minority has shaped the way Americans view questions of race and issues of similarity and difference. Albert M. Camarillo is Professor of History and Director of the Center for Comparative Studies in Race and Ethnicity at Stanford University. His report outlines the historical patterns and legacies of racial isolation and separation of Hispanics in American society. Return to text
7/ Virtually the entire admissions staff was deposed: Olivia Birdsall (who served as a senior admissions counselor from 1981 to 1993); Susan M. Eklund (who served as Associate Dean, and oversaw the admissions office in 1990-91); Kurt Kaiser (who had responsibility, for a time, for the admissions office computer system); Alissa Leonard (who worked in the admissions office as a receptionist, secretary, and admissions counselor from 1990 to 1996); Marcea Metzler (who worked as an admissions counselor from 1996 to 1998); Erica Munzel (who served as an admissions counselor from 1994 to 1998, and who was named Assistant Dean and Director of Admissions in 1998); Dennis J. Shields (who was Assistant Dean and Director of Admissions from 1991 to 1997); Allan Stillwagon (who was Assistant Dean and Director of Admissions from 1979 to 1990); Kristen Vandenburg (who worked as an admissions counselor in 1991-92); and Jean Wong (who has served, since 1996, as file clerk and office manager). Return to text
8/ As the admissions season progresses, the admissions office monitors the flow of applications, admissions decisions, and enrollment deposits. In doing so, the office pays attention, as the Policy requires, to the status of the School's minority applicants. In particular, the admissions office relies on a report on the status of the applicant pool -- the daily report (Exhibit B) -- to provide descriptive data, which compares the current year's pool of applicants to those in preceding years. The daily report "allows you to see what the statuses are in your applicant pool at any point in time," Munzel Dep. at 159. It is "a way of tracking what is occurring." Shields Dep. at 141. Admissions Director Shields made clear -- and his testimony is not refuted -- that the "numbers" reflected in the daily report "[did not] drive the decisions that I make or made." Id. "[N]o matter what this tells me, I've still got to go read the files and decide whether or not somebody should be admitted." Id. at 142. Return to text
9/ As Claude Steele, Chair of the Psychology Department at Stanford University and an expert witness for defendants in this matter, observes in his expert report, even much larger differences than these in standardized test scores would "represent[] a very small difference in skills critical to grade performance." Steele Expert Rep. at 5. Return to text
10/ Bakke, 438 U.S. at 324-79 (Brennan, J., joined by White, Marshall and Blackmun, JJ.). Return to text
11/ Bakke, 438 U.S. at 408-21 (Stevens, J., joined by Burger, C.J., Rehnquist and Stewart, JJ.). Return to text
12/ Like Bakke, this case is about the use of race as a factor in admissions to achieve the benefits of having a racially diverse student body. Cases addressing the use of race to remedy past discrimination do not bear on the question whether achieving the benefits of diversity in higher education is a compelling interest. Decisions involving the use of racial classifications in municipal and federal construction contracts, for example, have held that all racial classifications are subject to strict scrutiny and must be narrowly tailored to serve a compelling interest. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989). Justice Powell's pivotal opinion in Bakke is consistent with this approach: he applied "the most exacting judicial examination," 438 U.S. at 291, and he said that the use of race must be "precisely tailored to serve a compelling governmental interest," id. at 299. It is therefore understandable why the Supreme Court has not questioned the core holding of Bakke. See, e.g., Akhil Reed Amar and Neal Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745, 1746 (1996) ("Because our public universities should be places where persons from different walks of life and diverse backgrounds come together to talk with, to learn from, and to teach each other, each person's unique background and life experience may be relevant in the admissions process -- thus, absolute color-blindness is not constitutionally required in the education context."). Return to text
13/ In his controlling opinion in Bakke, Justice Powell quoted an article by William Bowen, then the President of Princeton University, in which Bowen explained why providing students with "exposure" to a diverse group of students was essential to a university's educational mission:
[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, "People do not learn very much when they are surrounded only by the likes of themselves."Bakke, 438 U.S. at 312-13 n.48. Return to text
14/ See also Rust v. Sullivan, 500 U.S. 173, 200 (1991) ("the university is a traditional sphere of free expression so fundamental to the functioning of our society"). Return to text
15/ Referring to the Harvard policy, Justice Powell wrote that "[t]his kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a 'plus' on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment." Bakke, 438 U.S. at 318. Return to text
16/ The Court repeated that point in Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985), where it noted that because of the principle of academic freedom, courts are "reluctan[t] to trench on the prerogatives of state and local educational institutions." Indeed, the point was reaffirmed by the Supreme Court just last Term, noting in Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639 (1998), that there are a variety of educational decisions, such as "a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum," that may not be second-guessed in federal court on the grounds that they represent a bias in favor or against a particular set of ideas. Principles of academic freedom thus counsel restraint in reviewing the academic judgments made by university officials. Return to text
17/ See Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998) (assuming Bakke is controlling Supreme Court authority, but invalidating race-conscious admissions program because the school would have achieved meaningful racial and ethnic diversity even without consideration of race as a factor in admissions); Winkes v. Brown Univ., 747 F.2d 792, 799 (1st Cir. 1984) ("In Bakke, the Court held that some consideration of race in a medical school's admissions criteria was permissible, but that the use of a rigid quota was not."); Smith v. Univ. of Wash. Law School, 2 F. Supp.2d 1324, 1334 (W.D. Wash. 1998) ("[t]he attainment of a diverse student body . . . is a compelling interest and constitutionally permissible goal for a university or graduate program. Thus, an institution of higher education may take race into account in achieving 'educational diversity.'") (citing Bakke); Davis v. Halpern, 768 F. Supp. 968, 975 (E.D.N.Y. 1991) ("[w]hile the court [in Bakke] explicitly rejected the use of strict numerical quotas to achieve diversity, it endorsed the plans of many colleges and universities which consider race or ethnic background as one of many factors in weighing a candidate's strength."); University and Community College Sys. v. Farmer, 930 P.2d 730, 734 (Nev. 1997) (Bakke held that "an attempt to attain a diverse student body through a preferential treatment admissions policy is not per se unconstitutional as long as race is one of several factors used in evaluating applicants. Quotas, however, are proscribed.") (citations omitted), cert. denied, 118 S. Ct. 1186 (1998). Return to text
18/ The Fifth Circuit in Hopwood did not engage in any meaningful consideration of the value of diversity for institutions of higher education. Evidence regarding the value of diversity was not presented to the trial court, or considered by the Fifth Circuit. Rather, the Fifth Circuit focused narrowly on whether Bakke had been overruled, sub silentio, by more recent Supreme Court decisions, and reached an erroneous conclusion. Return to text
19/ For these students, "qualifications predicting success beyond the LSAT and GPA [were] somewhat more emphasized in the selection process in order to yield [greater] numbers of members of these groups in the entering class." Ex. J at 2. In addition, "[m]embers of minority student organizations read files and [made] recommendations to the admissions staff, who [made] the final admission decisions." Ex. K at 38. Return to text
20/ During the faculty committee's deliberation, Professor Don Regan circulated a memorandum suggesting that the Policy include a "target range" of minority students. See Ex. L. The full committee, however, ultimately determined not to include such a "target range." Regan Dep. at 59-60. Professor Don Herzog, who opposed the inclusion of a "target range" in the Policy, explained that he did not believe that a judgment to value diversity lent itself to "quantitative glosses." Herzog Dep. at 137.
[R]efer to the example of letters of recommendation, some students are admitted to the University of Michigan Law School on the strength -- who otherwise would not get in but for the letters of recommendation, but it would be crazy to think that we say six percent or six to ten percent or eight to 20 percent of our students are admitted on the basis of letters of recommendation.We could still have a meaningful discussion about whether the admissions office is paying too little or too much attention to them, but any attempt in that context, to specify a range of numbers, would seem to me on its face absurd, and I have very much the same view about the use of race and ethnicity.
Herzog Dep. at 137-38. Return to text
21/ At the same time that the admissions committee was drafting the Admissions Policy, the Law School was also required to describe its admissions policies to the American Bar Association and the Association of American Law Schools, as part of their process of accrediting the Law School, a process that takes place once every seven years. Thus, in a "self study" and other documents submitted to the ABA/AALS committee in January 1992, the Law School described its "special admissions policy," still in place at that time. This committee then visited the Law School in February 1992, and met with various Law School officials. In the committee's report relating to the Law School's admissions process -- which the Law School received in July 1992, three months after the new Policy had been adopted by the faculty -- the ABA committee described the "special admission" program. Referring to the review of admissions policies, which had been in progress at the time of the ABA committee visit, the ABA committee stated that the "new Assistant Dean for Admissions . . . is conducting a study of the school's special admission program . . . but that the basic thrust of the special admissions program will be maintained." Ex. K at 38. Plaintiff has seized on that language.
After receiving this report from the ABA, Professor Edward Cooper, then the Associate Dean for Academic Affairs, responded to the ABA committee by noting that "[s]everal changes have been made in our statement of admissions policy since the time of the team visit," including a "general change" to the "diversity component of our statement of admissions policy." Cooper's letter then quotes the sections of the Admissions Policy that describe the Law School's interest in enrolling a student body that is diverse in many ways, including with respect to race and ethnicity, making no reference to the former special admissions program. See Ex. M at AALS 008-009. Return to text 22/ The Law School itself at one point generated similar charts, see Ex. O, but has not done so since 1995. See Metzler Dep. at 104-107. Return to text
23/ The expert witness reports submitted by all of defendants' expert witnesses -- Derek Bok, Albert Camarillo, Eric Foner, Patricia Gurin, Stephen Raudenbush, Claude Steele, Thomas Sugrue, Kent Syverud and Robert Webster -- are contained in Volume 3 of the Appendix to this Memorandum. Return to text
24/ Plaintiff acknowledges this requirement. See Complaint 31. Return to text
25/ See also Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999) ("'The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); Cameron v. Seitz, 38 F.3d 264, 272 (6th Cir. 1994) ("The unlawfulness of the official's actions must be apparent. If officials of reasonable competence objectively could disagree on the law, immunity should be recognized.") (citations omitted). Return to text
26/ Indeed, it is the very purpose of the doctrine of qualified immunity to protect government officials from the in terrorem effect of personal liability that plaintiff's counsel has trumpeted: "Unique to this suit [challenging admissions policies at the University of Michigan's College of Literature, Science and the Arts] -- and to the corollary lawsuit that has been brought against the University of Michigan Law School -- is that if the University of Michigan loses, some of its officials -- including its president -- will be personally liable for damages. Lawyers at the Center for Individual Rights in Washington, which is representing the white student plaintiffs, believe that once university officials lose their own money in these actions, university presidents around the country will start to change their admissions procedures." Nat Hentoff, A Challenge to Bill Lann Lee, The Village Voice, Jan. 13, 1998, at 24. In addition, plaintiff's counsel recently "sent out handbooks to 300 college trustees warning that trustees can be held personally liable if they fail to probe the activities and comments of college admissions officers to make sure that acceptance decisions are not based on race." Kate Zernike, Campus Affirmative Action Embattled Handbooks Encourage Student Suits, Boston Globe, Jan. 27, 1999, at A4. Return to text
27/ Plaintiff may not rely on cases from outside the Sixth Circuit unless such authority is "so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting." Marsh v. Arn, 937 F.2d 1056, 1068 (6th Cir. 1991). See also Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988) (permitting reliance on authority from a different circuit only in "an extraordinary case"). Return to text
28/ The individual defendants simply never had any reason to doubt the lawfulness of relying on Bakke in making admissions decisions. Indeed, both the American Bar Association and the Association of American Law Schools require, as a condition of accreditation and membership, that a law school demonstrate a commitment to having a racially diverse student body. See Ex. P (ABA Standard 211); Ex. Q (AALS Bylaws Section 6-4(c)). These accrediting legal institutions are hardly likely to adopt requirements that violate clearly established constitutional rights.
Likewise, in guidelines published in the Federal Register, the Department of Education (DOE) has made clear that Bakke supports the competitive consideration of race in admissions in order to attain the educational benefits of a diverse student body. For example, DOE issued the following statement concerning the Bakke opinion: "[C]olleges have a First Amendment right to seek diversity in admissions to fulfill their academic mission through the 'robust exchange of ideas' that flows from a diverse student body." 59 Fed. Reg. 8761 (1994). Universities across the country, including the University of Michigan, rely on DOE guidelines in structuring their admissions policies. Moreover, since Bakke was decided, the academic legal community has embraced Bakke as controlling precedent on the use of race in higher education admissions. Law review articles have consistently recognized Justice Powell's opinion as the Court's controlling opinion and have assumed that race-conscious admissions policies are constitutional. Indeed, in the wake of the Hopwood decision, legal scholars have largely been critical of the Fifth Circuit's opinion. See, e.g., Akhil Reed Amar and Neal Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745, 1779 (1996) ("Our [analysis of the case law] suggests that educational affirmative action on a Harvard-plan model may pass Supreme Court muster. There are sound reasons why this is so -- reasons that we believe are at the heart of Bakke."); Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. Colo. L. Rev. 939, 945 (1996) ("Under Regents of the University of California v. Bakke, colleges and universities may use affirmative action to achieve diversity in admissions: the Fifth Circuit in Hopwood v. Texas may have declared Bakke dead, but it lacked the power to make it so."); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996) (criticizing the Hopwood opinion). In the face of this line of scholarly authority, it cannot be suggested that it would be "apparent" to a university official that he or she could be subjected to liability for actions that comply with the Bakke opinion. Return to text 29/ Sovereign immunity may also be "abrogated" by Congress, exercising its power to enforce the Fourteenth Amendment. In Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360 (6th Cir. 1998), the Sixth Circuit held that Title IX represents an abrogation of state sovereign immunity. But as the Supreme Court's subsequent Lago Vista decision makes clear, the question of the scope of that abrogation is governed by Spending Clause principles: a recipient of federal funds is liable in damages only insofar as -- by accepting federal funds -- it "voluntarily and knowingly accept[s] the terms of the contract." Return to text
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