MEMORANDUM OF LAW IN SUPPORT OF
RENEWED MOTION BY DEFENDANTS BOLLINGER, LEHMAN, AND SHIELDS
FOR SUMMARY JUDGMENT ON GROUNDS OF QUALIFIED IMMUNITY
STATEMENT OF UNDISPUTED FACTS
The University of Michigan is a government institution created by the constitution of the State of Michigan. Mich. Const. art. 8, § 4. Founded in 1859, the University’sLaw School is one of the nationžs premier law schools, “offer[ing] 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/ The individual defendants in this lawsuit are government officials associated with that institution or the University of which it is a part. Defendant Lee Bollinger once served as the Dean of the Law School, but is now President of the University of Michigan. Defendant Jeffrey Lehman is his successor as Dean of the Law School, and Defendant Dennis Shields was the Law School’s Dean of Admissions at the time of plaintiff’s application. Plaintiff and her class seek monetary damages from these individuals for their role in carrying out the Law School’s admissions practices from 1995 to the present. Plaintiff has conducted extensive discovery into the design and operation of the Law School’s admissions system. That discovery confirms that the Law School applies what Bakke expressly permits -- the competitive consideration of race and ethnic origin as one of many factors in deciding who among a large pool of highly qualified applicants should be admitted.
1 / The documents and materials cited in this Memorandum are reproduced in Volume I 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 __.”
1. The Faculty Admissions Policy.
Throughout the period at issue in this lawsuit -- 1995 to the present -- the criteria used for making admissions decisions have been set out in the Law School’s Admissions Policy (the “Admission Policy” or “Policy”), see Ex. D, which was adopted by an April 24, 1992, vote of the Law School faculty, on the recommendation of the 1991-92 Faculty Admissions Committee (“Admissions Committee”).2/ The 1992 Policy, which the faculty adopted and implemented with the understanding that it had to comply with the Supreme Court’s decision in Bakke, Bollinger Dep. at 45-46, sets out why the Law School values a diverse student body, why racial diversity is an important component of the diversity that the Law School values, and how the admissions office is to achieve that diversity. Prior to 1992, no single document expressed the Law School’s admissions policies or articulated the academic values to be served by the admissions process. A handful of 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, however, were, along with others, eliminated by the adoption of the 1992 Policy. Shaw Dep. at 138-142. The 1991-92 Admissions Committee decided, after some discussion, not to include any goal or target for the admission of racial minorities. Shields Dep. at 107-108; Regan Dep. at 59-60; Herzog Dep. at 137-38 (explaining Faculty Admissions Committee decision not to include goals or targets such as those discussed in Ex. L in the 1991-92 Policy); see also Ex. M (describing Law School’s new admission policies without reference to a “special admissions” program). Instead, the Policy describes the traits, qualities, and characteristics that the admissions office should consider in making admissions decisions.
2 / Defendants Lehman and Shields were both members of the 1991-92 Faculty Admissions Committee.
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.” Ex. D at 1. The Law School takes “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. It thus employs an admissions process that draws on a wide range of objective and subjective judgments to select intellectually gifted, highly motivated, independent thinkers, from a range of diverse backgrounds, who are likely to become deeply committed professionals. In setting these goals, it recognizes that 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.” Ex. D 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.
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. Admission to the Law School is highly competitive. To select the 339 students who enrolled in 1997, for example, Law School officials reviewed more than 3,400 applications and offered admission to 1,163 applicants. Ex. B at 1.
In choosing the best class possible, 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 would not permit the Law School to fashion a class that would achieve its educational mission. Instead, the Policy establishes that grades and test scores (which are translated into a combined “index score”) are important, but by no means the exclusive admissions criteria. Ex. D at 4-5. The admissions office takes each applicant’s undergraduate grades and standardized test scores into account, but considers each application in its entirety (e.g., recommendations, quality of undergraduate institution, quality of applicant’s essay, and areas and difficulty of undergraduate selection), Id. at 5, with an eye toward all of the ways that a particular applicant will contribute to the Law School. see Ex. K. Thus, 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,” but stresses 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, 7, 10.
The Policy offers two ways in which reliance on factors that are not reflected in the “index score” serves the larger purpose of helping assemble the strongest possible law school class. Id. at 8. First, the admissions office determines whether there is some reason to doubt a prediction based exclusively on an applicant’s index score -- e.g., a student has high grades and test scores, but took dull undergraduate courses, has weak recommendations, or wrote an incoherent personal statement. Id. at 4-5. Second, the admissions office, by considering factors in addition to 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.” Id. at 9-10. The Policy 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, but notes that different members of the faculty will place value on different achievements and characteristics, e.g., a Ph.D. in physics, being age 50 in a class that consists primarily of individuals under 30, or the experience of having been a Vietnamese boat person. Id. at 11.
As part of its commitment to enrolling an intellectually vibrant and diverse class of students, the Policy notes that there is a “commitment to racial and ethnic diversity with special reference to the inclusion of students from groups that 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. An applicant’s race or ethnicity is therefore one of many factors considered in the admissions process. Shields Dep. at 23; Ex. J. The Policy finds that the Law School’s racial and ethnic diversity “has made the University of Michigan Law School a better law school,” but emphasizes that the faculty do not “mean to define diversity solely in terms of racial and ethnic status.” Ex. D at 12.3/ It is, however, 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 society. see Lehman Dep. at 161-62, 167; see also Ex. E.
3 / The Admissions Policy, for example, also 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.
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. 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 is also essential to the perception that our legal system is able to administer equal justice. Webster Expert Rep. at 5-7. Derek Bok, former Dean of Harvard Law School and former President of Harvard University, echoes 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 23.4/ The amici who have filed briefs on the Law School’s behalf confirm what is evident from the record: the consensus among professional legal educators is that a racially and ethnically diverse student body is crucial for an effective legal education. see, e.g., Brief for the United States as Amicus Curiae at 18-22; Brief of Amici Curiae Association of American Law Schools, et al. at 4.
4 / Additional expert testimony submitted by the Law School provides empirical proof that racial and ethnic diversity improves education. The work of Professor Patricia Y. Gurin 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, academic, and social skills. Gurin Expert Rep. at 35-38. A key reason for these benefits is that race still matters in American society. As the Law School’s experts show, in some areas (such as housing and elementary and secondary education) American society is as racially separate today as it was before Brown v. Board of Education, 347 U.S. 483 (1954), and the landmark civil rights legislation of the 1960s. See Sugrue Expert Rep. at 7-8, 19-44; see also Foner Expert Rep. at 48-49; Camarillo Expert Rep. at 23-26. One consequence of this racial separation and isolation is that many students coming to the Law School will have had few opportunities to benefit from exposure to individuals with backgrounds other than their own. Gurin Expert Rep. at 4-5.
2. 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. see Shields Dep. at 101, 104, 142; Munzel Dep. at 60, 125-26; Eklund Dep. at 49; Wong Dep. at 29; Lempert Dep. at 174. Directed by the Assistant Dean and Director of Admissions, the admissions office receives a manageable number of applications and reviews each file thoroughly and individually. 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. As a result, the admissions office is able to review application files without the need to rely on a set of formal guidelines (beyond the Policy itself) to direct 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 Defendant Shields during his tenure as Director of Admissions. 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. While grades and test scores are important, the Law School, because of the many applications it receives from well-credentialed candidates, Id. at 4, does not rely heavily on narrow test or grades-based distinctions between candidates. Accordingly, the admissions staff is required to dig deeper into the applications, “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. An applicant’s grades and test scores therefore “put[] a context on the file as you read it.” Shields Dep. at 80; see also Id. at 72-73; Metzler Dep. at 26-29. 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, look at an essay, transcripts and recommendations, and decide how an applicant will contribute to the Law School. Shields Dep. at 23.
The Director of Admissions makes individual admissions decisions on a file-by-file basis. Shields Dep. at 104, 142; see also Leonard Dep. at 32-33 (indicating that final admissions decisions are made by the Director of Admissions). 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’s entering class.5/ There is no dispute that race is one of many important factors in the admissions process. Where applicants disclose their race, Admissions Director Shields observed that 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.
5 / “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.
The following key points are undisputed: In its admissions decisions, the admissions office has not defined a “critical mass” of minority students. Shields Dep. at 101. Nor have admissions decisions been made to assure that some particular number of minority students were admitted or enrolled. Shields Dep. at 104; Munzel Dep. at 125-126; Wong Dep. at 29. Rather, the Director of Admissions makes individual admissions decisions on a file-by-file basis. Shields Dep. at 104, 142. The data show that the number of racial minorities admitted to the Law School has varied considerably from year to year.6/ Finally, the Law School implements its policy of considering race as one of many factors in admissions to admit only applicants who are likely to succeed at Law School and thereafter.7/
6 / 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. Ex. B. The following year, when the number of African American applicants declined to 392, the number of offers also declined -- falling more than thirty percent from 138 to 97. Id. Historically, the pool of underrepresented minority applicants to the Law School has been small. From 1992 to 1997, for example, applications from African-American students constituted between 9 percent and 12 percent of the pool, id., while those from white students represented around 56 percent of the applicants in those years. Id.
7 / The data show that, while there is some difference between the average grades and test scores of admitted majority and admitted minority students, 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. Id. According to Claude Steele, Chair of the Psychology Department at Stanford University, 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.
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