Patterson v. Gratz Petition for Writ of Certiorari

    In  THE

Supreme Court of tijc ttmtoii sta tes
E b o n y  Pa t t e r s o n , e t  a l .,

Pe t it io n e r s ,
v.

J e n n if e r  G r a t z  a n d  P a t r ic k  H a m a c h e r , 
a n d

L e e  B o l l in g e r , Ja m e s  J. D u d e r s t a d t , T h e  
B o a r d  o f  Re g e n t s  o f  t h e  U n iv e r s it y  o f  M ic h ig a n , 

Re s p o n d e n t s .

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

________________ No. 02- _________________

P a tr ic ia  M e n d o z a  
R u pe  Al b a  
M ex ic a n  A m e r ic a n  
L eg a l  D e f e n s e  a n d  
E d u c a t io n a l  F u n d  

188 W. Randolph Street 
Chicago, IL 60605 
(312)782-1422

E l a in e  R . J o n e s  
Director-Counsel 

*Th e o d o r e  M . S h a w  
N o r m a n  J. C h a c h k in  
J a m e s  L . C o t t  
M e l is s a  S. W o o d s  
NAACP L e g a l  D e f e n s e  

a n d  E d u c a t io n a l  
Fu n d , In c .

99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200

* Counsel o f Record

Attorneys for Petitioners 
(Listing of Counsel continued inside cover)



(Listing of Counsel continued from cover)

B r e n t  E . S im m o n s  
A C L U  F u n d  o f  M ic h ig a n  
300 S. Capitol Avenue 
Lansing, MI 48901 
(517) 371-5140

M ic h a e l  J. St e in b e r g  
A C L U  F u n d  o f  M ic h ig a n  
60 West Hancock Street 
Detroit, MI 48226 
(313)578-6814

C h r is t o p h e r  A . H a n se n  
E. V in c e n t  W a r r e n  
Am e r ic a n  C iv il  
L ib e r t ie s  U n io n  

125 Broad St., 18th FI.
New York, NY 10004 
(212) 549-2500

G o d fr ey  J. D il l a r d  
M il t o n  R . H e n r y  
R e g in a l d  M. T u r n e r  
C itizen s  F o r  
A f f ir m a t iv e A c t io n ’ 
Pr e se r v a t io n  

P.O. Box 31-1421 
Detroit, MI 48231 
(313) 964-2838



1

QUESTION PRESENTED

Is a university policy that considers race and ethnicity 
as one of several factors in its admissions process justified 
under the Equal Protection Clause of the Fourteenth 
Amendment both by a compelling interest in assembling a 
diverse student body, and a compelling interest in remedying 
past and present discrimination at the university, whether or not 
the university articulates the remedial justification as a basis for 
the policy?



PARTIES TO THE PROCEEDING

Petitioners are Ebony Patterson, Ruben Martinez, 
Laurent Crenshaw, Karla R. Williams, Larry Brown, Tiffany 
Hall, Kristen M.J. Harris, Michael Smith, Khyla Craine, Nyah 
Carmichael, Shanna Dubose, Ebony Davis, Nicole Brewer, 
Karla Harlin, Brian Harris, Katrina Gipson, Candice B.N. 
Reynolds, by and through their parents or guardians, Denise 
Patterson, Moises Martinez, Larry Crenshaw, Harry J. 
Williams, Patricia Swan-Brown, Karen A. McDonald, Linda A. 
Harris, Deanna A. Smith, Alice Brennan, Ivy Rene Carmichael, 
Sarah L. Dubose, Inger Davis, Barbara Dawson, Roy D. Harlin, 
Wyatt G. Harris, George C. Gipson, Shawn R. Reynolds, and 
Citizens for Affirmative Action’s Preservation. They are 
defendant-intervenors in the District Court and appellants in the 
Court of Appeals.

Respondents are Jennifer Gratz and Patrick Hamacher. 
Respondents were plaintiffs in the District Court and were 
appellees in the Court of Appeals with respect to intervenors’ 
appeal.

Additional Respondents are Lee Bollinger, James J. 
Duderstadt, and the Board of Regents of the University of 
Michigan. These respondents were defendants in the District 
Court and were appellees in the Court of Appeals with respect 
to intervenors’ appeal.

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- l i i -

TABLE OF CONTENTS

Question Presented for R eview ............................................ i

Parties to the Proceeding....................................................... ii

Table of Authorities............................................................r  v

Opinions B elow ...................................................................... 1

Jurisdiction..............................................................................2

Constitutional and Statutory Provisions Involved.................2

Statement of the Case..............................................................3

A. Introduction ................................................................3

B. Prior Proceedings........................................................6

1. The District Court ................................................6

2. The Court of Appeals ......................................... 8

C. Factual Background................................................... 9

1. The Discriminatory Impact of the Current
Selection Criteria ..............................................10

Page

2. The University’s History of Discrimination . . 1 2



-IV-

a. 1817-1964: More than a Century
of University Segregation and 
Discrimination..................................... 12

b. 1965-1980: The First “Mandate” —
The Opportunity Program ...................13

c. 1980-1990: The Michigan Mandate . . .  15

d. Persisting Effects of The University’s
Long-Maintained Discrimination........ 16

REASONS FOR GRANTING THE WRIT.......................17

I The Court Should Grant The Writ Before
Judgment By The Court Of Appeals Because 
This Case Is Of Such “Imperative Public 
Importance” As To Require Immediate 
Determination In This Court ................................... 17

II The Court Should Also Grant The Writ Before
Judgment By The Court Of Appeals Because 
Sim ilar And Related Questions Of 
Constitutional Significance Will Be Before This 
Court If It Grants Certiorari In Grutter v. 
Bollinger ..................................................................21

TABLE OF CONTENTS (continued)

Page



-V-

HI The Court Should Grant This Writ To Consider 
Whether The Constitution Permits The Use Of 
Race And National Origin In College 
Admissions Upon A Showing That There Is A 
Strong Basis In Evidence Of Discrimination 
Even If That Showing Is Not Proffered By The 
University................................................................. 23

Conclusion............................................................................26

TABLE OF AUTHORITIES

Cases:

Bolling v. Sharpe,
344 U.S. 873 (1952)...............................................  21

Brown v. Board o f Education,
347 U.S. 497 (1954)...............................................  18

Brown v. Board o f Education,
344 U.S. 1 (1952)...................................................  21

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989)........................................... 4, 23

Coral Constr. v. King County,
941 F.2d 910 (9th Cir. 1991).................................... 24

TABLE OF CONTENTS (continued)

Page



Cases (continued):

Dames & Moore v. Regan,
453 U.S. 654(1981)............................................... 18

Gratz v. Bollinger,
135 F. Supp. 2d 790 (E.D. Mich. 2001)............  1, 25

Gratz v. Bollinger,
122 F. Supp. 2d 811 (E.D. Mich. 2000)...................1

Greene v. McElroy,
360 U.S. 474 (1959)............................................... 21

Grutter v. Bollinger,
188 F.3d 394 (6th Cir. 1999)..........................  4, 7, 22

Grutter v. Bollinger,
288 F.3d 732 (6th Cir. 2002), pet. for cert.
filed, 71 U.S.L.W. 3154 (August 9, 2002) . . .  1, 8, 20

Johnson v. Board o f Regents ofUniv. o f Georgia,
263 F.3d 1234 (11th Cir. 2001)........................  19, 20

Mazurek v. Armstrong,
520 U.S. 968 (1997)............................................... 18

Mistretta v. United States,
488 U.S. 361 (1989)........................................  18, 19

Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978)............................................... 21

-vi-

TABLE OF AUTHORITIES (continued)

Page



Cases (continued):

Porter v. Dicken,
328 U.S. 252 (1946)............................................... 21

Regents o f the Univ. o f California v. Bakke,
438 U.S. 265 (1978)..................................  19, 20, 24

Smith v. University o f Washington Law Sch.,
233 F.3d 1188 (9th Cir. 2000), cert.
denied, 532 U.S. 1051 (2001) ..............................  20

Taylor v. McElroy,
358 U.S. 918 (1958), 360 U.S. 709 (1959) ..........  21

Texas v. Hopwood,
518 U.S. 1033(1996)............................................. 19

Wessmann v. Gittens,
160 F.3d 790 (1st Cir. 1998)..................................  20

Wygant v. Jackson Bd. o f Educ.,
476 U.S. 267 (1986)......................................... 24,25

Constitution and Statutes:

U.S. Const., amend. XIV, §1 .............................................. 2

28U.S.C. § 1254(1)................................................. 2, 17, 19

28 U.S.C. § 1292 ...................................................................2

-vii-

TABLE OF AUTHORITIES (continued)

Page



-vm-

Constitution and Statutes (continued):

28 U.S.C. § 2101(e)........................................................ 2, 17

42 U.S.C. § 2 0 0 0 d ...................................................................3

Rules:

S.Ct. R. 1 1 ............................................................................. 18

Fed. R. Civ. P. 54(b) .............................................................. 2

Other Authorities:

National Center for Education Statistics,
Projections o f Education Statistics to 2012 
(31st ed. Oct. 2002), available at 
http://nces.ed.gov/pubs2002 .................................. 19

Shomari Terrelonge-Stone, ‘U’ Prof. Studies Racial 
Tolerance, The Michigan Daily Online,
November 3, 1999, available at 
http://www.michigandaily.com................................16

17 Charles Alan Wright, Arthur R. Miller & Edward 
H. Cooper, Federal Practice & Procedure 
§ 4036 (2d ed. 1988)

TABLE OF AUTHORITIES (continued)

Page

18



1

PETITION FOR WRIT OF CERTIORARI

Petitioners Patterson, et al. (defendant-intervenors 
below) (“intervenors”) respectfully request that this Court issue 
a writ of certiorari to review a judgment of the United States 
District Court for the Eastern District of Michigan that is 
presently pending on appeal in the United States Court of 
Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the United States District Court for the 
Eastern District of Michigan granting summary judgment 
against intervenors, and rejecting their claim that the University 
of Michigan (“University”) was justified in considering race in 
its admissions policy in order to remedy the effects of past and 
present discrimination, is reported as Gratz v. Bollinger, 135 F. 
Supp. 2d 790 (E.D. Mich. 2001) (App. 66a).1 The Court of 
Appeals has not yet ruled on the appeal of that decision.

The opinion of the district court on the other parties’ 
cross-motions for partial summary judgment, dealing with the 
question whether the University could consider race as an 
admissions factor in order to achieve a diverse student body, is 
reported as Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 
2000) (App. la). The Court of Appeals has not yet mled on the 
appeal of that decision. Plaintiffs in this action have filed a 
separate Petition seeking review of that ruling, No. 02-516 in 
this Court (filed October 1, 2002).

The opinion of the United States Court of Appeals for 
the Sixth Circuit in the related case of Grutter v. Bollinger is 
reported at 288 F.3d 732 (6th Cir. 2002), petition for cert, filed, 
71 U.S.L.W. 3154 (August 9, 2002) (No. 02-241) (“Grutter

‘Citations in this form are to the Appendix to the Petition in Gratz 
v. Bollinger, No. 02-516.



2

JURISDICTION

The district court entered judgment pursuant to Fed. R. 
Civ. P. 54(b) on March 21, 2001 with respect to intervenors’ 
claim that the University’s use of race in admissions was 
justified as a remedy for the present effects of past and 
continuous discrimination (App. 95a). Intervenors’ appeal 
from that decision was docketed in the Court of Appeals as No. 
01-1438.2

The jurisdiction of this Court is invoked under 28 
U.S.C. § 1254(1), which provides for review by writ of 
certiorari of any case pending in the court of appeals, even if 
final judgment has not been entered by that court. See also 28 
U.S.C. § 2101(e) (“An application to the Supreme Court for a 
writ of certiorari to review a case before judgment has been 
rendered in the court of appeals may be made at any time 
before judgment.”). See infra at pp. 17-20.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

1. The Equal Protection Clause of Section 1 of the 
Fourteenth Amendment provides that no State shall “deny to 
any person within its jurisdiction the equal protection of the 
laws.”

2The District Court had previously issued an order on January 30, 
2001 certifying two questions for interlocutory review pursuant to 28 U.S.C. 
§ 1292: (1) whether a public university has a compelling interest in 
achieving the educational benefits of diversity that will justify the 
consideration of race as a factor in admissions; and (2) if so, whether the 
admissions systems employed by the University of Michigan from 1995 to 
2000 were properly designed to achieve that interest (App. 56a). Cross­
appeals on those questions were docketed in the Court of Appeals as Nos. 
01-1333, 01-1416, and 01-1418. Intervenors have argued in support of 
diversity as a compelling state interest in those appeals.



3

2. Title VI of the Civil Rights Act of 1964,42 U.S.C. 
§ 2000d, states:

No person in the United States shall, on the grounds of 
race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be 
subjected to discrimination under any program or 
activity receiving Federal financial assistance.

STATEMENT OF THE CASE

A. Introduction

At stake in these extraordinary cases (Grutter and 
Gratz) is whether the University of Michigan (and, by 
extension, other institutions of higher education) may 
consciously consider race in its admissions decisions to achieve 
the educational benefits that flow from a diverse student body 
and to remedy the effects of prior discrimination in which it 
participated. Meaningful but modest integration did not come 
to the University fortuitously. It was and is the consequence of 
affirmative efforts to overcome past discrimination and the 
educationally limiting impact of racially isolated classroom and 
campus settings.

As the respective plaintiffs in both Grutter and this case 
have noted in their petitions for certiorari, the courts of appeals 
have divided on this issue of profound national importance in 
prior higher education affirmative action cases. See Gratz 
Petition, No. 02-516 at 20-24 (citing cases); Grutter Petition, 
No. 02-241 at 21-25 (citing cases). Both Grutter and Gratz 
have fully developed records, and full representation of all 
interested parties. Were the Court to grant the writs sought by 
those petitioners as well as by intervenors here, it will have 
before it all of the parties and questions necessary to resolve 
this issue definitively.



4

Like the Gratz plaintiffs, petitioners believe the Court 
should exercise its discretion under Rule 11 of its Rules and 
grant a writ of certiorari before judgment to the United States 
Court of Appeals for the Sixth Circuit, which has not yet 
entered judgment on the various appeals pending before it in 
the Gratz case.

Like Grutter, the Gratz case presents the vital issue of 
whether diversity is a compelling governmental interest that 
justifies the use of race-conscious admissions in higher 
education. Both cases present an additional issue arising from 
the confusion in the lower courts about the availability of 
remedial justifications for the use of race as a factor in 
university admissions. In both cases, the University was 
understandably unwilling to admit its own past discrimination 
as a justification for its policies. The Court of Appeals 
recognized this, and, in ordering intervention as of right in both 
cases, found that the University was “unlikely to present 
evidence of past discrimination by the University itself or of the 
disparate impact of some admissions criteria and. . .  these may 
be important and relevant factors in determining the legality of 
a race-conscious admissions policy.” Grutter v. Bollinger, 188 
F.3d394,401 (6th Cir. 1999). The district court, however, then 
effectively rejected as irrelevant the “strong basis in evidence” 
of discrimination presented by intervenors, see City of 
Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989), 
because the University would not admit to the evidence of its 
past or present discrimination.

If the Court is going to consider the diversity question, 
it should grant certiorari in both Grutter and Gratz, because the 
cases present the issue in different contexts. The undergraduate 
admissions scheme administered by the University is typical of 
a large institution in which, as a matter of expediency, the 
overwhelming number of applicants leads to a rating system in 
which admissions criteria are assigned numerical values. The



5

law school, while processing a significant number of 
applicants, is nonetheless able to provide somewhat greater 
individual attention to each application. Moreover, diversity at 
each level of study has special importance for differing reasons. 
In the undergraduate setting, student life outside the classroom, 
in student organizations, in dormitories, and on athletic teams, 
is as much a part of the educational experience as is the 
classroom experience, and for many students, undergraduate 
study offers their first exposure to heterogeneity and the rich 
diversity of backgrounds that characterizes our nation. In law 
schools, most classroom instruction heavily emphasizes the 
clash of viewpoints and arguments as a means of developing 
and sharpening analytic skills, a pedagogy that the record in 
Grutter indicates is enriched by student diversity.

In addition, in order for the Court to have all relevant 
issues before it, the Court should grant this petition for 
certiorari. The University contends that diversity is a 
compelling interest because of its educational benefits, as do 
the present petitioners. However, the school’s unwillingness to 
advance an equally compelling interest supporting its 
admissions policy should not cause this Court to ignore the 
substantial body of evidence suggesting that the University had 
long treated minority applicants and students in a racially 
discriminatory fashion. Here, the intervenors presented more 
than sufficient proof to establish a strong basis in evidence that 
remediation of past and present discrimination by the 
University and its officials is also a compelling justification for 
considering an applicant’s race or ethnicity as one factor in 
making admissions, but that evidence was deemed irrelevant 
since it was not proffered by the University.

This Court needs to resolve the implications of a rule 
that prohibits others, such as intervenors here, from introducing 
evidence to support a remedial justification for a university’s 
policies that the institution itself has not, for whatever reason,



6

offered. The administration of justice will be best served by 
having all issues before the Court at one time on the most 
complete possible record. If the Court is going to address the 
University’s admissions program, therefore, petitioners 
respectfully request that the Court grant this petition, the Gratz 
plaintiffs’ petition, and the petition in Grutter, and set the 
matters for argument in tandem.

B. Prior Proceedings3

1. The District Court

In 1997, the Gratz plaintiffs, two white individuals who 
were denied admission to the University of Michigan’s 
undergraduate School of Literature, Science, and the Arts 
(“LSA”), filed this lawsuit on behalf of themselves and a class, 
alleging that the University’s admissions policies unlawfully 
discriminated against white applicants (JA 34). The University 
answered by defending its use of race to achieve a diverse 
student body (JA 148).

Also in 1997, the Grutter plaintiffs, other unsuccessful 
white applicants, represented by the same lawyers as the Gratz 
plaintiffs, sued the University of Michigan’s law school making 
virtually identical allegations. The University answered with 
the same defense. Although both cases were filed in the 
Eastern District of Michigan, raised identical legal issues, and 
included the same counsel, they were assigned to two different 
district court judges and were not consolidated.

3Some of the statement of facts contained in the petition herein are 
based on a “Joint Summary of Undisputed Facts” that was submitted by the 
parties to the district court (App. 106a- 118a). Additional citations herein are 
to documents contained in the Joint Appendix (“JA”) filed by the parties in 
the Sixth Circuit.



7

In 1998, various affected parties sought to intervene in 
each case. Seventeen African-American and Latino high 
school students and Citizens for Affirmative Action’s 
Preservation (“CAAP”) moved to intervene in the Gratz case. 
Intervenors sought to join the University in defending the use 
of race to achieve a diverse student body. Intervenors also 
sought to advance a remedial justification for the University’s 
admissions policies based on past and present discrimination 
against African-American and Latino applicants and students. 
A number of individuals and organizations sought intervention 
in the Grutter case with similar aims.

Both district court judges denied intervention. 
Proposed intervenors appealed and a single panel of the Sixth 
Circuit heard argument in both cases on the same day. The 
Sixth Circuit reversed, finding that intervenors had substantial 
legal interests at stake, and ordered intervention as of right in 
both cases. Grutter v. Bollinger, 188 F.3d 394, 401 (6th Cir. 
1999).

In the Gratz case, the plaintiffs and the University each 
moved for summary judgment on the basis of a stipulated 
record. Intervenors joined the University’s position that 
diversity is a compelling state interest justifying a narrowly 
tailored admissions program that considers race as one of many 
factors. In addition, intervenors argued that the extensive 
evidence of past and present discrimination by the University 
would, by itself or in conjunction with the academic interest in 
diversity, justify the use of race in admissions. Plaintiffs 
admitted that a diverse student body would provide educational 
benefits to all students, but nevertheless argued that these 
benefits should be denied as violations of law. Plaintiffs also 
argued that the remedial justification could be raised only by 
the University. In the law school case, similar arguments were 
made by all parties at trial.



8

The district court in the Gratz case ruled in favor of the 
University on the issue of whether diversity was a compelling 
state interest, and found that the specific current policies of the 
University were narrowly tailored to that interest (App. la). 
However, the court subsequently granted summary judgment 
against intervenors, holding that since the University had not 
advanced a remedial justification, its admissions practices 
could not be justified on remedial grounds, regardless of proof 
of discrimination. The court also found intervenors’ 
uncontested evidence of past and present discrimination 
insufficient as a matter of law. App. 66a.4

2. The Court of Appeals

All parties appealed. The Sixth Circuit heard argument 
in both cases en banc on the same day. On May 14,2002, that 
court reversed the decision in the law school case, holding that 
diversity was a compelling state interest and that the law 
school’s admissions policies were narrowly tailored to that 
interest. Grutter v. Bollinger, 288 F.3d 732, 735 (6th Cir. 
2002). The court did not address whether an interest in 
remedying past discrimination is sufficiently compelling for 
equal protection purposes. Id. at n.4. The court has not yet 
ruled on the appeals in the undergraduate case. Id. at n.2.

Plaintiffs in the respective cases have filed petitions for 
writs of certiorari to review the Court of Appeals’ ruling in the 
law school case and the district court’s ruling on their summary 
judgment motion in the undergraduate case. Intervenors are

“The district court in Grutter ruled for plaintiffs, finding that 
diversity was not a compelling state interest and that the specific current 
policies of the University were not narrowly tailored {see App. 189a in 
Grutterv. Bollinger, No. 02-241). It also rejected the intervenors’ remedial 
justification arguments as an alternative basis for a race-conscious 
admissions process (id.).



9

filing this petition so that the Court will also have before it the 
remaining issue decided by the district court, respecting 
intervenors’ proffered evidence to support a remedial rationale 
for the University’s admissions policy.

C. Factual Background

The University provided an extraordinary wealth of 
evidence in both the undergraduate and the law school case to 
support its assertion that there are significant benefits to an 
education in a racially diverse environment. This evidence 
distinguishes the value of diversity in the setting of a university, 
where the program itself is enhanced by diversity, from 
diversity in other settings. Intervenors will not endeavor to 
catalogue that evidence here and anticipate that it will be 
described by the University in its response to the Gratz 
plaintiffs’ petition.5

The Gratz intervenors provided extensive and 
unrebutted evidence to support the conclusion that, but for the 
inclusion of race as one factor, among others, the University’s 
admission criteria would have a disproportionate adverse 
impact on African-American and Latino applicants, and that 
such criteria are unnecessary to admit qualified students. 
Additionally, intervenors submitted extensive evidence that 
demonstrated a long-standing history of racial discrimination, 
exclusion, and isolation at the University which is currently 
manifested in a racially hostile environment on the

5Plaintiffs did not challenge this evidence. Indeed, as the district 
court observed, “[pjlaintiffs have presented no argument or evidence 
rebutting the University Defendants’ assertion that a racially and ethnically 
diverse student body gives rise to educational benefits for both minority and 
non-minority students. In fact, during oral argument, counsel for Plaintiffs 
indicated his willingness to assume, for purposes of these motions, that 
diversity in institutions of higher education is ‘good, important, and 
valuable’” (App. 25a).



10

undergraduate campus. Intervenors’ evidence provides an 
alternative justification for the University’s admissions 
programs: remedying past and present discrimination against 
African-American and Latino students and applicants. This 
evidence, which the University chose not to present (but did not 
contest), also provides context to the importance of diversity at 
the University.

1. The Discriminatory Impact of the Current 
Selection Criteria

Because of the number of applicants typical of large 
universities, Michigan has chosen to utilize grades and test 
scores using a formula (in this case reflected in the acronym 
“SCUGA”) in making admissions decisions at the 
undergraduate level. The University considers its own rating 
of the applicant’s high school (“S”), the rigor of the curriculum 
taken by the applicant (“C”), socio-economic disadvantage or 
under-represented minority status (“U”), the geographic 
residence of the applicant (“G”), and his or her alumni status 
(“A”) (JA 3935). Plaintiffs challenged only the consideration 
of race or ethnicity as part of factor “U.”

However administratively convenient they may be in 
distinguishing among non-minority candidates, four of these 
factors (plus the remainder of factor “U”) have a statistically 
significant and consistently negative effect on the admissions 
chances of African-American and Latino applicants. For 
example, the University gives extra points to students who 
come from the upper peninsula of Michigan or whose parents 
were alumni. The additional points awarded under the 
geography and alumni factors are available almost exclusively 
to non-minority applicants (JA 1998,3481). Under-represented 
minority applicants are — in part because of the discrimination 
that has persisted at the University — less likely to have alumni 
parents or relatives, and are disproportionately first-generation



11

applicants to college. As a result, they do not receive the 
benefit from the alumni factor that their white counterparts 
receive. The geography factor also exacerbates the effect of 
racial segregation in the state by giving extra points to students 
who come from one of the forty-five northern Michigan 
counties, all of which, in the highly segregated state of 
Michigan, are overwhelmingly white (JA 3482).

The school and curriculum factors have similar 
exclusionary effects due, in part, to the separate and unequal K- 
12 schooling offered in Michigan (JA 3478-79, 3699). The 
overwhelming number of minority high school students in 
Michigan attend schools that have relatively low “S” factor 
ratings, and relatively few minority students are in schools that 
earn high “S” factor ratings. The “C” factor, which assigns a 
greater number of points to applicants who have taken 
Advanced Placement and other honors courses, produces a 
similar discriminatory effect. Again, here, by virtue of the fact 
that African-American and Latino children are segregated 
overwhelmingly in schools that offer few, if any, honors 
courses, they are unable to benefit from this factor to the same 
extent as their white counterparts, even if they are achieving at 
the highest levels at the schools they do attend. Thus, simply 
by virtue of where they attend school, white students are able 
to earn “S” and “C” factor points that a disproportionate 
number of African-American and Latino students, regardless of 
their aptitude, simply cannot earn.

In sum, the use of the SCUGA factors would, if race 
and ethnicity were not separately considered as a factor in the 
admissions process, have a statistically significant disparate 
impact on minority applicants. Moreover, the use of race and 
ethnicity in the admissions, process needs to be understood in 
the context of the University’s long history of discrimination on 
campus.



12

2. The University’s History of Discrimination

The uncontested evidence in the record reveals an 
extensive history of discriminatory treatment of African- 
American and Latino students by the University, the effects of 
which are seen today in the continued under-representation of 
such students on campus. These practices range from 
maintaining segregative and exclusionary practices on campus, 
refusing to take meaningful steps to recruit, enroll, and retain 
minority students, to ignoring, if not sanctioning, a campus 
climate that is often marked by racial hostility. Through the 
years, the University minimized or sidestepped criticism of its 
discriminatory practices by the federal government, state 
legislators, the Regents of the University, civil rights 
organizations, and its own faculty and students (JA 2261-83). 
Almost every significant effort to integrate minorities into the 
campus came through pressure by students and others, but it 
was not until the establishment of the Michigan Mandate in 
1988 that the University began a significant effort to dismantle 
this pattern of racial exclusion.

a. 1817-1964: More than a Century of  
University Segregation and Discrimination

The University was founded in 1817; however, it was 
not until 1868 that the first African-American students were 
enrolled (JA 2265). The University segregated its own campus 
housing, and excluded students of color from fraternities and 
sororities into the 1960’s, with the support of the University’s 
administration (JA 3757).

From 1949 to 1952, the Michigan Civil Rights Congress 
and other groups called for an end to discriminatory clauses in 
the constitutions and by-laws of all campus organizations (JA 
2266). However, then-University President Harlan Hatcher 
flatly rejected the proposal, and effectively allowed all 
University organizations to continue their discriminatory



13

practices. In 1959, one observer noted that, as of that year, 
“[n]o University fraternity chapter had ever accepted a Black 
student” (JA 2272) (emphasis added).

In contrast to its resistance to ending practices that 
segregated and isolated American racial and ethnic minority 
students, the University took affirmative steps to integrate its 
foreign students into the entire range of campus life, including 
by giving them priority over African-American students in both 
admissions and housing (JA 2270).

b. 1965-1980: The First “Mandate” ---- The
Opportunity Program

Against the backdrop of more than one hundred years 
of segregation on the Michigan campus, the University 
announced the Opportunity Program, ostensibly designed to 
recruit and admit socially disadvantaged students to the 
University. While minority enrollment increased in the years 
after the announcement of the University’s first “mandate” — 
the Opportunity Program — hostility aimed at students of 
color at the University persisted.6 Minority students were still 
excluded from campus activities and university social traditions 
(JA 2274-75, 2276, 3768).

In 1966, the Department of Defense investigated the 
University’s compliance with Title VI of the 1964 Civil Rights 
Act. The Department’s report reflected Michigan’s reputation 
among students and faculty as a school “basically for rich white 
students” and urged campus administrators to increase 
recruitment of black students, faculty and staff (JA 2270-71).

6By 1966, 400 Black students were enrolled at the University, 
representing only 1.2 per cent of the total student population of about 
32,000. At that time, nearly 55 per cent of Detroit’s 300,000 elementary and 
secondary school students were African-American (JA 2265).



14

Nonetheless, the University’s administrators did little to change 
its discriminatory policies.

In 1970, intense dissatisfaction with the University’s 
failure to address campus racism and to increase minority 
enrollment culminated in a series of student strikes. In 
February of that year, a student group calling itself Black 
Action Movement (“BAM F’) pressed the Regents and 
University administration to substantially increase African- 
American enrollment and increase financial aid so that African- 
American and Latino students, disproportionately poor, could 
matriculate if admitted (JA 2278-80). The enrollment proposal 
won support from many, including then-Govemor William 
Milliken. However, University administrators rejected the 
proposal. Only after the BAM I students went on “strike” did 
the University agree to pursue some admissions and 
recruitment efforts (JA 2284-85). After the BAM I strikes, 
African-American presence on campus nearly doubled from 
3.5 per cent of all students in 1970 to 6.8 per cent in 1972 (JA 
2287).

However, with this modest increase in minority 
enrollment, the University continued to tolerate racial tensions 
on campus. Racial incidents in campus dormitories were 
widespread, prompting complaints of dehumanizing treatment 
of African-American students (JA 2293). Investigations of 
these incidents concluded that some staff members’ racist 
attitudes — that were tolerated by the University — 
contributed to the problem (JA 2294-96). Rather than rectify 
the hostile environment on campus, the University exacerbated 
it in 1973 when it abandoned its short-lived minority admission 
and recruitment programs (JA 2289). Consequently, African- 
American enrollment plummeted, falling to a low of 4.9 per 
cent between 1973 and 1983 — its lowest level since 1970 (JA 
2291-92).



15

In response, in 1975, minority students organized 
“BAM II,” requesting increased support services and an 
effective institutional effort to address the persistent negative 
racial climate on campus (JA 2298). Then-President Robben 
Fleming refused both requests (JA 2299). With no minority 
recruitment and admissions effort in place, well-publicized 
discrimination on campus and no corresponding University 
redress, enrollment and retention rates of minorities continued 
to decline: between 1976 and 1985, the University lost a full 
34 per cent of its African-American students (JA 3885).

c. 1980 -1990: The Michigan Mandate

In 1980, a University sociology professor conducted a 
study of undergraduates at Michigan that found 85 per cent of 
African-Americans surveyed reported racial discrimination on 
campus from their peers, administrators or professors and more 
than 60 per cent stated that they had little or no contact with 
African-American faculty and staff (JA 2312-13).

In 1986 and 1987, a number of racist incidents 
occurred on campus — some of which would capture national 
media attention — including the dissemination of a racist flyer 
announcing “open season on porch monkeys . . . (regionally 
known as: Jigaboos, Saucerlips, Jungle Bunnies and Spooks) 
(JA 2323) (emphasis omitted), and the broadcast of racist jokes 
on WJJX, the University’s campus radio station (JA 3759-61). 
The WJJX incident received national press coverage and 
resulted in a hearing before the Michigan State Legislature (JA 
2330). The University’s own investigation concluded that the 
broadcast was “only a symptom of a pervasive atmosphere on 
this campus” (JA 2327).

On the heels of these incidents, then-provost James 
Duderstadt announced plans for a new initiative aimed at 
quelling racial discontent at the University. Duderstadt 
announced the Michigan Mandate, an effort that sought to



16

increase the number of students and faculty of color, to provide 
“equal opportunity” and “equal access to all educational 
resources to students from under-represented racial and ethnic” 
groups (JA 1378-79), to remedy institutional racism on campus 
(JA 1383), and to promote a more racially and ethnically 
diverse campus to prepare students for an increasingly 
multicultural world (JA 1376). The Mandate itself 
acknowledged the “prejudice, bigotry, discrimination and even 
racism” on the Michigan campus, as well as its goals of 
“remov[ing] institutional barriers to full participation in the life 
and leadership of [the] institution” (JA 1390).

d. Persisting Effects of The University’s 
Long-Maintained Discrimination

Notwithstanding the Michigan Mandate, the negative 
and hostile climate at the University remains one of the 
manifestations of its discriminatory policies. Recently, as in 
previous years, the campus has been plagued by targeted racist 
actions against African-American and Latino students, 
including racist graffiti in the hallways of campus buildings 
and in dorm rooms; racially derogatory remarks and epithets;7 
and racist literature and lettering placed on campus buildings 
(JA 2393, 3751). Additionally, African-American and Latino 
undergraduate students endure more subtle forms of 
discrimination — negative racial stereotypes by professors and 
classmates, exclusion from campus clubs and social groups, 
racist remarks and “jokes,” and lack of critical academic 
support — all of which can erode their sense of belonging at

7In 1998, for example, an African-American junior awoke to find 
a note posted on her dorm room door with the words “two stupid bitches” 
and “niggar” [sic] along with two swastika symbols. Shomari Terrelonge- 
Stone, 'U ’ Prof. Studies Racial Tolerance, THE MICHIGAN DAILY ONLINE, 
November 3, 1999, available at http://www.michigandaily.com (JA 3777- 
79).

http://www.michigandaily.com


17

the institution and their ability to form peer networks (JA 2396- 
2398, 2401,2415).

Discriminatory treatment at the hands of University 
police is also endemic. In the 1999-2000 school year, African- 
American and Latino student groups on campus complained of 
being subjected to a substantially greater level of surveillance 
than predominantly white groups (JA 2408-10, 3752-53,3740- 
41).

Such a negative racial climate can affect student 
performance and limits the informal learning, networking, and 
interacting that takes place with their peers outside the 
classroom (JA 2422). A negative racial climate tolerated and 
maintained over several decades also deters other African- 
Americans and Latinos from enrolling (JA 2389-91). Studies 
conducted by the University revealed that the primary concern 
expressed by more than one-third of the African-Americans and 
Latinos who chose not to apply as undergraduates was racism 
on campus (JA 3833, 3840).

REASONS FOR GRANTING THE WRIT 

I

The Court Should Grant The Writ Before 
Judgment By The Court Of Appeals Because 
This Case Is Of Such “Imperative Public 
Importance” As To Require Immediate 

Determination In This Court

This Court may invoke its certiorari jurisdiction either 
“before or after rendition of judgment” by a court of appeals. 
28 U.S.C. § 1254(1). See also 28 U.S.C. § 2101(e) (“An 
application to the Supreme Court for a writ of certiorari to 
review a case before judgment has been rendered in the court



18

of appeals may be made at any time before judgment.”). 
However, the Court’s rules counsel that “[a] petition for a writ 
of certiorari to review a case pending in a United States court 
of appeals, before judgment is entered in that court, will be 
granted only upon a showing that the case is of such imperative 
public importance as to justify deviation from normal appellate 
practice and to require immediate determination in this Court.” 
S.Ct. R. 11.

While the Court is “ordinarily reluctant to exercise [its] 
certiorari jurisdiction” before entry of a final judgment in the 
lower courts, Mazurekv. Armstrong, 520 U.S. 968,973 (1997), 
it has not hesitated to grant certiorari in such circumstances 
when the issues raised are “of great significance and demand 
prompt resolution.” Dames & Moore v. Regan, 453 U.S. 654, 
668 (1981); see also Mistretta v. United States, 488 U.S. 361, 
371 (1989) (certiorari granted before judgment in case 
challenging validity of sentencing guidelines adopted under 
Sentencing Reform Act of 1984 “because of the ‘imperative 
public importance’ of the issue, as prescribed by the disarray 
among the Federal District Courts”); Brown v. Board of 
Education, 347 U.S. 497,498 (1954) (certiorari granted before 
judgment “because of the importance of the constitutional 
question presented”); 17 Charles Alan Wright, Arthur R. Miller 
& Edward H. Cooper, Federal Practice and Procedure § 4036, 
at 21 (2ded. 1988) (“certiorari before judgment is occasionally 
granted simply because it is thought important that issues of 
great contemporary moment be settled quickly and finally”) .

Intervenors respectfully submit that this case is of such 
“imperative public importance” as to warrant deviation from 
the normal appellate practice and to require determination in 
this Court at this time. The issue raised by this case — the 
circumstances under which it is constitutional for race or 
national origin to be used as a factor in the admissions process 
of public universities — has enormous implications for literally



19

millions of students.8 As Justice Ginsburg (joined by Justice 
S outer) recently observed in a case involving the 
constitutionality of the admissions process at the University of 
Texas Law School: “Whether it is constitutional for a public 
college or graduate school to use race or national origin as a 
factor in its admissions process is an issue of great national 
importance.” Texas v. Hop-wood, 518 U.S. 1033,1034 (1996) 
(Opinion of Ginsburg, J., joined by Souter, J., respecting the 
denial of certiorari).

With some public universities able to take account of 
race and national origin in their admissions practices and others 
not, as a result of the split in the courts of appeals on this 
question, see Grutter Pet., No. 02-241, at 21-25; Gratz Pet., 
No. 02-516 at 20-24, and the Court’s decision in Regents o f the 
Univ. o f California v. Bakke, 438 U.S. 265 (1978) under siege, 
the time is right for this Court to announce definitive 
constitutional guidelines on this crucial issue. Just as there was 
“disarray” on a vital question of criminal law that impelled the 
Court to grant certiorari before judgment in Mistretta, so too 
(as the Eleventh Circuit recently observed) is there anything but 
unanimity regarding “the status of Justice Powell’s Bakke 
opinion as binding precedent on the validity of student body 
diversity as an interest sufficient to justify race-based school 
admissions decisions,” Johnson v. Board of Regents o f Univ. o f 
Georgia, 263 F.3d 1234,1249 n. 13 (11th Cir. 2001) (canvassing

8In its most recent projections, the National Center for Education 
Statistics predicts that enrollment in degree-granting postsecondary 
institutions will increase from 15.3 million in 2000 to 17.7 million by 2012, 
an increase of 15 per cent. It also projects that enrollment in public 4-year 
institutions will increase from 6.1 million in 2000 to 7.2 million in 2012, an 
increase of 19 per cent. See National Center for Education Statistics, 
Projections o f Education Statistics to 2012 (31st ed. October 2002), 
available at http://nces.ed.gov/pubs2002.

http://nces.ed.gov/pubs2002


20

wide variety of cases that have considered binding force of 
Justice Powell’s opinion).

While there have obviously been developments in the 
Court’s equal protection jurisprudence since Bakke was handed 
down, the Court has never returned to the subject of university 
admissions, nor has it “indicated that Justice Powell’s approach 
has lost its vitality in that unique niche of our society.” Smith 
v. University of Washington Law Sch., 233 F.3d 1188,1200 (9th 
Cir. 2000), cert, denied, 532 U.S. 1051 (2001). Nonetheless, 
some lower courts have explicitly sought guidance from this 
Court on this question. See, e.g., Johnson, 263 F.3d at 1245 
(“we think it important to underscore that the constitutional 
viability of student body diversity as a compelling interest is an 
open question, and ultimately is one that, because of its great 
importance, warrants consideration by the Supreme Court”); 
Wessmann v. Gittens, 160 F.3d 790, 795 (1st Cir. 1998) 
(“question of precisely what interests government may 
legitimately invoke to justify race-based classifications is 
largely unsettled”).

We are “only a generation or so removed from the 
legally enforced segregation which was used to discriminatorily 
deny African Americans and other minorities access to 
education.” Grutter v. Bollinger, 288 F.3d 732, 764 (6th Cir. 
2002) (Clay, J., concurring). If the Court is to grant certiorari 
to address this profound question of public importance, it 
should do so in both Gratz and Grutter. It is hardly an 
exaggeration to say that the Court’s decision in these cases will 
directly affect the lives not only of this generation of students 
but of generations of students to follow.



21

II

The Court Should Also Grant The Writ 
Before Judgment By The Court Of Appeals 
Because Similar And Related Questions Of 
Constitutional Significance Will Be Before 
This Court If It Grants Certiorari In Grutter 

v. Bollinger

This Court has granted certiorari before judgment in 
the court of appeals in those circumstances where similar 
questions have been presented in related cases. In the landmark 
school desegregation cases in the 1950’s, for example, there 
were three cases pending in the Court involving the validity of 
state school segregation practices, and the Court took judicial 
notice that a separate case — Bolling v. Sharpe — challenging 
segregation in the District of Columbia schools was pending in 
the United States Court of Appeals for the District of Columbia 
Circuit. The Court then advised that it would “entertain a 
petition for certiorari” in Bolling, “which if presented and 
granted will afford opportunity for argument of the case 
immediately following the arguments in the three appeals now 
pending.” Brown v. Board of Education, 344 U.S. 1, 3 (1952) 
(per curiam). The Court subsequently granted certiorari in 
Bolling one month later, and heard all of the cases together. 
Bolling v. Sharpe, 344 U.S. 873 (1952). The Court has granted 
certiorari before judgment in circumstances involving other 
related cases as well. See, e.g., Oliphant v. Suquamish Indian 
Tribe, 435U.S. 191, 194-95&n.5 (1978) (certiorari granted in 
case in which court of appeals had ruled and in second case 
presenting same question before court of appeals had ruled); 
Taylor v. McElroy, 358 U.S. 918 (1958), 360 U.S. 709, 710 
(1959) (certiorari before judgment granted “because of the 
pendency here of Greene v. McElroy” (360 U.S. 474 (1959), 
which involved essentially the same important constitutional 
issues); Porter v. Dicken, 328 U.S. 252, 254 (1946) (certiorari



22

before judgment granted “by reason of the close relationship 
of the important question raised to the question presented in 
Porter v. L eer  328 U.S. 246 (1946)).

In addition to granting certiorari before judgment in 
Gratz because it raises issues of great national importance, 
there are practical reasons for doing so. Gratz and Grutter 
raise many of the same constitutional questions: whether 
diversity is a compelling governmental interest sufficient to 
justify race-based school admissions decisions, and whether the 
consideration of race is narrowly tailored to achieve that 
interest. Among its evidence to support the educational 
benefits that result from a racially and ethnically diverse 
student body, the University proffered the same expert report 
in both cases. (See JA 1648-1831.)

Grutter presents the Court with the question of the 
constitutionality only of the University of Michigan’s Law 
School admissions policies; it does not involve the University’s 
undergraduate admissions policies. While similar in some 
meaningful respects, the two admissions policies are not 
identical. Law schools, because of their size, consider a far 
smaller number of applicants than do large undergraduate 
institutions such as the LSA. Somewhat more individualized 
examination of each application is therefore often possible at 
law schools, given the number of applicants; in contrast, at the 
undergraduate level at most large universities, such as 
Michigan, some numerical screening system (for example, 
assigning “scores” to a variety of admissions factors in order to 
identify groups of applicants whose academic qualifications or 
lack of qualifications are sufficiently obvious to support 
decisions to grant or deny admission without further 
examination) is utilized to facilitate individualized review in 
cases where it could make a difference. Thus, Gratz presents 
a different context in which to evaluate the permissible use of 
race in the admissions process.



23

Gratz presents an additional issue more starkly as well. 
The evidence in the record shows that diversity has educational 
importance not only in the classroom, but also in the myriad 
educational experiences that take place outside the classroom. 
Because of the nature of undergraduate education, these 
benefits are of particular importance for college students. 
Thus, a review of Gratz will allow this Court to evaluate fully 
all of the educational benefits of diversity.

When the Court announces (or revises) a broad 
constitutional rule, as it will likely do if it grants certiorari in 
these cases, it would not serve the administration of justice to 
have before it only the law school admissions program. The 
record has been fully developed in both cases, and, in granting 
certiorari in Gratz as well as Grutter, the Court would be able 
to fashion constitutional rules that would provide guidance for 
both undergraduate and graduate admissions programs.

Ill

The Court Should Grant This Writ To 
Consider Whether the Constitution Permits 
The Use Of Race And National Origin In 
College Admissions Upon A Showing That 
There Is A Strong Basis In Evidence Of 
Discrimination Even If That Showing Is Not 

Proffered By The University

The legal basis for taking race-conscious steps to 
remedy past and present discrimination is well-established. 
This Court has held that race-conscious remedies are 
constitutionally permitted where the public actor has a strong 
basis in evidence for its conclusion that remedial action was 
necessary.” City o f Richmond v. J.A. Croson Co., 488 U.S. 
469,500 (1989). The standard is satisfied by the establishment



24

of a prima facie case of a constitutional or statutory violation. 
See id. This remedial power extends not merely to correct past 
and present discrimination which the public actor has caused; 
it also permits race-conscious steps designed to avoid 
perpetuating discrimination caused by other public or private 
entities. See, e.g., id. at 492 (rejecting the argument that a 
governmental body only possessed the power to remedy the 
effects of its own prior discrimination, and holding that public 
entities have “a compelling interest in assuring that public 
dollars, drawn from the tax contributions of all citizens, do not 
serve to finance the evil of private injustice”); see also Coral 
Constr. v. King County, 941 F.2d 910, 916 (9th Cir. 1991).

Despite the University’s professed reliance on Bakke ’s 
diversity rationale in this litigation, a review of the record 
shows that a strong basis in evidence exists for remedial action 
to offset University admissions criteria that have an 
unnecessary disparate impact on otherwise qualified African- 
American and Latino applicants; to remedy the ongoing effects 
of the University’s history of discrimination against minorities; 
and to counter the lingering vestiges of that discrimination, 
including the current negative and hostile racial climate on 
campus.

The district court found this evidence both unpersuasive 
and irrelevant, reflecting the uncertainty, if not confusion, 
among lower courts about the “strong basis in evidence” 
standard described in this Court’s opinions in Croson and in 
Wygant v. Jackson Bd. o f Educ., 476 U.S. 267, 291 (1986). 
Granting the writ sought by present petitioners will allow the 
Court to resolve that uncertainty and to clarify the law by 
settling such questions as: May the “strong basis in evidence” 
be presented by putative beneficiaries of race-conscious 
decision-making, or only by the governmental actor? Must this 
justification have been openly articulated by the governmental 
actor at the time the challenged policy was first adopted? What



25

degree of evidentiary showing is necessary to demonstrate the 
“strong basis” that will justify consideration of race or ethnicity 
by a governmental entity or actor? Because, as recognized in 
Wygant, public agencies are understandably reluctant to admit 
prior discriminatory conduct, clarification of the law in this 
area is of paramount importance and provides a persuasive 
reason for granting the writ here sought. See Wygant, 476 U.S. 
at 291 (O’Connor, J., concurring) (noting that public employers 
might be “trapped between the competing hazards of liability 
to minorities if affirmative action is not taken.. . .  and liability 
to non-minorities if affirmative action is taken.”).



26

CONCLUSION

The petition for a writ of certiorari should be granted. 

Respectfully submitted,

P a t r ic ia  M e n d o z a  
R u p e  A l b a  
M e x ic a n  A m e r ic a n  
L e g a l  D e f e n s e  a n d  
E d u c a t io n a l  F u n d  

188 W. Randolph Street 
Chicago, IL 60605
(312) 782-1422

B r e n t  E . S im m o n s  
ACLU f u n d  o f  M ic h ig a n  
300 S. Capitol Avenue 
Lansing, MI 48901 
(517)371-5140

M ic h a e l  J. St e in b e r g  
A C L U  F u n d  o f  M ic h ig a n  
60 West Hancock Street 
Detroit, MI 48226
(313) 578-6814

C h r is t o p h e r  A . H a n s e n  
E . V in c e n t  W a r r e n  
A m e r ic a n  C iv il  
L ib e r t ie s  U n io n  

125 Broad St., 18th FI.
New York, NY 10004 
(212) 549-2500

E l a in e  R . J o n es  
Director-Counsel

♦T h e o d o r e  M . Sh a w  
N o r m a n  J. C h a c h k in  
Ja m e s  L. C o t t  
M e l is s a  S. W o ods  
NAACP L e g a l  D e f e n s e  

a n d  E d u c a t io n a l  
F u n d , In c .

99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200

G o d f r e y  J. D illa r d  
M il t o n  R. H e n r y  
R e g in a l d  M . Tu r n e r  
C it iz e n s  F o r  
A f f ir m  a t iv e A c t io n  ’ s 
P r e s e r v a t io n  

P.O.Box 31-1421 
Detroit, M I 48231 
(313) 964-2838

* Counsel o f Record

Attorneys for Petitioners 

Dated: October 14, 2002