Grutter v. Bollinger Brief Amici Curiae, Supporting Respondents

    Nos. 02-241 & 02-516

IN THE

nprcmc fflnurt of ±f|B 3!Imirh S ta te s

Barbara Grutter,
Petitioner,

Lee Bollinger, et al„
Respondents.

Jennifer Gratz and Patrick Hamacher,
Petitioners,

Lee Bollinger, et al.,
Respondents.

ON w r it s  o f  c e r t io r a r i t o  t h e
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

RIEF OF AMHERST, BARNARD, BATES, BOWDOIN, BRYN MAWR, 
CARLETON, COLBY, CONNECTICUT, DAVIDSON,

ANKLIN & MARSHALL, HAMILTON, HAMPSHIRE, HAVERFORD, 
MACALESTER, MIDDLEBURY, MOUNT HOLYOKE, OBERLIN, 
MONA, SARAH LAWRENCE, SMITH, SWARTHMORE, TRINITY, 

VASSAR, WELLESLEY, AND WILLIAMS COLLEGES, AND 
COLGATE, WESLEYAN AND TUFTS UNIVERSITIES,

AMICI CURIAE, SUPPORTING RESPONDENTS

Charles S. Sims 
Counsel of Record 

Proskauer Rose LLP 
1585 Broadway 
New York, New York 10036 
(212) 969-3000
Attorneys for Amici Curiae



TABLE OF CONTENTS
Page

TABLE OF CITED AUTHORITIES.................................................................iil

INTEREST OF THE AMICI CURIAE.................................................................1
SUMMARY OF ARGUMENT ............................................................................2

ARGUMENT................................................... ......................................... ........... 4

I. PRIVATE, HIGHLY SELECTIVE COLLEGES HAVE A 
COMPELLING EDUCATIONAL INTEREST IN ENROLLING 
HIGHLY DIVERSE -  INCLUDING RACIALLY DIVERSE -  
CLASSES, AND CANNOT DO SO WITHOUT TAKING THE 
DIVERSITY THEY STRIVE FOR INTO ACCOUNT............... ........... 4

A. Private, Highly Selective Colleges Are
Committed To Obtaining The Educational 
Benefits Of Diversity, Including Racial 
Diversity........................... .......................................... 4

B. Highly Selective Institutions Cannot Obtain
The Diversity They Seek Except By Seeking It 
Directly............................................................ ...........9

C. The Alternatives Suggested By The United
States And Petitioners Cannot Work At 
Smaller Highly Selective Colleges, And Would 
Compel Them To Trade Selectivity To Obtain 
Diversity................................................ ....................... 13

D. Selecting A Diverse Student Body Does Not
Classify Students By Race Or Violate Title VI 
Or §1981, And Without More Imposes No 
Quota, And Built-In Structural And 
Competitive Factors Afford Substantial 
Guarantees Against Abuse......................................... . 16



II. THE COMMITMENT TO BROADLY INCLUDE STUDENTS 
FROM GROUPS WHICH HAD BEEN SYSTEMATICALLY 
DISADVANTAGED AND EFFECTIVELY EXCLUDED HAS 
BROUGHT MYRIAD BENEFITS WHICH THE COURT 
SHOULD RESPECT AND SAFEGUARD................ ..................... -........... 19
A. The Recognition That Classes Were Not 

Racially Or Ethnically Diverse, And The 
Commitment To Efforts To Obtain A Broader 
Diversity By Attending To Students Who Had
Been Systematically Excluded......................................... 19

B. Thirty-Five Years Later, The Colleges’
Experience Demonstrates That Affirmative 
Action Has Had Educational Benefits -  And
Benefits For American Society..... ........................   21

III. BARRING INSTITUTIONS OF HIGHER EDUCATION FROM 
MAINTAINING THEIR OWN ADMISSION CRITERIA WOULD 
VIOLATE VITAL PRINCIPLES OF ACADEMIC FREEDOM 
AND INSTITUTIONAL AUTONOMY, AS WELL AS STARE
DECISIS.............................................................................................................. 25

C o n c l u s i o n ..........................................................................   30



I ll

TABLE OF CITED AUTHORITIES
Page(s)

Cases

Bd. o f Curators o f the Univ. ofMo. v. Horowitz,

435 U.S. 78 (1978)........ .................................... ............26

Dickerson v. United States,

530 U.S. 428 (2000)........................................................27

Keyishian v. Bd. o f Regents o f the Univ. o f the State ofN.Y.,

385 U.S. 589(1967)............................... ............. ...........25

Planned Parenthood o f S.E. Pa. v. Casey,

505 U.S. 833 (1992)........ ...............................................27

Regents o f the Univ. o f Cal. v. Bakke,

438 U.S. 265 (1978)...... ........... ......................................passim

Regents o f the Univ. ofMich. v. Ewing,

474 U.S. 214 (1985)........................................................3,25,26,27

Trustees o f Dartmouth Coll. v. Woodward,

17 U.S. 518 (1819)..... ............. .................... ..................3, 25,26, 27

Statutes

42U.S.C. § 1981............................................ ................. ...........passim

Civil Rights Act of 1964, Title VI........................................... ..passim



IV

Other Authorities

Jack Greenberg,

Affirmative Action in Higher Education:
Confronting the Condition and Theory,

43 B.C. L. Rev. 521 (2002)............................................. 28, 29

Sandra Day O’Conner,

Thurgood Marshall: The Influence o f a
Raconteur, 44 Stan. L. Rev. 1217 (1992)...................... 8

Jed Rubenfeld,

Affirmative Action,

107 Yale L.J. 427(1997).................................................29

Eric Schnapper,

Affirmative Action And The Legislative History 
Of The Fourteenth Amendment,

71 Va. L. Rev. 753 (1985).............................................. 29

Stephen Themstrom and Abigail Themstrom,

Reflections on the Shape o f the River,

46 UCLA L. Rev. 1583 (1999)....................................... 14

William G. Bowen and Derek Bok,

The Shape o f the River

(Princeton University Press 1998)................. ................ passim



V

Adam Clymer,

Service Academies Defend Use o f Race in Their 
Admissions Policies,

N.Y. Times, Jan. 28, 2003, at A17......... .................... ...8

Albert R. Hunt,

Service Academies: Affirmative Action at Work,

The Wall Street Journal, Jan. 23, 2003, at A 15.............8

Neil A. Lewis,

Bush Adviser Backs Use o f Race in College 
Admissions,

N.Y. Times, Jan. 18, 2003, at A14............................... ..6

Neil A. Lewis,

Bush And Affirmative Action: Constitutional 
Questions; President Faults Race Preferences As 
Admission Tool,

N.Y. Times, Jan. 16, 2003, at A1.......... .........................7

Harold Wade, Jr.,

Black Men o f Amherst

(Amherst College Press 1976)........................................19, 20



1

INTEREST OF THE AM ICI CURIAE
Amici curiae are 28 private, highly selective residential 

colleges whose small size and excellence attract students 
from around the nation and the world.1 They provide their 
students with a liberal education in its broadest sense -  a 
rich, deep training in diverse subject matters, in residential 
settings where education is intended to take place not only 
in the classroom but throughout four years on campus with 
classmates from different backgrounds and with different 
experiences, who arrive with different viewpoints.

Because of their excellence, each of the amici colleges 
is highly regarded and besieged with applications from 
well-qualified high school seniors. Because of their size, 
they offer admission to only a small fraction o f qualified 
applicants, whom they select not mechanically by SAT 
score but taking into account a wide range o f factors. Each 
year, amici decide which set of applicants, considered indi­
vidually and collectively, will take fullest advantage of 
what the college has to offer, contribute most to the 
educational process, and use what they have learned for the 
benefit of the larger society. Each college has, for decades, 
self-consciously sought to assemble and house on-campus a 
highly diverse group o f students -  from different states or 
different countries, from urban or rural backgrounds, with 
differing economic circumstances, with different kinds of 
experience or talent or athletic ability, students who will be 
the first in their families ever to go to college and legacy 
students whose parents, grandparents, or even earlier 
forbears may have attended that same school.

1 Three o f the amici, Colgate, Tufts and Wesleyan, are universities, but 
their small size, selectivity, and emphasis on a liberal education in a 
residential setting make their interests identical to those of the amici 
colleges. We refer to amici as “colleges” throughout for convenience.

No counsel for a party authored this brief in whole or in part, and no 
person or entity other than the amici curiae made a monetary contribution 
to its preparation or submission. Letters consenting to the filing of amici 
curiae briefs have been lodged by the parties with the Clerk.



2

Amici have a direct interest in the outcome of these 
cases because the Court has apparently considered Title VI 
of the Civil Rights Act of 1964 to be coextensive with the 
Fourteenth Amendment. Reversal of the judgment in 
Grutter (the undergraduate case is not really comparable), 
and any ruling that would restrict amici s effort to assemble 
classes that are diverse in multitudinous respects by the 
means they have thought best, would directly harm amici, 
the education they provide, and their broader mission to 
benefit the larger society. To alert the Court to the impact 
that adoption of the arguments advanced by petitioners and 
the United States would have on their admissions programs 
-  and of the extent to which the “alternatives” touted by 
petitioners and the United States are impracticable and 
illusory for smaller selective institutions, requiring a forced 
abandonment of selectivity if  diversity were to be 
maintained -  amici submit this brief.

SUMMARY OF ARGUMENT
“The life of the law has not been logic: it has been ex­

perience.”2 The Court should examine petitioners’ submis­
sion in this case with a view to the experience of operating 
admissions programs at the nation’s selective colleges and 
universities. The Court should consider the experience of 
admissions before diversity was highly valued and before 
race conscious approaches were employed, and the 
progress toward more equal opportunity since that 
revolution. It should consider the realities of admitting 
applicants, to serve a highly selective college’s mission, in 
a society in which race still matters in determining a 
person’s available opportunities and life experience, and

2 Oliver Wendell Holmes, Jr., The Common Law, 5 (1881) (Mark D. 
Howe ed., 1963). President Grover Cleveland expressed the same thought a 
few years later, calling for a reduction in the tariff notwithstanding 
prevailing orthodoxy because “[i]t is a condition which confronts us, not a 
theory." Third Annual Message to Congress, Dec. 6, 1887, available at
www.polsci.ucsb.edu/projects/presproject/idgrant/sou_pages/cleveland3su.
html.

http://www.polsci.ucsb.edu/projects/presproject/idgrant/sou_pages/cleveland3su


3

the effects of discrimination and entrenched segregation 
still linger. If it does so, it will affirm the judgments below.

African-American students were largely absent, or 
present in very small numbers, from most selective institu­
tions of higher education, including amici, until the 1960’s. 
Only when those schools began to aim for racial diversity 
among the other kinds of diversity long sought for, did 
those schools begin to enroll more than token numbers of 
African-American students. Moreover, research and experi­
ence suggests that for small, highly selective, largely 
private colleges like amici, carving out race from all the 
other kinds of diversity that colleges consciously aim for 
will have a predictable, substantial resegregating effect, 
probably moving black students from roughly 5-7% of the 
student body to 2% or so.

The alternatives suggested by the United States and 
petitioners -  admitting a percentage of each high school 
class, or focusing on class or economic circumstance 
without looking at racial background -  could not work at 
small, highly selective schools, if the objective is to enroll a 
class that is both academically excellent and diverse. More­
over, it would deprive amici of precisely the diversity that 
they value for its contribution to the residential, liberal 
education they provide. Seeking out and obtaining 
diversity, including racial diversity, does not violate Title 
VI and 42 U.S.C. §1981, and does not amount to a quota 
system. The competition between highly selective schools 
(for the best students, the best faculty, the most places at 
the most prestigious graduate and professional schools) 
provides natural constraining factors.

Both the deference due the educational policies of uni­
versities and colleges, Regents o f the Univ. o f  Mich. v. 
Ewing, 474 U.S. 214 (1985), and Trustees o f  Dartmouth 
Coll. v. Woodward, 17 U.S. 518 (1819), and the respect due 
under stare decisis to the holding in Bakke reflected in 
Justice Powell’s opinion, strongly support the judgments 
below.



4

ARGUMENT

I .  PRIVATE, HIGHLY SELECTIVE COLLEGES HAVE A 
COMPELLING EDUCATIONAL INTEREST IN ENROLLING 
HIGHLY DIVERSE -  INCLUDING RACIALLY DIVERSE -  
CLASSES, AND CANNOT DO SO WITHOUT TAKING THE 
DIVERSITY THEY STRIVE FOR INTO ACCOUNT.
During the late 1960’s, as American society was 

coming to grips with the exclusion of African-Americans 
from many of the institutions and benefits of American life, 
amici took note of how few such students they had enrolled 
and began to seek out and enroll students from historically 
disadvantaged groups. The educational benefits that selec­
tive colleges have perceived from those efforts, and their 
assessment that substantial resegregation would likely fol­
low were the Court to preclude any consideration (no 
matter how nuanced) of racial or ethnic diversity in 
assembling classes, are accurately reflected in reports 
submitted below of former Princeton President William G. 
Bowen and former Harvard President Derek Bok in the 
district court. Their pathbreaking work, The Shape o f the 
River, is the Brandeis brief that amici would file (but for 
page limitations) and to which the Court should attend if  it 
would follow Holmes’ dictum to be guided by experience.

Petitioners’ arguments, if  accepted, would harm the 
education offered at highly selective institutions, and the 
nostrums they offer to alleviate those harms are not 
realistic.

A. Private, Highly Selective Colleges Are
Committed To Obtaining The Educational 
Benefits Of Diversity, Including Racial
Diversity.

Petitioners argue that diversity is not a compelling 
interest that institutions o f higher education may pursue. 
The authorities they rely on, however, are not educational 
authorities, but rather judicial decisions in inapposite, non- 
educational contexts. In considering petitioners’ challenge, 
the beginning of wisdom is to recognize, as Justice Powell



5

and a majority o f the Court did in Regents o f  the Univ. o f 
Cal. v. Bakke, 438 U.S. 265, 312 (1978), that educators 
have set the relevant policies. There are sound educational 
reasons (and others as well) why higher education 
institutions of all sorts -  not only those subject to 
legislative direction, but also private, highly selective ones 
-  have virtually without exception concluded that many 
different kinds o f  diversity, including racial diversity, best 
create the circumstances for the learning required in the 21st 
century, and that the schools should therefore try to obtain 
that diversity.

The point is so basic, and the agreement o f educators is 
so broad,3 that amici need not argue it at length. Diversity 
in all its aspects is one of the factors that make American 
colleges and universities unique, educationally superior, 
and the envy of the world. There is a reason why students 
beat a path to schools where diversity is celebrated and 
sought out, and why those schools are widely judged to 
provide excellence beyond the capacities of narrower 
institutions.

The Amherst Trustees’ 1996 Statement on Diversity is 
representative of the views of amici generally:

We will continue to give special importance 
to the inclusion within our student body, our 
faculty and our staff of talented persons from 
groups that have experienced prejudice and 
disadvantage. We do so for the simplest, but 
most urgent, o f reasons: because the best and 
brightest people are found in many places, not 
few; because our classrooms and residence 
halls are places of dialogue, not monologue; 
because teaching and learning at their best are

3 See, eg. ,  Association of American Universities, AAU Diversity 
Statement on the Importance o f  Diversity in University Admissions (by 
presidents o f its 62 member institutions), Apr. 14, 1997, available at 
http://www.aau.edu/issues/Diversity4.14.97.html.

http://www.aau.edu/issues/Diversity4.14.97.html


6

conversations with persons other than 
ourselves about ideas other than our own.4 

That understanding is not newly minted; as its president 
recently observed, Oberlin College, which almost uniquely 
among amici has been steadily attentive to the importance 
of enrolling black Americans since well before the Civil 
War, discovered “as early as the 1830s” that “bringing 
together students with different backgrounds and experi­
ences brought about learning and positive social change.”5

The proposition that racial diversity, among other 
kinds of diversity, is important to education in our nation’s 
colleges and universities, or at least that they may reason­
ably so conclude, is supported by thoughtful, experienced 
leaders like former Presidents Bowen and Bok and former 
Stanford Provost Condoleezza Rice,6 other selective 
colleges and universities and professional associations 
(which we understand are also filing briefs), faculty, and 
Boards of Trustees. Their impressively unanimous 
judgments, supported by common sense and experience, 
concerning educational benefits, cannot be displaced by 
sterile citations to inapposite cases.

Why is an education “characterized by encounters with 
difference” so vital? Because, as Carleton President Robert 
A. Oden, Jr. recently said, “we know, with Robert Kagan, 
that ‘the single greatest source of growth and development 
is the experience of difference, discrepancy, anomaly,” and 
“the free and uncensored play of ideas and opinions and 
arguments and positions is central to the fabric of a liberal 
arts education and a college peopled by those representing

* www.amherst.edu/fac_serv/aaction/diversity.html.

5 Oberlin Alumni Magazine (Winter, 2002-03), p. 2 . As early as 
1835, Oberlin began making special efforts to admit and matriculate 
students o f  color. The suggestion that upon enactment o f  the 1866 Civil 
Rights Statute Oberlin was violating the law -  which is what 
petitioners’ case amounts to -  is a terrible misreading o f  history.

Neil A. Lewis, Bush Adviser Backs Use o f  Race in College 
Admissions, N.Y. Times, Jan. 18, 2003, at A14.

http://www.amherst.edu/fac_serv/aaction/diversity.html


7

and trying out such ideas and opinions and arguments is a 
finer college for the presence o f these people.” He also 
noted that “a pluralistic, widely representative college is a 
significant factor in the college choice of the world’s most 
talented students.”7

And as Swarthmore noted recently, “without a reas­
sertion of our commitment to diversity, [we risk] the 
erosion of the educational, ethical, ahd social mission” that 
makes such colleges unique and valuable.

While the relevant judgments are educational 
judgments, made by educators and those responsible for 
educational institutions, they are not alone; non-educators 
too have noted the value of diversity in education, and 
more broadly the extent to which the value of diversity is 
publicly valued in most institutions of American life.

In connection with this very case, President Bush has 
stated that he “strongly supports] diversity of all kinds, 
including racial diversity in higher education.”8 The amicus 
brief filed by the United States agrees that “Measures that 
ensure diversity, accessibility and opportunity are 
important components of government’s responsibility to its 
citizens.”9 Deliberately seeking out diversity in race­
conscious ways, and not merely hoping it magically arrives, 
has long been the rule in the judicial appointment process 
in state and federal courts over the past two decades; for 
political parties (which both seek to enlist candidates who, 
as a group, are diverse in various ways, including racially

7 Inauguration Convocation Address, Oct. 25, 2002, available at 
www.carleton.edu/inauguration/speeclies.php37icM.
* Neil A. Lewis, Bush And Affirmative Action: Constitutional 
Questions; President Faults Race Preferences As Admission Tool, N.Y. 
Times, Jan. 16, 2003, at A 1.
9 U.S. Brief in Grutter, at 10 (emphasis added).

http://www.carleton.edu/inauguration/speeclies.php37icM


8

diverse); in federal (and many state) cabinet selections; in 
the service academies; and in the military’s officer ranks.10

The practical Wisdom underlying these practices rebuts 
petitioners’ assertion that diverse viewpoints and opinions 
can be sufficiently obtained by obtaining diversity in econ­
omic circumstances and disadvantage. 'Those differences 
are valuable educationally too, but they do not exhaust or 
reflect all the diversity that students will need to confront, 
understand, and be able to relate to and work with.

That educational conversations may be different when 
we speak with those whose experience is different -  deeper, 
more powerful, with a different moral force — is the point 
made in Justice O’Connor’s memoir of Justice Thurgood 
Marshall, Sandra Day O’Connor, Thurgood Marshall: The 
Influence o f a Raconteur, 44 Stan. L. Rev. 1217, 1220 
(1992). It needs no better confirmation than the recent oral 
argument in Virginia v. Black, a case that reminds us of the 
lingering influence o f color in American society. When a 
Justice asked, “Aren’t you understating the effects of 100 
years of lynching?” and added that cross-burning “is unlike 
any symbol in our society,” the power and educational 
value of the moment -  by all accounts one o f the most 
extraordinary this Term -  stemmed in part from the 
particular experience (including, respectfully, the color) of 
the speaker. It was important for Presidents Johnson and 
Bush to give the nation that measure of diversity; it is

10 Successive presidents since at least 1976 have made plain that 
appointing more women, blacks, and Hispanic attorneys to the federal 
bench or the cabinet is a laudable goal, not an equal protection violation. 
The transformation o f state court judiciaries from the virtually all-white 
membership three decades ago to today’s judiciary, which looks much 
more like the population at large, has been no unplanned for achievement, 
but the obtaining of diversity deliberately sought out. For the service 
academies, see, e.g., Adam Clymer, Service Academies Defend Use o f  
Race in Their Admissions Policies, N.Y. Times, Jan. 28, 2003, at A17; 
Albert R. Hunt, Service Academies: Affirmative Action at Work, The Wall 
Street Journal, Jan. 23, 2003, at A15. Both political parties have made a 
public point o f seeking to enlist well-qualified black and Hispanic 
candidates to run for office.



9

equally important that amici colleges be able to do so as 
well.

B. Highly Selective Institutions Cannot Obtain 
The Diversity They Seek Except By Seeking It 
Directly.

For every aspect o f the diversity they seek, amici have 
needed to identify students that can offer it, and consider 
those potential contributions in the discussion that takes 
place concerning virtually every serious applicant. To the 
extent that they seek students with particular backgrounds 
or talents or interests -  international students, legacy 
students,11 students interested in as-yet-undersubscribed 
fields to better occupy recently hired faculty, students 
interested in newly emerging fields, students with particular 
musical or artistic or athletic talents, students whose 
parents have not had the benefits of higher education, 
students from deprived economic backgrounds or rural 
areas -  the admissions staffs need to, and do, consider those 
aspects as a small number of admissions personnel read and 
write comments on each file, and then the larger admission 
committee discuss and consider each (or virtually each) 
student file.

The overriding task is to assemble the most interesting 
class of students, ready to learn from one another and from 
the college’s faculty. The factors examined are considered 
not to allocate benefits according to race, but for how they 
bear on how committed and successful a student the appli­
cant is likely to be. The primary and secondary educational 
system in the U.S. is far from a level playing field, and for 
many, particularly the poor, integration is diminishing, not

11 Amici each seek to enrol! legacy students, without quota. Legacy 
students more often than not outnumber African-American students at most 
amici. Because o f the tiny numbers of African-American graduates before 
about 1970, the effect o f considering legacy background a “plus” is to 
afford that plus to a group o f applicants likely to be all (or nearly all) white.



10

increasing.12 Because of the unequal education applicants 
will have received, highly selective colleges need to be 
especially alert to evidence of special efforts and accom­
plishments, offering exceptional promise and motivation, 
on the part of students who have not had many advantages. 
Just as colleges consider how privileged an applicant’s 
background was to properly assess the achievement 
reflected, they need to consider all the obstacles, including 
racial or ethnic background, that a student may have 
surmounted as well.

At least for smaller schools like amici -  which happen 
to be the size of or even larger than most university profes­
sional schools or graduate departments -  admission 
decisions are nuanced, multi-factorial, and not quantitative. 
No numerical points or weights whatever are assigned for 
any such factors, including racial or ethnic background; 
numerical quotas are not set or enforced. The same evalua­
tive procedures are used for all applicants regardless of 
color or ethnic background; for example, different color 
files are not used. At most of the amici colleges, ongoing 
tallies of various other factors that are kept do not even 
include race or ethnic background.

In short, the process for each amici college is very 
similar (if not identical) to the Harvard College program 
described by Justice Powell in Bakke (and similar as well to 
the program at the Michigan Law School) -  facially 
nondiscriminatory, without any quotas, considering racial 
or ethnic background as a “plus” in a particular applicant’s 
file without insulating that individual “from comparison 
with all other candidates for the available seats.”

At Amherst, for example, offers extended to students 
of African-American background in recent years (1993 to 
2002) have varied widely, without any notable trend,

12 See Erica Frankenberg, Chungmei Lee, and Gary Orfield, A Multiracial 
Society with Segregated Schools: Are We Losing the Dream?, Harvard 
University Civil Rights Project, Jan. 16, 2003, available at http:// 
www.civilrightsproject.harvard.edu/research/reseg03/reseg03_full.php.

http://www.civilrightsproject.harvard.edu/research/reseg03/reseg03_full.php


11

ranging between 81 and 125 (out of about 950 offers 
extended altogether, and resulting in between 24 and 49 
matriculated students in a class of about 425). Considera­
tion is given to dozens of factors, including, for example, 
whether the student has a disability, or athletic ability; 
comes from a rural, or poor urban, community; or has a 
family with only limited financial resources, or with little 
or no college background (e.g., neither parent has a 4-year 
degree). The other amici report similarly wide variation in 
offers extended, the clearest demonstration that consider­
ation of race as a “plus” does not amount to a quota.

The experience of all amici is that they cannot be rea­
sonably assured of having the desired range o f talent, or 
international students, or legacy students, or students from 
underprivileged backgrounds, without noting and 
considering those factors when it comes time to discuss 
each file. It is equally impossible to be reasonably assured 
of obtaining a class with more than token numbers of 
African-American or Latino students without making 
special efforts to attract such applications and then 
considering those factors as well (albeit in a way that 
ensures that no factor, including race, is “decisive when 
compared” with any other candidate, as Bakke expressly 
envisioned). This is true at all the amici colleges, and 
particularly true for those schools (e.g., Bowdoin, Bates, 
Colby and Carleton) which, because o f their location far 
from urban areas or in states with relatively less diversity 
themselves, would draw fewer applications from African- 
American or Latino students.

As Bowen and Bok summarize their research, if more 
than small numbers of black students are to be enrolled, 
colleges have to be sensitive to race in making admissions 
decisions. That need “stems directly from continuing 
disparities in pre-collegiate academic achievements of 
black and white students” as presently measured.13 The 
simple truth, ignored by those who glibly suggest that

13 The Shape o f  the River, 51.



12

color-blind alternatives could be implemented at the most 
selective colleges without any sharp reduction in diversity, 
is that “[r]acial disparities in test scores and high school 
grades are substantial and show no signs of disappearing in 
the foreseeable future.”13 14 Amici each use grades and 
standardized tests as an important part o f the admissions 
process (even though they are nowhere dispositive, and at 
some schools no longer required). “Racial gaps of all kinds 
remain” even after attempting to control for the influence 
of other variables.15

It follows -  as exhaustive and careful research (by 
Bowen and Bok) and the experience at a selective 
university that eliminated consideration o f race, Berkeley, 
both confirm -  that enforced elimination o f the Harvard 
College approach at highly selective institutions16 would 
have drastic resegregating impact. Black enrollment would 
likely be reduced “by between 50 and 70 percent”; the 
probability of black applicants obtaining offers would drop 
to half that of white students; and the percentage of black 
students matriculating would drop from roughly 7.1% of 
the student body to roughly 2.1%. Seriously enforced, a 
race-neutral policy would “presumably take black enroll­
ments...back to early 1960’s levels, before colleges and

13 “People will debate long and hard, as they should, whether particular 
gaps reflect unmeasured differences in preparation and previous
opportunity, patterns of continuing discrimination, failures o f one kind or
another in the educational system itself, aspects o f  the culture of campuses 
and universities, individual strengths and weaknesses, and so on. But no 
one can deny that race continues to matter.” The Shape o f  the River, 279 
n.2; see generally id. at 269-74.

Selectivity (the acceptance rate) at amici colleges ranges as high as 
19% (one offer for every five applicants), and averages 25% to 33%. Even 
the women’s colleges among amici, which receive proportionately fewer 
applications, have many more applicants than spaces. No amicus college 
admits applicants mechanically on the basis o f test scores or grades, and 
none did so prior to the late 1960’s.



13

universities began to make serious efforts to recruit 
minority students.”17

C. The Alternatives Suggested By The United 
States And Petitioners Cannot Work At 
Smaller Highly Selective Colleges, And Would 
Compel Them To Trade Selectivity To Obtain 
Diversity.

The briefs filed by the United States make much of 
efforts underway in Florida, Texas, and California to 
attempt to ameliorate the extraordinarily sharp reductions 
in offers extended to (and matriculations of) students of 
African-American or Latino/Hispanic background 
following decisions in those states that race or ethnic 
background could not be considered as part of the 
admissions process. It is vital for the Court to understand 
that even assuming arguendo that those measures could 
work in those states — and the reported experience and 
logic suggest difficulties and reasons fo r  concern -  neither 
they nor any other alternatives o f which we are aware 
could conceivably work at highly selective schools the size 
o f amici.

First, given how every amicus conducts its admission 
selection process (virtually every folder read by multiple 
readers, and then evaluated in meetings without mechanical 
point systems), there is really no possibility of a race-blind 
admission process: consciousness of all the diversity each 
applicant would contribute is unavoidable.18 There is really

17 The Shape o f  the River, 31-34, 39, 50-51, 280. Amici have considered 
the analysis o f  Bowen and Bok, and their own assessments are the same: 
elimination o f the approach held permissible in Justice Powell’s Bakke 
opinion, if  enforced, would likely result promptly in sharp reductions in the 
presence o f African-American students.
18 At a few o f the amici, a small number of applicants with over­
whelmingly superior credentials are admitted without committee 
discussion, but'that small exception does not alter the point that all the 
remaining qualified applicants are competitively evaluated and discussed, 
with focus on the whole applicant and the likely contribution to, and 
success at, the school.



14

no alternative for these colleges but to accept the reality of 
this consciousness of differences (including racial or ethnic 
background) and to use it intelligently as part of their 
complex weighing of multiple factors that leads to 
judgments as to whom to admit.

The alternatives usually suggested to obtain diversity 
without attending to it -  mechanical formulas looking to 
grades, tests scores, or graduation rank -  would radically 
change the profile of each amici college. No small, highly 
selective college could use the “percentage of each high 
school class” method adopted by Texas and Florida, or 
Florida’s guarantee of placement to all students who 
successfully complete a two year degree at a community 
college.19 California’s efforts to restore at least some o f the 
diversity lost since adoption of its race-neutral admissions 
policy has led to some restoration of diversity at the less 
selective institutions, but to sharp drops of African- 
American and Hispanic students at the more selective 
institutions -  i.e., the ones most comparable to amici.20

Similarly, it is unrealistic to believe that highly 
selective schools could retain diversity, while not taking it 
directly into account, by improving search techniques, or 
focusing more than they presently do on low socioecon­
omic rank. “[C]lass-based preferences cannot be substituted

19 As has been repeatedly noticed, although not by the United States, the 
Texas program depends for its very effectiveness on the existence o f  a 
huge number o f segregated-in-fact schools. If public schools mirrored the 
community at large, the Texas plan would result in no diversity whatever. 
Moreover, the plan would seem to discriminate against brighter minority 
students in better integrated schools, and lead to students with lower 
SAT/ACT scores and less likely to do well, because it guarantees 
admission to top 10% students at all a state’s worst schools, while 
effectively shutting out minority students just below 10% at the best 
schools in the state, even if those students seem better candidates by the 
assessment o f educators. See The Shape o f  the River, 274 (using grades 
rather than test scores would likely “diminishf] the pool o f students who 
can compete effectively for positions o f  leadership”).
20 Stephen Themstrom and Abigail Themstrom, Reflections on The 
Shape o f  the River, 46 UCLA L. Rev. 1583, 1625 (1999).



15

for race-based policies if  the objective is to enroll a class 
that is both academically excellent and diverse.”21 Search 
techniques (including obtaining printouts of every minority 
student at a specified SAT level) are already extraordinarily 
comprehensive; and it is precisely the “middle class” 
students from minority backgrounds who, research and 
experience shows, are most likely to succeed.22 Substitution 
“of a class-based system would drastically reduce the 
quality of the eligible pool o f black and Hispanic 
applicants, seriously impeding the goal of preparing the 
ablest minority leaders for society and the professions.”23

Oberlin has given careful consideration to African- 
Americans from virtually all-black inner city high schools 
who challenged themselves by taking the most demanding 
courses available to them (often at local community col­
leges, as their schools had few demanding courses), even 
though their SATs were so low as to be likely disqualifying 
unless they were viewed through the understanding of race- 
based test gaps. In doing so, with great success, it has found 
that the SATs, which it generally uses to predict attrition, 
consistently and substantially over-predict attrition for its 
African-American students. There is no way to apply its 
experience that “SATs are not good measures of African- 
American freshman academic performance” without being 
race conscious. Oberlin is looking for academic achieve­
ment and sees it in these students (and has been proven 
correct), but could not do so without consideration of the 
applicant’s whole record and background.

Another difficulty with leaving race to chance in 
achieving diversity is that a “critical mass" of students is 
important in attracting individual students (just as it is hard 
to attract a violinist to a school that has no orchestra). This 
does not mean quotas, but it does mean that it is difficult to

21

22

23

The Shape o f  the River, 46-50.
The Shape o f  the River, 46-51.
The Shape o f  the River, 51.



16

attract a student of color to Middlebury or any other rural 
campus without a critical mass of fellow students.

D. Selecting A Diverse Student Body Does Not 
Classify Students By Race O r Violate Title VI 
or §1981, And Without More Imposes No 
Quota, And Built-In Structural And 
Competitive Factors Afford Substantial 
Guarantees Against Abuse.

1. One of the central insights underlying the sharp 
distinction Justice Powell drew in Bakke between the dual­
track admissions process operated by the UC-Davis 
Medical School and the Harvard College approach was that 
the former could fairly be said to deny the equal protection 
of law, while the latter could not. A “facial intent to 
discriminate is evident,” and a public university denies 
equal protection, when it operates two separate processes, 
for two lines o f racially-reserved admission slots. By 
contrast, “[n]o such facial infirmity exists in an admissions 
program where race or ethnic background is simply one 
element -  to be weighed fairly against other elements -  in 
the selection process.” 438 U.S. at 318.

Even less can the extraordinarily selective, non-quanti- 
tative, eclectic, nuanced admissions processes at private 
selective colleges like amici be said to violate Title VI. 
Private colleges that carefully and individually consider all 
aspects of an applicant’s background, including (but hardly 
limited to) racial or ethnic background, economic circum­
stances, family educational background, and the like, do 
not thereby deny unadmitted students the benefits of 
participation “on grounds of race, color, or national origin.” 
When colleges and universities decide that the advantages 
of diversity warrant the admission of some international 
students, or (for example) look to ensure some presence of 
students from Japan, Korea, and China, they are not thereby 
violating their obligations under Title VI, and unadmitted 
applicants who live in the United States have no private 
right of action under Title VI by reason o f any “exclusion”



17

by reason of national origin. By exactly that same reason­
ing, the kind of consideration expressly permitted by Bakke 
of all aspects of a candidate’s background, including but 
not limited to racial or ethnic background, in the service of 
“attaining the goal o f a heterogeneous student body,” 438 
U.S. at 314, does not reflect any “racial intent to 
discriminate,” and violates no rights under either 42 U.S.C. 
§1981 or Title VI.

2. Petitioners are trying to eliminate any room for 
consideration o f racial background along with myriad other 
factors by labeling it a “quota” and hoping the label sticks. 
But the consideration o f race at neither Michigan’s Law 
School (whose admissions procedures are similar in many 
respects to amici's), nor at its undergraduate college (which 
because of its huge size is not comparable), amounts to a 
quota as understood in Bakke or in any meaningful sense.

In any event, amici's own consciousness of race as one 
of the many factors to be included within the student body 
does not amount to a quota system, and it is important that 
the court not be deceived by petitioners’ use o f the term. A 
quota is a preset number (or narrow range) reserved for 
some applicants or limiting offers to another. Results that 
are fairly reached without such an allocation process, goals 
that are aimed for but often not met, and the widely varying 
numbers of offers to African-American and Latino 
applicants which depend on competitive consideration of 
applicants who may each present talents, backgrounds, or 
achievements that the schools are hoping to include, reflect 
no “quota”24 It makes no sense to say that our electoral 
process has a “quota” for Republicans (or Democrats) 
because their vote tallies have varied narrowly in the last 
few elections between 48% and 52%.

24 At each amicus college, the percentage of African-American students 
admitted and matriculated is significantly less than the percentage of such 
students in the general high school population, which also demonstrates the 
absence of any quota or “entitlement.”



18

3. In a variety of contexts, some justices of this 
Court have expressed concern that racial preferences may 
be self-perpetuating, or become fixed (or even expanding) 
entitlements. Whatever may be the case when government 
(with its natural monopoly and lack o f competitiveness) 
adopts quotas, no such tendency has been seen or is likely 
in the case of highly selective colleges.

The extraordinary competition among private colleges 
and universities -  for the best applicants, the best matricu­
lants, the best faculty, the most foundation support, the 
most important fellowships for its graduates, the most and 
largest government grants -  operates as a constant check on 
any abuse. Every institution has a powerful incentive to 
improve the intellectual capacity of its student body, class 
by class. The natural constraining power of this competitive 
quest for excellence virtually guarantees that affirmative 
action, as practiced at amici and sister institutions, has the 
genuine purpose of finding that sector o f the best and the 
brightest whom present testing methods are not properly 
identifying, not filling (or trying to expand) any quota.

Nor will these efforts become entrenched. Over the past 
twenty years, the sharply increasing numbers of Asian- 
American applicants, the convergence of their test scores, 
and their interest in particular schools, have enabled some 
highly selective schools to matriculate Asian Americans in 
sizeable numbers without any focus on doing so. As the 
black middle class expands and the educational opportuni­
ties available to black students improve, there is reason to 
expect a narrowing of the test score gaps that have created 
the need to consider race among other diversity factors. 
Between 1976 and 1989, average SAT scores of black 
matriculants at selective schools went up 68 points, “a 
larger gain than that of white matriculants.”25

23 The Shape o f  the River, 289.



19

II. THE COMMITMENT TO BROADLY INCLUDE STUDENTS 
FROM GROUPS WHICH HAD BEEN SYSTEMATICALLY 
DISADVANTAGED AND EFFECTIVELY EXCLUDED HAS 
BROUGHT MYRIAD BENEFITS WHICH THE COURT 
SHOULD RESPECT AND SAFEGUARD.

A. The Recognition That Classes Were Not 
Racially Or Ethnically Diverse, And The 
Commitment To Efforts To Obtain A Broader 
Diversity By Attending To Students Who Had 
Been Systematically Excluded.

The interest in educating students from all reaches of 
American society, and the understanding that doing so can 
be vital to the educational mission of colleges or other 
institutions of higher education, has deep roots, and cannot 
be dismissed as late-twentieth century social engineering.

Hamilton was established as Hamilton Oneida College 
in 1793 as “an institution for the education of American 
and Indian youth. ” Dartmouth’s charter created a college 
“for the education and instruction of youth of the Indian 
tribes, and also of English youth and others.” Oberlin 
resolved in 1835 that “the education of people of color is a 
matter of great interest and should be encouraged and 
sustained in this institution.”26 Bates was founded by 
abolitionists in 1855 who resolved immediately to admit 
students without regard to race, religion, national origin, or 
sex.27 Middlebury graduated a black student in 1823, and 
Amherst and Bowdoin followed in 1826 and 183 3.28 In 
short, even while most African-Americans were still

26 By 1900, Oberlin had graduated 128 African-Americans, nearly half 
o f all black college graduates in the United States. Surely Oberlin’s race­
conscious efforts would not properly have been held to violate the 1866 
Civil Rights Act upon its enactment.
27 An early beneficiary o f Bates’ efforts, Rev. Benjamin E. Mays, a child 
o f freed slaves, graduated from Bates in 1920, went on to become president 
o f Morehouse College, and was described by Martin Luther King Jr. as 
“my spiritual mentor and my intellectual father.”
28 Harold Wade, Jr., Black Men o f  Amherst, p. 5.



2 0

enslaved, some New England colleges announced or 
reflected a very longstanding interest in recruiting a diverse 
student body in the service of their educational missions.

However, at all the amici (and throughout America as 
well), the simple fact is that African-American young men 
and women were, until the mid-1960’s, absent or rare at 
every one of the amici colleges to a degree inexplicable 
except as a consequence of the underlying discrimination 
rampant throughout American society and systematic 
denial of equal opportunity.29 Even today, with their 
outreach efforts and consideration of color and ethnic 
background in the admissions process, none of the amici 
colleges enrolls African-American students in anything like 
their proportion of the high school population.

For the colleges as much as for the rest of American 
society, the Civil Rights Movement in the 1960’s was a 
watershed, an occasion for taking stock, making commit­
ments, and pursuing them. The trustees and faculty at each 
college examined the education mission they were charged 
with serving and considered whether the continued 
effective absence (or great paucity) of students of color was 
consistent with education broadly conceived and the public 
service each college aims to serve. They all concluded that 
special efforts to attract, enroll, and graduate students from 
groups historically excluded was an educational, social, and

29 No African-American student graduated from Haverford until 1951. 
No blacks graduated from Amherst from 1939 to 1947, even though under 
different leadership Amherst had, from 1915 to 1926, enrolled a number o f  
African-American students, including four from the M Street (Dunbar) 
High School in Washington, D.C who are among its most illustrious and 
successful graduates by any standard -  William Hastie (who after arguing a 
series o f civil rights cases in the Supreme Court became the first African- 
American federal judge, and later served on the United States Court of  
Appeals for the Third Circuit), Charles Houston (Dean o f the Howard Law 
School and NAACP Special Counsel who planned the legal strategy that 
led to Brown v. Bd. o f  Educ.), Charles Drew (who perfected the storage o f  
blood plasma in time to save thousands o f lives in World War II), and 
Mercer Cook (twice a United States Ambassador). Harold Wade, Jr., Black 
Men o f  Amherst, chs. IV-V.



21

moral imperative. Not only did the faculty think that in­
cluding students from African-American backgrounds was 
an educational imperative; students who were choosing 
among colleges reached the same judgment, identifying 
campus diversity as a significant factor motivating their 
decisions.

In the years since the King assassination sparked 
reflection and action across American campuses, amici 
have graduated more African-American students than in the 
previous 175 years. They have done so through the use of 
race-conscious admissions efforts permitted by Bakke -  
indispensable efforts that Petitioners would foreclose.

B. Thirty-Five Years Later, The Colleges’ 
Experience Demonstrates That Affirmative 
Action Has Had Educational Benefits -  And 
Benefits For American Society.

Nearly thirty-five years after amici college recognized 
that they were each more insular and less diverse than was 
educationally wise or socially defensible -  and more than 
they and the students they sought to attract wanted them to 
be -  they have found that their resultant efforts have paid 
off in numerous respects. The careful, thoughtful, well- 
considered efforts to attract more students o f color to apply 
to and matriculate at the colleges have enabled the colleges 
to better accomplish the missions they set for themselves, 
which include among other things, educating students who, 
individually and collectively, will contribute most to the 
educational process, and be most successful in using what 
they have learned for the benefit of the larger society.

1. Much important data is summarized by Bowen and 
Bok, who conclude that efforts to expand diversity have 
paid off handsome educational dividends.30 Significantly 
more students (of all races) reported by 1989 (as compared 
to 1976) that college contributed a great deal to their ability 
to work effectively and get along well with people from

30 The Shape o f the River, chs. 3-4.



22

different races and cultures; for white students, the number 
nearly doubled.31

2. Amici colleges contribute very substantially to the 
ranks of graduate students at the nation’s leading graduate 
and professional schools, and their efforts at inclusion have 
meant more graduate degrees (at more prestigious 
institutions) for African-American students generally.

Twenty of amici, for whom we have data, report that 
from 1992 through 2001, 179 of their African-American 
graduates subsequently earned Ph,D.s in science and engi­
neering fields.32

A Haverford graduate who benefited from its Minority 
Scholars Program -  which supports the academic achieve­
ment of students of color, and has helped create a 
graduation rate for minority students that closely matches 
(and sometimes exceeds) the college’s overall graduation 
rate -  went on to graduate study in Molecular Biology at 
Princeton and will return to Haverford next fall as an 
Assistant Professor of Neurobiology.

3. Two of the most frequently heard criticisms of 
admissions programs that take race into account, like 
amici's (and like that at the Michigan Law School and the 
one at Harvard as described by Justice Powell), are simple 
canards that are easily demolished.

Graduation rates for “affirmative action” students are 
not lower than the average, so it cannot fairly be charged 
that valuable resources are being underused. At Amherst, 
Colgate, and Vassar -  as at Harvard and Princeton -  the 
black student graduation rate is over 90%, and higher than 
the rate for white students.33 (By contrast, graduation rates

31 The Shape o f  the River, 225-40.
32 The survey was undertaken by the National Science Foundation, and 
published by the Co-Operative Institutional Research Program at UCLA.
33 The Journal o f Blacks in Higher Education, The Wide Disparity in 
Black Student Graduation Rates at the Nation's Most Selective Colleges 
and Universities, Autumn 2002, p. 90.



23

at even the best of the historically black colleges are 
substantially lower.)

The consideration of race does not mean that some 
students o f lesser merit are admitted over more 
“meritorious” students. At amici and other highly selective 
colleges, merit has never been defined purely by test 
scores. By any measure, the students who have been 
admitted under the diversity-seeking, race-conscious 
process that amici have employed in reliance on Bakke 
have met the colleges’ highest expectations.

Consider, for example, Ted Shaw (Wesleyan ‘72) and 
Hugh Price (Amherst ‘63). Mr. Shaw, one of the counsel 
for intervenors in Gratz, benefited from Cardinal Cooke’s 
early affirmative action efforts to develop leadership skills 
in young blacks in Catholic schools in New York City, and 
attended Wesleyan shortly after its post-King assassination 
commitment to make the student body more racially 
diverse. He has made exactly the kind of contribution 
(service in the Department of Justice Civil Rights Division, 
teaching at the University of Michigan Law School, and 
practicing civil rights law in this and other courts) that 
Wesleyan hopes its students will make. He now serves as a 
Wesleyan trustee.34

Similar contributions have been made by Mr. Price. 
After graduating from Yale Law School, he served as the 
first executive director of the Black Coalition of New 
Haven; was for six years as senior vice president of 
WNET/Thirteen in New York, the nation’s largest public 
television station; was vice president of the Rockefeller 
Foundation; and has been president of the National Urban 
League since 1994.35

Peter J. Gomes, Bates ’65, is University Minister and 
Plummer Professor o f Christian Morals, Harvard 
University, a Bates Trustee, and a prolific author on topics

34 Ted Shaw '76: Winning the Fight fo r  Social Justice?, Wesleyan, 
Winter 1996, pp. 1-4.
35 Amherst, Summer 1994, p. 6.



24

of Biblical and Christian Ethics.36 Notwithstanding its 
commitment and efforts, Bates “has had very limited 
success in attracting black students,” and only 1.9% of its 
students are African-American.37 Are those efforts now to 
be held unlawful, and the contributions of Bates to the 
education of leaders like Rev. Gomes forbidden, because 
Bates considers race along with all the other aspects of a 
candidate’s background?

Beverly Daniel Tatum, Wesleyan ’75, formerly acting 
President of Mount Holyoke, is President of Spelman 
College. She has written Why Are All The Black Kids 
Sitting Together in the Cafeteria?: And Other Conversa­
tions About Race (1997), and Assimilation Blues: Black 
Families in a White Community (1987).38 Her achievements 
make plain the educational benefits of looking for and 
including students like these at amici, and explain why the 
colleges believe so passionately that their missions demand 
-  and the law should not prohibit -  efforts to educate and 
send back into the world those who might not, but for 
consideration of their whole background, be noticed, or 
sought out, or admitted.

36 Referring to the admission staff who reviewed his application, Rev. 
Gomes observed: “They invested in the raw stuff o f human flesh and, in 
many cases, my own included, they should have said, ‘If we go strictly by 
the numbers, and strictly by the record, and strictly by the achievements 
posted, this is a man who would be much happier in Orono than in 
Lewiston.’", Bates College, Taking a Chance on Our Future, Oct. 26, 
2002, available at http://www.bates.edu/homecoming-gomes-address.xml.
37 The Journal o f Blacks in Higher Education, available at 
http://www.jbhe.com/features/38Jeading_colIeges.html.
38 Talking about Race with Beverly Daniel Tatum '75, Wesleyan, 
Summer 1998, pp. 5-9.

http://www.bates.edu/homecoming-gomes-address.xml
http://www.jbhe.com/features/38Jeading_colIeges.html


25

III. BARRING INSTITUTIONS OF HIGHER EDUCATION FROM 
MAINTAINING THEIR OWN ADMISSION CRITERIA 
WOULD VIOLATE VITAL PRINCIPLES OF ACADEMIC 
FREEDOM AND INSTITUTIONAL AUTONOMY, AS WELL 
AS STARE DECISIS.
Petitioners’ quest to displace the educational judgments 

of the University of Michigan -  and, make no mistake 
about it, the educational judgments of amici and private 
colleges and universities generally -  is at war with two 
fundamental principles of constitutional law: the rule that 
“Considerations of profound importance counsel restrained 
judicial review of the substance of academic decisions,” 
Regents o f the Univ. o f Mich. v. Ewing, 474 U.S. 214 
(1985), and the rule of stare decisis.

1. The rule of judicial restraint that underlies Ewing, 
which provides a substantial barrier to petitioners’ 
campaign here, rests in part on the First Amendment. The 
Ewing Court noted its “reluctance to trench on the 
prerogatives of state and local educational institutions and 
our responsibility to safeguard their academic freedom, "a 
special concern of the First Amendment." Keyishian v. Bd. 
o f Regents o f  the Univ. o f  the State o f N.Y., 385 U.S. 589, 
603 (1967). Academic freedom includes the “discretion to 
determine, on academic grounds, who may be admitted to 
study,” “one o f ‘the four essential freedoms’ of a 
university. Bakke, 438 U.S. at 312 (opinion of Powell, J.).” 
Ewing, 474 U.S. at 226 n.12 (citations omitted).

But the judicial restraint commanded by Ewing has 
even older and deeper roots, reaching back to Trustees o f 
Dartmouth Coll. v. Woodward, 17 U.S. 518 (1819), and the 
Court’s recognition there that a free society requires public 
and private spheres, and limitations on governmental intru­
sion and control so as to preserve those key distinctions. 
“Academic freedom thrives not only on the independent 
and uninhibited exchange of ideas among teachers and 
students . . .  but also . . .  on autonomous decisionmaking by 
the academy itself . . . .” Ewing, 474 U.S. at 226 n.12



26

(citations omitted). Only a “hands o ff’ policy leaves 
schools free to reform, experiment, refine, and thereby 
offer to the whole society the improvements that result 
from a free market in ideas and practices.

The framers wisely placed the nation’s colleges and 
universities, and particularly private institutions generally 
apart from judicial or even legislative interference. Trustees 
o f Dartmouth Coll., supra.

Accordingly, “When judges are asked to review the 
substance of a genuinely academic decision, such as this 
one, they should show great respect for the faculty's 
professional judgment. Plainly, they may not override it 
unless it is such a substantial departure from accepted aca­
demic norms . . . .” Ewing, 474 U.S. at 225; see also id. at 
228 (courts may displace such judgments, if at all, only if 
they were found to be such a substantial departure from 
accepted academic norms or “aberrant”); cf. Bakke, 438 
U.S. at 318 (Powell, J.) (“in an admissions program where 
race or ethnic background is simply one element -  to be 
weighed fairly against other elements -  in the selection 
process,” good faith “would be presumed”).39

Private selective colleges and universities have made, 
individually but with impressive unanimity, a collective 
judgment that obtaining diversity in their classes, including 
racial diversity, is a matter of profound educational impor­
tance and social importance, and that the way to obtain that 
diversity is by seeking it, in a process in which the reality 
of race is considered competitively along with dozens of 
other factors. Deference to the colleges’ educational

See also Ewing, 474 U.S. at 227-28 (asking whether the challenged 
decision by educators was “beyond the pale o f reasoned academic 
decision-making”). Cf. Bd. o f  Curators o f the Univ. o f  Mo. v. Horowitz, 
435 U.S. 78, 89-90 (1978) (courts are not equipped or authorized to 
evaluate the substance o f the multitude o f academic decisions that are made 
daily by faculty members o f public educational institutions - decisions that 
require "an expert evaluation of cumulative information and [are] not 
readily adapted to the procedural tools o f judicial or administrative 
decisionmaking”).



27

judgments that diversity is a core component of the 
education they are seeking to provide is plainly called for. 
Petitioners and their allies seeking to eliminate racial 
background from the list of dozens of other factors looked 
to in assembling a class have not met, and could not 
conceivably meet, the Ewing standard.

Displacement of a college or university’s core preroga­
tives -  including the power to decide which set of 
applicants, considered individually and collectively, will 
take fullest advantage of what the college has to offer, 
contribute most to the educational process in college, and 
be most successful in using what they have learned for the 
benefit of the larger society40 -  would be an extraordinary 
departure from the deference that courts have long shown 
to institutions of higher education generally, and particu­
larly private institutions.

2. Stare decisis independently leads to the same 
judicial restraint required by Dartmouth College, Sweezy, 
and Ewing. The standards for reversal of Bakke'§ constitu­
tional holding, as set forth in Dickerson v. United States, 
530 U.S. 428 (2000), and Planned Parenthood o f S.E. Pa. 
v. Casey, 505 U.S. 833 (1992), are not nearly met.

After Bakke, each of the amici (and undoubtedly other 
selective colleges and universities as well) reviewed their 
admissions procedures in light of Justice Powell’s opinion 
sketching out a permissible approach (which five justices 
plainly supported), and set sail accordingly. Enormous 
reliance interests have built up accordingly. In dozens of 
ways, the schools where diversity is a significant reality 
have changed, and invested in change.

The peopling of the college communities with a more 
diverse group o f students has made the colleges different 
(and better) than they were. Reliance on Bakke has had 
huge impact on the world in which aspiring families and 
their high school students, and college students, live. Bakke 
has left its mark on recruiting efforts, on relationships with

40 The Shape o f  the River, 277.



28

secondary public and private schools and high school 
counselors, on support services and programs, on housing 
choices, and on the curricula, which have broadened and 
developed to meet the needs and expectations of a more 
diverse student body. Current students and those 
matriculated for next year have expectations about being in 
a diverse community, and not being isolated.

Not only have the colleges invested in reliance on 
Bakke; so too have African-American students and their 
parents. Thousands of such students have been aiming for 
admission to the amici colleges, or their highly selective 
university counterparts. Reversal o f Bakke, and any reversal 
of judgment in favor of the Michigan Law School, would as 
a practical matter turn realistic opportunities into lottery 
chances. Without the ability to take race into account -  and 
even more, with a post-Grwfter likelihood that differential 
admission rates in SAT bands would be attacked as prima 
facie evidence o f unlawful discrimination -  African- 
American presence on America’s most selective campus 
would plummet, as it did in California.

In short, upending the world that Bakke created would 
interfere substantially with reasonable expectations and 
long-settled social patterns. That dislocation should weigh 
heavily against dispatching Justice Powell’s opinion and 
the broadened opportunity it allowed for African- 
Americans at the nation’s most selective colleges.

Extraordinary progress in opening up previously closed 
educational institutions has occurred since conscious efforts 
to include black Americans within the circle of those 
admitted to highly selective educational institutions in the 
United States began in the 1960’s, and were held 
permissible in Bakke.*1 Many thousands of black 
Americans have graduated, and taken their place in 41

41 Jack Greenberg, Affirmative Action in Higher Education: Confronting 
the Condition and Theory, 43 B.C. L. Rev. 521, 569-71 (2002); The 
Journal o f  Blacks in Higher Education, available at 
http://www.jbhe.com/features/38_leading_colleges.html.

http://www.jbhe.com/features/38_leading_colleges.html


29

American society, and have benefited the society at large 
by their accomplishments and civic contributions. For the 
Court to deem their very degrees illegitimate, the basis for 
their achievements and contributions the product of 
violations of constitutional or statutory law, would be an 
extraordinary step, permissible, if at all, only if  the 
constitutional or statutory text or history left no doubt 
whatever that Bakke reached the wrong result.

The Fourteenth Amendment’s text does not preclude 
universities and colleges from considering racial back­
ground, among other factors and without quotas, in the 
service of diversifying their student bodies to include 
students from historically excluded groups (particularly 
when students from those groups would continue to be 
excluded if  SAT or comparable quantitative tests were 
relied on as the sole or prime measure o f selection). Given 
the repeated enactment of race-conscious legislation by the 
Congress that adopted the Fourteenth Amendment in order 
to close the social gap between blacks and whites, the 
Court could not fairly conclude that the “original 
understanding” of the Fourteenth Amendment prohibits 
what Bakke permits.42 In view of that telling original 
understanding, it is plainly not possible to say that the 
holding in Bakke -  that race may be considered competi­
tively, along with other factors, so long as separate racial
tracks are not set up -  was plainly wrong.

*  *  *  *

The judicial deference owed to colleges and univer­
sities, joined to the wise policy of stare decisis, counsels 
against any resolution of these cases that would interfere 
with the powers of colleges and universities generally -  and 
particularly private institutions -  to experiment and pursue

42 Eric Schnapper, Affirmative Action And The Legislative History Of 
The Fourteenth Amendment, 71 Va. L. Rev. 753, 784-85 (1985); Jed 
Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 429-32 (1997); Jack 
Greenberg, Affirmative Action in Higher Education: Confronting the 
Condition and Theory, 43 B.C. L. Rev. 521, 577 & n. 322 (2002).



30

their own judgments as to how to best use their resources 
for educational and charitable purposes, even when doing 
so entails some consideration of racial background as one 
factor, among many, to be considered and weighed 
competitively with many others.

CONCLUSION
Academic freedom and the deference due educational 

judgments leave colleges and universities free to select 
those students who, in their judgment and as Bakke contem­
plated, will, individually and collectively, take fullest 
advantage of what the college has to offer, contribute most 
to the educational process, and use what they have learned 
for the benefit of the larger society. The Fourteenth 
Amendment, Title VI, and 42 U.S.C. §1981 do not prohibit 
colleges and universities from taking into account race or 
ethnic background as factors to be competitively evaluated 
and considered in admission decisions, without quotas. The 
judgments below should be affirmed.

Respectfully submitted, 
CHARLES S. SIMS 

Counsel o f  Record 
PROSKAUER ROSE LLP 
1585 BROADWAY 
NEW YORK, NY 10036 
212.969.3950
Attorneys fo r  Amici Curiae

Dated: February 14,2003



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