Grutter v. Bollinger Brief of Amici Curiae

    Nos. 02-241, 02-516

iii mt
Supreme Court of tf)c ®nttcb i§>tate£

---------------❖ — -----------

BARBARA GRUTTER,
Petitioner,

v.

LEE BOLLINGER, et a l ,

Respondents,

and

JENNIFER GRATZ and PATRICK HAMACHER,

v.
Petitioners,

LEE BOLLINGER, et al.,
Respondents.

------- ------------ 4 -------------- ------

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Sixth Circuit
---------- ---------4------------ -------

BRIEF OF AMICI CURIAE CITY OF PHILADELPHIA, 
PENNSYLVANIA, CITY OF CLEVELAND, OHIO AND THE 

NATIONAL CONFERENCE OF BLACK MAYORS, INC. 
IN SUPPORT OF RESPONDENTS

--------------------------------------4 — -------------------------------

Victor A. Bolden 
Counsel of Record 

K enneth D. Heath 
Sandra Slack Glover 
Wiggin & Dana LLP 
One Century Tower 
PO. Box 1832 
New Haven, Connecticut 

06508-1832 
(203) 498-4400

(216) 664-2800

Nelson A. Diaz, City Solicitor 
City of Philadelphia Law 

Department
1515 Arch Street -  17th Floor 
Philadelphia, Pennsylvania 

19102
(215) 683-5003
Subodh Chandra, Director 
City of Cleveland Law 

Department 
601 Lakeside Avenue,

Room 106
Cleveland, Ohio 44114-1077

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

Page

TABLE OF AUTHORITIES.........................................  ii
INTEREST OF AMICI CURIAE............................   1
SUMMARY OF ARGUMENT......................   3
ARGUMENT..........................................................-......  5

I. THIS COURT SHOULD REJECT PETITION­
ERS’ PROPOSED RULE.................................... 5
A. Petitioners’ Proposed Rule Would Inhibit

Colleges and Universities from Treating 
Amici’s Students As Individuals..............  6

B. Petitioners’ Proposed Rule Would Disrupt
the Delicate Balance Between Vindicating 
Fourteenth Amendment Rights and Inter­
fering with the Educational Process............  11

II. THIS COURT SHOULD REAFFIRM JUS­
TICE POWELL’S BAKKE OPINION ..............  15

CONCLUSION...........................    20

TABLE OF CONTENTS



Page
Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200
(1995).......................................................... ....................15

Johnson v. Transportation Agency, 480 U.S. 616
(1987)..................................................................... ...18, 19

Katzenbach v. Morgan, 384 U.S. 641 (1966)........................5
Miller v. Johnson, 515 U.S. 900 (1995)................. 7, 8, 9, 17
Milliken v. Bradley, 433 U.S. 267 (1977)....................... 5, 11
Missouri v. Jenkins, 515 U.S. 70 (1995)...........  5, 12
Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

424(1976)..........................................................................5
Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133 (2000).....................................................   9
Regents of the University of California v. Bakke, 438

U.S. 265 (1978)....................................................... passim
Regents of the University of Michigan v. Ewing, 474

U.S. 214(1985).......................................................... 13, 18
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).......5, 15
Shaw v. Reno, 509 U.S. 630 (1993)......................................8
United States v. Fordice, 505 U.S. 717 (1992).....................7
University of Pennsylvania v. E.E.O.C., 493 U.S.

182 (1990)...................................................................10, 14
Wygant v. Jackson Bd. of Educ., 476 U.S. 267

(1986)............................................................................... 19

ii

TABLE OF AUTHORITIES



Ill

Page

Statutes, Rules and Other Authority

42 U.S.C. § 2000d et seq............................................................ 7
U.S. Const, amend. XIV, § 1......................................... passim

National Center for Education Statistics,
Digest of Education Statistics 2001, Ch. 5: 
Outcomes o f  Education  (2001)........................................2

TABLE OF AUTHORITIES -  Continued



1

INTEREST OF AMICI CURIAE1

The City of Philadelphia, Pennsylvania (“Philadel­
phia”),2 where our nation’s first public school was estab­
lished in 1698, is the birthplace of American education. 
Located in southeastern Pennsylvania, Philadelphia is a 
city of approximately 1.5 million people and has the 
seventh largest public school district in the nation, with a 
racially and ethnically diverse student enrollment of more 
than 200,000 students in its public school system. Phila­
delphia has taken the lead in sponsoring initiatives that 
attract, engage and retain students in Philadelphia and 
has established as its economic objective the creation of 
knowledge-based jobs. Each year, thousands of students 
graduate from Philadelphia schools seeking access to post­
secondary education as a means to broaden their opportu­
nities for meaningful careers. Philadelphia believes that 
participation in this case as amicus curiae is critical to 
ensuring access to higher education for all its public school 
students, recognizing that without these educational 
opportunities, Philadelphians will be ill-equipped to take 
advantage of the economic growth it envisions. Its political 
and business leaders of tomorrow will come from the ranks 
of those admitted to college and graduate school today.

The City of Cleveland, Ohio (“Cleveland”) has the 
largest school district in Cuyahoga County, Ohio. Cleveland’s

1 No counsel for any party authored any portion of this brief. No 
person or entity other than amici, members or their counsel contributed 
financially to the preparation and submission of this brief.

2 Philadelphia’s submission is made on behalf of its Administration 
and City Council, which expressed its support for such a filing in a 
resolution on January 28, 2003.



2

school system, the Cleveland Municipal School District, 
graduates thousands of students each year. Cleveland 
believes that participation in this case as amicus curiae is 
critical to ensuring access to higher education for its public 
school students, many of whom are African-American and 
Latino.

The National Conference of Black Mayors, Inc. 
(“NCBM”), is a nonprofit, nonpartisan 501(c)(3) service 
organization with a membership of approximately 500 
mayors who represent over 20 million people throughout 
the nation. NCBM provides management and technical 
assistance to its members and articulates their concerns 
on national policy issues. NCBM as a whole, as well as its 
individual members, recognizes the relationship between 
gainful employment and higher education and thus 
believes that participation in this case as amicus curiae is 
critical to ensuring access to higher education for all public 
school students.

For decades, relying on their vast experience, colleges 
and universities have measured applicants from amici’s 
public schools as they do all applicants, not only by their 
standardized test scores, but also by countless other 
measures indicative of their potential to become leaders in 
tomorrow’s society. In amici’s view, this type of admissions 
process has led to better and more inclusive leadership 
and greater competition in the business world.3 Amici have

3 There is a direct correlation between employment opportunities 
and access to post-secondary education. See generally NATIONAL CENTER 
for  E ducation Statistics, Digest of E ducation Statistics 2001, Ch. 
5: Outcomes of Education (2001) (indicating that high school graduates 

(Continued on following page)



3

a significant interest in ensuring that these public and 
private institutions retain the institutional autonomy to 
continue admitting their students.

----------- ----4---------------

SUMMARY OF ARGUMENT

Petitioners urge this Court to hold that “the consid­
eration of race, even if considered along with other factors, 
constitutes the kind of intentional discrimination that 
requires strict scrutiny.” Brief of Jennifer Gratz et al. 
[hereinafter “Gratz Br.”] at 38. Their argument is mis­
guided. First, this Court’s precedents do not require that 
holding. The Fourteenth Amendment’s Equal Protection 
Clause is not violated when applicants to a college or 
university are treated as individuals, and these institu­
tions consider applicants’ individual attributes in deciding 
whether to admit them.

Second, this proposed “no consideration of race” rule 
will either have a “chilling effect” on the college and 
university admissions process, or require federal courts to 
be the admissions office of last resort for nearly every 
college and university. This chilling effect, ironically, 
would result in minority students, who despite their test 
scores or grades are still qualified candidates for reasons 
other than their race, being denied admission because of 
their race so that colleges and universities can avoid 
constitutional scrutiny of their admissions processes. 
Alternatively, these institutions will follow court-imposed

without a college degree were twice as likely to be unemployed as 
college graduates).



4

admissions criteria based solely on standardized test 
scores and grades, to the disadvantage of amici’s students, 
a majority of whom are African-American and Latino. 
Otherwise, rejected white applicants will inundate federal 
courts with lawsuits, extending the jurisdiction of Article 
III judges far beyond anything this Court has ever deemed 
permissible. This Court has always recognized that the 
jurisdiction of Article III judges to interfere in the aca­
demic decision-making process is rather limited, even for 
the purpose of vindicating rights under the Fourteenth 
Amendment.

The perils of Petitioners’ “no consideration of race” 
rule are best avoided by this Court’s reaffirming the wise 
and well-reasoned opinion issued by Justice Powell in 
Regents of the University of California v. Bakke, 438 U.S. 
265 (1978). Justice Powell cogently set forth a guiding 
principle that respects both the institutional autonomy 
always afforded educational institutions and the principles 
set forth in this Court’s long-standing Fourteenth Amend­
ment jurisprudence. Petitioners’ attempts to characterize 
Justice Powell’s opinion as departing from this latter 
tradition are inaccurate. In fact, it is Petitioners who ask 
the Court to go down a path it has to date refused to take. 
This Court should reject that request, and instead reaffirm 
the guiding principles enunciated by Justice Powell.



5

ARGUMENT

I. THIS COURT SHOULD REJECT PETITION­
E R S’ PROPOSED RULE.

Two fundamental principles have guided this Court in 
determining whether it is required to act under the Four­
teenth Amendment. First, “federal-court decrees exceed 
appropriate limits if they are aimed at eliminating a 
condition that does not violate the Constitution or does not 
flow from such a violation.” Milliken v. Bradley, 433 U.S. 
267, 282 (1977) (citing Pasadena City Bd. of Educ. v. 
Spangler, 427 U.S. 424 (1976)). Second, “[ujnlike Con­
gress, which enjoys ‘discretion in determining whether and 
what legislation is needed to secure the guarantees of the 
Fourteenth Amendment,’ federal courts have no compara­
ble license and must always observe their limited judicial 
role.” Missouri v. Jenkins, 515 U.S. 70, 113 (1995) 
(O’Connor, J., concurring) (citing Richmond v. J.A. Croson 
Co., 488 U.S. 469, 490 (1989) (quoting Katzenbach v. 
Morgan, 384 U.S. 641, 651 (1966))). Petitioners’ proposed 
rule -  that this Court hold that no consideration of race is 
ever permitted in college and university admissions, save 
as a remedy for past discrimination -  violates both of 
these fundamental principles.

In Petitioners’ scheme, the proposed “no consideration 
of race” rule would serve both as a basis for a court finding 
a Fourteenth Amendment violation and as a remedy for 
the very same violation. In their effort to achieve both, 
Petitioners fail at accomplishing either. The phrase “the 
consideration of race” is broad and the precise contours of 
a “no consideration of race” rule are largely undefined. It 
is clear, however, from how Petitioners have presented 
their case that the admission of minority applicants with 
standardized test scores and grade point averages lower



6

than those of rejected white students will guarantee 
litigation, regardless of whether a college or university- 
otherwise considers the individual attributes of its appli­
cants. Colleges and universities will have everything to 
lose and only a lawsuit to gain by admitting amici’s 
minority students, even if their race was never considered, 
if those students’ standardized test scores or grade point 
averages are lower than any rejected white student. By 
effectively requiring colleges and universities to reject 
minority applicants they would ordinarily accept to avoid 
litigation, even though race was never considered, Peti­
tioners’ “no consideration of race” rule is overly broad and 
thus “exceeds appropriate limits.” Moreover, Article III 
judges will become the final arbiters of who is qualified to 
receive an education at nearly every college and university 
in the nation -  whether public or private -  based on as-yet 
undetermined criteria. Enforcing this rule will require 
federal judges to go far beyond “their limited judicial role.” 
For these reasons, this Court should reject Petitioners’ “no 
consideration of race” rule.

A. P e tit io n e rs ’ P rop osed  R ule W ould Inh ib it 
C olleges and U n iv ersities  from  T reating  
A m ic i’s S tu d en ts As Ind iv iduals.

Petitioners’ proposed rule does not -  indeed, cannot -  
offer any guidance to colleges and universities in how to 
avoid litigation, other than to rely solely on standardized 
test scores and grade point averages in the selection of 
their students. Colleges and universities, however, should 
not have to rely on those two criteria alone in order to



7

avoid litigation under Petitioners’ proposed rule.4 The 
resulting chilling effect in the admissions process is ample 
basis for this Court to reject that rule.

The Equal Protection Clause of the Fourteenth 
Amendment provides that no State shall “deny to any 
person within its jurisdiction the equal protection of the 
laws.” U.S. C o n st , amend. XIV, § 1. “The idea is a simple 
one: At the heart of the Constitution’s guarantee of equal 
protection lies the simple command that the Government 
must treat citizens as individuals, not as simply compo­
nents of racial, religious, sexual or national class.” Miller 
v. Johnson, 515 U.S. 900, 911 (1995) (citations and inter­
nal marks omitted). But nothing in the Equal Protection 
Clause forbids colleges and universities from evaluating 
all criteria it deems important to its educational mission 
and relevant about an individual applicant. This type of 
admissions process “treat[s] citizens as individuals.”

Moreover, this Court has never held that any consid­
eration of race necessarily constitutes a violation of the 
Equal Protection Clause. As the Court held in the context 
of voting:

4 The issue of litigation is relevant to both public and private 
colleges and universities. A private right of action for any acts of 
discrimination prohibited by the Fourteenth Amendment will exist 
under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., 
which bans any acts of discrimination practiced by educational institu­
tions receiving federal funds. See, e.g., United States v. Fordice, 505 
U.S. 717, 732 n.7 (1992) (“Our cases make clear, and the parties do not 
disagree, that the reach of Title Vi’s protection extends no further than 
the Fourteenth Amendment.”) (citations omitted).



8

The courts, in assessing the sufficiency of a chal­
lenge to a districting plan, must be sensitive to 
the complex interplay of forces that enter a legis­
lature’s redistricting calculus. Redistricting legis­
latures will, for example, almost always be aware 
of racial demographics; but it does not follow that 
race predominates in the redistricting proc­
ess. . . . The distinction between being aware of 
racial considerations and being motivated by 
them may be difficult to make.

Id. at 915-16 (citations omitted). As a result, in Miller this 
Court held that “[w]here [race-neutral districting princi­
ples] or other race-neutral considerations are the basis for 
redistricting legislation, and are not subordinated to race, 
a State can ‘defeat a claim that a district has been gerry­
mandered on racial lines.’” Id. at 916 (quoting Shaw v. 
Reno, 509 U.S. 630, 647 (1993)).

In contrast, Petitioners’ proposed “no consideration of 
race” rule allows for no such flexibility. While Petitioners 
suggest that the “range of factors that a university may 
constitutionally consider in selecting its students . . .  is 
virtually infinite,” Gratz Br. at 37, and that “there is no 
limit to the viewpoints, perspectives, ideas, character 
traits, talents, and experiences that a university might 
consider in assembling its community,” id., their proposed 
rule operates under a far different assumption. Instead, 
they declare, “the consideration of race, even if considered 
along with other factors, constitutes the kind of intentional 
discrimination that requires strict scrutiny.” Id. at 38 
(emphasis added). Under Petitioners’ formulation, there is 
no sensitivity to the “complex interplay of forces” involved 
in admitting students to colleges and universities. There is 
no “distinction between being aware of racial considera­
tions and being motivated by them.” Under Petitioners’



9

proposed rule, the mere consideration of race, even if that 
was not the rationale for an institution’s admissions 
process, “requires strict scrutiny.”5

Petitioners show no appreciation whatsoever for the 
impact of their proposed rule on the admissions process. 
By setting the standard for determining discrimination at 
a level so low that any consideration of race is banned, 
even if it is not the dominant factor, Petitioners undermine 
the ability of a university to defend its admissions deci­
sions. As long as a disappointed applicant can allege some 
consideration of race somewhere in the admissions process 
of a college or university, the admissions process must be 
subject to strict scrutiny and cannot “defeat a claim,” as 
this Court contemplated in Miller. How could an institu­
tion that favors face-to-face interviews, for instance, or 
otherwise receives information revealing an applicant’s 
race, prove that race played no factor whatsoever in 
accepting an applicant with test scores or a GPA lower 
than any rejected white applicant’s? Any allegation that 
race was considered somewhere in the process would 
condemn a university to go to trial. See Reeves v. Sander­
son Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) 
(reversing a judgment as a matter of law because 
“ [credibility determinations, the weighing of the evidence, 
and the drawing of legitimate inferences from the facts are 
jury functions, not those of a judge”) (citation and internal 
marks omitted). Similarly, so long as a jury can infer that 
an applicant’s race somehow mattered to the university,

5 Significantly, an institution’s “consideration of race” does not 
equate to a quota system, and does not mean that any particular 
student failed to gain admission because of race.



10

the allegedly aggrieved applicant stands a good chance of 
prevailing. In the end, colleges and universities will be 
vulnerable to endless litigation based on the whims of 
disappointed applicants, rather than their measured 
judgment and consideration of their own interests.

Having to operate an admissions program under such 
conditions will have a “chilling effect” on the entire proc­
ess. In University of Pennsylvania v. E.E.O.C., 493 U.S. 
182 (1990), this Court noted that there is just such a 
“chilling effect” on academic freedom where there is an 
effort “to control or direct the content of the speech en­
gaged in by the university or those affiliated with it.” 493 
U.S. at 197. Petitioners concur with this proposition, citing 
it in support of their position, see Gratz Br. at 35, but 
apparently they are oblivious to its application to this 
case. Petitioners’ proposed rule threatens “to control or 
direct the content of the speech engaged in by the univer­
sity.” Petitioners want to forbid colleges and universities 
from thinking about, talking about, or otherwise consider­
ing the race of any of its applicants or the ways in which 
race fits into their educational mission, no matter what 
form that consideration takes. The significant threat posed 
to academic freedom by Petitioners’ proposed “no consid­
eration of race” rule cannot be ignored.

Furthermore, this “chilling effect” will inevitably force 
colleges and universities to reject many of amici’s minority 
students, as these institutions try to avoid the very litiga­
tion that Petitioners’ rule will spawn. Amici’s students will 
be caught in the crossfire between applicants with a 
penchant to sue and colleges and universities eager to 
minimize their exposure. In the past, these students, who 
may not fit Petitioners’ notion of the proper academic 
profile, have been admitted by colleges and universities



11

who believed that they deserved admission for reasons 
having nothing to do with race, although a majority of 
amici’s students are African-American or Latino. If Peti­
tioners’ proposed rule is adopted, the spectre of litigation 
will result in colleges and universities denying them 
admission. For under Petitioners’ scheme, applicants like 
Petitioners will be encouraged to bring lawsuits, even if 
the race of students such as amici’s was never considered.

Under Petitioners’ proposed rule, colleges and univer­
sities can only ensure that they avoid litigation by adopt­
ing an admissions process based solely on standardized 
test scores and grade point averages. Colleges and univer­
sities, however, should not be required to “eliminat[e] a 
condition that does not violate the Constitution.” Milliken, 
433 U.S. at 282. Instead, Petitioners’ proposed rule should 
be rejected for including within its purview activity both 
consistent with and protected by the Constitution.

B. P e tit io n e r s ’ P rop osed  R ule W ould D isru p t 
th e  D e lica te  B a lan ce  B etw een  V in d icatin g  
F o u rteen th  A m endm ent R ights and In ter ­
fer in g  w ith  th e  E d u cation a l P rocess.

This Court has always considered the Fourteenth 
Amendment interest in prohibiting racial discrimination 
with an eye to the limits of judicial competence, ever 
careful not to usurp the authority of educators. For exam­
ple, throughout this Court’s consideration of the issue of 
school desegregation, the Court has limited the scope, 
duration and reach of the Fourteenth Amendment, always 
stopping short of intruding into decisions about how 
students will best learn, the very heart of the educational 
process. Petitioners give no consideration to this issue at 
all. In fact, this Court unanimously ruled nearly twenty



12

years ago that it would not second-guess the academic 
decisions made by the University of Michigan. Tellingly, 
although Petitioners clearly want this Court to either 
overturn or modify this decision, there is not one reference 
to this decision in either of their briefs.

This Court’s pragmatic approach in interpreting the 
Fourteenth Amendment reflects a profound understanding 
of the limits on the federal judiciary’s ability to address 
education policy. As one member of this Court has stated:

Unlike Congress, which enjoys discretion in de­
termining whether and what legislation is 
needed to secure the guarantees of the Four­
teenth Amendment, federal courts have no com­
parable license and must always observe their 
limited judicial role. Indeed, in the school deseg­
regation context, federal courts are specifically 
admonished to take into account the interests of 
state and local authorities in managing their own 
affairs, in light of the intrusion into the area of 
education, where States historically have been 
sovereign, and to which States lay claim by right 
of history and expertise.

Jenkins, 515 U.S. at 113 (O’Connor, J., concurring) (cita­
tions and internal marks omitted) (emphasis added); see 
also id. at 133 (Thomas, J., concurring) (“Federal judges 
cannot make the fundamentally political decisions as to 
which priorities are to receive funds and staff, which 
educational goals are to be sought, and which values are to 
be taught.”). In the context of higher education, these 
same principles apply as well as the principle of academic 
freedom.

Petitioners pay insufficient attention to the principle 
of academic freedom, perhaps hoping to gloss over its



13

significance in this case. See generally Brief of Barbara 
Grutter [hereinafter “Grutter Br.”] (citing no academic 
freedom cases). However, this principle’s relevance cannot 
be so easily avoided. In Regents of the University of Michi­
gan v. Ewing, 474 U.S. 214 (1985), a unanimous Court 
expressly rejected the notion that it -  or any federal 
court -  has the institutional expertise necessary to second- 
guess the complex decisions made by academics in decid­
ing who is qualified to be a student:

Considerations of profound importance counsel 
restrained judicial review of the substance of 
academic decisions. . . . Added to our concern for 
lack of standards is a reluctance to trench on the 
prerogatives of state and local educational insti­
tutions and our responsibility to safeguard their 
academic freedom, a special concern of the First 
Amendment. If a federal court is not the appro­
priate forum in which to review the multitude of 
personnel decisions that are made daily by public 
agencies, far less is it suited to evaluate the sub­
stance of the multitude of academic decisions 
that are made daily by faculty members of public 
educational institutions -  decisions that require 
an expert evaluation of cumulative information 
and [are] not readily adapted to the procedural 
tools of judicial or administrative decision­
making.

474 U.S. at 225-26 (citations and internal marks omitted). 
Nowhere in their briefs do Petitioners explain how this 
Court now can make “decisions that require an expert 
evaluation of cumulative information and [are] not readily 
adapted to the procedural tools of judicial or administrative



14

decisionmaking,” when this Court has unanimously held 
that it could not do so.6

There is no basis for delegating to Article III courts 
the difficult task of deciding who should be admitted to a 
college or university. Federal courts cannot effectively 
“evaluate the substance of the multitude of academic 
decisions that are made daily by faculty members” in the 
area of admissions, a dynamic that is different within each 
institution and involves numerous factors. As even Peti­
tioners recognize, the “range of factors that a university 
may constitutionally consider in selecting its students . . . 
is virtually infinite,” Gratz Br. at 37, and “there is no limit 
to the viewpoints, perspectives, ideas, character traits, 
talents, and experiences that a university might consider 
in assembling its community,” id.

Nevertheless, Petitioners want this Court to “evaluate 
the substance” of college and university admissions poli­
cies and rule them invalid because they are “notoriously 
ill-defined,” Grutter Br. at 31, “nebulous,” id. at 16, “lack­
ing in objective, ascertainable standards,” id. at 17, and 
“with at least as many varied possibilities and standards 
of application as there are institutions to define it,” id. at 
19. Petitioners miss the point. Federal courts have not and 
do not make these kinds of determinations. These are 
quintessentially “academic decisions” to be made by 
educators, not courts. Nothing in this Court’s rulings 
suggests otherwise.

6 In fact, in its most significant ruling on this issue since Ewing, 
this Court expressly stated: “Nothing we say today should be under­
stood as a retreat from this principle of respect for legitimate academic 
decisionmaking,” Univ. of Pennsylvania, 493 U.S. at 199.



15

II. THIS COURT SHOULD REAFFIRM JUSTICE  
POWELL’s BAKKE  OPINION.

There is no better constitutional calculus for deter­
mining how this Court should proceed than Justice Pow­
ell’s opinion in Bakke. Justice Powell recognized that this 
Court’s long-standing commitment to limit judicial intru­
sion into academic affairs cautioned against adopting a 
sweeping rule, such as the one Petitioners propose here. 
As Justice Powell rightly observed, this Court’s role should 
be limited to ensuring that each applicant’s qualifications 
are considered. The Equal Protection Clause of the Four­
teenth Amendment requires nothing more. While Petition­
ers go to great lengths to disparage it, Justice Powell’s 
opinion, both in theory and in practice, fully comports with 
this Court’s most recent pronouncements.

Petitioners endeavor to paint Justice Powell’s Bakke 
opinion as an aberration. In their view, this Court has 
already “rejected significant parts of Justice Powell’s 
analysis.” Gratz Br. at 37. In particular, they argue that 
even though Justice Powell unequivocally rejected the use 
of quotas or set-asides in university admissions, his 
refusal to find a “facial intent to discriminate” when 
admissions processes merely allow race to be considered as 
one factor among many runs afoul of decisions requiring 
strict scrutiny of any consideration of race. See id. at 38. 
Similarly, Petitioners characterize Justice Powell’s pre­
sumption of good faith on the part of university adminis­
trators who allow race to be considered in admissions 
decisions as inconsistent with the “bedrock proposition” 
that all uses of race deserve strict scrutiny. Id. at 38-39 
(citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 
223-24 (1995); Croson, 488 U.S. at 500). Petitioners’ view of 
Justice Powell’s reasoning in Bakke utterly misconstrues his



16

measured opinion as well as this Court’s subsequent 
rulings.

From the outset of his opinion, Justice Powell adopted 
the very interpretation of the Fourteenth Amendment here 
urged by Petitioners: that the Amendment applies to all 
citizens, white or minority. See Bakke, 438 U.S. at 295 
(Powell, J.) (“The clock of our liberties . . . cannot be 
turned back to 1868. It is far too late to argue that the 
guarantee of equal protection to all persons permits the 
recognition of special wards entitled to a degree of protec­
tion greater than that accorded others.”) (citations omit­
ted). Indeed, Justice Powell emphatically rejected the 
notion that this Court -  or any court -  could apply a 
“sliding scale” necessary for determining what groups 
were to be accorded varying levels of protection at a given 
time. See id. at 297. Instead, Justice Powell adhered to the 
“bedrock principle” that “it is the individual who is enti­
tled to judicial protection against classifications based 
upon his racial or ethnic background because such distinc­
tions impinge upon personal rights, rather than the 
individual only because of his membership in a particular 
group.” Id. at 299 (emphasis added).

It was in this context that Justice Powell adopted the 
distinction, so derided by Petitioners, between a set-aside 
program such as the one in operation at the University of 
California at Davis in Bakke and an admissions policy that 
considers race as but one of the many factors at play for 
any given applicant. For as Justice Powell recognized, 
considering race as a “plus” for minority applicants does 
not foreclose any white applicant from entry to a univer­
sity, because all applicants would receive consideration in 
the process. “The applicant who loses out on the last 
available seat to another candidate receiving a ‘plus’ on



17

the basis of ethnic background will not have been fore­
closed from all consideration for that seat simply because 
he was not the right color. . . . ” Id. at 318. Indeed, such 
could not be the case where, absent an explicit set-aside, 
any white student had been admitted. Instead, it was the 
fact that the rejected applicant’s “combined qualifications 
. . . weighed fairly and competitive!/’ did not warrant 
admission, “and he would have no basis to complain of 
unequal treatment under the Fourteenth Amendment.” Id. 
In other words, where a university could show that it 
considers all applicants individually, without setting aside 
certain seats for minorities, and considers race as merely 
one factor among many for admission, no one member of 
any particular group can complain of any Fourteenth 
Amendment violation where any members of that group 
are admitted.

Again contrary to Petitioners’ argument and as 
discussed above, this aspect of Justice Powell’s opinion is 
not an aberration, but coheres with this Court’s holdings 
in other contexts involving race. See Miller, 515 U.S. at 
915-17 (refusing to apply strict scrutiny where race was 
not predominant factor in drawing district boundaries). In 
fact, in holding that “until a claimant makes a showing 
sufficient to support that allegation the good faith of a 
state legislature must be presumed,” id. at 915 (emphasis 
added), the Miller Court relied on Justice Powell’s opinion 
in Bakke, see id. (citing Bakke, 438 U.S. at 318-19 (Powell, 
J.)). As applied here, either all white applicants to the 
University of Michigan are able to compete for certain 
spots in a class, or they are not. But where multiple 
factors, objective and nonobjective, are at play in that 
decision and its outcome is contingent on an individual’s



18

own circumstances, race cannot be a predominant factor, 
and strict scrutiny just simply does not apply.

Though Petitioners belittle his commitment to aca­
demic freedom, Justice Powell has struck a balance be­
tween equal protection, academic freedom, and judicial 
competence that Petitioners seek to obliterate. Yet, this 
Court has expressly rejected the notion that it -  or any 
federal court -  has the institutional expertise necessary to 
second-guess the complex decisions made by academics in 
determining the contours and composition of their aca­
demic communities. See Ewing, 474 U.S. at 225-26.

Finally, and again contrary to Petitioners’ assertions, 
this Court has relied upon the reasoning contained in 
Justice Powell’s opinion, even if it has not recognized it as 
a holding. In Johnson v. Transportation Agency, 480 U.S. 
616 (1987), the Court applied Justice Powell’s analysis to 
uphold the agency’s employment policy, which accounted 
for an applicant’s sex as but one of many factors in the 
hiring decision:

As the Agency Director testified, the sex of Joyce 
was but one of numerous factors he took into ac­
count in arriving at his decision. The Plan thus 
resembles the ‘Harvard Plan’ approvingly noted 
by Justice Powell in Regents of the University of 
California v. Bakke, 438 U.S. 265, 316-319 
(1978), which considers race along with other cri­
teria in determining admission to the college. As 
Justice Powell observed: “In such an admissions 
program, race or ethnic background may be 
deemed a ‘plus’ in a particular applicant’s file, yet 
it does not insulate the individual from compari­
son with all other candidates for the available 
seats. Id. at 317. Similarly, the Agency Plan re­
quires women to compete with all other qualified



19

applicants. No persons are automatically ex­
cluded from consideration; all are able to have 
their qualifications weighed against those of 
other applicants.

480 U.S. at 638; see also Wygant v. Jackson Bd. of Educ., 
476 U.S. 267, 286 (1986) (“[Although its precise contours 
are uncertain, a state interest in the promotion of racial 
diversity has been found sufficiently ‘compelling/ at least 
in the context of higher education, to support the use of 
racial considerations in furthering that interest.”) 
(O’Connor, J., concurring in part and concurring in judg­
ment). This repeated recognition, if not outright adoption, 
of Justice Powell’s principles is a testament to their 
continuing relevance on this issue and to this case.

In the end, Justice Powell’s opinion succeeds in 
providing guidance to colleges and universities as to how 
they can conduct admissions programs without fear of 
incurring a spate of annual race-based legal challenges to 
their admissions decisions, and without having to engage 
in a prophylactic refusal to consider qualified minority 
candidates with “objective” scores on the arguable margin 
of their applicant pools. By allowing schools to consider 
race as one factor among many, Justice Powell’s Bakke 
rule thus ensures that schools can conduct their admis­
sions procedures free from undue judicial interference, and 
that race does not predominate in those procedures. This 
Court’s Fourteenth Amendment jurisprudence would be 
served well by reaffirming those principles and that 
opinion here.



20

CONCLUSION

The judgments of the Court of Appeals in the Grutter 
case and the District Court in the Gratz case should be
affirmed.

Respectfully submitted,
N elson A. Diaz,

City Solicitor 
City of Philadelphia Law 

Department
1515 Arch Street -  17th Floor 
Philadelphia, Pennsylvania 

19102
(215) 683-5003
Subodh Chandra, Director 
City of Cleveland Law 

Department 
601 Lakeside Avenue,

Room 106
Cleveland, Ohio 44114-1077
(216) 664-2800

Victor A. Bolden 
Counsel of Record

Kenneth  D. Heath 
Sandra Slack Glover 
Wiggin & Dana LLP 
One Century Tower 
P.O. Box 1832 
New Haven, Connecticut 

06508-1832 
(203) 498-4400

Dated: February 18, 2003