Gratz v. Bollinger Brief for the Patterson Respondents

    No. 02-516

In  THE

Supreme €nurt o f ff\t # t a t e
J e n n if e r  G r a t z  a n d  P a t r ic k  H a m a c h e r , 

P e t it io n e r s ,
V.

L e e  B o l l in g e r , e t al, 
R e s p o n d e n t s , 

and
E b o n y  P a t t e r s o n , e t a l ,  

R e s p o n d e n t s .

On W rit O f Certiorari Before Judgment To The 
United States Court of Appeals for the Sixth Circuit

BRIEF FO R  THE PATTERSON RESPONDENTS

F u n d , In c .
99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200

*Counsel o f Record

(Listing of Counsel continued inside cover)

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

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

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

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

a n d  E d u c a t io n a l



(Listing of Counsel continued from cover)

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

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

A n t o n ia  H e r n a n d e z  
President and General 
Counsel 

T h o m a s  S a e n z  
P a t r ic ia  M e n d o z a  
V ic t o r  V ir a m o n t e s  
M e x ic a n  Am e r ic a n  

L e g a l  D e f e n s e  a n d  
E d u c a t io n  F u n d  

634 South Spring Street 
11th FI.

Los Angeles, CA 90014 
(213) 629-2512

G o d fr e y  J. D il l a r d  
M il t o n  R . H e n r y  
Re g in a l d  M. T u r n e r  
C it iz e n s  F o r  

Af f ir m a t iv e  A c t io n ’s 
Pr e s e r v a t io n  

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

Counsel for Patterson Respondents



1

TABLE OF CONTENTS

Table of A uthorities............... ......................... .....................  iv

Note on Citations to the R ecord ................. .. .................... xvi

Statement of the C ase ................. ....................... ................. 1

A. Introduction........................................................................1

B. Factual Background ........................................................4

1. The disproportionate adverse impact of 
the University’s current selection criteria
on minority applicants ....................................... .... 5

2. The University’s history of discrimination.............9

3. The current negative racial environment ............ 14

Summary of Argument .......................   14

ARGUMENT —

I. Intervenors’ Showing Of Past And Present

Page

Discriminatory Actions By The University Both 
Provides A Remedial Basis To Sustain Its Race- 
Conscious Admissions Policy And Also 
Strengthens The Diversity Rationale Articulated 
By The University For That Policy............................ 17

A. The University’s Consideration Of Race 
Is Necessary To Counteract Other Factors 
In Its Admissions Process That Have An 
Unjustified Adverse Impact On Minority 
A pplicants...............................................................20



11

Page

1. The “S,” “C “G,” and “A” 
factors have an unjustified 
disproportionate adverse impact 
on UMS applicants to the
U niversity ........................................................ 21

2. The University has a compelling 
remedial interest in counteracting 
the individually and combined 
discriminatory effect of its
SCUGA factors...............................................23

B. The University’s Historic Discrimination 
Continues To Affect UMS Enrollment 
And To Perpetuate A Hostile Racial
Climate On C am p u s ............................................... 25

C. The History Of The University’s Past And 
Present Conduct With Discriminatory 
Impact Should Inform The Court’s 
Consideration Of The Diversity Rationale
For Its Current Admissions Procedures ............... 27

II. Diversity Is A Compelling Governmental Interest 
Sufficient To Support The University Of 
Michigan’s Race-Conscious Admissions Policy . . .  29

A. Bakke Compels Rejection Of Plaintiffs’
Proposed Interpretation Of The
Fourteenth Amendment ......................................... 30

TABLE OF CONTENTS (continued)



Ill

1. A majority of the Court in Bakke 
would have sustained the 
University of Michigan’s
admissions program ....................................... 30

2. Bakke and other decisions support
the conclusion that diversity is a 
compelling governmental interest............. .. . 30

3. Bakke should be reaffirmed .............................32

B. Diverse Enrollments In Institutions Of 
Higher Education Further A Wide Variety 
Of Interests Important To Democratic
Societies Such As O urs.....................   33

1. Diversity furthers the purposes of
the Fourteenth Amendment ............................ 35

2. Diversity furthers important First
Amendment interests .................    37

C. Plaintiffs Profoundly Misunderstand Or 
Misrepresent The Value And Purposes Of 
Diversity Within Educational Institutions . . . . .  38

HI. The University’s Race-Conscious Admissions
Process Is Narrowly T ailo red .......................................43

TABLE OF CONTENTS (continued)

Page



IV

A. The University’s Plus-Factor Admissions 
Program Furthers Diversity, Is Flexible,
And Does Not Insulate Individual 
Applicants From Comparison With
Others .............................................................   43

B. Percentage Plans Are An Inadequate
Alternative ............................................................... 46

Conclusion ..................................................................................50

TABLE OF AUTHORITIES

Cases:

Adarand Constructors, Inc. v. Pena,
515 U.S. 2 0 0 (1 9 9 5 )..................................................   31,32

Alexander v. Choate,
469 U.S. 287 (1985) ............................................................  24

Board o f Educ. v. Harris,
444 U.S. 1 3 0 (1 9 7 9 )........................................................... .2 4

Brown v. Board o f Educ.,
347 U.S. 483 (1 9 5 4 ) ........................ ..........................  1, 2, 32

Buckley v. Valeo,
424 U.S. 1 (1976) ........................................  35

TABLE OF CONTENTS (continued)

Page



V

Cases (continued):

TABLE OF AUTHORITIES (continued)

Page

City o f Richmond v. J.A. Croson Co.,
488 U.S. 469 (1 9 8 9 ).................................................... passim

Columbus Bd. o f Educ. v. Penick,
443 U.S. 449 (1 9 7 9 )........................................................... 27

Davis v. Monroe County Bd. of Educ.,
526 U.S.629 (1999).............................................................  26

Faragher v. City o f Boca Raton,
524 U.S. 775 (1 9 9 8 )........................................................... 26

Gebser v. Lago Vista Ind. Sch. Dist.,
524 U.S. 274 (1 9 9 8 )........................................................... 26

Georgia v. McCollum,
505 U.S. 42 (1 9 9 2 )............................................................. 41

Gomillion v. Lightfoot,
364 U.S. 339 (1960) ........... .................................. 34

Grutter v. Bollinger,
288 F.3d 732 (6th Cir.), cert, granted, 123
S. Ct. 617 (2002).................................................... 33 ,40,41

Grutter v. Bollinger,
188 F.3d 394 (6th Cir. 1999) 17



VI

Cases (continued):

Guardians Ass'nv. Civil Serv. Comm’n,
463U.S. 582 ( 1 9 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  24

Hi-Voltage Wire Works, Inc. v. City o f San Jose,
24 Cal. 4th 537 (2000) ........................... .. 49

Hopwood v. Texas,
78 F.3d 932 (5th Cir.), cert, denied,
518 U.S. 1033 (1 9 9 6 ) ............................... ................. 47

Hunter ex rel. Brandt v. Regents o f the Univ. o f Cal.,
190 F.3d 1061 (9th Cir. 1999) .........................................  37

In re Employment Discrimination Litig.,
198 F.3d 1305 (11th Cir. 1999) ........................................ 19

Keyishian v. Bd. o f Regents,
385 U.S. 589 (1 9 6 7 ) ...........................................................  37

Langnes v. Green,
282 U.S. 531 (1 9 3 1 ) ........................................................... 18

Lucas v. Forty-Fourth Gen 7 Assembly o f Colorado,
377 U.S. 713 (1 9 6 4 ) ...........................................................  34

Marks v. United States,
430 U.S. 188 (1977) . .........................................................  30

TABLE O F A U TH O RITIES (continued)

Page



vii

TABLE OF A UTHORITIES (continued)

Page

Cases (continued):

McLaurin v. Oklahoma State Regents,
339 U.S. 637 (1 9 5 0 ) ........................................................... 36

Meredith v. Fair,
298 F.2d 696 (5th Cir. 1962) ............................................  22

Metro Broadcasting, Inc. v. FCC,
497 U.S. 547 (1990) ...........................................................  31

Mississippi Univ. for Women v. Hogan,
458 U.S. 718 (1 9 8 2 ) ..................................................... 19,20

Monteiro v. Temple Union High Sch. Dist.,
158 F.3d 1022 (9th Cir. 1998) .......................................... 27

Patterson v. Gratz, No. 02-571 ............................................. 5

Personnel Administrator v. Feeney,
442 U.S. 2 5 6 (1 9 7 9 ) .....................   2

Peters v. Kiff,
407 U.S. 493 (1972) .......................... ................................  41

Planned Parenthood v. Casey,
505 U.S. 833 (1992) ....................................................  32, 33

Plessy v. Ferguson,
63 U.S. 537 (1 8 9 6 ) ..................................................................1



V lll

Cases (continued):

Plyler v. Doe,
457 U.S. 202(1982) ..........................................................  34

Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000)............. ................................................. 19

Regents o f the Univ. o f California v. Bakke,
438 U.S. 265 (1 9 7 8 ) ............... ..................................passim

Reynolds v. Sims,
377 U.S. 533 (1964) . ........................................................  34

Shaw v. Reno,
509 U.S. 630 (1993) .............................................................. 2

Smith v. University o f Washington Law Sch.,
233 F.3d 1188 (9th Cir. 2000), cert, denied,
532 U.S. 1051 (2001) ........................................................  32

Stuart v. Roache,
951 F.2d 446 (1st Cir. 1991)............................................. 25

Sweatt v. Painter,
339 U.S. 629 (1950) .............................................  35, 36, 38

Sweezy v. New Hampshire,
354 U.S. 234(1957) ................................................. 37

TABLE OF AUTHORITIES (continued)

Page



IX

Cases (continued):

Teamsters v. United States,
431 U.S. 324 (1 9 7 7 )..........................................................  25

Terry v. Adams,
345 U.S. 461 (1 9 5 3 ).................................... .....................  34

Texas Dep't o f Comty. Affairs v. Bur dine,
450 U.S. 2 4 8 (1 9 8 1 )..........................................................  19

United States v. Carolene Prods. Co.,
304 U.S.144 (1938)..................................   36

United States v. Montero-Camargo,
208 F.3dl 122 (9th Cir.), cert, denied sub nom. 
Sanchez-Guillen v. United States, 531 U.S.
889 (2000)....................................   40

United States v. New York Telephone Co.,
434 U.S. 159 (1 9 7 7 ).................................. .......................  18

United States v. Ovalle,
136 F.3d 1092 (6th Cir. 1 9 9 8 )........................................... 37

United States v. Virginia,
518 U.S. 515 (1 9 9 6 ).....................................................   20

United Steelworkers o f America v. Weber,
443 U.S. 193 (1 9 7 9 ) .................................... ................... ■ 29

TABLE OF AUTHORITIES (continued)

Page



X

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Washington v. Lambert,
98 F.3d 1181 (9th Cir. 1 9 9 6 )..............................................  40

Washington v. Seattle Sch. Dist. No. 1,
458 U.S. 457 (1 9 8 2 )..................... .. 43

Watson v. Fort Worth Bank & Trust,
487 U.S. 977 (1 9 8 8 )............................................................  24

Wessmann v. Gittens,
160 F.3d 790 (1st Cir.1998) ...............................................  32

Whitley v. Albers,
475 U.S. 3 1 2 (1 9 8 6 )............................................................  18

Wittmer v. Peters,
87 F.3d 916 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . .  37

Wygantv. Jackson Bd. ofEduc.,
476 U.S. 267 (1 9 8 6 )............................... 3, 18, 19, 27, 32

Constitution, Statutes and Regulations:

Cal. Const, art. I, § 3 1 (a ) ...............  49

Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§2000d e ts e q ...................   21,26



XI

TABLE OF AUTHORITIES (continued)

Page

Statutes (continued):

34 C.F.R. § 100.3(b)(2) (2002) ........... ................................  24

Other Authorities:

Akhil Reed Amar & Neal Kumar Katyal,
Bakke's Fate, 43 UCLA L. Rev. 1745,
1769(1996).............................................................  32 ,41 ,43

William G. Bowen & Derek Bok, The Shape of 
the River: Long-Term Consequences o f 
Considering Race in College and
University Admissions (1998)........................  32, 41, 42, 48

Brief of Equal Employment Advisory Council as 
Amicus Curiae in Support of Neither 
Party, Grutter v. Bollinger (No. 02-241) ........................  42

Brief of NAACP Legal Defense & Educational 
Fund, Inc. as Amicus Curiae,
Adarand Constructors, Inc. v. Mineta,
534 U.S.103 (2001) (No. 00-730)...................................... 45

Brief of NAACP Legal Defense & Educational 
Fund, Inc. and the American Civil Liberties 
Union as Amici Curiae, Grutter v.
Bollinger, No. 02-241 ..............................  20, 21, 28, 42, 45



TABLE O F AUTHORITIES (continued)

Page

Other Authorities (continued):

Brief of 13000+ Current Law Students at Accredited 
American Law Schools as Amici Curiae In 
Support of Respondents, Grutter v. Bollinger 
(No. 0 2 -2 4 1 ) ................................................................... 39

Brief in Opposition to Certiorari, Patterson v.
Gratz (No. 02-571)  ..................................................... 5

Stephanie Cahill, Skirting the “Race Quota ” Label,
ABA Journal eReport (Jan. 24, 2003), available at
http://www.abanet.org/ioumal/ereport/
j24affirm .htm l................................................................. 48-49

Michael A. Fletcher, Race Neutral Plans Have 
Limits in Aiding Diversity, Experts Say,
Wash. Post, Jan. 17, 2003 ............... ................................ 48

Sheila Foster, Difference and Equality: A 
Critical Assessment o f the Concept of 
“Diversity, ’’ 1993 Wis. L. Rev. 105, 140 
(1 9 9 3 ) ...........    . . . . . 4 1 , 4 6

Guidelines for Eliminating Discrimination and 
Denial of Services on the Basis of Race,
Color, National Origin, Sex, and Handicap in 
Vocational Education Programs, Appendix B 
to Part 100, 34 C.F.R., § IV.K ......................................... 25

http://www.abanet.org/ioumal/ereport/


xm

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Hearing of the Senate Judiciary Comm, on 
the Nomination of Clarence Thomas to the 
Supreme Court, 102nd Cong. 260 (1991)........................  39

Catherine L. Horn & Stella M. Flores, Percent Plans 
in College Admissions: A Comparative Analysis 
of Three States’ Experiences, The Civil 
Rights Project, Harvard University (February 
2003), available at http://www.civilrightsproiect. 
harvard.edu/research/affirmativeaction/
tristate.php.................................................. ......................... 47

Investigative Guidance, 59 Fed. Reg. 11448 
(Mar. 10, 1994).......................... .........................................  27

Anthony Kennedy, The Voice ofThurgood 
Marshall, 44 Stan. L. Rev. 1221 (1 9 9 2 )........... ............... 39

Deseriee A. Kennedy, Consumer Discrimination:
The Limitations of Federal Civil Rights
Protection, 66 Mo. L. Rev. 275 (2001) ..........................  40

Randall Kennedy, Persuasion and Distrust: A 
Comment on the Affirmative Action Debate,
99 Harv. L. Rev. 1327 (1986) ...............................................2

Goodwin Liu, Affirmative Action in Higher Education:
The Diversity Rationale and the Compelling Interest 
Test, 33 Harv. C.R.-C.L. L. Rev. 381 (1 9 9 8 )...........  36, 41

http://www.civilrightsproiect


XIV

TABLE O F AUTHORITIES (continued)

Page

Other Authorities (continued):

Patricia Marin & Edgar K. Lee, Appearance and 
Reality in the Sunshine State: The Talented 
20 Program in Florida, The Civil Rights 
Project, Harvard University (February 2003), 
available at http://www.civilrightsproiect. 
harvard.edu/research/affirmativeaction/ 
florida.php ....................................................... 47

Pacific Legal Foundation, Quotas in UC Admissions
Aggressively Challenged, available at http:// 
www.pacificlegal.org/ view_PLFCaseDetail. 
asp?iID= 181 &sSubIndex=Operation+End+ 
Bias+%2D+%2D+Enforcing+Califomia%27s+ 
Proposition+209&iParentID=8&sParentName= 
Securing+Individual+Rights............................................... 49

Racial Incidents and Harassment Against Students 
at Educational Institutions; Investigative 
Guidance, 59 Fed. Reg. 11448 (Mar. 10,
1994).....................................................................................  27

Sandra Day O'Connor, Thurgood Marshall: The 
Influence of a Raconteur, 44 Stan. L. Rev.
1217 (1992)..............................     39

Scholars' Reply to Professor Fried, 99 Yale 
L.J. 163, 166 (1989) ...........................    33

http://www.civilrightsproiect
http://www.pacificlegal.org/


XV

Other Authorities (continued):

Elliot Spitzer, The New York City Police Department’s 
“Stop and Frisk” Practices, 1999 N.Y. Att’y 
Gen. Rep................................................................................. 40

Maria Tienda, Closing the Gap?: Admissions &
Enrollments at the Texas Public Flagships Before 
and After Affirmative Action (Jan. 21, 2003), 
available at http://www.texastopl0.princeton. 
edu/publications/tienda012103.pdf .....................................48

Peter Vemiero, Interim Report o f the State 
Police Review Team Regarding Allegations 
o f Racial Profiling, 1999 N J. Att'y Gen.
Rep. .........................................................................................40

Juan Williams, A Question of Fairness, Atlantic 
Monthly, Feb. 1987 .........................     39

Juan Williams, Thurgood Marshall: American 
Revolutionary, (1 9 9 8 )....................................   .3 9

U.S. Commission on Civil Rights, Beyond 
Percentage Plans: The Challenge o f Equal 
Opportunity in Higher Education, available 
at http://www.usccr.gov/.............................................46, 48

TABLE O F AUTHORITIES (continued)

Page

http://www.texastopl0.princeton
http://www.usccr.gov/


XVI

Note on Citations to the Record

Citations to “Pet. App.” refer to the appendix filed with the 
petition in this case; “Cir. App.” refers to the Joint Appendix 
filed by the parties in the Sixth Circuit in this case; “J.A.” 
refers to the Joint Appendix filed with petitioners’ brief on the 
merits in this case. One expert report was not reproduced in the 
Joint Appendix below but was attached to the Final Reply Brief 
of Intervenors in the Sixth Circuit; it is cited as “Silver & 
Rudolph.”



BRIEF FOR RESPONDENTS PATTERSON et a l 

STATEMENT OF THE CASE

A. Introduction

This litigation is the current embodiment of the oldest and 
most central problem in the history of our Republic — the issue 
of race. Although it is facially about the consideration of race 
and ethnicity in college and university admissions, it is at 
bottom a cleverly constructed assault on the ability of public 
(and, by extension, private) institutions to do anything 
voluntarily about continued racial inequality throughout the 
United States.

Plaintiffs mount a seductive argument, juxtaposing “[t]he 
dream of a Nation of equal citizens in a society where race is 
irrelevant to personal opportunity and achievement,” City o f 
Richmond v. J.A. Croson Co., 488 U.S. 469, 505-06 (1989), 
against the view they incorrectly attribute to proponents of 
affirmative action: that “race matters” for its own sake and 
should matter permanently. In so doing, Plaintiffs confuse 
means with ends, claiming for themselves the moral and 
constitutional high ground while ascribing to their adversaries 
the legacy of segregationists who pursued policies and practices 
of racial exclusion. They equate race-consciousness in pursuit 
of diversity and racial integration with racism, based upon a 
false syllogism; while race-consciousness is a necessary 
predicate for racism, it does not follow that all race 
consciousness is racist.

Without ever openly referring to the phrase from Justice 
Harlan’s famous dissent in Plessy v. Ferguson, 63 U.S. 537, 
559 (1896), Plaintiffs ask this Court to write the term “color­
blind” into the Constitution. It is more than a little ironic that 
Plaintiffs rest their argument on Brown v. Board ofEduc., 347 
U.S. 483 (1954), which overturned Plessy upon consideration 
of historical developments since the earlier case was decided, 
see 347 U.S. at 492-93, because Plaintiffs’ approach steadfastly



2

ignores both history and reality:

In the forties, fifties and early sixties, against the backdrop 
of laws that used racial distinctions to exclude Negroes from 
opportunities available to white citizens, it seemed that 
racial subjugation could be overcome by mandating the 
application of race-blind law. . . . The opponents of 
affirmative action have stripped the historical context from 
the demand for race-blind law. They have fashioned this 
demand into a new totem and insist on deference to it no 
matter what its effects upon the very group the fourteenth 
amendment was created to protect. Brown and its progeny 
do not stand for the abstract principle that [all] 
governm ental d is tinc tions based on race are 
unconstitutional. Rather, those great cases, forged by the 
gritty particularities of the struggle against white racism, 
stand for the proposition that the Constitution prohibits any 
arrangements imposing racial subjugation — whether such 
arrangements are ostensibly race-neutral or even ostensibly 
race-blind.1

The “color-blind Constitution” has never been the law. 
“This Court never has held that race-conscious state 
decisionmaking is impermissible in all circumstances.” Shaw 
v. Reno, 509 U.S. 630, 642 (1993) (emphasis in original). 
Instead, the Court has required a strict and “searching judicial 
inquiry,” Croson, 488 U.S. at 493, to determine whether a 
governmental “decisionmaker . . . selected or reaffirmed a 
particular course of action at least in part ‘because of,’ not 
merely ‘in spite of,’ its adverse effects” upon a racial group, 
Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979) 
(footnotes and citation omitted).

’Randall Kennedy, Persuasion and Distrust: A Comment on the 
Affirmative Action Debate, 99 Harv. L. Rev . 1327, 1335-36 (1986) 
(emphasis in original) (footnotes omitted).



3

[T]he purpose of strict scrutiny is to “smoke out” 
illegitimate uses of race by assuring that the legislative body 
is pursuing a goal important enough to warrant use of a 
highly suspect tool. The test also ensures that the means 
chosen “fit” this compelling goal so closely that there is 
little or no possibility that the motive for the classification 
was illegitimate racial prejudice or stereotype.

Croson, 488 U.S. at 493 (emphasis added).

Measured by those standards, the race-conscious admissions 
program at the University of Michigan is both necessary and 
constitutionally appropriate, for two closely related reasons. 
First, there is a history of past and present discrimination at the 
University the effects of which continue to be felt today. For 
understandable reasons,2 the University is reluctant to 
acknowledge that history, but Intervenors (whom Plaintiffs 
ignore in their presentation to this Court) have placed it in the 
record and argue its significance in this Brief. Second —  and 
informed by that history but not dependent upon it —  there are 
powerful educational and civic values that support the 
University’s efforts to assemble a student body that is diverse 
in many ways, including, specifically, that is racially and 
ethnically diverse. The University focuses on this justification, 
and Intervenors join in its arguments and offer additional 
observations on the compelling interest of diversity as well.

Our Nation undeniably has made significant progress during 
the last fifty years in attacking the centuries-old legacy of 
slavery and segregation. That progress has not occurred 
serendipitously. Nor has it occurred solely as a result of 
adjudicated findings, or admissions, of discrimination. Much 
of it has occurred because a consensus has developed that there 
is a national interest of the highest order in dismantling the

2See Wygant v. Jackson Bd. o f Educ., 476 U.S. 274, 291 (1986) 
(O’Connor, J., concurring).



4

effects of American apartheid, and in turning our Nation’s 
diversity into a strength, rather than a liability. While we can 
point proudly to the progress made, we cannot yet claim to have 
arrived at a time when we can abandon our efforts and lay 
down the burden of race, sanguine in the knowledge that the 
playing field is at last level, and that we have broken the link 
between present-day status of those disadvantaged because of 
race and the genesis of that disadvantage.

Intervenors share the dream of a nation in which race does 
not matter but submit that it will not become reality by 
disabling our society from addressing the persisting, continued 
salience that race still has today. Race remains a significant 
force in American life today not because of affirmative actions 
implemented sine z Regents o f the Univ. o f California v. Bakke, 
438 U.S. 265 (1978), but because of past and present 
discrimination against people of color, that both demands 
remedy and requires conscious attention. If governments may 
not take voluntary actions to dissipate the effects of past or 
present discrimination, as the history at the University of 
Michigan and other schools show, even the most respected 
institutions in our society are likely to revert to separate and 
segregated status. It would be both the ultimate irony and the 
ultimate tragedy if this Court were to provide the impetus for 
a return to a racially separate-and-unequal reality in the name 
of ending race discrimination.

B. Factual Background

Plaintiffs (Petitioners here) applied to the University of 
Michigan for admission as undergraduates in 1995 and 1997, 
respectively. During those years and continuing to the present,3 
the University has considered race as one of many factors in 
making admissions decisions. The trial court granted

3The record below closed with the 2000 school year; the 2000 
admissions process has since continued in use without material change.



5

Plaintiffs’ motion for summary judgment as to the years 1995- 
1998, finding the admissions process during those years 
unconstitutional (Pet. App. 54a, 57a). However, in the order 
under review the trial court found no constitutional violation as 
to the 1999 and 2000 school years and accordingly denied 
Plaintiffs’ request for injunctive relief (id. at 57a-58a).4

1. The disproportionate adverse impact of the 
University’s current selection criteria on 
minority applicants

The University of Michigan undergraduate program receives 
13,500 applications and enrolls approximately 4000 students. 
(Pet. App. 4a.) No one is admitted unless the University first 
determines that the applicant is qualified.5 There are no quotas, 
numerical targets or goals for enrollment of students from

4The district court also granted summary judgment against Patterson 
Interveners (Respondents here), rejecting our argument that the University 
was justified in considering race in its admissions policy in order to remedy 
the effects of past and present discrimination. Cir. App. 137-40. On 
December 2, 2002, this Court denied review of this judgment in Patterson 
v. Gratz, No. 02-571. However, as Plaintiffs conceded in that case, 
Intervenors are entitled as respondents in the instant matter to argue their 
remedial justifications in support of the district court’s order denying 
Plaintiffs’ request for an injunction. Brief in Opposition to Certiorari at 4, 
Patterson v. Gratz (No. 02-571); see also infra at 18.

If the Court upholds the order below based on Intervenors’ arguments, 
it would necessarily have to reverse the district court’s summary judgment 
against Intervenors. Should the Court rely on the University’s diversity 
arguments to sustain the district court’s order denying the injunction, it 
should vacate the judgment against Intervenors as moot.

5A “qualified” applicant is one who is expected to achieve passing 
grades if admitted (Cir. App. 384 [Tr. pp. 37, 39-40]). For purposes of the 
summary judgment motions under review here, Plaintiffs stipulated that 
they “assume[d that]” “all of the students admitted to the University are 
qualified to attend the University” (Cir. App. 4095), including minority 
students whose race or ethnicity resulted in their being awarded additional 
points on the selection index described infra.



6

underrepresented minority groups (“UMS”); there is no 
separate review of applications from such students. Pet. App. 
34a-35a, 38a; Cir. App. 1482B.

Although each applicant is considered for admission based 
upon a flexible, individualized review (see J.A. 223), the 
admissions staff utilizes a “selection index” to aid in achieving 
consistency. An applicant’s high school grade-point average 
(GPA) is first adjusted to remove, inter alia, non-academic 
courses. Admissions counselors then assign a range of points 
to each applicant, up to a total of 150 points, for various factors, 
including the adjusted GPA (up to 80 points for a 4.0 average), 
the applicant’s score on a standardized test (usually the SAT or 
ACT) (up to 12 points), and other factors known by the 
acronym “SCUGA”6 (J.A. 223-25). Almost 90% of all 1995 
applicants had their scores adjusted upward during the SCUGA 
process.7

6In the acronym, “S” refers to characteristics of the applicant’s high 
school; “C” to the curriculum taken by the student; “U” to “unusual” factors 
about the applicant (see discussion in text infra)-, “G” to the geographic 
residence of the applicant; and “A” to an applicant’s familial relationship 
to an alumnus/a of the University (J.A. 84-93, 94-103, 104-114) 
(Guidelines -  SCUGA for 1995, 1996 and 1997, respectively). 
Commencing in 1998, the “SCUGA” system was replaced with a Selection 
Index using a modified scale and grouping the factors into a different set of 
categories. The “S” and “C” factors were placed in the “Academic” 
grouping, and the “G” and “A” factors, along with other criteria originally 
within the “U” factor (some also being modified slightly) into the “Other 
Factors” category (see J.A. 182-97). The same set of criteria, except for one 
minor modification (points awarded for quality of essay changed from one 
to up to three) were carried forward in 2000 (see J.A. 223-241). For the 
sake of simplicity, we describe the salient characteristics of the admissions 
process as reflected in the 2000 Guidelines for calculating the index.

7Final Expert Witness Report of Jacob Silver, Ph.D. & James Rudolph, 
Ph.D. [“Silver & Rudolph”], at 19. (All of the intervenors’ expert reports 
cited in this section were unrebutted by the other parties.)



7

The S, C, G, and A factors disproportionately reduce the 
selection index points awarded to UMS applicants. For 
example, an applicant will receive up to 10 “S” factor points 
based in part upon the number of Advanced Placement courses 
offered at his/her high school (whether or not the applicant took 
those courses) (J.A. 226). Because “Black and Latino students 
. . .  are more likely to attend [Michigan public] schools that 
offer fewer such [courses]” (Cir. App. 3481),8 UMS applicants 
far less frequently receive “S” points than non-UMS 
applicants.9 Moreover, the availability of AP courses directly 
affects the number of points awarded to applicants based on 
their performance on standardized tests such as the SAT or 
ACT, because students who take AP courses tend to have 
higher scores (Cir. App. 3478-79). Finally, UMS applicants 
also receive fewer “C” points for taking such courses (see J.A. 
229-30) since they are disproportionately unavailable in the 
public high schools they attend (Cir. App. 3477, 3480).

While all Michigan resident applicants are awarded ten 
points, those from designated northern counties and small 
communities in the state receive an additional six points (J.A. 
232-33). Most of these applicants are non-UMS, because there 
are very few minority students [“Less than 1 percent of 
Blacks”] in those counties (Cir. App. 3482; id. at 3495-97). In 
1995, 7.2% of non-UMS applicants get the additional “G” 
points, compared to only 1.5% of UMS students. (Silver & 
Rudolph at 17-18.)

Finally, the “A” factor gives four extra points to the children

838% of African-American students are in schools that offer no such 
courses, while only 4% of Michigan’s white students are enrolled in such 
public schools (Cir. App. 3480).

935.1% of UMS applicants get one or more “S” points, compared to 
50.8% of non-UMS applicants; 11.4% of UMS applicants received two or 
more “S” points in 1995 compared to 22.4% of non-UMS applicants (Silver 
& Rudolph at 16).



8

of alumni; “UMS [applicants] have consistently constituted 
seven to nine percent less than non-UMS [applicants] who 
received A-factor points in 1995 through 1997” (Silver & 
Rudolph, at 18).

The “U” or “Other” category is the only grouping under 
which race is taken into account: from 1998 forward, a UMS 
applicant receives 20 points. However, non-minority applicants 
can also receive 20 points within that same grouping, based on 
socio-economic disadvantage, the receipt of an athletic 
scholarship, or as awarded by the Provost in his discretion (see 
J.A. 241). (An applicant may receive only one award of 20 
points for any of these reasons.) (J.A. 231.)

There is no evidence in this record that most —- if any —  of 
the SCUGA factors measure an applicant’s potential to 
complete a course of study or are necessary to the University’s 
ability to provide educational services. From 1995 to 1997, for 
instance, the University’s own guidelines stated that “In reality, 
only the ‘C ’ factor should be added to the GPA” (J.A. 84, 94, 
104). Moreover, as noted above, an applicant’s ability to earn 
“C” points, as well as “S” points, reflects what AP courses 
Michigan public schools have made available at the applicant’s 
school as much as the student’s own initiative.

Intervenors’ unrebutted evidence showed, however, that (in 
1995 and 1997, the years for which data were analyzed), those 
same SCUGA factors, taken as a whole, “disproportionately 
benefitt[ed] non-UMS applicants as a group [and] . . . 
correspondingly disadvantag[ed] UMS applicants as a group”10

10The “G” and “A” factors (reflecting birth and residence, matters 
determined almost exclusively by parents, not students) also 
disproportionately disadvantage UMS applicants. See infra p. 22. The 
University’s 2000 SCUGA Guidelines explain that the “G” factor points 
for students from northern Michigan counties is intended to provide an 
“appropriate representation of students” from all counties since Michigan 
is a “public institution supported by the citizens of Michigan” and that the



9

—  and that “the combined SCUGA increment outweigh[ed] 
UMS/race as a determinant of admission” (Silver & Rudolph at 
19-20).

2. The University’s history of discrimination

Aside from discrimination in the current admissions process, 
Intervenors presented substantial and uncontroverted evidence 
that during its entire 185-year history, the University has 
repeatedly engaged in racially discriminatory and exclusionary 
practices against UMS students on its campus, the effects of 
which, to this day, are manifested in their continued 
underrepresentation on campus and in the University’s 
reputation for discriminatory behavior. These practices 
included the operation of segregated housing and activities on 
campus; refusal to take meaningful steps to recruit, enroll, and 
retain minority students; and deliberate indifference to a 
campus climate marked by racial hostility and racist actions by 
University students and even staff. Through the years, the 
University minimized or sidestepped criticism of its 
discriminatory practices by the federal government, state 
legislators, the Regents of the University, civil rights 
organizations, and its own faculty and students (Cir. App. 2261- 
83). Only after a series of student protests, led mostly by the 
few African-American and Latino students on campus, did the 
University take small steps to recruit and admit a greater 
number of qualified students of color. However, the University 
has failed, even in the face of renewed student complaints, to 
take effective action to end the numerous discriminatory and 
racially hostile practices that continue to occur on campus. We 
sketch the history briefly.11

The University was founded in 1817. However, it was not

alumni preference is designed to recognize “the continuing service and 
support" provided by alumni to the University (J.A. 232-33).

11 See Cir, App. 2262-2383 (Expert Report of James D. Anderson).



10

until 1868 that the first African-American students were 
enrolled. (Cir. App. 2265). The school segregated its own 
campus housing, and allowed students of color to be excluded 
from fraternities and sororities into the 1960’s. Despite calls in 
1949 by the Michigan Civil Rights Congress and again in 1952 
by the campus Committee on Student Affairs to alter 
discriminatory by-laws of campus organizations, University 
President Harlan Hatcher and other officials flatly refused to do 
so (Cir. App. 2266), leaving University-recognized 
organizations free to continue their discriminatory practices 
with implicit or explicit University sanction.

The University also resisted dismantling segregation in its 
own housing units. As late as 1958, for example, it decided to 
continue to “respect the wishes of a student who said that he or 
she did not wish to live with a student of another race” in a 
school dormitory (Cir. App. 2268).12 The University treated 
foreign students in a markedly different fashion, relying on a 
“Michigan tradition that segregation of foreign students by 
nationality is undesirable and that contact with American 
students is mutually beneficial” to justify the full integration of 
foreign students into campus life and policies giving them 
priority over African-American students in both admissions and 
housing (Cir. App. 2270).

In May, 1963, against this backdrop of exclusion and 
discrimination, the University established the Ad Hoc Advisory 
Committee on the Negro in Higher Education (Cir. App. 2274), 
and the following year that Committee announced the 
University of Michigan’s first “mandate” — the Opportunity 
Program —  described as an effort to recruit and admit “socially 
disadvantaged” students to the school. While minority

12In a letter to the Vice President for Student Affairs, Regent George E. 
Palmer wrote at the time that “[t]he image the Board of Governors is 
creating for the incoming freshman, I am afraid, is that we do not care about 
his racial prejudices.” (Cir. App. 2269).



11

enrollment increased to some degree13 in the years immediately 
following, students of color still faced apathy at best, and often 
active resistance, to their presence at the University14 and were 
still excluded from campus activities and university social 
traditions. (Cir. App. 2274-75, 2276, 3768).

In 1970, intense dissatisfaction with the University’s failure 
to address campus racism and to increase minority enrollment 
culminated in a series of student strikes. In February of 1970, 
a student group, which called itself Black Action Movement 
(BAM), pressed the Regents and the University administration 
for a substantial increase in African American enrollment, as 
well as for increased financial aid so that African-American and 
Latino students, disproportionately poor, could enroll, once 
admitted. (Cir. App. 2278-80). The proposal won support from 
many, including then-Govemor William Milliken and the 
Michigan Senate Advisory Committee for University Affairs. 
However, University administrators rejected it. It was not until 
after the students went on “strike” that the University finally 
agreed to pursue limited admissions and recmitment efforts (id. 
at 2284-85), only to abandon them in 1973 (id. at 2289).15

I3In 1954, there were fewer than 200 African Americans attending the 
University. By 1966, 400 Black students were enrolled, still representing 
only 1.2 per cent of the total student population of about 32,000. At the 
same time, nearly 55 per cent of Detroit’s 300,000 elementary and 
secondary school students were African American. (Cir. App. 2265.) In 
1960, there were fewer than 50 Latino and Native American undergraduate 
students combined. Id. By 1968, these numbers had increased only to 73 
“Spanish” and “American Indian” students (id. at 2276).

MIn a typical example, a prospective African-American applicant 
walked into the admissions office to request admissions materials but was 
told by a counselor, without any review of her transcript or qualifications, 
that she was better suited for community college. Not surprisingly, the 
applicant concluded that the recommendation was based solely upon her 
skin color (Cir. App. 3743-46, 3748).

15After the strikes, African Americans increased from 3.5 percent of all



12

During the 1970's, the University experienced widespread 
and well-publicized racial incidents in campus dormitories that 
prompted complaints of dehumanizing treatment of African- 
American students (id. at 2293). Numerous investigations, 
including one conducted by the University, identified racism on 
the part of University staff as one factor contributing to the 
tensions (id. at 2294-96). The University did little to rectify the 
situation. Consequently, African-American enrollment at 
Michigan began to plummet, falling to 4.9 per cent between 
1973 and 1983 — its lowest level since 1970 {id. at 2291-92).

In 1975, Michigan students of color responded by organizing 
“BAM n .” They requested increased support services for 
minority students and an effective institutional effort to address 
the persistent negative racial climate on campus; University 
President Robben Fleming refused both requests {id. at 2298- 
99). With the University continuing to tolerate acts of 
discrimination and with no minority recruitment and 
admissions effort in place, minority enrollment and retention 
rates continued to decline: between 1976 and 1985, the number 
of African-American undergraduates at the University declined 
by a full 34 per cent.16

When, in 1980, University sociology professor Walter Allen 
conducted a study of undergraduates at Michigan, he noted that 
85 per cent of African-American students surveyed reported 
that they had experienced severe racial isolation on campus and 
racial discrimination by their peers, administrators or professors 
(id. at 2312-13). These findings were included in a report to 
the University Regents and were repeated when the study was

students in 1970 to 6.8 percent in 1972. Students with Spanish surnames 
increased from 0.2 percent in 1970 to 0.6 percent in 1972. (Cir. App. 
2286).

16(Cir. App. 3885 [Niara Surdakasa, Report on Minorities, Handicappers 
and Women in Michigan’s Colleges and Universities, State 
Superintendent’s Special Advisory Committee (1986]).



13

summarized in the Michigan undergraduate school’s magazine, 
in which Allen stressed the need for a critical mass of African- 
American students and faculty to protect the students from the 
harshness of racial discrimination and isolation on campus, (id. 
at 2311).17

Highly publicized racist incidents continued to occur on 
campus, however, see, e.g., id. at 3759-61, 2320-29, and were 
considered in a hearing before the Michigan State Legislature 
at which University officials discussed the challenges of dealing 
with the hostile climate on campus (see id. at 2328). A 
University investigation into the incidents concluded (id. at 
2324-25) that the problems extended beyond other students, 
that “[i]n the classroom students of color encounter instructors 
who make openly racist comments, inside and outside of class; 
those persons are the colleagues of faculty of color and the 
supervisors of staff. . . . ”

Soon after these incidents occurred, in 1988 Provost James 
Duderstadt announced plans for a new initiative. Duderstadt 
unveiled the “Michigan Mandate,” an effort that sought to 
increase the number of students and faculty of color, to provide 
“equal opportunity” and “equal access to all educational 
resources to students from under-represented racial and ethnic” 
groups (id. at 1378-79), to remedy institutional racism on 
campus (id. at 1383), and to promote a more racially and 
ethnically diverse campus to prepare students for an increasing 
multicultural world (id. at 1376). The Mandate itself 
acknowledged the “prejudice, bigotry, discrimination and even 
racism” on the Michigan campus, as well as its goals of 
“remov[ing] institutional barriers to full participation in the life 
and leadership of [the] institution” (id. at 1390).

nThe findings of Allen’s study were also echoed in a report issued by 
Associate Vice President of Academic Affairs Niara Sudarkasa in 1986. 
(Cir. App. 2320-22).



14

3. The current negative racial environment

Although implementation of the Michigan Mandate over the 
last 15 years represents a substantial and continuing change in 
the University’s attitude toward minority students and 
applicants, it has not in a single generation eradicated the 
hostile attitudes entrenched by prior discriminatory conduct and 
indifference. The evidence shows that UMS students continue 
to be subjected to racially hostile actions and remain 
significantly isolated.18 As in previous years, the campus has 
been plagued by targeted racist actions against African- 
American and Latino students, including racist graffiti on the 
hallways of campus buildings and in dorm rooms; racially 
derogatory remarks and epithets (see, e.g., Cir. App. 3777-79); 
and racist literature and lettering placed on campus buildings 
(id. at 2393). Discriminatory treatment of UMS students at the 
hands of University police is also regarded as endemic at the 
undergraduate college (see id. at 2409-10, 3740-41, 3752-53).

A negative racial climate affects minority academic 
performance, and places limits upon the informal learning, 
networking, and interacting that takes place with their peers 
outside the classroom —  in dormitories and in extracurricular 
activities (id. at 2422). A negative racial climate tolerated and 
maintained over several decades —  also deters other African- 
Americans and Latinos from enrolling (id. at 2389-91). A 
study conducted by the University in 1988 revealed that the 
primary concern expressed by more than one-third of the 
African Americans and Latinos who chose not to apply as 
undergraduates was racism on campus (id. at 3833, 3840).

Summary of Argument

Intervenors have introduced substantial and undisputed 
evidence of a history of discrimination at the University of

18The negative climate is summarized in the expert reports of Dr. Joe 
Feagin and Dr. Walter Allen; see Cir. App. 2405-12, 2424-28 2472-73.



15

Michigan the effects of which are still manifest on campus 
today. This evidence includes, inter alia, expert analyses 
demonstrating the adverse impact upon minority applicants of 
many of the components of the “selection index” used by staff 
in the admissions process (if not counterbalanced by the 
consideration of race as one factor among others), and the 
longstanding pattern of discrimination and inattention toward 
students of color at the University.

This showing of both past and present discrimination 
distinguishes this case from Bakke and satisfies the 
constitutional requirements that this Court has enunciated to 
justify a race-conscious admissions policy. It is of no legal 
significance that the University itself has not advanced this 
ground to sustain its program, because to do so would require 
admissions against interest that could expose the University to 
significant liability. In these circumstances, it suffices that the 
necessary showing is made by some party on the record, as was 
the case here.

The history of discrimination at the University also 
strengthens the separate diversity justification that the 
University advances, and which Interveners also support. 
There is a strong public policy, often given effect by this Court, 
of encouraging voluntary efforts on the part of both public and 
private actors to redress prior discriminatory conduct.

As the trial court found, the record abounds with support for 
the proposition that diversity on college and university 
campuses brings substantial benefits to the entire community 
and thus rises to the level of a compelling governmental 
interest. It can hardly be questioned that the enrollment of a 
diverse student body at institutions of higher learning advances 
a plethora of interests important to our democratic society. 
Diversity furthers the purposes of equal protection under the 
Fourteenth Amendment by recognizing the value of racially and



16

ethnically integrated environments. It is also consistent with 
the academic freedoms accorded to universities to determine 
their own selection processes, which is recognized as a special 
concern to the First Amendment. The University’s admissions 
policy is thus consistent with Bakke, which should be 
reaffirmed,

Plaintiffs fail to comprehend the value and purpose of 
diversity. They are gravely mistaken that diversity is 
predicated upon racial stereotypes and stigmas. The diversity 
rationale does not assume that students of color (or any 
students, for that matter) think alike, or will suffer a stigmatic 
injury because they are admitted through a process that takes 
race into account as one factor. To state that there is an 
African-American or Latino experience does not mean that all 
African Americans or Latinos think alike. Diversity in higher 
educational settings refutes rather than reinforces such 
assumptions, and is particularly important today, when most of 
the students admitted to the University of Michigan have 
attended largely segregated schools before their admission, and 
their college experience may be the only chance to learn and 
interact in a racially integrated environment.

Finally, the University’s admissions program is narrowly 
tailored. It furthers the interests of diversity and is sufficiently 
flexible that the particular qualifications of each applicant are 
considered. The record is clear that academic qualifications are 
by far the most important criteria in making admissions 
decisions. Race is only one of many factors considered in the 
process. Despite arguments to the contrary by the United 
States, race-neutral alternatives to the University’s present 
admissions program do not exist, and in particular the 
percentage plan approach advocated by the federal government 
would not function in Michigan (and, early studies show, may 
be flawed in other parts of the country where it has been 
implemented).



17

ARGUMENT

I. Intervenors’ Showing Of Past And Present 
Discriminatory Actions By The University Both Provides 
A Remedial Basis To Sustain Its Race-Conscious 
Admissions Policy And Also Strengthens The Diversity 
Rationale Articulated By The University For That Policy

The court below sustained the University of Michigan’s 
race-conscious undergraduate admissions policy on the basis of 
the “diversity” rationale enunciated by Justice Powell in 
Regents o f the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). 
Intervenors agree with that ruling and join the University of 
Michigan in defending it. See infra Argument n. It bears 
notice, however, that in Bakke itself, the Court reached that 
rationale because the record before it contained no “judicial, 
legislative, or [appropriate] administrative findings of 
constitutional or statutory violations,” id. at 307 (opinion of 
Powell, J., announcing the judgment of the Court).

This case is different from Bakke. Intervenors did introduce 
substantial evidence of various discriminatory actions by the 
University, based upon which the court below could have made 
the appropriate findings that would fully justify, on remedial 
grounds, the University’s admissions process.19 This evidence 
is especially significant in light of cases decided since Bakke, 
which establish that race-conscious actions are constitutionally 
permitted not only when there are “judicial, legislative, or 
administrative findings of constitutional or statutory violations” 
but also when a public actor can show a “strong basis in 
evidence for its conclusion that remedial action was necessary,”

19Indeed, intervention was granted explicitly because, the Sixth Circuit 
found, “the University is unlikely to present evidence of past discrimination 
by the University itself or of the disparate impact of some current 
admissions criteria, and . . .  these may be important and relevant factors in 
determining the legality of a race-conscious admissions policy,” Grutter v. 
Bollinger, 188 F.3d 394, 401 (6th Cir. 1999).



18

City o f Richmond v. J.A. Croson Co., 488 U.S. 469,500 (1989). 
The “strong basis in evidence” standard does not require a prior 
adjudicative or legislative finding, or a contemporaneous 
judicial finding of unlawful discrimination, see Wygant v. 
JacksonBd. ofEduc.,416 U.S. 267,290-93 (1986) (O’Connor, 
J., concurring in the judgment). A showing of a prima facie 
case is sufficient, see Croson, 488 U.S. at 500.

Although the court below rejected Intervenors’ contentions 
that a remedial justification provided an independent basis for 
the University’s admissions policies, this Court is free to affirm 
an appealed decision on any ground which finds support in the 
record, regardless of the ground upon which the trial court 
relied.20 Plaintiffs’ position is that Intervenors’ evidence is 
irrelevant because the University did not adopt it nor claim that 
it adopted the admissions policy for any remedial purpose. We 
urge the Court to reject that position.

It is understandable that the University has not advanced a 
remedial justification for its actions. To call attention to current 
inequities in its admissions policies, to past discrimination or 
the perpetuation of past discrimination on its part, or even 
discrimination by other governmental actors, would require the 
University to point the finger at itself (or its “parent”), 
potentially harming its reputation and placing it at risk of legal 
liability to others, including minority students. Cf Wygant, 476 
U.S. at 291 (O’Connor, J., concurring in the judgment) (noting 
that public employers might be “trapped between the competing

20See Whitley v. Albers, 475 U.S. 312,326 (1986) (“respondent correctly 
observes that any ground properly raised below may be urged as a basis for 
affirmance of the Court of Appeals’ decision”); United States v. New York 
Telephone Co., 434 U.S. 159,166 n.8 (1977) (“prevailing party may defend 
a judgment on any ground which the law and the record permit”); Langnes 
v. Green, 282 U.S. 531, 538-39 (1931) (appellee may, without filing a 
cross-appeal, advance any theory in support of the judgment that is 
supported by the record, whether it was ignored by the court below or flatly 
rejected).



19

hazards of liability to minorities if affirmative action is not 
taken . . .  and liability to nonminorities if affirmative action is 
taken”) (emphasis in original). Even to make a showing of a 
“strong basis in evidence” in these areas carries the same risks.

Although the “strong basis in evidence” formulation 
announced in Wygant and Croson was intended to mitigate the 
disincentive for governmental agencies to assess their past 
actions and take steps voluntarily to redress any discrimination 
they identified, potential liability still strongly deters public 
bodies from themselves articulating remedial objectives 
because of the legal significance of making out a prima facie 
case.21 This Court should therefore reject the conclusion below 
(Pet. App. 72a-76a) that a public body’s reluctance to identify 
its own past discriminatory conduct prevents a court from 
recognizing a remedial justification for race-conscious action 
based upon a showing by another party of the public body’s 
past discrimination. Cf. Croson, 488 U.S. at 492 (holding that 
a public agency may take race-conscious steps to avoid 
perpetuating discrimination caused by other public or private 
entities).

In Mississippi Univ.for Women v. Hogan, 458 U.S. 718,729

21See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 
148 (2000) (“a plaintiffs prima facie case, combined with sufficient 
evidence to find that the employer’s asserted justification is false, may 
permit the trier of fact to conclude that the employer unlawfully 
discriminated”); id. at 143 (“once the defendant meets its burden of 
production . . .  the trier of fact may still consider the evidence establishing 
the plaintiffs prima facie case ‘and inferences properly drawn therefrom.
. . on the issue of whether the defendant’s explanation is pretextuaf” 
(iquoting Texas Dep’t o f Comty. Affairs v. Burdine, 450 U.S. 248, 255 
(1981)); In re Employment Discrimination Litig., 198 F.3d 1305, 1321-22 
(11th Cir. 1999) (“If, after a ‘prima facie’ demonstration of discriminatory 
impact, the employer cannot demonstrate that the challenged practice is a 
job related business necessity, what explanation can there be for the 
employer’s continued use of the discriminatory practice other than that 
some invidious purpose is probably at work?”).



2 0

(1982), the Court rejected the state’s claimed remedial 
justification for operating a nursing school restricted to women, 
noting that the state “ha[d] made no showing that women 
lacked opportunities to obtain training in the field of nursing or 
to attain positions of leadership in that field when the MUW 
School of Nursing opened its door or that women currently are 
deprived of such opportunities.” See United States v. Virginia, 
518 U.S. 515, 533-34 (1996). In neither Hogan nor Virginia, 
however, were there intervenors who presented evidence that 
would establish the factual basis for a claim of remedial 
justification. Where, as here, that showing is made by 
intervenors, it would seem to exalt form over substance to 
mandate that it be disregarded.

In arguing for that result, Plaintiffs would have this Court 
ignore the history of discrimination at the University of 
Michigan, which they disparagingly label “societal 
discrimination” that is not actionable, Pet. Br. at 48. (But see 
Brief of NAACP Legal Defense & Educational Fund, Inc. and 
the American Civil Liberties Union as Amici Curiae, Grutter v.
Bollinger, No. 02-241, a t___ .) Upon a closer review the Court
will conclude that unlike the evidence in Bakke concerning the 
University of California at Davis medical school, there is, in 
fact, a history of past —  and ongoing —  discrimination at the 
University of Michigan that justifies, on remedial grounds, its 
race-conscious admissions policies.

A. The University’s Consideration O f Race Is Necessary 
To Counteract Other Factors In Its Admissions 
Process That Have An Unjustified Adverse Impact 
On Minority Applicants

No party disputes that key components of the University’s 
admissions criteria work to the systematic disadvantage of 
African-American, Latino, and other UMS applicants. The “S,” 
“C,” “G,” and “A” factors unfairly disadvantage such applicants



21

because they assign points that increase a candidate’s chances 
of admission on the basis of characteristics that are unrelated to 
an applicant’s individual achievement or potential— but which 
are disproportionately possessed by non-UMS, applicants. 
Because there is a “strong basis in evidence” to believe that the 
University’s admissions process, if it did not balance out the 
adverse impact of these factors on UMS applicants by 
considering racial or ethnic background, would violate 
regulations promulgated pursuant to Title VI of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000d et seq., the University has a 
compelling interest in maintaining its current admissions 
process.

1. The “S ” “C,” “G,” and “A” factors have an 
unjustified disproportionate adverse impact on 
UMS applicants to the University

The unrebutted record evidence, summarized supra pp. 6- 
9, establishes the discriminatory impact of the school, 
curriculum, geography and alumni SCUGA factors on UMS 
applicants.

First, because UMS applicants disproportionately attend 
highly segregated22 Michigan public schools that have relatively 
low numbers of honors and AP courses, average SAT scores 
and college-going rates, the use of the “S” (School) factor 
places them at an unfair disadvantage. Graduates of these 
schools who seek admission to the University necessarily are 
awarded few or no “S” factor points (Cir. App. 3478-79; Silver 
& Rudolph, at 16, Table 16).

22See, e.g.,Cu. App. 1951-52,1964,1970-76,1981-91 (Expert Report 
of Thomas Sugrue, documenting systemic discrimination that has resulted 
in Michigan's having among the highest rates of school and residential 
segregation in the nation); Brief of NAACP Legal Defense & Educational 
Fund, Inc. and the American Civil Liberties Union as Amici Curiae, Grutter 
v. Bollinger (No. 02-241) at 6-13, 14-16.



2 2

The “C” (Curriculum) factor, which assigns more points to 
applicants who have taken more AP, Honors and similar 
courses, has a like effect. By virtue of the fact that they 
overwhelmingly are assigned to schools that offer few or none 
of these courses (especially when compared to offerings in 
schools in predominantly non-UMS suburban districts), UMS 
applicants are disproportionately unable to benefit from this 
factor even if they are achieving at the highest levels at the 
schools they do attend (Cir. App. 3477, 3480).

The “G” (Geography) and “A” (Alumni) factors also have a 
similar impact. The “G” factor awards points to applicants who 
reside in overwhelmingly white areas of one of the most 
residentially segregated states in the country (Cir. App. 3482; 
see also supra note 22). The “A” factor operates as a 
“grandfather clause” because it is tied to the University’s 
racially exclusive past.23 See Cir. App. 3672 (from 1995-98, 
admission rates for applicants entitled to “A” points were 
higher than rates for applicants without relatives who graduated 
from Michigan); id. at 3481 (UMS applicants admitted to the 
University are mainly first-generation college goers); id. at 
1998 (Census tables showing black/white differences in college 
attendance and completion in Michigan, 1960-1990); id. at 
3671 (between 1995 and 1998, more than 75% of white 
applicants had an alumnus/a relative, compared to only 4% of 
UMS applicants).

Significantly, these SCUGA factors reward educational 
advantage, far more than individual merit. The University 
itself has recognized that, with the limited exception of the “C”

23See Meredith v. Fair, 298 F.2d 696,701 (5th Cir. 1962) (“We hold that 
the University’s requirement that each candidate for admission furnish 
alumni certificates is a denial of equal protection of the laws, in its 
application to Negro candidates. It is a heavy burden on qualified Negro 
students, because of their race. It is no burden on qualified white 
students.”).



23

factor, the SCUGA factors are not measures of a Michigan 
UMS applicant’s initiative or academic achievement. See J.A. 
84, 94, 104 (“In reality, only the ‘C ’ factor should be added to 
the GPA.”); id. at 232 (“G” points awarded to insure 
“appropriate representation of students from Michigan” since 
University is “public institution supported by the citizens of 
Michigan”); id. at 233 (“A” points “recognize the continuing 
service and support provided to the University” by alumni).

Nor is there any evidence that these individual 
characteristics, or the school characteristics captured by the “S” 
factor, determine or predict any level of individual performance 
—  including likelihood of completing the program of study — 
at the University.24 Moreover, any potential educational 
justification for use of the “S” or “C” factor alone could not 
conceivably extend to the triple disadvantage suffered by UMS 
applicants. Because these students find themselves assigned to 
mostly segregated schools with disproportionately few AP or 
Honors courses, their standardized test scores are likely on 
average to be lower (resulting in fewer points in the selection 
index), and they will not receive similar “S” or “C” point 
awards as students in predominantly white Michigan schools 
that offer more of these courses. As one of Intervenors’ expert 
witnesses noted, UMS applicants are subject to these obstacles 
to admission even when they have “fully engage[d] the 
educational offerings made available to them and perform[ed] 
at a level of excellence” (Cir. App. 3478).

2. The University has a compelling remedial interest 
in counteracting the individually and combined 
discriminatory effect of its SCUGA factors

24While the University determines a school’s quality for “S” factor 
purposes in part by computing the average SAT score of test-takers at an 
applicant’s high school there is reason to question whether this is an 
appropriate use of the SAT. See Expert Report of Claude Steele, Cir. App. 
1928-30 (discussing limitation of use of SATs).



24

The highly disparate impact of the “S,” “C,” “G ,” and “A,” 
factors, as well as of the SCUGA factors in combination (see 
Silver & Rudolph, at 19-20), justify race-conscious remedial 
action by the University because there is a “strong basis in 
evidence” for anticipating that the use of such criteria alone 
would constitute a violation of regulations promulgated to 
enforce Title VI. Those regulations prohibit entities receiving 
federal funds (such as the University) from using standards or 
criteria that have a racially discriminatory effect. See 34 C.F.R. 
§ 100.3(b)(2) (2002).25 An institution violates these regulations 
by maintaining a practice that has a statistically significant 
disparate impact on a particular racial or ethnic group that 
cannot be shown to be educationally necessary. See, e.g., 
Watson v. Fort Worth Bank & Trust, 487 U.S. 977,994 (1988); 
Board ofEduc. v. Harris, 444 U.S. 130, 151 (1979).

The evidence previously summarized, which was 
uncontroverted, demonstrates beyond peradventure that: first, 
in the absence of the inclusion of race as a consideration within 
the “U” component, the “SCUGA factors” singly and in 
combination would result non-UMS applicants receiving 
highly disproportionate numbers of selection index points 
compared to UMS applicants — and second, that neither 
plaintiffs nor the University has articulated a credible or legally 
sufficient educational justification for such an admissions 
system (which is, in fact, the system Plaintiffs wish to impose

25That regulation provides: “A recipient. . .  may not, directly or through 
contractual or other arrangements, utilize criteria or methods of 
administration which have the effect of subjecting individuals to 
discrimination because of their race, color, or national origin, or have the 
effect of defeating or substantially impairing accomplishment of the 
objectives of the program as respect individuals of a particular race, color, 
or national origin. ” 34 C.F.R. § 100.3(b)(2) (emphasis added). The Court 
has held that while Title VI prohibits only intentional discrimination, these 
regulations prohibit actions that have an unjustified adverse impact. See 
Alexander v. Choate, 469 U.S. 287, 293 (1985) (discussing Guardians 
A ss’n v. Civil Serv. Comm’n , 463 U.S. 582 (1983)).



25

upon the University through this litigation).26

Michigan’s interest in avoiding non-compliance with its 
Title VI obligations, as it has been able to do by considering 
race along with other factors in the SCUGA calculations, is 
surely compelling. Nothing in this Court’s jurisprudence 
suggests that the University must choose between foregoing the 
use of economically or politically advantageous criteria (such 
as the “G” and “A” factors) and admitting applicants by lottery, 
on the one hand, or operating a largely segregated educational 
program that replicates the high levels of segregation and 
isolation that characterize public education in grades K-12 
throughout the State, on the other. Cf. Stuart v. Roache, 951 
F.2d 446, 452-56 (1st Cir. 1991) (approving consent decree 
authorizing race-conscious relief to offset disparate impact 
produced by earlier use of examinations whose validity was 
challenged in lawsuit).

B. The University’s Historic Discrimination Continues 
To Affect UMS Enrollment And To Perpetuate A 
Hostile Racial Climate On Campus

As noted supra pp. 11-14, the long-continued pattern of 
discrimination and indifference toward UMS students and 
applicants by the University caused minority enrollment to 
decline and deterred qualified minority high school students 
from applying. Cf. Teamsters v. United States, 431 U.S. 324, 
365-66 (1977) (recognizing that company’s reputation for

26An acceptable justification must be necessary to the educational 
program, not just related to it in some way. See Guidelines for Eliminating 
Discrimination and Denial of Services on the Basis of Race, Color, National 
Origin, Sex, and Handicap in Vocational Education Programs, Appendix B 
to Part 100,34 C.F.R., § IV.K.(admissions criteria with impact of excluding 
individuals protected against discrimination by statute must be “validated 
as essential to participation in a given program . . . .  Examples of 
admissions criteria that must meet this test are past academic performance 
. . .  high school diplomas and standardized tests . . . . ”) (emphasis added).



2 6

discrimination may deter minority class members from applying 
for jobs). Substantial evidence in the record documents this 
phenomenon. For instance, in 1966 the Defense Department 
conducted an investigation into the University’s compliance 
with Title VI of the 1964 Civil Rights Act. The Department’s 
report reflected Michigan’s reputation as a university “basically 
for rich white students” and noted that “[t]he minimal number 
of negroes (sic) on the University faculty is a detriment to the 
public image of the University” (Cir. App. 2270-71).27 
Similarly, the University’s long and consistent refusal and 
failure, until implementation of the Michigan Mandate, to take 
any serious actions to condemn and reduce racially hostile acts 
by its own staff and by student peers entrenched perceptions 
and the climate of antagonism against UMS students on the 
campus, because that refusal and failure conveyed University 
officials’ implicit endorsement of that climate.28

21 See also, e.g., Cir. App. 2332-33 (citing 1989 affidavit of Interim 
University President Robben Fleming stating that extensive racial 
harassment on campus had led to dramatic declines in minority enrollment), 
2346-67 (citing various internal University reports and studies) 2328-29 
(Expert Report of Dr. Anderson), 2389-91 (Expert Report of Dr. Feagin), 
3769-72 (Stephens deposition), 3382 (Test Score Senders Study).

28This Court has held educational authorities or employers responsible 
for racial or gender harassment by supervisors or peers when they fail to 
respond to complaints by the victims of these actions. See Gebser v. Lago 
Vista Ind. Sch. Dist., 524 U.S. 21 A, 290 (1998) (school district is not liable 
for sexual harassment of student by principal unless official with authority 
to take corrective action received actual notice of harassment but failed, 
with deliberate indifference, to do so); Faragher v. City o f Boca Raton, 524 
U.S. 775, 806-08 (1998) (employer’s damage liability for supervisor’s 
sexual harassment of employee, in absence of tangible adverse employment 
action against employee, is subject to affirmative defense that employer 
took reasonable precautions to prevent harassment and employee 
unreasonably failed to use that mechanism to avoid harm); Davis v. Monroe 
County Bd. ofEduc., 526 U.S. 629, 646-47 (19'99) (adopting “deliberate 
indifference” standard of Gebser as basis for school district liability for peer 
sexual harassment of student that occurs in school during school hours



27

The University’s interest in eliminating these continuing 
effects of its own past policies and conduct, as it has sought to 
do in part through its admissions policy, see infra p. 45, is 
compelling. To the extent that the current campus climate can 
be regarded as the product of discriminatory actions and 
attitudes of others —  such as non-UMS students — the 
University is entitled to maintain a properly tailored race­
conscious admissions system in order to avoid reinforcing or 
perpetuating that discrimination, even discrimination by private 
parties. Croson, 488 U.S. at 491-92.

C. The History Of The University’s Past And Present 
Conduct With Discriminatory Impact Should Inform 
The Court’s Consideration O f The Diversity 
Rationale For Its Current Admissions Procedures

We have argued above that but for the University’s explicit 
consideration of race as one factor among others, the 
educationally unnecessary disparate adverse impact of the 
remainder of its admissions procedures and the depressingly 
persistent discriminatory acts of University officials, resulting 
from deliberate decision, willful indifference, or mere apathy, 
justify Michigan’s current race-conscious admissions system 
under the standards of this Court’s rulings in Wygant and 
Croson. These matters are equally relevant to the Court’s 
consideration of the alternative diversity rationale urged by the

when perpetrator is subject to district’s disciplinary control); Monteiro v. 
Temple Union High Sch. D ist, 158 F.3d 1022, 1033-34 (9th Cir. 1998) 
(reversing dismissal of claim that school district violated Title VI when it 
failed to respond to student’s complaint of peer racial harassment); see also 
Racial Incidents and Harassment Against Students at Educational 
Institutions; Investigative Guidance, 59 Fed. Reg. 11448 (Mar. 10, 1994) 
(outlining liability of educational institutions for maintaining hostile 
educational environment). Cf Columbus Bd. ofEduc. v. Penick, 443 U.S. 
449, 457 (1979) (“Each instance of a failure or refusal to fulfill th[e] 
affirmat9ve duty [to dismantle the former dual system] continues the 
violation of the Fourteenth Amendment”).



2 8

University, accepted by the court below, and approved in this 
Court’s ruling in Bakke (to which we turn in the next section).

At least in this case, the constitutionality of the diversity 
rationale cannot be adjudicated in the abstract, as if the 
conditions of underrepresentation, isolation and hostility toward 
minority students that have plagued the University to this day 
had no relationship to traceable, official conduct. That is the 
essence of Justice Powell’s rejection of “societal 
discrimination” as an adequate underpinning for the University 
of California’s two-track admissions scheme involved in 
Bakke P  As Justice Powell’s opinion itself recognized, 
however, the “societal discrimination” rationale was proffered 
by California entirely distinct from and disconnected from, any 
recognition of its own discriminatory conduct, which it never 
even purported to acknowledge. 438 U.S. at 309-10. Justice 
Powell’s analysis of the diversity rationale proffered by 
California was also made without any reference to prior 
discrimination, id. at 311-20.

Today, Plaintiffs and their amici have directly attacked the 
Bakke ruling and seek to have this Court overturn it. In 
considering their arguments, it is critical to realize that nothing 
in Justice Powell’s opinion can be read to indicate that the 29

29There are persuasive bases to disagree with Justice Powell’s 
assessment, as the dissenters in Bakke did, 438 U.S. at 324,328-55,362-73 
(opinion of Brennan, White, Marshall & Blackmun, JJ.). See Brief of 
NAACP Legal Defense & Educational Fund, Inc. as Amici Curiae, Grutter 
v. Bollinger (No. 02-241). Our point here, however, is that the Court need 
not resolve that debate in this litigation, because the record evidence 
demonstrates that the University ’ s prior discriminatory conduct contributes 
significantly to the current lack of diversity that would prevail in the 
absence of its race-conscious admissions process. Ignoring that record in 
assessing the depth and adequacy of the University’s interest in achieving 
diversity today would do more than just blink reality; it would transform 
constitutional adjudication into a sterile, ahistorical exercise to a degree 
without any precedent in this Court’s jurisprudence.



29

Court would not have taken account of a record of past 
discrimination by California that contributed to the isolation 
and lack of diversity that the Medical School was seeking to 
alter in deciding that case, if there had been such a record.

We believe that the presence of such evidence would have 
been considered and relied upon by the Bakke Court in 
upholding the diversity arguments. Whether that is right or 
wrong, the issue is an open one for this Court. The strong 
tradition of encouraging voluntary efforts to redress past 
discriminatory conduct, on the part of both private actors30 and 
public entities,31 should not be abandoned in this case. In 
weighing the diversity rationale, the Court should take account 
of the strong impetus and justification that Michigan’s historical 
and current discriminatory conduct provides for its efforts to 
achieve diversity.

II. Diversity Is A Compelling Governmental Interest
Sufficient To Support The University Of Michigan’s
Race-Conscious Admissions Policy

The University presented in the record a wealth of specific 
data from among the most respected researchers in the country 
that establishes the value of diversity. That record demonstrates 
beyond any doubt that a racially diverse campus provides a 
better education, both in and out of the classroom, than an all- 
white campus. The evidence further shows that the experience 
of attending a racially diverse collegiate institution brings 
measurable benefits to all segments of our society. Based upon 
this evidence and upon their own experience, a widely varied 
group of amici are submitting briefs testifying to the need to

30See, e.g., United Steelworkers o f America v. Weber, 443 U.S. 193 
(1979).

31 See Croson, 488 U.S. at 492 (opinion of O ’Connor, J., Rehnquist, C J . 
and White, J.), 519 (opinion of Kennedy, J.), 528 (opinion of Marshall, 
Brennan & Blackmun, JJ.).



30

preserve racial diversity in higher education.

Intervenors share the belief that achieving a diverse student 
body is a compelling governmental interest that fully justifies 
the University’s race-conscious admissions policy, and we join 
in the arguments set out in its Brief, presenting only some 
additional considerations here.

A. Bakke Compels Rejection O f Plaintiffs’ Proposed
Interpretation Of The Fourteenth Amendment

1. A majority of the Court in Bakke would have 
sustained the University of M ichigan’s 
admissions program

It requires no resort to the interpretive principles of Marks v. 
United States, 430 U.S. 188 (1977) to conclude that a majority 
of the Bakke Court would find the admissions program at the 
University of Michigan to be supported by a “compelling” 
governmental interest. For Justice Powell, “the attainment of 
a diverse student body . . . clearly is a constitutionally 
permissible goal for an institution of higher education,” Bakke, 
438 U.S. at 311-12. The four Justices who subscribed to the 
opinion authored by Justice Brennan “agree[d] with Mr. Justice 
Powell that a plan like the “Harvard” plan [citation omitted] is 
constitutional under our approach, at least so long as the use of 
race to achieve an integrated student body is necessitated by 
the lingering effects o f past discrimination,” Id. at 326 n.l 
[emphasis added]. For the reasons given supra § I (and 
especially as explained in § I.C.), the condition set forth in the 
italicized language from Justice Brennan’s opinion is 
unquestionably satisfied in this case.

2. Bakke and other decisions support the conclusion 
that diversity is a compelling governmental 
interest

Plaintiffs urge the Court to adopt a narrow reading of the



31

Fourteenth Amendment that would limit consideration of race 
only to remedy documented instances of discrimination against 
identified individuals, claiming that this is the proper reading of 
the Court’s seminal ruling in Bakke, upon which public and 
private institutions (educational and other) have relied for a 
quarter of a century. Such an approach extends far beyond 
Bakke and subsequent opinions and should be rejected.

In Bakke itself, the Court vacated the California Supreme 
Court’s injunction and reversed that portion of its judgment 
holding that the Davis medical school could not constitutionally 
consider race in any manner in its admissions process. 
Specifically, in a portion of his opinion, which four other 
Justices joined, Justice Powell held that the California Supreme 
Court judgment forbidding any consideration of race in state 
higher education admissions impermi ssibly “failed to recognize 
that the State has a substantial interest that legitimately may be 
served by a properly devised admissions program involving the 
competitive consideration of race and ethnic origin.” Bakke, 
438 U.S. at 320; see id. at 325-26 (opinion of Brennan, White, 
Marshall & Blackmun, JJ.). Thus the Court left the door open 
for the University of California to establish race-conscious 
programs in the future. See id. at 324-26.

The Bakke Court’s reversal of this portion of the judgment 
of the California Supreme Court has not been disturbed in 
subsequent opinions, which have been read by both this Court 
and by lower courts and educational institutions as an indication 
that the Constitution permits sufficient “breathing room” for a 
properly constructed affirmative action p lan/2 While there have 32

32In Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), for 
example, Justice Brennan’s majority opinion cited Bakke for the proposition 
that ‘“ a diverse student body’ contributing to ‘a robust exchange of ideas’ 
is a ‘constitutionally permissible goal’ on which race-conscious university 
admissions programs may be predicated.” Id. at 568 (quoting Bakke, 438 
U.S. at 311-13). Although the Court’s decision in Adarand Constructors, 
Inc. v. Pena, 515 U.S. 200 (1995), overruled Metro Broadcasting on the



32

obviously been developments in the Court’s equal protection 
jurisprudence since Bakke, the Court has never returned to the 
subject of university admissions, nor has it “indicated that 
Justice Powell’s approach has lost its vitality in that unique 
niche of our society,” Smith v. University o f Washington Law 
Sck, 233 F.3d 1188,1200 (9th Cir. 2000), cert, denied, 532 U.S. 
1051 (2001).

3. Bakke should be reaffirmed

A “terrible price would [be] paid” for overruling Bakke now. 
Planned Parenthood v. Casey, 505 U.S. 833, 864 (1992). The 
price would be paid by public and private educational 
institutions throughout the United States that have relied on 
Bakke to enable them to diversify the ranks of higher education. 
See, e.g., William G. Bowen & Derek Bok, The Shape o f the 
River: Long-Term Consequences of Considering Race in 
College and University Admissions (“Bowen & Bok”) 8,252-53 
(1998) (citing Association of American Universities’ 
unanimous statement affirming educational value of diversity); 
Akhil Reed Amar & Neal Kumar Katyal, Bakke’s Fate, 43 
UCLA L. Rev . 1745, 1769 (1996) (“An entire generation of 
Americans has been schooled under Bakke-style affirmative 
action, with the explicit blessing of — indeed, following a how­

separate issue of whether a lower level of constitutional scrutiny applies to 
racial preferences enacted by Congress, see 515 U.S. at 227-35, Adarand 
did not involve (and the Court did not reject) the proposition that 
institutions of higher education have a compelling interest in obtaining the 
educational benefits of a diverse student body. See id. at 257-58 (Stevens, 
J., dissenting). See also Wygant, 476 U.S. at 286 (O’Connor, J., concurring) 
(citing Justice Powell's opinion in Bakke, "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 education, to support the 
use of racial considerations in furthering that interest"); Wessmann v. 
Gittens, 160 F.3d 790, 796 (1st Cir. 1998) (precedential value of Justice 
Powell’s Bakke opinion should not be disturbed, especially where various 
individual justices have “from time to tim e.. .written approvingly of ethnic 
diversity in comparable settings”).



33

to-do-it manual from —  U.S. Reports.”); Scholars’ Reply to 
Professor Fried, 99 Ya l eL J. 163, 166 (1989) (“thousands of 
public educational institutions, attempting to provide a more 
diverse group of students and faculty, have, of their own 
volition, followed Justice Powell’s direction . . .  to consider 
minority status as one among many relevant factors”).

The price would also be paid by the Court itself. We are 
“only a generation or so removed from the legally enforced 
segregation which was used to discriminatorily deny African 
Americans and other minorities access to education.” Grutter 
v. Bollinger, 288 F.3d 732,764 (6th Cir.) (Clay, J„ concurring), 
cert, granted, 123 S. Ct. 617 (2002). The pillars of Brown and 
Bakke have stood tall enough to allow colleges and universities 
to afford educational opportunity for a generation to those who 
have historically been subject to discrimination. To overrule a 
watershed decision like Bakke and its approval of narrowly 
tailored race-conscious admissions policies “would subvert the 
Court’s legitimacy beyond any serious question.” Casey, 505 
U.S. at 867. It is therefore imperative that the Court adhere to 
the essence of Bakke.

B. Diverse Enrollments In Institutions Of Higher 
Education Further A W ide Variety Of Interests 
Important To Democratic Societies Such As Ours

The concept of diversity reflects values that lie at the core of 
a democratic society, as well as fundamental American 
constitutional principles.33 For this reason, governmental 
actions that foster or preserve diversity unquestionably serve 
“compelling interests.”

The very notion of representative democracy encompasses 
full and equal participation in the common governance of

330 f  course, even the United States Constitution was textually 
inconsistent with democratic values until modified to include the 13th, 14th 
and 15th Amendments.



34

society by the members of a variegated polis. Thus, for 
instance, this Court has long recognized voting to be among the 
most basic rights deserving of constitutional protection. E.g., 
Reynolds v. Sims, 377 U.S. 533, 562 (1964) (“The right to 
exercise the franchise in a free and unimpaired manner is 
preservative of other basic civil and political rights”). The 
Court has also given constitutional protection to the opportunity 
for all citizens —  and even non-citizens — to become 
equipped, through education, with the basic tools and skills 
necessary to participate in civic affairs. See, e.g., Plyler v. Doe, 
457 U.S. 202,222 (1982) and cases cited; id. at 234 (Blackmun, 
J., concurring) (“denial of an education . . . places [the 
individual] at a permanent political disadvantage”). Exclusion 
from public institutions, or from the opportunity to 
communicate and associate with other members of the polis are, 
therefore, deeply inconsistent with basic American 
constitutional values, see, e.g., Terry v. Adams, 345 U.S. 461 
(1953) (“Jaybird” primary); Gomillion v. Lightfoot, 364 U.S. 
339 (1960) (gerrymander excluding African Americans from 
eligibility to vote for Tuskegee, Alabama city government), 
even if they are supported by the majority of the electorate, see 
Lucas v. Forty-Fourth Gen’l Assembly o f Colorado, 377 U.S. 
713 (1964).34

34Plaintiffs suggest that the failure to offer each of them admission to the 
University constitutes the same sort of “exclusion” as was involved in these 
cases, because it occurred in the context of an admissions process in which 
race was one among many factors taken into consideration. While there is 
reason to question whether race had anything to do with plaintiffs’ 
rejection, see infra p. 44 n.42 & accompanying text, there is a more 
significant distinction. The individualized determination to decline to offer 
admission to specific white applicants did not make the University an 
exclusive preserve for UMS students. To the contrary, undergraduate 
enrollment at the University remains heavily white. No one who visited the 
Michigan campus today would conclude that white applicants as a group 
were excluded from enrollment at the school. Plaintiffs’ facile analogy 
trivializes the important constitutional principles upon which they seek to 
rely.



35

These general principles have been given widespread 
application in a variety of circumstances, such as those 
involving the rights of candidates to communicate effectively 
with the members of the polls. E.g., Buckley v. Valeo, 424 U.S. 
1 (1976). Most significant for the present matter, the Court 
long ago discerned that in a modem society, an equal or 
effective educational opportunity cannot be provided within a 
democracy to a minority in a setting that is isolated from contact 
with members of the majority and the future leadership of the 
polis. Sweatt v. Painter, 339 U.S. 629, 634 (1950):

The law school to which Texas is willing to admit petitioner 
excludes from its student body members of the racial groups 
which number 85% of the population of the State and 
include most of the lawyers, witnesses, jurors, judges and 
other officials with whom petitioner will inevitably be 
dealing when he becomes a member of the Texas Bar. With 
such a substantial and significant segment of society 
excluded, we cannot conclude that the education offered 
petitioner is substantially equal to that which he would 
receive if admitted to the University of Texas Law School.

Against this background, Plaintiffs’ contention that actions 
to achieve diverse student enrollments in public institutions of 
higher education do not serve compelling governmental 
interests is nothing short of astonishing.

1. Diversity furthers the purposes of the Fourteenth 
Amendment

The goal of diversity is of particular importance to 
Intervenors, who are members of minority groups that 
historically have been subjected to official prejudice and 
subordination, because its adoption and effectuation by 
governmental entities today gives credibility and meaning to the 
very different aspirations that we today profess as a nation. 
Diversity is the opposite of the enforced isolation that produced



36

“discrete and insular minorities,” precluded from protecting 
their interests in the political process, whom this Court 
suggested in United States v. Carolene Prods. Co., 304 U.S. 
144,152 n.4 (1938), were in need of special judicial solicitude. 
As this Court has recognized, in a multi-racial society, diversity 
is integration.

Underlying the rationale in Sweatt and McLaurin v. 
Oklahoma State Regents, 339 U.S. 637 (1950) is the notion that 
there is value in racially and ethnically integrated settings. The 
Court understood, in those cases, that the “intellectual 
commingling of students” ■— specifically in a racially integrated 
(and thus racially diverse) setting — aids the institution’s 
students in the “pursuit of effective” education. McLaurin, 399 
U.S. at 641. The Court also recognized that forbidding African- 
American students from attending white law schools harmed 
them because of the specific role that racial segregation played 
in limiting educational opportunity for minorities. Sweatt, 339 
U.S. at 634. An integrated educational setting served to 
promote the mandates of equal protection by providing minority 
students access to the resources and prestige that accompany 
attendance at established, competitive schools.

The same holds true for a diverse educational setting. By 
definition, an institution cannot be racially diverse if it is 
racially segregated. The added component of diversity, 
however, is that its benefits flow not only to students suffering 
the effects of discrimination, but to all students in the 
institution. See infra pp. 38-43. Because diversity furthers the 
constitutional value of equal protection, it is compelling. See 
Goodwin Liu, Affirmative Action in Higher Education: The 
Diversity Rationale and the Compelling Interest Test, 33 H a r v .
C.R.-C.L. L. R e v . 381, 382, 417 (1998) (placing diversity 
rationale “squarely within the existing norms of equal 
protection doctrine” and concluding that “promoting 
educational diversity is fundamental to the task of maintaining



37

a democratic political system”).

2. Diversity furthers important First Amendment 
interests

In Bakke, Justice Powell found that the interest in a diverse 
student body “clearly is a constitutionally permissible goal for 
an institution of higher education.” Bakke, 438 U.S. at 311-12. 
He noted that “ [ajcademic freedom, though not a specifically 
enumerated constitutional right, long has been viewed as a 
special concern of the First Amendment.” Id. at 312. 
Recognizing that one of the “essential freedoms” of a university 
is to select “who may be admitted to study,” Sweezy v. New 
Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., 
concurring in the result), Justice Powell further observed that 
the national commitment to safeguarding academic freedoms, 
is “a special concern of the First Amendment.” Bakke, 438 U.S. 
at 312 (quoting Keyishian v. Bd. o f Regents, 385 U.S. 589, 603 
(1967)). These academic freedoms include the ability of the 
university to do two things in the context of diversity. First, the 
university may design a student body that best reflects the 
academic vigor of the institution and that would best contribute 
to a “robust exchange of ideas.” Id?5 Second, the university 
may take measures to admit the individuals of its choosing 
consistent with its design. Indeed, the invocation of the First 35

35In numerous settings, courts have recognized the instrumental value 
of diversity. See, e.g., Wittmer v. Peters, 87 F.3d 916, 918 (7th Cir. 1996) 
(finding that a correctional boot camp’s mission of pacification and 
reformation of its population was a compelling interest justifying the 
consideration of race in staff appointments); Hunter ex rel. Brandt v. 
Regents o f the Univ. o f Cal., 190 F,3d 1061, 1064 n.6 (9th Cir. 1999) 
(holding that the “operation of a research-oriented elementary school 
dedicated to improving the quality of education in urban public schools” is 
a sufficiently compelling interest); see also United States v. Ovalle, 136 
F.3d 1092, 1107 (6th Cir. 1998) (recognizing the important, thus 
compelling, interest of a jury pool’s reflecting the diversity of the 
community).



38

Amendment in this way presents a “countervailing” 
constitutional principle to the Fourteenth Amendment. Bakke, 
438 U.S. at 313. Therefore, notions of academic freedom, 
ensconced as they are in the First Amendment, render diversity 
an interest “of paramount importance,” in the fulfillment of a 
university’s educational mission, and thus sufficiently 
compelling to justify the competitive consideration of race to 
achieve that mission. Id. (emphasis added).

C. P l a in t i f f s  P r o fo u n d ly  M i s u n d e r s t a n d  O r  
Misrepresent The Value And Purposes Of Diversity 
Within Educational Institutions

Plaintiffs contend that diversity depends upon and fosters 
racial stereotyping, and that the only diversity that could be 
considered compelling is “intellectual diversity.” They posit a 
binary choice between “intellectual diversity” and “racial 
diversity” that is both false and a misrepresentation of the 
analysis set forth in Justice Powell’s opinion in Bakke.

Justice Powell concluded that it was constitutional for a 
university to consider “a far broader array of qualifications and 
characteristics of which racial or ethnic origin is but a single 
though important element.” Id. at 315. According to Justice 
Powell, a student “with a particular background — whether it 
be ethnic, geographic, culturally advantaged, or disadvantaged 
—  may bring . .  . experiences, outlooks, and ideas that enrich 
the training of its student body and better equip its graduates to 
render with understanding their vital service to humanity.” Id. 
at 314. This is a specific recognition that students of differing 
racial and ethnic background bring to a university a diversity of 
experiences, outlooks, and ideas, and that all of these factors 
(and not just one’s intellectual views) are constitutive elements 
of academic diversity.

Implicit in both Bakke and Sweatt is the proposition that race 
and ethnicity can indeed influence one’s “experiences, outlooks,



39

and ideas.” This diversity is not compelling simply because it 
ensures different viewpoints on intellectual arguments in the 
classroom. It is instead compelling, in part, because it ensures 
that students are exposed to peers with different experiences 
that inform their education, both in the classroom and in 
extracurricular activities, in dorm rooms, and in other places 
that are a critical part of the college experience.

To assert that people of different races have a common 
experiential base, or more particularly that people from racial 
and ethnic minorities have a different experiential base than 
people who are white is hardly a novel proposition. For 
example, both Justice Marshall and Justice Thomas have 
spoken movingly about the importance of race in shaping them 
as people, though the views each has expressed on many issues 
may be different.36 Other Justices have spoken of the effect on 
the Court of simply having African-American Justices.37

^See eg.,  Juan Williams, A  Question o f Fairness, ATLANTIC M ONTHLY, 
Feb. 1987 at 70; Hearing o f the Senate Judiciary Comm, on the Nomination 
of Clarence Thomas to the Supreme Court, 102nd Cong. 260 (1991). As 
noted in the amici brief filed by current law students at accredited American 
law schools in Grutter, “Justice Thomas’ recent remarks concerning the 
meaning of cross-burning may not be shared by all African-Americans, 
[but] they were uniquely powerful because of the fact that he grew up as an 
African-American in the rural, segregated South.” Brief of 13,000+Current 
Law Students At Accredited American Law Schools As Amici Curiae In 
Support Of Respondents, Grutter v. Bollinger (No. 02-241) at 4 (citing 
transcript of oral argument in Virginia v. Black, No. 01-1107 (Dec. 11, 
2002) at 21-23).

37For example, Justice Scalia said, “Marshall could be apersuasive force 
by just sitting there.. . .  He wouldn’t have had to open his mouth to affect 
the nature of the conference and how seriously the conference would take 
matters of race.” Juan Williams, Thurgood Marshall: American 
Revolutionary, 388-89 (1998); see also Sandra Day O’Connor, Thurgood 
Marshall: The Influence o f a Raconteur, 44 STAN. L. Rev. 1217 (1992); 
Anthony Kennedy, The Voice of Thurgood Marshall, 44 STAN. L. REV. 
1221 (1992).



40

The recent national debate over racial profiling has also 
illustrated the different experiential base of people from racial 
and ethnic minorities. There is considerable evidence that 
many police departments stop African-American or Latino 
motorists more often (all other factors being equal) than they do 
white motorists, that African-American or Latino shoppers are 
more often followed by security guards, and that Latinos are 
more often stopped by immigration officials.38

Not all African Americans or Latinos will have each of these 
experiences. Not all will draw the same conclusions about the 
existence or the validity of such practices. However, every 
African American or Latino will have to consider this 
phenomenon, recognizing that there is a possibility that he or 
she will be subject to it. That consideration will have a different 
quality than the identical consideration of a white American. In 
short, African-American and Latino people have different 
experiences than their white counterparts precisely because of 
the powerful role that race continues to play in this country. 
These experiences are, in part, historical and, in part, continue

x See, e.g., Peter Verniero, Interim Report o f  the State Police Review 
Team Regarding Allegations o f Racial Profiling, 1999 N.J. A T T ’Y  G e n . 
R e p . 27 (“[T]he overwhelming majority of searches (77.2%) involved black 
or Hispanic persons.”); Elliot Spitzer, The New York City Police 
Department’s “Stop and Frisk” Practices, 1999 N.Y. A T T ’Y G e n .R e p . 94- 
95 (finding that blacks comprise 25.6% of New York’s population, but 
50.6% of all persons stopped were black; Hispanics comprise 23.7% of 
New York’s population, but 33% of all persons stopped were Hispanic; 
whites comprise 43.4% of the City’s population but only 12.9% of all 
persons stopped); See also Grutter v. Bollinger, 288 F,3d 732, 764-65 (6th 
Cir. 2002) (Clay, J., concurring); United States v. Montero-Camargo, 208 
F.3d 1122, 1131-32 (9th Cir.) (en banc), cert, denied sub nom. Sanchez- 
Guillen v. United States, 531 U.S. 889 (2000); Washington v. Lambert, 98 
F.3d 1181, 1188 (9th Cir. 1996); Deseriee A . Kennedy, Consumer 
Discrimination: The Limitations o f Federal Civil Rights Protection, 66 Mo. 
L. Rev. 275 (2001) (describing differential treatment experienced by 
numerous minority shoppers).



41

today.39

A prime benefit of racial diversity on college campuses is to 
make the point that, notwithstanding common or different 
experiences, not all African Americans, or Latinos, or white 
persons, think alike.40 As one commentator has noted, “the 
diversity rationale contemplates that educational benefits flow 
from both interracial and mtra-racial diversity.” Goodwin Liu, 
supra, 33 Ha r v . C.R.-C.L. L. Re v . a t  426.41 Diversity thus

39See Cir. App. 1946-2043 (Expert Report of Thomas Sugrue); id. at 
1523-70 (Expert Report of Albert Camarillo; id. at 1571-1647 (Expert 
Report of Eric Foner); Georgia v. McCollum, 505 U.S. 42, 68 (1992) 
(O’Connor, J., dissenting) (“It is by now clear that conscious and 
unconscious racism can affect the way white jurors perceive minority 
defendants and the facts presented at their trials, perhaps determining the 
verdict of guilt or innocence.”); id. at 69 (recognizing “a world where the 
outcome of a minority defendant’s trial may turn on the misconceptions or 
biases of white jurors”); Peters v. Kiff, 407 U.S. 493,503-04 (1972) (“[W]e 
are unwilling to make the assumption that the exclusion of Negroes has 
relevance only for issues involving race . . .  [Their] exclusion deprives the 
jury of a perspective on human events that may have unsuspected 
importance in any case that may be presented.”); Grutter, 288 F.3d at 764 
(“Notwithstanding the fact that the black applicant may be similarly situated 
financially to the affluent white candidates, this black applicant may very 
well bring to the student body life experiences rich in the African-American 
traditions emulating the struggle the black race has endured in order for the 
black applicant even to have the opportunities and privileges to learn.”) 
(Clay, J., concurring).

mSee Bowen & Bok, at 280 (“The black student with high grades from 
Andover may challenge the stereotypes of many classmates just as much as 
the black student from the South Bronx.”); Sheila Foster, Difference and 
Equality: A Critical Assessment o f the Concept o f “Diversity, ” 1993 WlS. 
L. Rev. 105, 140 (1993) (“although race is a proxy for a different 
experience in this society, it does not necessarily create an ethnic 
conglomerate with a monolithic viewpoint about that experience. Nor does 
it create one essential experience based on color.”).

4ISee also Amar & Katyal, Bakke’s Fate, 43 UCLA L. Rev. at 1763 
n.87 (noting that “Justice Powell’s Bakke Appendix pointedly quoted



42

works to reduce, not reinforce, the stereotyping that remains all 
too common in our nation today given the high levels of 
segregation and isolation in housing and pre-collegiate 
education. See Brief of NAACP Legal Defense & Educational 
Fund, Inc. and the American Civil Liberties Union as Amici 
Curiae, Grutter v. Bollinger (No. 02-241), at 13-17; Brief of 
Equal Employment Advisory Council as Amicus Curiae in 
Support of Neither Party, Grutter v. Bollinger (No. 02-241).

It can hardly be disputed that “[p]eople do not learn very 
much when they are surrounded only by the likes of 
themselves.” Cir. App. 1501; see also Bok & Bowen at 229 
(“The four years spent at a residential college have long offered 
a time and a place for extensive interaction around the clock. 
When one considers the natural tendency on the part of students 
to associate with (and especially to live with) individuals like 
oneself, it is likely that many students encounter a wider range 
of people in college than they will ever see again on such an 
intimate, day-by-day basis.”). Since most of the students 
admitted to the University of Michigan have not attended 
racially integrated primary and secondary schools, Cir. App. at 
1985-89, their University experience may be the only 
“opportunity to disrupt an insidious cycle of lifetime 
segregation,” Cir. App. at 1681.

Ultimately, as the Court has observed: “Attending an 
ethnically diverse school may help . . . prepar[e] minority 
children ‘for citizenship in our pluralistic society,’ while, we 
may hope, teaching members of the racial majority ‘to live in 
harmony and mutual respect’ with children of minority 
heritage.” Washington v. Seattle Sch. Dist. No. 1,458 U.S. 457, 
472-73 (1982) (citations omitted). It is not too much to pose 
the following question: “If a far-flung democratic republic as

Harvard’s recognition of the importance of intra- as well as inter-racial 
diversity”) (citing Bakke, 438 U.S. at 324) (appendix to the opinion of 
Powell, J.).



43

diverse — and at times divided —  as [early twenty-first] 
century America is to survive and flourish, it must cultivate 
some common spaces where citizens from every comer of 
society can come together to learn how others live, how others 
think, how others feel. If not in public universities, where? If 
not in young adulthood, when?” Amar & Katyal, Bakke ’s Fate, 
43 UCLA L. Rev. at 1749.

III. The University’s Race-Conscious Admissions Process 
Is Narrowly Tailored

A. The University’s Plus-Factor Admissions Program 
Furthers Diversity, Is Flexible, And Does Not 
Insulate Individual Applicants From Comparison 
With Others

The admissions program sustained below is narrowly 
tailored because it is necessary to further the asserted 
compelling interest; it flexibly considers race; and it does not 
pose an undue burden on non-beneficiaries. It thus comports 
with the criteria articulated by Justice Powell, who suggested 
that, in evaluating the scope of a race-conscious admissions 
program, a court should consider (1) whether the manner of 
considering race under the admissions program furthers the 
asserted diversity interest; (2) whether the program insulates 
individual applicants from comparison with all other applicants 
for the available seats; and (3) whether the program is 
sufficiently flexible to consider all elements of diversity in light 
of the particular qualifications of each applicant, and to place 
them on the same footing for consideration. Bakke, 438 U.S. at 
315-17. See also Croson, 488 U.S. at 489, 504-10 (discussing 
narrow tailoring requirements for set-aside programs). The 
inclusion of race or ethnicity as one among the “U” factors that 
is taken into consideration along with the multiplicity of other 
factors distinguishes the Michigan approach from the two-track 
model that the Court struck down in Bakke.



44

Unlike the Davis medical school’s plan, no seats at 
Michigan are reserved for UMS students, and white applicants 
are competitively considered for all places in an entering class. 
One expert witness estimated through regression equations that 
if race were eliminated entirely from the University’s 
admissions process, UMS enrollments would plummet but the 
statistical probability of admission of any non-UMS applicant 
would rise by only 0.02 per cent (from 0.61 to 0.63) (Cir. App. 
1901). Race is a “very distant third” in determining a 
candidate’s chances for undergraduate admission (Silver & 
Rudolph, at 7; see also Cir. App. 1871). Equally striking, 
Intervenors’ experts closely analyzed admissions in 1995 and 
1997 and concluded that the failure to offer admission to the 
individual Plaintiffs in this case did not result from the 
consideration given race in the process (Silver & Rudolph, at 
10 ,13).42 Thus, the record makes clear that race is not accorded 
so much weight that it precludes competitive consideration of 
all applicants.

Not only is the process tailored to balance the negative 
impact on UMS candidates’ chances of admission that result

42The analysis indicated that Jennifer Gratz received only a 0.1 initial 
adjustment in her GPA, no “S” factor points and no “A” points (Silver & 
Rudolph, at 11-12). In contrast, in 1995 there were 2,661 applicants who 
had unadjusted GPAs that were lower than Gratz’s but that, when adjusted 
in accordance with the University’s consistent procedure, outranked her 
adjusted GPA. All of these applicants received offers of admission; and 
60% of them were non-UMS students {id. at 9-12). The experts concluded 
that it was “more probable that Gratz was displaced by a non-UMS 
applicant than by a UMS applicant” {id. at 10).

Patrick Hamacher, by contrast, had his GPA initially adjusted upward 
by 0.2 and also received “S” points based on the high school he attended 
and “A” points because his mother attended Michigan. However, even as 
adjusted Hamacher’s GPA was only 3.0, leading the experts to find that he 
had less than a fifty-fifty chance of being admitted and that “race was not 
a factor in the recalculation of his GPA, nor in his non-admission” {id. at 
13).



45

from factors not justified by educational necessity, and which 
are substantially determined by pervasive past and continuing 
discrimination,43 but it is also directly related to and designed 
to dispel the lingering perception — that was created by the 
long history of discrimination and indifference that is 
documented on the record of this litigation —  that the 
University is not open to minority applicants. By facilitating 
admission of a group of minority students sufficient to enable 
them to form community and social support networks, race­
conscious admissions reduce the racial tensions on campus that 
are at the core of the University’s negative reputation (see Cir. 
App. 2466); UMS students participating in focus groups 
conducted by Intervenors’ expert witness identified increased 
numbers of students of color at the school as a crucial step in 
changing the racial climate (Cir. App. 2424-28).

Finally, it bears repetition that all of the candidates admitted 
to the University as a result of the race-conscious process in 
effect from 1995 to 2000 (the years for which evidence is 
available in this record) were qualified for admission and likely 
to succeed as students at the school. See supra note 3 and

• , , 44accompanying text.

43See Brief of NAACP Legal Defense & Educational Fund, Inc. and 
American Civil Liberties Union as Amici Curiae, Grutter v. Bollinger (No. 
02-241); Brief of NAACP Legal Defense & Educational Fund, Inc. as 
Amicus Curiae, Adarand Constructors, Inc. v. Mineta, 534 U.S.103 (2001) 
(No. 00-730).

■^Despite the fact that all of the students on campus have been qualified 
and likely to succeed, Plaintiffs and others contend that students of color are 
stigmatized by a race-conscious admissions process. This is both a vicious 
and illogical argument. Any stigma attached to students of color at 
predominantly white institutions did not originate with race-conscious 
admissions programs, nor is it likely that it would end with their demise. 
Rather, the best way to destroy persistent myths of the inferiority of 
students of color is to create racially integrated environments where 
qualified individuals of all backgrounds have the opportunity to interact and 
make informed judgments about one another.



46

B. Percentage Plans Are An Inadequate Alternative

The United States, in its amicus brief, suggests that the 
University’s admissions policies are not narrowly tailored 
because there are equally effective race-neutral alternatives. 
Specifically, the United States urges consideration of more 
aggressive recruitment combined with a percentage plan 
approach like those employed for the public universities in a 
number of states, including Florida, Texas, and California. All 
three States prohibit the use of race as a factor in school 
admissions.

As a threshold matter, the district court found, based on 
unrebutted testimony, that Michigan is already doing all it can 
to recruit under-represented minorities. Pet. App. 42a 
(“University has attempted to enlarge its pool of under­
represented minority applicants through vigorous minority 
recruitment programs, which have all proved to be unavailing”).

Percentage plans present a myriad of problems. See 
generally U.S. Commission on Civil Rights, Beyond 
Percentage Plans: The Challenge o f Equal Opportunity in 
Higher Education (Nov. 2002), available at http://www. 
usccr.gov/ (hereinafter “USCCR Report”). Early studies 
indicate that they are not, in fact, equally effective as the 
approach approved in Bakke in achieving diverse enrollments

Those opposed to race-consciousness in admissions do not explain why 
applicants who are admitted because they are the children of alumni, or are 
athletes, or are admitted based on geographical preference, or even socio­
economic disadvantage, suffer no similar stigma —  or at least are given the 
chance to overcome doubts by demonstrating their qualifications. See, e.g., 
Sheila Foster, supra, 1993 Wis. L. Rev. at 146

Ultimately, the fact that an admittedly qualified African American or 
Latino student, whose test score is lower than those of a rejected white 
applicant, is stigmatized, while a comparably qualified white student is not, 
says far more about the persistence of race and ethnicity as stigma than it 
does about problems inherent in a race-conscious admissions program.

http://www


47

at the undergraduate level.45 Moreover, it is sophistry to

45For a comparative analysis of all three states’ experiences, see 
Catherine L. Horn & Stella M. Flores, Percent Plans in College 
Admissions: A Comparative Analysis o f Three States’ Experiences, The 
Civil Rights Project, Harvard University (February 2003), available at 
http://www.civilrightsproject.harvard.edu/research/affirmativeaction/ 
tristate.php (concluding that it is incorrect to attribute any significant 
increase in campus diversity to a percent plan alone, and noting that a 
variety of race-conscious outreach, recruitment, financial aid and support 
programs appear to be central to the ability of some campuses to recover 
even partially from loss of minority students that occurred after abolition of 
race-conscious admissions programs). Findings of researchers as to each 
state may be summarized as follows:

Florida: A recent study has concluded that Florida’s plan, which 
guarantees admission to one of its colleges to students who graduate in the 
top 20% of their high school class, assuming a basic curriculum, is neither 
race-neutral nor an effective alternative to a race-conscious admissions 
program. Patricia Marin & Edgar K. Lee, Appearance and Reality in the 
Sunshine State: The Talented 20 Program in Florida, The Civil Rights 
Project, Harvard University (February 2003), available at http://www. 
civilrightsproject. harvard.edu/research/affirmativeaction/florida.php (major 
findings include: (1) plan has led to admission of very few students to state 
university system who would not have been admitted under pre-existing, 
non-race-conscious rules; (2) plan provided no guarantee of admission to 
two most highly selective campuses in the system; (3) only an insignificant 
number of “newly eligible “ minority students achieved access to the 
system; (4) plan includes far more White and Asian students than Blacks 
and Hispanics, the two groups most underrepresented at the most selective 
campuses; and (5) the minimal success of the plan relies on race-attentive 
recruitment, retention, and financial aid policies).

Texas: Since 1998, Texas has provided that the top 10% of students in 
each high school are guaranteed admission to the undergraduate program 
of their choice. In 1994, African Americans constituted 5.3% of the 
minority enrollment at the University of Texas-Austin. That amount 
dropped to 2.7% as a result of the decision in Hop-wood v. Texas, 78 F.3d 
932 (5th Cir.), cert, denied, 518 U.S. 1033 (1996), prohibiting the use of 
race. As of 2001, it was still only 3%. At the same time, African American 
students constitute 12% of the state’s population. USCCR Report at 23, 
Figure 2.4.

http://www.civilrightsproject.harvard.edu/research/affirmativeaction/
http://www


48

refer to such plans as “race neutral.” Their effectiveness in 
producing diverse enrollments depends directly upon the 
existence of a feeder pool of racially segregated schools from 
which applicants are drawn.* 46 Indeed, those who have 
challenged Michigan ’ s policies here have already indicated that 
they plan to challenge programs utilizing the percentage plan 
approach as improperly race-conscious.47

Objective analyses of the effect of the prohibition on the use of race and 
the adoption of the percentage plan have concluded that the “absolute 
number of [minority] students [negatively] affected is substantial.” Maria 
Tienda, Closing The Gap?: Admissions & Enrollments at the Texas Public 
Flagships Before and After Affirmative Action 14 (Jan. 21,2003), available 
at http://www.texastopl0.princeton.edu/publications/tienda012103.pdf. 
“Using the pre-Hopwood distribution as a standard,” 980 fewer African 
Americans and Hispanics enrolled at the University of Texas and 1179 
fewer African Americans and Hispanics enrolled at Texas A&M. Id. at 17.

California: California generally guarantees admission to one of its 
universities (not necessarily to the school of the applicant’s choice) to any 
applicant in the top 12.5% statewide or the top 4% of each California 
school. See USCCR Report at Tables 2.2 and 2.3 and accompanying text. 
Despite these policies, since the abolition of the affirmative action program, 
1600 fewer African American, 4000 fewer Latino, and 675 fewer Native 
Americans have been admitted to the California system. Id. at Table 2.4. 
“The percentage of students in those minority groups admitted has declined 
at a time when the percentage of such students in California has increased. 
[Id. at Table 2.5]. The percentage decline has been particularly acute at the 
system’s flagship institutions. Id. at Figure 2.2.” The drop in minority 
students at graduate schools has been dramatic. Id. at Table 2.6.

46Even apart from percentage plans, as two leading commentators have 
observed: “[i]t is hard to imagine any admissions policy that, in fact, would 
be perfectly ‘race neutral.’ Race is associated with so many aspects of life 
in the United States that virtually every other attribute of the applicant — 
SAT scores, high school attended, parents’ occupation and education — 
has, as it were, a racial component.” Bok and Bowen, at 31 n.15.

47 See e.g. Michael A. Fletcher, Race Neutral Plans Have Limits in 
Aiding Diversity, Experts Say, WASH. POST, Jan. 17, 2003, at A12; 
Stephanie Cahill, Skirting the “Race Quota” Label, ABA Journal eReport

http://www.texastopl0.princeton.edu/publications/tienda012103.pdf


49

The record in this case demonstrates that a percentage plan 
would not work in Michigan. The University presented 
substantial evidence that race-neutral admissions policies would 
result in a sharp drop in the number of minority students, and 
the trial court credited that evidence. Pet. App. 41a-42a. While 
it is true that Michigan’s high schools are segregated —  a 
necessary (and troublesome) pre-requisite for such plans to 
work —  they are so segregated that African American students 
are concentrated in a very small number of schools. For 
instance, in the mid-1990's (1995-98), 91 of 842 public high 
schools in Michigan (including alternative schools, juvenile 
centers, etc.) had enrollments 50% or more African-American; 
63 schools were 75% or more African-American (Cir. App. 
3645-67; see also id. at 1987-88).48

(Jan. 24, 2003); available at http://www.abanet.org/joumal/ereport/ 
j24affirm.html; see also Pacific Legal Foundation, Quotas in UC 
A d m i s s i o n s  A g g r e s s i v e l y  C h a l l e n g e d ,  a v a i l a b l e  at  
http://www.pacificIegal.org/view_PLFCaseDetail.asp7iIIL4 81 &sSub!ndex 
=O peration+End+Bias+% 2D +% 2D+Enforcing+California% 27s+ 
Proposition+209&iParentID=8&sParentName=Securing+Individual+ 
Rights; cf. Hi-Voltage Wire Works, Inc. v. City o f San Jose, 24 Cal. 4th 537, 
560 (2000) (holding that requirement that information about projects 
available for bids be communicated to potential minority-owned contractors 
was a “preference” that violated Proposition 209, Cal. C o n s t , art. I, § 
31(a)).

48A percentage plan approach is also flawed because it is simply 
unavailable in many contexts. It is unavailable in graduate schools, and, not 
surprisingly, plaintiffs do not even mention them in their Grutter brief. 
Although the United States discusses percentage plans most extensively in 
its Grutter brief, none of the States cited by the United States utilize 
percentage plans for their graduate schools.

Percentage plans are also unavailable in states with few minority high 
school students. They are not available in states in which high schools are 
not segregated by race or too segregated by race. They are not available in 
national universities that draw from all over the country rather than from 
applicants in a particular state. They are not available in small colleges,

http://www.abanet.org/joumal/ereport/
http://www.pacificIegal.org/view_PLFCaseDetail.asp7iIIL4


50

The district court’s finding that so-called race-neutral plans 
will not work in Michigan is not seriously challenged by 
plaintiffs and is fully supported on the record. The contrary 
suggestion by the United States, largely unsupported by fact, 
that purportedly race-neutral percentage plans will ensure 
diversity without considering race is simply wrong and should 
be rejected.

CONCLUSION

For the foregoing reasons, the judgment entered by the 
district court in favor of the University respondents should be 
affirmed on all grounds, and the judgment entered by the 
district court with respect to intervenors’ claims should be 
reversed, or alternatively vacated as moot.

particularly those that are highly selective. See Brief fo r  Amici Amherst 
College et al., Gratz v. Bollinger (No. 02-516) They will not work for 
Native Americans, who are too few in numbers to be adequately 
represented in such a plan (see Cir. App. 1965-67). Finally, percentage 
plans reward students who take less challenging courses or transfer to less 
challenging schools, thus potentially resulting in the potential admission of 
unqualified students (Cir. App. 1193).



Respectfully submitted,

C hristopher  A. Hansen 
E. V incent  W arren  
A m erican  C ivil 
L iberties Union  
Foundation  

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

Brent  E. Simmons 
ACLU F und  of  M ichigan  
300 S. Capitol Avenue 
Lansing, MI 48901 
(517)371-5140

M ichael  J. Steinberg  
ACLU Fund  of M ichigan  
60 West Hancock Street 
Detroit, MI 48226 
(313)578-6814

A ntonia  Hernandez 
President and General 

Counsel 
T homas Saenz 
Patricia  Mendoza  
V ictor  V iramontes 
M exican  American  

Legal  D efense and 
Education  Fund 

634 South Spring Street 
11th FI.

Los Angeles, CA 90014
(213) 629-2512

Ela in e  R. J ones 
Director-Counsel 

^Theodore  M. Shaw  
N orm an  J. C hachkin  
James L. C ott 
M elissa  S. W oods 
NAACP Leg a l  Defen se  

and  Educa tio n al  
Fu n d , In c .

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

G odfrey  J. D illa rd  
M ilto n  R. Hen ry  
Reg in a ld  M. T urner  
C itizens F or 
Affirm a tiv e  A c t io n ’s 
Preservation  

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

*Counsel o f  Record

Attorneys fo r  Patterson Respondents

Dated: February 18, 2003