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No. _____

___________________________________________

In The
Supreme Court of United States

_________________________

JENNIFER GRATZ AND PATRICK HAMACHER,
                                        Petitioners,
v.

LEE BOLLINGER, JAMES J. DUDERSTADT,
AND THE BOARD OF REGENTS OF THE
UNIVERSITY OF MICHIGAN,
                                        Respondents.

_________________________

On Petition For Writ Of Certiorari Before Judgment
To The United States Court Of Appeals
For The Sixth Circuit

___________________________________________

PETITION FOR WRIT OF CERTIORARI

___________________________________________

MICHAEL E. ROSMAN
HANS BADER
CENTER FOR INDIVIDUAL
RIGHTS
Suite 300
1233 20th Street N.W.
Washington, D.C. 20036
(202) 833-8400

KERRY L. MORGAN
PENTIUK, COUVREUR
& KOBILJAK, P.C.
Suite 230, Superior Place
20300 Superior Street
Taylor, Michigan 48180
(734) 374-8930
DAVID F. HERR
Counsel of Record
KIRK O. KOLBO
R. LAWRENCE PURDY
MICHAEL C. MCCARTHY
KAI H. RICHTER
MASLON EDELMAN BORMAN
& BRAND, LLP
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota
55402-4140
(612) 672-8200


i

QUESTIONS PRESENTED

1.   Does the University of Michigan’s use of racial
preferences in undergraduate admissions violate the
Equal Protection Clause of the Fourteenth Amendment,
Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d),
or 42 U.S.C. § 1981?

2.   Did the district court correctly dismiss the plain-
tiff class’s claim for injunctive relief with respect to the
University of Michigan’s use of racial preferences in
undergraduate admissions?

3.   Did the individual defendants violate the clearly
established legal rights of plaintiffs, so that they are not
entitled to summary judgment on the ground of qualified
immunity?



ii

PARTIES TO THE PROCEEDING

Petitioners are Jennifer Gratz and Patrick Hamacher.
They are plaintiffs in the District Court and appellants in
the Court of Appeals. They bring this action on their own
behalf and petitioner Hamacher also brings it on behalf of
a certified class of similarly situated persons.

Respondents are Lee Bollinger, James J. Duderstadt,
and The Board of Regents of the University of Michigan.
They were defendants in the District Court and appellees
in the Court of Appeals.

The following additional respondents were defendant-
intervenors in the District Court and appellants in the
Court of Appeals:

Ebony Patterson, Ruben Martinez, Laurent
Crenshaw, Karla R. Williams, Larry Brown, Tif-
fany Hall, Kristen M.J. Harris, Michael Smith,
Khyla Craine, Nyah Carmichael, Shanna
Dubose, Ebony Davis, Nicole Brewer, Karla Har-
lin, Brian Harris, Katrina Gipson, Candice B.N.
Reynolds, by and through their parents or
guardians, Denise Patterson, Moises Martinez,
Larry Crenshaw, Harry J. Williams, Patricia
Swan-Brown, Karen A. McDonald, Linda A. Har-
ris, Deanna A. Smith, Alice Brennan, Ivy Rene
Carmichael, Sarah L. Dubose, Inger Davis, Bar-
bara Dawson, Roy D. Harlin, Wyatt G. Harris,
George C. Gipson, Shawn R. Reynolds, and Citi-
zens for Affirmative Action’s Preservation


iii

TABLE OF CONTENTS

                                                                                Page

Questions presented ................................................... i
Parties to the proceeding............................................ ii
Table of authorities..................................................... v
Petition for writ of certiorari...................................... 1
Opinions below ........................................................... 1
Jurisdiction................................................................. 1
Constitutional and statutory provisions involved ..... 1
Statement of the case ................................................. 2

  1. Factual background ......................................... 3
    1. Plaintiffs .................................................... 3
    2. The university’s admissions policies and
      practices .................................................... 5
      1. Admissions policies for 1995-1997 ...... 6
      2. Admissions policies for 1998-2000 ...... 8
  2. Proceedings below............................................ 10
    1. The district court ....................................... 10
    2. The court of appeals .................................. 12

Reasons for granting the writ .................................... 14

  1. This Court should exercise its power to grant
    review before judgment ................................... 14
  2. The Bakke case ................................................. 17
  3. The lower courts are divided............................ 20
  4. This case presents important issues of fundamental
    national importance ........................ 24
Conclusion .................................................................. 30



iv

TABLE OF CONTENTS — Continued

                                                                                Page

APPENDIX
DISTRICT COURT OPINIONS,
ORDERS, AND JUDGMENTS

Contents of Appendix
Appendix A (Opinion) (December 13, 2000) ...................... 1a
Appendix B (Order) (January 30, 2001).......................... 56a
Appendix C (Order) (February 9, 2001) .......................... 60a
Appendix D (Judgment) (February 9, 2001) ................... 63a
Appendix E (Opinion) (February 26, 2001)..................... 66a
Appendix F (Order) (February 26, 2001) ........................ 91a
Appendix G (Order) (March 21, 2001)............................. 95a

SIXTH CIRCUIT ORDERS

Appendix H (Order) (October 19, 2001) ........................ 100a
Appendix I (Order) (November 16, 2001)...................... 103a

DISTRICT COURT EXHIBIT

Appendix J (Joint Summary of Undisputed Facts
Regarding Admissions Process) (December 13,
2000)............................................................................ 106a



v

TABLE OF AUTHORITIES

                                                                                Page

CASES:

Aaron v. Cooper, 357 U.S. 566 (1958)................................ 16

Adarand Constructors, Inc. v. Pena, 515 U.S. 200
(1995) ........................................................................ 20, 25

Alexander v. Sandoval, 532 U.S. 275 (2001)..................... 20

Bob Jones Univ. v. United States, 461 U.S. 574
(1983) .............................................................................. 28

Bolling v. Sharpe, 344 U.S. 873 (1952) ............................. 15

Brown v. Board of Educ., 347 U.S. 483 (1954).................. 28

Brown v. Board of Educ., 344 U.S. 1 (1952)...................... 15

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.
283 (1982) ....................................................................... 29

City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989) .................................................................. 21, 25, 26

Eisenberg v. Montgomery County Pub. Schs., 197
F.3d 123 (4th Cir. 1999), cert. denied, 529 U.S.
1019 (2000) ..................................................................... 22

Greene v. McElroy, 360 U.S. 474 (1959) ............................ 15

Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002),
petition for cert. filed, 71 U.S.L.W. 3154 (August
9, 2002) (02-241) ......................................................passim

Grutter v. Bollinger, 247 F.3d 631 (6th Cir. 2001) ............ 13

Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999) ............ 10

Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000) ..........11, 21

Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert.
denied,
518 U.S. 1033 (1996) ....................................11, 21



vi

TABLE OF AUTHORITIES — Continued

                                                                                Page

Johnson v. Board of Regents of Univ. of Georgia,
263 F.3d 1234 (11th Cir. 2001)..................... 21, 22, 23, 26

Lutheran Church — Missouri Synod v. FCC, 141
F.3d 344 (D.C. Cir. 1998) .......................................... 22, 27

Marks v. United States, 430 U.S. 188 (1977) .........11, 21, 22

McNamara v. City of Chicago, 138 F.3d 1219 (7th
Cir.), cert. denied, 525 U.S. 981 (1998).......................... 22

Palmore v. Sidoti, 466 U.S. 429 (1984).............................. 25

Porter v. Dicken, 328 U.S. 252 (1946)................................ 15

Porter v. Lee, 328 U.S. 246 (1946)...................................... 15

Regents of the Univ. of California v. Bakke, 438 U.S.
265 (1978) ................................................................passim

Runyon v. McCrary, 427 U.S. 160 (1976) .......................... 28

Shaw v. Hunt, 517 U.S. 899 (1996) ................................... 21

Smith v. University of Washington Law Sch., 233
F.3d 1188 (9th Cir. 2000), cert. denied, 532 U.S.
1051 (2001) ................................................................11, 22

Taxman v. Board of Educ., 91 F.3d 1547 (3rd Cir.
1996), cert. granted, 521 U.S. 1117, appeal dismissed
per stipulation,
522 U.S. 1010 (1997)................ 22

Taylor v. McElroy, 358 U.S. 918 (1958)............................. 15

Tuttle v. Arlington County Sch. Bd., 195 F.3d 698
(4th Cir. 1999)........................................................... 22, 23

United States v. Clinton, 524 U.S. 912 (1998) .................. 17

United States v. Nixon, 418 U.S. 683 (1974) ....................... 1



vii

TABLE OF AUTHORITIES — Continued

                                                                                Page

Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998) ..... 22, 27

Wygant v. Jackson Bd. of Educ., 476 U.S. 267
(1986) .................................................................. 21, 25, 26

STATUTES:

28 U.S.C. § 1254(1)............................................................... 1

28 U.S.C. § 1291 ................................................................. 12

28 U.S.C. § 1292 ........................................................... 10, 12

42 U.S.C. § 1981 ....................................................... 2, 10, 28

42 U.S.C. § 1983 ........................................................2, 10, 11

42 U.S.C. § 2000d ............................................... 1, 10, 17, 28

COURT RULES:

Federal Rule of Civil Procedure 23(b)(2)........................... 10

Federal Rule of Civil Procedure 54(b) ....................10, 11, 12

Supreme Court Rule 11................................ 2, 14, 15, 16, 17



1

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari
before judgment to review a decision of a United States
District Court for the Eastern District of Michigan. The
decision of the District Court is presently pending in the
United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the District Court (App. at 1a) for
which this petition is filed is reported at 122 F. Supp. 2d
811 (E.D. Mich. 2000). The decision of the District Court
with respect to the arguments of the intervenors in this
case (App. at 66a) is reported at 135 F. Supp. 2d 790 (E.D.
Mich. 2001).

JURISDICTION

The District Court entered its order on January 30,
2001, and a judgment on February 9, 2001. The case is
docketed in the court of appeals as Nos. 01-1333, 01-1416,
01-1418, and 01-1438. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1). Under 28 U.S.C.
§ 1254(1), this Court may grant a petition for a writ of
certiorari to review any case that is “in” the court of appeals,
even if a final judgment has not been entered by that court.
United States v. Nixon, 418 U.S. 683, 692 (1974).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

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

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

No person in the United States shall, on the
grounds of race, color, or national origin, be ex-
cluded from participation in, be denied the benefits


2

of, or be subjected to discrimination under any
program or activity receiving Federal financial
assistance.

3.   42 U.S.C. § 1981(a) states:

All persons within the jurisdiction of the United
States shall have the same right in every State
and Territory to make and enforce contracts, . . .
and to the full and equal benefit of all laws and
proceedings for the security of person and property.
. . .

4.   42 U.S.C. § 1983 states:

Every person who, under color of any statute, or-
dinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any
citizen of the United States or other person
within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in eq-
uity, or other proper proceeding for redress.

STATEMENT OF THE CASE

Petitioners request this Court to exercise its power
and discretion under Rule 11 of its rules to grant a writ of
certiorari before judgment to the United States Court of
Appeals for the Sixth Circuit, which has not yet entered
judgment on an appeal of this case pending before it. The
case presents questions about what constitutes a compel-
ling interest that may justify a state-supported university
to give race-based preferences in student admissions to
applicants from certain racial or ethnic groups. The
district court resolved this issue by concluding that diver-
sity is a compelling interest. The appeal of the case was
heard by the Sixth Circuit, sitting en banc, on the same
day (December 6, 2001) that it heard Grutter v. Bollinger,
288 F.3d 732 (6th Cir. 2002), petition for cert. filed, 71
U.S.L.W. 3154 (August 9, 2002) (No. 02-241), which
involves similar claims made against the University of
Michigan Law School. Although the Sixth Circuit had



3

ruled that the appeals of the cases would be expedited (see
discussion infra at 13 & n.2), it has issued an opinion (filed
on May 14, 2002) in Grutter only, in which it ruled, among
other things, that diversity is a compelling interest justify-
ing the use of racial preferences in university admissions.
The Fifth, Ninth, Eleventh, and Sixth Circuits have split
on this issue of profound national importance.

The case presents additional questions concerning
what constitutes appropriate “narrow tailoring” of an
admissions policy designed to achieve diversity; whether
the district court correctly dismissed the plaintiff class’s
claim for an injunction; and whether the individual defen-
dants were entitled to summary judgment on grounds of
qualified immunity. The district court, although invalidat-
ing the University’s racial preferences at issue for the
years prior to, and for one year after the commencement
of, the action (1995-1998), summarily dismissed the
plaintiff class’s request for injunctive relief in its entirety.
It also upheld large, rigid, mechanical racial preferences in
effect in 1999 and at the time of the district court’s ruling
in December 2000. The district court’s conclusion that the
later policies met narrow-tailoring requirements conflicts
sharply with the approach to narrow tailoring taken by
this Court and by other lower courts.

FACTUAL BACKGROUND

  1. Plaintiffs

Plaintiffs Jennifer Gratz and Patrick Hamacher
applied for admission to the University of Michigan’s
College of Literature, Science & the Arts (hereinafter
“University” or “LSA”) for the fall academic terms that
commenced in 1995 and 1997, respectively. App. at 109a.1

___________________
1/       Many of the statements of facts contained in the petition herein are
based on a “Joint Summary of Undisputed Facts” that was submitted by
the parties to the district court and that is included in the appendix at App.
106a-118a. Additional citations herein are to documents contained in the
(Continued on following page)
Joint Appendix (“JA”) filed by the parties in the Sixth Circuit, or to
record materials contained in the Lodging (“Lodg.”) filed contemporaneously
with this petition.



4

Both Gratz and Hamacher were initially placed on a “wait-
list” for admission, and were subsequently denied admission.
They are both white and at all material times were
residents of the state of Michigan. Id.

Ms. Gratz applied with a 3.8 high school grade point
average and an ACT score of 25. JA at 543. She was
notified by letter dated January 19, 1995, that the LSA
had “delayed” a final decision on her application until
early to mid-April. App. at 109a.

By letter dated April 24, 1995, the University wrote to
inform Ms. Gratz that it was unable to offer her admission.
Id. The University invited Ms. Gratz to place her
name on an “extended waiting list,” but went on to state
that it “expect[ed] to take very few students from the
extended waiting list,” and “recommend[ed] students make
alternative plans to attend another institution.” Id. Ms.
Gratz did so by accepting an offer for admission into the
freshman class of another institution, the University of
Michigan at Dearborn, where she enrolled in the fall of
1995 and graduated in 1999. Id.

Plaintiff Patrick Hamacher applied in 1996 for admis-
sion into the fall 1997 freshman class of the LSA. Id. He
had a 3.32 high school grade point average and a 28 ACT
score. JA at 280-95. By letter dated November 19, 1996,
the University informed Mr. Hamacher that it “must
postpone” a decision on his application until “mid-April.”
App. at 109a.

On or about April 8, 1997, the University informed
Mr. Hamacher that after further review, it was unable to
offer him admission to the LSA. Id. at 109a-110a. As a
result of the denial, Mr. Hamacher accepted admission



5

into another institution, Michigan State University, where
he enrolled in the fall of 1997 and graduated in 2001.

  1. The University’s Admissions Policies and
    Practices

Defendants admit that they use race as a factor in
making admissions decisions and that the race of plaintiffs
Gratz and Hamacher was not a factor that “enhanced” the
consideration of their applications. JA at 151. The Univer-
sity and LSA are the recipients of federal funds. Id.

Defendants justify the use of race as a factor in the
admissions process on one ground only: that it serves a
“compelling interest in achieving diversity among its
student body.” Id. at 314. Admission to the LSA is selec-
tive, meaning that many more students apply each year
than can be admitted, and the University rejects many
qualified applicants. App. at 108a. Defendants, however,
have a policy to admit all qualified applicants who are
members of one of three select racial minority groups —
African American, Hispanic, and Native American —
(which defendants often refer to as “underrepresented”
groups):

[M]inority guidelines are set to admit all students
who qualify and meet the standards set by
the unit liaison with each academic unit, while
majority guidelines are set to manage the num-
ber of admissions granted to satisfy the various
targets set by the colleges and schools.
. . . .

. . . Thus, the significant difference between our
evaluation of underrepresented minority groups
and majority students is the difference between
meeting qualifications to predict graduation
rather than selecting qualified students one over
another due to the large applicant pool.

Lodg. at L.2, L.5. Defendants acknowledge that their
consideration of race in the admissions process has the
effect of admitting virtually every qualified applicant from
any of the designated underrepresented minority groups.



6

App. at 111a. The University generally defines a “quali-
fied” applicant as one who could be expected, on the basis
of the information contained in his or her application, to
achieve passing grades as a student in the school to which
the applicant has applied for admission. JA at 331.

           
  1. Admissions Policies for 1995-1997

Written “Guidelines” for all LSA classes commencing
in 1995, 1996, and 1997 have in common the use of grids
or tables that are divided into cells representing different
combinations of small ranges of adjusted high school grade
point averages and scores on ACT or SAT tests. App. at
111a-113a, 115a; Lodg. at L.8-11, L.17-18, L.25-26. The
grade point averages are adjusted first by clerical employ-
ees and second by admissions counselors. App. at 111a-
112a. The adjustments made by the admission counselors
are based on application of separate written “SCUGA”
guidelines, which result in a score on a four-point scale
(“GPA 2”) that is represented in the tables for each year.
Id. The SCUGA guidelines call for addition or subtraction
of points based on the quality of an applicant’s high school
(“S”), strength of curriculum (“C”), unusual circumstances
(“U”), geographic factors (“G”), and alumni relationships
(“A”). App. at 111a-112a; Lodg. at L.12-15, L.20-23, L.28-
31.

Each cell in the Guidelines tables includes one or
more possible actions for consideration by the admissions
counselor reviewing an applicant’s file. Generally, the
Guidelines actions fall into one of the following categories:
admission, rejection, delay (e.g., for more information) or
postpone (“wait-list” due to limited available spaces). The
Guidelines for applicants in 1995 (which included Jennifer
Gratz) had four separate tables, one for each of the follow-
ing groups of applicants: in-state non-minority students;
out-of-state non-minority students; in-state minority
students; and out-of-state minority students. App. at 112a;
Lodg. at L.8-11. For applicants for the 1996 and 1997
classes (which included Patrick Hamacher), there were
two tables — for in-state and out-of-state applicants — and



7

minority and non-minority action codes are provided for
separately in each of the individual cells, with the top row
of the cell representing the Guidelines action for nonminority
students and the bottom two rows for minority
applicants and disadvantaged or other students desig-
nated as underrepresented. App. at 112a-115a; Lodg. at
L.17-18, L.25-26. The addition of a new “SCUGA” factor
for underrepresented minority status in 1997 had another
consequence: underrepresented minorities, solely based on
their race,
had one-half point (.5) added to their grade
point average calculation used in the already discrimina-
tory Guidelines tables. App. at 115a; Lodg. at L.30.

The Guidelines establish that admissions decisions for
non-minorities are generally more selective, requiring
higher GPA 2 and test scores for admission, than admis-
sion decisions for minority applicants. Id. at L.8-11, L.17-
18, L.25-26. In some cases, the Guidelines called for
automatic rejection based on low grades or test scores;
underrepresented minorities, however, were never rejected
automatically. JA at 329, 338, 358.

In the case of Jennifer Gratz, her adjusted high school
grade point average (“GPA 2”) of 3.8 and ACT score of 25
placed her in a cell that called for a “postpone” on the first
review under the 1995 Guidelines, which was the first
action taken with respect to her. JA at 543; App. at 109a;
Lodg. at L.8. For a minority applicant (in-state or out-of-
state) with the same combination of “GPA 2” and test
score, the Guidelines called for a decision to “Admit.” Id. at
L.10-11.

Patrick Hamacher had an adjusted grade point
average (“Selection Index”) of 3.0 and an ACT score of 28,
which placed him in a cell in the 1997 Guidelines that
called for postponement of non-minority students and
delay or admission of minority students (whose Selection
Index was augmented by .5 for race). JA at 280-95, 544;
App. at 109a-110a; Lodg. at L.25.

The admissions data show that the two-track guide-
lines had their intended effect. Given comparable grades
and test scores, the rates of admission for students from



8

the “underrepresented” racial and ethnic groups are
generally much higher than the rates for students from
the disfavored racial and ethnic groups. In 1995, for
example, students whose grades and test scores placed
them in the same “grid” as Jennifer Gratz had an admis-
sion rate of 100% (46/46), id. at L.61, while the rate of
admission for students from other races and ethnicities in
these grids was less than one in three (378/121), id. at
L.62. The data show that the admission rates for “under-
represented” minorities within a given grid are often 90%
to 100%, while the rates for students from other races in
the same grids are usually far lower. Id. at L.61-66.

  1. Admissions Policies for 1998-2000

The LSA Guidelines for fall 1998 freshman enroll-
ments (adopted after commencement of the lawsuit)
dispensed with the tables and cells used in prior years.
The new guidelines used a “Selection Index” calculated on
a variety of factors and scored on a scale of up to 150
points. App. at 116a; Lodg. at L.36-40. For example, the
1998 Guidelines actions to be taken on an application are
divided linearly as follows: 100 to 150 points (admit); 95-
99 points (admit or postpone); 90-94 points (postpone or
admit); 75-89 points (delay or postpone); 74 points and
below (delay or reject). App. at 116a; Lodg. at L.32-35.

The factors used to calculate an applicant’s “Selection
Index” under the 1998 Guidelines are similar to factors
used in prior years. Up to 80 points can be based on high
school grade point average (e.g., 40 points for a 2.0 GPA;
60 points for a 3.0; and 80 points for a 4.0). App. at 116a;
Lodg. at L.36-40. Up to 12 points, representing a perfect
ACT/SAT score, can be earned for performance on either of
the two standardized tests; up to 10 points for quality of
school; from 8 to -4 points for strength or weakness of high
school curriculum; 10 points for in-state residency; 4
points for alumni relationships; 1 point for an outstanding
essay (changed to 3 points beginning in 1999); and 5 points
for personal achievement or leadership on the national
level. Under a “miscellaneous” category, 20 points are added



9

for one of several factors, including an applicant’s mem-
bership in an underrepresented racial or ethnic minority
group. App. at 116a; Lodg. at L.39-40.

The University adopted the 1998 Guidelines with the
intent to admit and enroll the same composition of class as
had been admitted and enrolled under the previous
Guidelines. In adopting the 1998 Guidelines, defendants
did not intend to increase or decrease from prior years the
extent to which they considered race and ethnicity in the
admissions process. The parties have stipulated that the
change from the tables to the selection index did not
constitute a substantive change in the way that race and
ethnicity were considered in the admissions process. App.
at 116a. Defendants continued to use the 150-point Selec-
tion Index system for years 1999 and 2000 (the year the
district court heard the motions for summary judgment).
Id. at 117a; Lodg. at L.41-60.

For years 1995-1998, defendants admitted all qualified
applicants from the “underrepresented” minority
groups as soon as possible, without deferring or postponing
(waitlisting) their applications. App. at 113a. Students
from other racial groups, like Jennifer Gratz and Patrick
Hamacher, could have their applications deferred or
postponed. Beginning in 1999, defendants abandoned their
approach of “immediately” admitting all qualified under-
represented minority students. Instead, admissions
counselors were permitted to “flag” for later consideration
a file that fell into certain established classifications. Id. at
117a. One of those classifications consisted of qualified
underrepresented minority students meeting a designated
selection index score. Id.

For years 1995-1998, defendants also “reserved” or
“protected” spaces in the class for members of certain
groups of students, including students from one of the
three underrepresented minority groups. Id. at 114a-115a.
According to defendants, “as applicants from a particular
group are admitted over the course of the admissions
season, the protected spaces reserved for that group are
used.” JA at 310, 319. If the pool of qualified applicants



10

from these underrepresented minority groups never
reached the number of “protected spaces,” those slots
“opened up” and could be filled by students who were not
members of one of the underrepresented racial groups. Id.

PROCEEDINGS BELOW

  1. The District Court

This action commenced in October 1997. The Com-
plaint alleged that defendants operated an admissions
system that illegally discriminated on the basis of race in
violation of 42 U.S.C. §§ 1981, 1983, and 2000d. JA at 40-
42. Plaintiffs sought, among other things, declaratory and
injunctive relief, and damages. Id. at 41-42.

The district court certified a class of plaintiffs, pursu-
ant to Federal Rule of Civil Procedure 23(b)(2), in an
opinion and order filed December 23, 1998. The interve-
nors were made parties to this case following an order of
the Sixth Circuit reversing the district court’s order
denying intervention. See Grutter v. Bollinger, 188 F.3d
394 (6th Cir. 1999) (reversing orders denying intervention
in both Gratz and Grutter).

The district court heard the parties’ motions for sum-
mary judgment on November 16, 2000. In an opinion filed
on December 13, 2000, and order filed on January 30, 2001,
the district court granted plaintiffs’ motion for partial
summary judgment with respect to declaring defendants’
admissions system for years 1995-1998 unlawful, App. at
43a-48a; granted defendants’ motion for summary judgment
with respect to their 1999 and 2000 admissions systems
and plaintiffs’ claim for injunctive relief, id. at 34a-43a;
granted the motion of defendants Bollinger and Duderstadt
for summary judgment on grounds of qualified immunity,
id. at 48a-50a; and denied defendant Board of Regents’
motion for summary judgment on grounds of Eleventh
Amendment immunity, id. at 50a-54a. The January 30,
2001, Order also included a certification pursuant to 28
U.S.C. § 1292(b). Id. at 58a. On February 9, 2001, the
district court entered an order under Federal Rule of Civil



11

Procedure 54(b) for entry of judgment with respect to the
Section 1983 claims against the individual defendants, id.
at 60a-62a; and a judgment to that effect was entered on
the same day, id. at 63a-64a. In a separate opinion filed on
February 26, 2001, id. at 66a, and order filed on March 21,
2001, id. at 95a, the district court rejected the arguments of
the intervening defendants for justifying the defendants’
racial preferences.

In its December 13, 2000, opinion, the district court
concluded that diversity was a compelling interest. Id. at
14a-32a. It did not expressly state that Justice Powell’s
diversity rationale in Regents of the University of Califor-
nia v. Bakke,
438 U.S. 265 (1978), constituted the ration-
ale for the holding of this Court in that case. See Hopwood
v. Texas,
236 F.3d 256, 275 n.69 (5th Cir. 2000) (“Although
decided contrary to Hopwood II, [78 F.3d 932 (5th Cir.
1996), cert. denied, 518 U.S. 1033 (1996)], with respect to
the constitutional validity of the diversity rationale, Gratz
is nevertheless consistent with our position that the
Hopwood II panel was neither constrained to accept, nor
required to reject, diversity as a compelling state interest
under binding Supreme Court precedent”). In fact, the
district court stated that it did “not necessarily agree with
the Ninth Circuit’s conclusion [in Smith v. University of
Washington, Law Sch.,
233 F.3d 1188 (9th Cir. 2000), cert.
denied,
532 U.S. 1051 (2001)] that Justice Powell’s” analysis
was the “narrowest” rationale for the holding of this Court by
application of the analysis approved in Marks v. United
States,
430 U.S. 188, 193 (1977). App. at 17a. Nonetheless,
the district court added that it “reache[d] the same ultimate
conclusion as the Ninth Circuit, i.e., that under Bakke,
diversity constitutes a compelling governmental interest in
the context of higher education justifying the use of race
as one factor in the admissions process, albeit through
somewhat different reasoning.” App. at 17a.

The district court held that the admissions policies for
years 1995-1998 were not narrowly tailored, id. at 43a-
48a, but that the policies in effect in 1999 and 2000 (when
the motions for summary judgment were argued) were
narrowly tailored, id. at 34-43a. It reached this bifurcated



12

result by concluding that there were substantive differ-
ences in the policies for these two time periods. The
conclusion contradicted the parties’ stipulated fact that the
substance of defendants’ consideration of race had not
changed over these years. Id. at 116a.

Although the district court ruled the 1995-1998
admissions systems unlawful, it neither enjoined their
use, as plaintiffs had sought, nor explained why an injunc-
tion was not appropriate. To the contrary, it granted
defendants’ motion for summary judgment with respect to
the claims for an injunction. Finally, although the district
court concluded that it was “clear” that the 1995-1998
admissions systems were the functional equivalent of a
quota and “ran afoul of Justice Powell’s opinion in Bakke,”
it dismissed plaintiffs’ Section 1983 claims on qualified
immunity grounds. Id. at 48a-50a.

  1. The Court of Appeals

There were four separate appeals taken to the Sixth
Circuit from the decisions of the district court. The district
court had entered an order dated January 30, 2001, which
both effectuated the decisions made in the December 13,
2000, opinion and made the necessary findings pursuant to
28 U.S.C. § 1292(b). Defendants filed a petition, and plain-
tiffs filed a cross-petition, seeking permission to appeal
from the January 30, 2001, order. The Sixth Circuit granted
both requests for permission to appeal by order dated
March 26, 2001. The two appeals were docketed in the court
of appeals as appeal numbers 01-1416, and 01-1418.

Plaintiffs also filed as a matter of right, pursuant to
28 U.S.C. § 1292(a), an appeal from the district court’s
summary judgment dismissing the plaintiff class’s request
for injunctive relief. In the same appeal, plaintiffs sought
review as a matter of right, pursuant to 28 U.S.C. § 1291,
of the district court’s final judgment (for which it had
directed entry pursuant to Rule 54(b)) dismissing their
claims against the individual defendants in their individ-
ual capacities on grounds of “qualified immunity.” This
appeal was docketed as appeal number 01-1333.



13

The fourth appeal was filed by the intervenors with
respect to the decision of the district court rejecting the
intervenors’ proffered justifications for the University’s use
of racial preferences in admissions. This appeal was
docketed as appeal number 01-1438.

On April 2, 2001, defendants in this case and Grutter
v. Bollinger
moved to consolidate the two cases and expe-
dite the appeals. Defendants cited both the need for clear
instructions concerning their own admissions practices
and the national significance of the issues as reasons to
expedite both appeals.2 On May 11, 2001, plaintiff filed a
petition for initial hearing en banc of this case and Grutter
v. Bollinger.

On August 28, 2001, the Sixth Circuit issued an order
scheduling the case for oral argument on October 23, 2001,
the same date that the court separately scheduled Grutter
v. Bollinger
for oral argument. On October 19, 2001 (four
days before the scheduled panel argument), the court
issued an order granting the petition for initial hearing en
banc and rescheduling the oral argument in both cases for
December 6, 2001. The order is contained in the appendix
at App. 100a and is reported at 277 F.3d 803.

On May 14, 2002, the Sixth Circuit issued its 5-4
decision in Grutter v. Bollinger, 288 F.3d 732, 757 (6th Cir.
2002), petition for cert. filed, 71 U.S.L.W. 3154 (August 9,
2002) (No. 02-241). The court held that “diversity” was
a compelling interest as a matter of law under the ration-
ale articulated solely by Justice Powell in Bakke. Id. at

___________________
2/       Although the Sixth Circuit did not directly address these motions
with respect to the two cases, it subsequently issued orders referring to
the two cases as “consolidated.” App. at 101a; id. at 104a. It also
ordered the appeal in Grutter v. Bollinger “expedited,” see Grutter v.
Bollinger, 247 F.3d 631, 633 (6th Cir. 2001), and twice subsequently
scheduled oral argument of the two cases for the same day. See also
Grutter v. Bollinger, 288 F.3d 732, 757 (6th Cir. 2002) (Moore, J.,
concurring) (“[T]he chief judge ordered that the appeals in Grutter and
Gratz be expedited.”), petition for cert. filed, 71 U.S.L.W. 3154 (August
9, 2002) (No. 02-241).



14

739-42. The Sixth Circuit also held that the law school’s
use of racial preferences was narrowly tailored to achieve
the objective of diversity. Id. at 744-52. The plaintiff in
that case has petitioned this Court for a writ of certiorari.
See Docket No. 02-241

The May 14, 2002, opinion in Grutter noted that the
Sixth Circuit would separately render its decision in this
case in a “forthcoming” opinion. See Grutter v. Bollinger,
288 F.3d at 735 n.2. As of the date of filing of this petition,
the Sixth Circuit has not issued its opinion in this case.

REASONS FOR GRANTING THE WRIT

  1. This Court Should Exercise Its Power to
    Grant Review Before Judgment.

Rule 11 of this Court’s rules provide that a writ of
certiorari before judgment in a case pending in a court of
appeals will be granted “only upon a showing that the case
is of such imperative public importance as to justify the
deviation from normal appellate practice and to require
immediate settlement in this Court.” For several reasons,
the circumstances of this case make it appropriate for
granting such early review.

First, the case presents issues of fundamental national
importance. See discussion infra at 24-30. It con-
cerns important constitutional and civil rights, and the
resolution of these issues will almost certainly have effects
that extend far beyond the parties to the case.

Second, this Court has before it a petition for certio-
rari filed on August 9, 2002, in Grutter v. Bollinger, which
seeks review of a decision by the same court of appeals in
which this case is pending, which involves many of the



15

same parties,3 and which presents issues that are in many
respects identical or very similar to those raised in this
case. There are, however, also differences between the two
cases. Among other things, a comparison of the cases
shows how racial preferences can take different forms,
while inflicting the same kinds of harm. While each case
itself is separately worthy of this Court’s review, the two
cases considered together will present the Court with a
broader spectrum and more substantial record within
which to consider and rule upon the common principles
that they involve than if only one case is considered, or if
they are resolved separately and at different times or in
different terms. In a number of cases, this Court has found
it appropriate to grant review before judgment when
another similar case has already been accepted for review
by the Court. For example, in considering a petition for
certiorari in Brown v. Board of Education, 344 U.S. 1, 3
(1952), the Court took judicial notice of a similar case
pending in the court of appeals and invited the filing of a
petition for review in that case, id. at 3, which was subse-
quently granted, see Bolling v. Sharpe, 344 U.S. 873
(1952). See also Taylor v. McElroy, 358 U.S. 918 (1958)
(certiorari granted before judgment “because of the pend-
ency here” of another case, Greene v. McElroy, 360 U.S.
474 (1959), which involved the same important constitu-
tional issues and which was pending in the same court of
appeals); Porter v. Dicken, 328 U.S. 252, 254 (1946) (certio-
rari granted before judgment “by reason of the close
relationship of the important question raised to the
question presented” in a case for which the Court had
already granted certiorari, Porter v. Lee, 328 U.S. 246
(1946)).

___________________
3/       The Board of Regents of the University of Michigan and Lee
Bollinger, formerly president of the University and prior to that dean of
its law school, are defendants in both the Gratz and Grutter cases.



16

Third, the absence of a decision from the Sixth Circuit
in this case should make no difference on the common
principal issues related to compelling-interest and narrow-
tailoring analyses raised by the two cases. The Sixth
Circuit decided the first issue as a matter of law in Grutter
v. Bollinger,
288 F.3d at 738-44 (holding diversity to be a
compelling interest). Presumably, in eventually deciding
this case, the Sixth Circuit would follow its own recent
precedent as to those issues. Accordingly, this Court
already has for evaluation the reasoning of the Sixth
Circuit on compelling-interest analysis. As to narrow-
tailoring, the Sixth Circuit has also already laid out its
analytical approach to the issue. Id. at 744-52.

The sharp division in the lower courts (see discussion
infra at 20-24) has itself created circumstances whereby
the various competing arguments on compelling interest
and narrow tailoring have been fully developed. These
considerations, plus the circumstance that the district
court decided the case on summary judgment, subjecting it
to de novo review by this Court and the Sixth Circuit,
militate against waiting for a decision from the Sixth
Circuit. This is particularly true given the benefits of
having the cases considered together.

Fourth, the effect on members of the class caused by
the Sixth Circuit’s delay is also a consideration that
weighs in favor of granting review at this time. Because
the University starts making admissions decisions in the
fall for the class to be enrolled in the following fall, inac-
tion by the Sixth Circuit has already meant that many
members of the class now applying for admission will
compete for scarce admissions spots under a race-based
dual system. Although it is unknown when the Sixth
Circuit would eventually render a decision in this case, the
delay that has already occurred — nearly ten months since
the case was argued and over nineteen months since the
appeal was filed — is incompatible with the time-sensitive
nature of the admissions process (and with the Sixth
Circuit’s ruling (see discussion supra at 13 & n.2) that
the appeal would be expedited). See Aaron v. Cooper, 357
U.S. 566, 567 (1958) (denying petition for review before



17

judgment in school admissions case where belief expressed
that court of appeals would “recognize the vital importance
of the time element in this litigation” and would act “in
ample time to permit arrangements to be made for the
next school year”). Cf. United States v. Clinton, 524 U.S.
912 (1998) (denying petition for review before judgment
while noting that “[i]t is assumed the Court of Appeals will
proceed expeditiously to decide this case”).

Finally, granting review at this time will not deny the
Court the time to reflect adequately on the important
issues at stake. The petition has been filed in time to
permit, if it is granted, briefing on the merits in the
normal course and consideration by this Court during the
2002 term. Moreover, if the Court grants review in Grutter
v. Bollinger,
the two cases could, at the Court’s direction,
be briefed on the merits under a simultaneous schedule,
argued on the same day, and decided during the same
term.

Although this Court rarely exercises its power to
grant review before judgment, this is one of the rare cases
where the Court should grant the petition before judg-
ment.

II.   The Bakke Case

This Court has not directly addressed the issue of
permissible race-conscious admissions policies in higher
education since it did so nearly twenty-five years ago in
Regents of the University of California v. Bakke, 438 U.S.
265 (1978). In Bakke, this Court found that the admissions
program of the University of California Medical School at
Davis, which set aside 16% of the places in the class for
educationally or economically disadvantaged minorities,
violated Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d. Five Justices, including Justice Powell, held that
the Davis program unlawfully considered race in the
admissions process.

Another group of five Justices, also including Justice
Powell, reversed the judgment of the California Supreme



18

Court enjoining Davis from using race as a factor in
admissions under any circumstances. In this conclusion,
Justice Powell was joined by Justice Brennan, who wrote
an opinion joined by Justices Blackmun, Marshall, and
White that would have upheld the Davis admissions
system.

Justice Powell, applying strict scrutiny to the Davis
program, concluded that academic freedom, although not a
specifically enumerated Constitutional right, was a “spe-
cial concern” of the First Amendment and thus a suffi-
ciently compelling interest to meet strict scrutiny. Bakke,
438 U.S. at 312 (Powell, J.). “Academic freedom” included
the freedom to determine who would be allowed to study
at a state university. Id.

While rejecting the argument that Davis’s specific
program of reserving spaces for disadvantaged minorities
was necessary to achieve the robust exchange of ideas that
the Regents allegedly wanted, Justice Powell did state
that race and ethnicity could be considered as “plus”
factors by universities seeking to achieve that goal. He
cited to the text of the so-called “Harvard plan,” which he
said would pass constitutional muster under his approach.
Id. at 316-18.

Justice Powell specifically disapproved of an admis-
sions system that reserved a specified number of spaces in
the class for members of particular minority groups or that
operated “as a cover for the functional equivalent of a
quota system.” Id. at 315, 318. He found that the Davis
“dual admission” or “two-track” system, id. at 314-15, in
which a number of seats in the medical school class were
reserved on the basis of an “explicit racial classification,”
id. at 319, violated the Equal Protection Clause, id. at 319-
20.

Although Justice Brennan seemingly rejected “strict
scrutiny,” Bakke, 438 U.S. at 357 (Brennan, J.), he bor-
rowed a scrutiny level from gender-discrimination cases
that he characterized as “strict and searching.” Id. at 362.
Specifically, he required the use of race to serve important



19

governmental objectives and to be substantially related to
achieving those objectives. Id. at 359.

Justice Brennan concluded that the Davis program
met his “strict and searching” scrutiny analysis because
remedying the effects of past societal discrimination was a
sufficiently important governmental objective, and be-
cause the Davis program was, in his view, substantially
related to achieving that objective. In reaching the latter
conclusion, Justice Brennan stated that remedies for past
discrimination need not be limited to victims identified by
specific proof, but that they should be limited to those
“within a general class of persons likely to have been the
victims of discrimination.” Id. at 363. In finding that the
Davis program met that requirement, Justice Brennan
emphasized:

[T]he Davis admissions program does not simply
equate minority status with disadvantage.
Rather, Davis considers on an individual basis
each applicant’s personal history to determine
whether he or she has likely been disadvantaged
by racial discrimination. The record makes clear
that only minority applicants likely to have been
isolated from the mainstream of American life
are considered in the special program; other minority
applicants are eligible only through the
regular admissions program.
Id. at 377. Cf. id. at 275 n.4 (Powell, J.) (the admissions
chairman would confirm “disadvantage” of individual
applicants).4

Justice Brennan did not mention or endorse the
“academic freedom” or “diversity” rationale of Justice
Powell. He did state that something like the “Harvard

___________________
4/       Indeed, that is how Justice Brennan viewed the “Harvard plan” —
an admissions system that “openly and successfully employs a racial
criterion for the purpose of ensuring that some of the scarce places in
institutions of higher education are allocated to disadvantaged minority
students.” Bakke, 438 U.S. at 379 (Brennan, J.) (emphasis added).



20

plan” would be “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 of past dis-
crimination.”
Id. at 326 n.1 (Brennan, J.) (emphasis
added). While recognizing that no one opinion spoke for
the Court, Justice Brennan purported to describe the
“central meaning” of the various opinions without any
reference to the “academic freedom” or “diversity” ration-
ales:

Government may take race into account when it
acts not to demean or insult any racial group, but
to remedy disadvantages cast on minorities by
past racial prejudice,
at least when appropriate
findings have been made by judicial, legislative,
or administrative bodies with competence to act
in this area.
Id. at 325 (emphasis added).

In the only part of Justice Powell’s Equal Protection
analysis that was joined by Justice Brennan, Part V-C,
nothing was said, much less endorsed, about justifying
racial preferences on grounds of diversity or academic
freedom. Id. at 320 (Powell, J.).

III.   The Lower Courts Are Divided.

Aside from Justice Powell’s opinion in Bakke, the
opinions of this Court have never before or since addressed
whether diversity or academic freedom are compelling
interests justifying racial preferences in university admis-
sions. Subsequent opinions have included comment on the
fractured nature of the Bakke opinions. See Adarand
Constructors, Inc. v. Pena,
515 U.S. 200, 218 (1995)
(“Bakke did not produce an opinion for the Court.”); Alex-
ander v. Sandoval,
532 U.S. 275, 308 n.15 (2001) (Stevens,
J., dissenting) (The five Justices in Bakke who voted to
overturn the injunction imposed by the lower courts
“divided over the application of the Equal Protection
Clause — and by extension Title VI — to affirmative action
cases. Therefore, it is somewhat strange to treat the
opinions of those five Justices in Bakke as constituting a



21

majority for any particular substantive interpretation of
Title VI”).

In other contexts, this Court’s more recent decisions
have recognized only one interest as sufficiently compel-
ling to justify racial classifications: remedying past,
identified discrimination. Shaw v. Hunt, 517 U.S. 899
(1996) (voting rights and redistricting). It has expressed
disapproval of recognizing as “compelling” interests that
are “amorphous” and that have “no logical stopping point.”
City of Richmond v. J. A. Croson Co., 488 U.S. 469, 498-99
(1989) (O’Connor, J.); (citing and quoting Wygant v. Jack-
son Bd. of Educ.,
476 U.S. 267, 275 (1986) (plurality
opinion)); id. at 520 (Scalia, J.).

Not surprisingly, then, the lower courts have strug-
gled and disagreed about whether academic freedom or
diversity are interests that can justify racial preferences in
student admissions. The Fifth and Eleventh Circuits have
held that Justice Powell’s opinion in Bakke with respect to
diversity did not constitute a rationale for the holding of
the Court. In Hopwood v. Texas, 78 F.3d 932 (5th Cir.),
cert. denied, 518 U.S. 1033 (1996), the Fifth Circuit deter-
mined that Justice Powell spoke for no other Justice
concerning diversity, and that Justice Brennan had implic-
itly rejected diversity as a compelling governmental
interest. Id. at 944. See also Hopwood v. Texas, 236 F.3d
256, 274-75 (5th Cir. 2000) (Wiener, Stewart, JJ.). Con-
cluding that this Court’s precedents had not resolved
whether diversity was a compelling interest, the Fifth
Circuit analyzed the question and determined that it was
not. Hopwood, 78 F.3d at 945-46.

The Eleventh Circuit, in a case involving a challenge
to racial preferences in admissions at the University of
Georgia, reviewed the opinions in Bakke and determined
that the Marks analysis did not support a conclusion that
Justice Powell’s opinion concerning diversity was the
holding of the Court. Johnson v. Board of Regents of Univ.
of Georgia,
263 F.3d 1234, 1247-49, 1254-64 (11th Cir.



22

2001). Ultimately, the Eleventh Circuit concluded that
whether diversity was a compelling interest was an “open
question,” but that it need not be decided in the case
before it because the University of Georgia’s racial prefer-
ences under review were not narrowly tailored to achieve
an interest in diversity. Id. at 1250, 1254-64.

In contrast, the Sixth and Ninth Circuits have con-
cluded that Justice Powell’s opinion with respect to diver-
sity constitutes the rationale for the holding of the Court
in Bakke through application of the Marks analysis.
Grutter v. Bollinger, 288 F.3d at 738-44; Smith v. Univer-
sity of Washington Law Sch.,
233 F.3d 1188 (9th Cir. 2000),
cert. denied, 532 U.S. 1051 (2001).

Other courts of appeals have noted expressly or
implicitly that this Court has not resolved whether diver-
sity is a compelling interest. Eisenberg v. Montgomery
County Pub. Schs.,
197 F.3d 123, 130 (4th Cir. 1999)
(elementary school student admissions) (“whether diver-
sity is a compelling governmental interest remains unre-
solved”), cert. denied, 529 U.S. 1019 (2000); Tuttle v.
Arlington County Sch. Bd.,
195 F.3d 698, 704-05 (4th Cir.
1999) (same); Wessmann v. Gittens, 160 F.3d 790, 796 (1st
Cir. 1998) (middle school student admissions) (“[W]e need
not definitively resolve this conundrum [whether diversity
is compelling] today.”). Cf. Taxman v. Board of Educ., 91
F.3d 1547, 1563-64 (3rd Cir. 1996) (holding that “[w]hile
the benefits flowing from diversity in the education con-
text are significant indeed,” they did not satisfy require-
ments for use of racial preferences under Title VII), cert.
granted,
521 U.S. 1117, appeal dismissed per stipulation,
522 U.S. 1010 (1997); McNamara v. City of Chicago, 138
F.3d 1219, 1222 (7th Cir.) (preferences in employment)
(“whether [non-remedial] justifications are possible is
unsettled”), cert. denied, 525 U.S. 981 (1998); Lutheran
Church — Missouri Synod v. FCC,
141 F.3d 344, 354-56
(D.C. Cir. 1998) (rejecting racial diversity as a compelling
interest justifying racial preferences in the award of
broadcast licenses).



23

The district court’s narrow-tailoring analysis with
respect to the 1999-2000 admissions policies also diverges
from the approach taken by other circuits. In upholding an
admissions system that mechanically grants a large, fixed
racial preference to all members of specified racial minori-
ties, the decision is inconsistent with the results in other
cases. For example, the Eleventh Circuit considered and
struck down on narrow-tailoring grounds an admissions
system at the University of Georgia that was in many ways
comparable to the system at issue here. See Johnson v.
Board of Regents of the Univ. of Georgia,
263 F.3d at 1254-61.

Justice Powell made clear that a race-based “two-
track” admissions system, or one that amounted to the
“functional equivalent of a quota system” would be illegal.
Bakke, 438 U.S. at 316, 319 (Powell, J.). The district court
failed to address or explain how the mechanical, rigid, 20-
point preference granted by the defendants to all members
of specified racial minorities was “functionally” any differ-
ent from a quota system. See Tuttle v. Arlington County
Sch. Bd.,
195 F.3d at 707 (“Although the Policy does not
explicitly set aside spots solely for certain minorities, it
has practically the same result by skewing the odds of
selection in favor of certain minorities.”).

The district court openly acknowledged that the
diversity interest was a permanent one, and yet it did not
find this incompatible with the traditional narrow-
tailoring requirement that race-conscious remedies be
temporary. App. at 26a. Finally, on the questions of the
availability of race-neutral alternatives and the indefinite
duration of the preferences, the district court’s approach
was much less rigorous than that employed by other
courts. See, e.g., Tuttle, 195 F.3d at 706; Johnson v. Board
of Regents of Univ. of Georgia,
263 F.3d at 1261; id. at
1254 (“We have held that only as a ‘last resort’ may race be
used in awarding valuable public benefits. . . . That princi-
ple applies equally to the university admissions process.”).

Quite demonstrably, the lower courts are fractured
in their understanding about whether diversity is a
compelling interest; whether Justice Powell’s rationale



24

articulating the diversity interest is controlling; and even
on what Justice Powell meant when he discussed what he
considered to be the permissible scope of the use of race as
a factor in admissions decisions. Many questions cry out
for resolution. If universities may select the racial groups
to which they give preferences based on “underrepresenta-
tion” of these groups in the student body, how is diversity
different in practice from objectives of simple racial bal-
ancing? If achieving diversity is a compelling interest
sufficient to justify racial preferences in education because
of the beneficial effects of obtaining diverse viewpoints,
what limiting principle prevents diversity from justifying
racial preferences in other areas of life where diverse
viewpoints may also be beneficial, like jury selection or
employment in positions with responsibility for manage-
ment or creation of public policy?

If Justice Powell’s articulation of the diversity ration-
ale is held to be controlling, then what constitutes the
“functional equivalent” of a quota, which his rationale
forbids? Is a mechanical, point-based system that auto-
matically awards points to some students solely because of
their race or ethnicity consistent with the requirements of
narrow tailoring? Is such a system just a “plus” system
involving no “facial” intent to discriminate, with “good
faith” presumed, Bakke, 438 U.S. at 318-19 (Powell, J.)?
May a college or university have dual admissions stan-
dards, whereby all members of some races are admitted if
they meet minimum qualifications, while students from
other races are required to compete for admission even
though they meet the same minimum qualifications? May
a “plus” for race be of any size or substance, so long as the
language of a “quota” or “set aside” is avoided? Do tradi-
tional factors associated with narrow tailoring, such as the
requirement that preferences be temporary, have no
application to the diversity rationale?

IV.   This Case Presents Issues of Fundamental Na-
tional Importance.

There can be no serious doubt that the case presents
(as does Grutter v. Bollinger, in which a petition for



25

certiorari is pending (02-241)), an issue of great national
importance. At the most fundamental level the question it
raises is whether our Nation’s principles of equal protec-
tion and non-discrimination mean the same thing for
people of all races. This Court has said in the past that it
does. See, e.g., Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 222 (1995) (standard of review for racial classifi-
cations is the same for all races). But the proposition is
tested again by this case, and especially by the justifica-
tions for unequal treatment put forth by the University
and intervenors.

The University of Michigan employs, formally and
functionally, a race-based two-track admissions system. It
is a quota system more egregious than the one at issue in
Bakke because the University’s preferences have the
purpose and effect of admitting all qualified applicants
from the select minority groups, while requiring qualified
students from other racial groups to compete based on the
limited number of spaces in the class; in Bakke, the quota
was limited to 16% of the spaces in the class, and only
disadvantaged applicants from the minority groups could
be considered for the reserved seats. Bakke, 438 U.S. at
274-75.

It is a measure of how formless, standardless, arbi-
trary, and unlimited in scope the diversity rationale is or
has become that the University puts it forward in defend-
ing the quota system at issue here. To uphold a quota
system like the University’s on the basis of Justice Pow-
ell’s opinion in Bakke is either to mock the opinion or to
demonstrate how meaningless it has been rendered.
Justice Powell did, after all, vote with four other Justices
to strike down the system at issue in Bakke.

This Court has rejected as compelling certain inter-
ests that indisputably are good and important, like reme-
dying the lingering effects of societal discrimination and
promoting role models for school children. City of Rich-
mond v. J.A. Croson Co.,
488 U.S. 469, 470 (1989); Wygant
v. Jackson Bd. of Educ.,
476 U.S. 267, 275-77 (1986)
(plurality opinion). Cf. Palmore v. Sidoti, 466 U.S. 429, 433



26

(1984) (consideration of “best interests” of child is a sub-
stantial governmental interest, but cannot justify consid-
eration of race in making custody determinations). There
may be many reasons why an interest is not sufficiently
compelling to withstand the strict scrutiny to which all
racial classifications must be subjected, but among them
certainly are that an interest is by its nature poorly
defined, without reasonably ascertainable or objective
standards or scope, or “ageless in [its] reach into the past,
and timeless in [its] ability to affect the future.” Wygant,
476 U.S. at 276 (plurality opinion).

The diversity rationale articulated by the University
and accepted by the district court is one that “could be
used to ‘justify’ race-based decisionmaking essentially
limitless in scope and duration.” J.A. Croson Co., 488 U.S.
at 498 (O’Connor, J.) (quoting Wygant, 476 U.S. at 276
(plurality opinion)). It has “no logical stopping point.” J.A.
Croson Co.,
488 U.S. at 498. Indeed, an interest founded
on “underrepresentation” could quite readily justify
measures that extend until minority representation in the
classroom “mirrors the percentage of minorities in the
population as a whole.” Id. It is a rationale that gives
essentially unchecked authority to admissions officers to
define what “diversity” or “critical mass” mean; which
racial and ethnic groups, among many, are to be consid-
ered “underrepresented” or are to receive preferences; the
size of the preferences or “plus”; and their duration.

So defined, such an interest is at least as ill-defined
and “amorphous” as an interest founded on remedying the
lingering effects of societal discrimination or fostering role
models for school children. Wygant, 476 U.S. at 276 (plu-
rality opinion). See also Johnson v. Board of Regents of
Univ. of Georgia,
263 F.3d 1234, 1250 (11th Cir. 2001)
(noting that interest in student diversity is “similar” to
other interests rejected as compelling, including remedy-
ing effects of societal discrimination and providing role
models).

Enshrined as a compelling interest, diversity will
instead give the Nation, as the district court’s opinion



27

foreshadows, its first permanent legal justification for
racial classifications. App. at 26a. That justification,
despite the language or label applied, will be one that is
indistinguishable from an interest in simple racial balanc-
ing. See Lutheran Church — Missouri Synod v. FCC, 141
F.3d 344, 356 (D.C. Cir. 1998) (noting “how much burden
the term ‘diversity’ has been asked to bear in the latter
part of the 20th Century” and that “[it] appears to have
been coined both as a permanent justification for policies
seeking racial proportionality in all walks of life (‘affirma-
tive action’ has only a temporary remedial connotation)
and as a synonym for proportional representation itself”);
Wessmann v. Gittens, 160 F.3d 790, 799 (1st Cir. 1998)
(“Underrepresentation is merely racial balancing in
disguise — another way of suggesting that there may be
optimal proportions for the representation of races and
ethnic groups in institutions.”)

The absence of a limiting principle in the diversity
rationale also raises the serious specter that it cannot
logically be confined to the higher education context. The
University and some of its amici have sometimes justified
diversity in education based on the segregated lives that
students allegedly live prior to entering higher education
and by the benefits that supposedly stay with students
after they have graduated and joined the workforce.

If diversity is compelling in part because of what goes
on before and after students enter higher education and
because it is an antidote to societal discrimination and
prejudice, it is hard to imagine why it should not also be
sufficiently compelling to support racial preferences in
other areas of American life. That is especially so — if it is
deemed that racial diversity brings viewpoint diversity —
where it can be persuasively argued that having “diverse”
viewpoints is beneficial. The possibilities are numerous,
including primary and secondary education, employment
in management or public policy positions, and jury selec-
tion. Although this case does not directly raise these other
issues, the answer (and the reasons for the answer) to
whether diversity is a compelling interest in higher



28

education are likely to have important implications outside
the higher education context.

There is also a qualitative difference between using
race to remedy past, identified instances of governmental
discrimination and using it instead to achieve “diversity.”
When race is used in a narrowly-tailored manner to
remedy past, identified discrimination, it is arguably done
to right a specific wrong; to further the principle of equal-
ity by correcting injury done to the principle in defined
instances. When, however, race is used to pursue an open-
ended objective like “diversity,” it is used in spite of the
principle of equality to further an interest in — diversity.
Covering the diversity rationale with arguments about
“academic freedom” does not offer it legitimacy under the
Constitution or the Nation’s civil rights laws: This Court
has never held that educational institutions have a First
Amendment right to practice race discrimination in
admissions. Such a conclusion would be anathema to the
outcome and principles articulated in cases like Brown v.
Board of Educ.,
347 U.S. 483 (1954); Runyon v. McCrary,
427 U.S. 160, 175-77 (1976) (striking down admissions
system that discriminated on the basis of race despite First
Amendment rights asserted by school on behalf of parents),
and Bob Jones Univ. v. United States, 461 U.S. 574, 603-05
(1983) (upholding IRS revocation of tax-exempt status of
university because of its racially discriminatory admis-
sions system).

These important issues, about whether the Univer-
sity’s preferences survive strict-scrutiny review under the
Equal Protection Clause, and whether they violate federal
civil rights statutes, Title VI (42 U.S.C. § 2000d) and 42
U.S.C. § 1981, are squarely presented by the first of the
Questions Presented in the petition for certiorari. The
second and third questions relate to the appropriate
remedies for violations of the constitutional and civil
rights at issue. Because this is a class action, the rights of
many individuals other than the named plaintiffs are at
stake. Each year, thousands of students apply to defen-
dants’ University in hope of obtaining a place in the class.
If this Court finds the defendants’ use of racial preferences



29

unlawful, it should enjoin the use of those unlawful
preferences, or direct the lower courts to do so in order
that these students can compete for admission under a
lawful system.

The district court summarily dismissed petitioner’s
request for an injunction even though the district court
also found the admissions system for 1995-1998 to be
unlawful. It never explained the reasons for its grant of
summary judgment to defendants on this claim. Under
well settled principles, defendants’ voluntary cessation of
illegal activity — particularly after litigation has begun —
does not moot a claim for an injunction. City of Mesquite v.
Aladdin’s Castle, Inc.,
455 U.S. 283, 289 n.10 (1982). This
is because such belated changes imply that there is still a
danger of future violations. Moreover, defendants have
continued to defend the system found to be illegal, and
they acknowledge that their subsequent admission sys-
tems (for years 1999-2000) are not substantively different
from the illegal system. A reasonable trier of fact could use
that fact to infer a possibility of future harm as well.
Given these circumstances, there is at least a reasonable
possibility that future violations will resume or continue,
so that an injunction is necessary and appropriate; at the
very least, sufficient inferences were available to preclude
summary judgment. Moreover, if this Court finds the
defendants’ racial preferences unlawful, the lower courts
would benefit from this Court’s consideration of the proper
scope of an injunction.

Finally, an examination of the lawfulness of the
defendants’ racial preferences should include review of the
district court’s judgment in favor of the individual defen-
dants on grounds of qualified immunity. The district court
was very explicit about its conclusion with respect to the
unlawfulness of the 1995-1998 admissions policies: “It is
clear that the LSA’s system operated as the functional
equivalent of a quota and therefore, ran afoul of Justice
Powell’s opinion in Bakke.” App. at 45a (emphasis added).
Inexplicably and untenably, however, the district court
dismissed the claims for damages against the individual
defendants on grounds of qualified immunity, i.e., on a



30

theory that defendants had not violated plaintiffs’ “clearly
established rights.” Id. at 48-50. It simply cannot logically
be the case that defendants’ racial preferences were both a
“clear” instance of the “functional equivalent of a quota” in
violation of a nearly twenty-five year-old Supreme Court
case and that plaintiffs’ “clearly established” rights were
not thereby violated. If the Court accepts this case for
review, petitioner respectfully requests it to review the
district court’s decision with respect to qualified immunity.

CONCLUSION

For the foregoing reasons, Jennifer Gratz and Patrick
Hamacher respectfully request the Court to grant their
petition for certiorari before judgment.

  Respectfully submitted,
MICHAEL E. ROSMAN
HANS BADER
CENTER FOR INDIVIDUAL
RIGHTS
Suite 300
1233 20th Street N.W.
Washington, D.C. 20036
(202) 833-8400

KERRY L. MORGAN
PENTIUK, COUVREUR &
KOBILJAK, P.C.
Suite 230, Superior Place
20300 Superior Street
Taylor, Michigan 48180
(734) 374-8930
DAVID F. HERR
Counsel of Record
KIRK O. KOLBO
R. LAWRENCE PURDY
MICHAEL C. MCCARTHY
KAI H. RICHTER
MASLON EDELMAN BORMAN
& BRAND, LLP
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota
55402-4140
(612) 672-8200


Gratz briefs — Table of Contents

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