RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2002 FED App. 0170P (6th Cir.)
File Name: 02a0170p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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BARBARA GRUTTER,
Plaintiff-Appellee,
v. Nos. 01-1447/1516
LEE BOLLINGER, et al.,
Defendants-Appellants (01-1447),
KIMBERLY JAMES, et al.,
Intervening Defendants-Appellants (01-1516).
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 97-75928--Bernard A. Friedman, District Judge.
Argued: December 6, 2001
Decided and Filed: May 14, 2002
Before: MARTIN, Chief Circuit Judge; BOGGS, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: John Payton, WILMER, CUTLER & PICKERING, Washington, D.C., Miranda K.S. Massie, SCHEFF & WASHINGTON, Detroit, Michigan, for Defendants. Kirk O. Kolbo, MASLON, EDELMAN, BORMAN & BRAND, Minneapolis, Minnesota, for Plaintiff. ON BRIEF: John Payton, John H. Pickering, Craig Goldblatt, Stuart F. Delery, Robin A. Lenhardt, WILMER, CUTLER & PICKERING, Washington, D.C., Philip J. Kessler, BUTZEL LONG, Detroit, Michigan, Leonard M. Niehoff, BUTZEL LONG, Ann Arbor, Michigan, Miranda K.S. Massie, George B. Washington, Jodi-Marie Masley, SCHEFF & WASHINGTON, Detroit, Michigan, for Defendants. Kirk O. Kolbo, David F. Herr, R. Lawrence Purdy, Michael C. McCarthy, Kai H. Richter, MASLON, EDELMAN, BORMAN & BRAND, Minneapolis, Minnesota, Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Plaintiff. Rowan D. Wilson, Paul M. Dodyk, Charles J. Ha, Farah S. Brelvi, Alexandra S. Wald, Kenneth E. Lee, CRAVATH, SWAINE & MOORE, New York, New York, Martha W. Barnett, AMERICAN BAR ASSOCIATION, Chicago, Illinois, Kumiki Gibson, WILLIAMS & CONNOLLY, Washington, D.C., Neal K. Katyal, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., Martin Michaelson, HOGAN & HARTSON, Washington, D.C., Thomas J. Henderson, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., John S. Skilton, HELLER, EHRMAN, WHITE & McAULIFFE, Washington, D.C., Kenneth S. Geller, Eileen Penner, MAYER, BROWN & PLATT, Washington, D.C., Martha F. Davis, Spenta R. Cama, NOW LEGAL DEFENSE AND EDUCATION FUND, New York, New York, Susan I. Leffler, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, Fred G. Pressley, Jr., PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, Jeffrey S. Silver, JENNER & BLOCK, Chicago, Illlinois, Deanne E. Maynard, Shilpa S. Satoskar, David W. DeBruin, Daniel Mach, JENNER & BLOCK, Washington, D.C., Yong Lee, CAMERON & HORNBOSTEL, Washington, D.C., Catherine J. Trafton, Daniel W. Sherrick, ASSOCIATE GENERAL COUNSEL, INTERNATIONAL UNION, UAW, Detroit, Michigan, John H. Findley, PACIFIC LEGAL FOUNDATION, Sacramento, California, Keith A. Noreika, Brice M. Clagett, COVINGTON & BURLING, Washington, D.C., C. Mark Pickrell, Nashville, Tennessee, Michael K. Lee, AMBERG, FIRESTONE & LEE, Southfield, Michigan, for Amici Curiae.
MARTIN, C. J., delivered the opinion of the court, in which, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined. MOORE, J. (pp. 21-27), delivered a separate concurring opinion, in which DAUGHTREY, COLE, and CLAY, JJ., joined. CLAY, J. (pp. 28-44), delivered a separate concurring opinion, in which DAUGHTREY, MOORE, and COLE, JJ., joined. BOGGS, J. (pp. 45-89), delivered a separate dissent, in which SILER, J., joined in part, and BATCHELDER, J., joined. SILER, J. (p. 90), BATCHELDER, J. (p. 91), and GILMAN, (pp. 92-94), also delivered separate dissenting opinions.
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OPINION
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BOYCE F. MARTIN, JR., Chief Circuit Judge. Lee Bollinger, Jeffrey Lehman, Dennis Shields, the Regents of the University of Michigan and the University of Michigan Law School appeal the district court's determination that the Law School's consideration of race and ethnicity in its admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.(1) The Law School contends that its interest in achieving a diverse student body is compelling under Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and that its admissions policy is narrowly tailored to serve that interest. On appeal, the Law School is joined by the Intervenors: forty-one individuals and three student groups, United for Equality and Affirmative Action, the Coalition to Defend Affirmative Action By Any Means Necessary, and Law Students for Affirmative Action. The Intervenors offer an additional justification for the Law School's consideration of race and ethnicity - remedying past discrimination. Barbara Grutter, an unsuccessful applicant to the Law School, on behalf of herself and others similarly situated, urges us to affirm the district court's decision. For the reasons set forth below, we REVERSE the judgment of the district court.(2)
I.
The Law School drafted its admissions policy to comply with the Supreme Court's opinion in Bakke. Adopted by the full faculty in 1992, the policy states that the Law School's "goal is to admit a group of students who individually and collectively are among the most capable students applying to American law schools in a given year." It further provides that the Law School "seek[s] a mix of students with varying backgrounds and experiences who will respect and learn from each other." As part of the Law School's policy of evaluating each applicant individually, its officials read each application and factor all of the accompanying information into their decision.
In identifying applicants who can be expected to succeed academically, the Law School evaluates a composite of the applicant's Law School Admissions Test and undergraduate grade-point average. This composite can be visualized as a grid with standardized test scores on the horizontal axis and grade-point average on the vertical axis. Every combination of standardized test score and undergraduate grade-point average is shown in a cell on this grid. Each cell reports the number of applicants with that particular combination of numerical qualifications, as well as the number of offers of admission made to the applicants in that cell. Constructed in this manner, the highest combination of test scores and undergraduate grade-point averages are found in the grid's upper right-hand corner. Thus, an applicant's chance of being admitted generally increases as he or she moves into the grid's upper right-hand corner. There is no combination of grades and test scores, however, below which an applicant will automatically be denied admission, or above which admission is guaranteed.
The Law School also considers "soft" variables like the enthusiasm of the recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, residency, leadership and work experience, unique talents or interests, and the areas and difficulty of undergraduate course selection. After taking these additional "soft" variables into account, the Law School sometimes admits students with relatively low index scores. Its admissions policy describes two general varieties of students who may be admitted with such scores - (1) "students for whom [there is] good reason to be skeptical of an index score based prediction" (e.g., a student with a track record of poor standardized test performance, but who has an outstanding academic record) and (2) students who "may help achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts."
The Law School's admissions policy explains that "[t]here are many possible bases for diversity admissions." For example, the policy states that particular weight might be given to "an Olympic gold medal, a Ph.D. in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person." The policy also offers three examples of actual diversity admissions. One student was born in Bangladesh, graduated from Harvard with a 2.67 grade-point average, received "outstanding references" from his professors, had an "exceptional record of extracurricular activity," and had Law School Admission Test scores at the 46th percentile and 52nd percentile. Another was an Argentinian single mother with extensive business experience, who graduated summa cum laude from the University of Cincinnati, who was fluent in four languages, and scored at the 52nd percentile on the Law School Admission Test. The third applicant had a 3.99 grade-point average from the University of Florida, a Law School Admission Test score at the 90th percentile, and as the daughter of Greek immigrants was "immersed in a significantly ethnic home life," and fluent in three languages.
Reflecting the Law School's goal of enrolling a diverse class, its admissions policy describes "a commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." Students from such racial and ethnic groups "are particularly likely to have experiences and perspectives of special importance to our mission." Professor Richard Lempert, the chair of the faculty committee that drafted the admissions policy, explained that the Law School's commitment to such diversity was not intended as a remedy for past discrimination, but as a means of including students who may bring a different perspective to the Law School.
In considering race and ethnicity, the Law School does not set aside or reserve seats for under-represented minority students. As Dean Jeffrey Lehman testified: "We do not have a portion of the class that is set aside for a critical mass of under-represented minority students." This testimony was echoed by Dennis Shields, the Law School's former admissions director, and Erica Munzel, the current director of admissions, both of whom testified that the Law School does not strive to admit a particular percentage of under-represented minority students. The Law School does, however, consider the number of under-represented minority students, and ultimately seeks to enroll a meaningful number, or a "critical mass," of under-represented minority students. According to Director Munzel, "critical mass" is a number sufficient to enable under-represented minority students to contribute to classroom dialogue without feeling isolated. Similarly, Dean Lehman equated "critical mass" with sufficient numbers to ensure under-represented minority students do not feel isolated or like spokespersons for their race, and do not feel uncomfortable discussing issues freely based on their personal experiences. Professor Lempert and Kent Syverud, the current dean of Vanderbilt Law School and a former Michigan Law School professor, offered similar definitions of "critical mass." The Law School's witnesses also testified that "critical mass" was not a set number or percentage. Director Munzel stated that there is no number or percentage, or range of numbers or percentages, that constitute a "critical mass." Likewise, Dean Lehman stated that "critical mass" could not be fixed in terms of number or percentage.
Both the Law School and the unsuccessful applicants presented expert testimony regarding the Law School's use of race in admissions decisions. Analyzing grids of the Law School's admissions data from 1995-2000, the unsuccessful applicants' statistical expert testified that the relative odds of acceptance for Native American, African-American, Mexican-American and Puerto Rican applicants were many times greater than for Caucasian applicants and concluded that members of these groups were "given an extremely large allowance for admission."
According to the Law School's statistical expert, eliminating race as a factor in the admissions process would dramatically lower minority admissions. He predicted, for example, that if the Law School could not consider race, under-represented minority students would have constituted only 4% of the entering class in 2000, instead of the actual enrollment figure of 14.5%. Citing the experience of the University of California at Berkeley after the passage of Proposition 209, Dean Lehman echoed these predictions, testifying that he feared under-represented minority enrollment would drop to "token" levels if race and ethnicity could not be considered.
II.
This Court reviews de novo the district court's finding that the Law School's efforts to achieve a diverse student body through the consideration of race and ethnic origin is unconstitutional and violates Title VI of the Civil Rights Act of 1964. Johnson v. Econ. Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001); see also Women's Med. Prof. Corp. v. Voinovich, 130 F.3d 187, 192 (6th Cir. 1997) ("[A]n appellate court is to conduct an independent review of the record when constitutional facts are at issue."). To survive constitutional review, the Law School's consideration of race must (1) serve a compelling state interest and (2) be narrowly tailored to achieve that interest. See Adarand v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).(3)
A.
To determine whether the Law School's interest in achieving a diverse student body is compelling, we turn to Bakke. In Bakke, a fragmented Court determined that the Medical School of the University of California at Davis, which justified its race-conscious admissions program, in part, as necessary to achieve a diverse student body, could not be permanently enjoined from considering its applicants' race because "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." Id. at 320.
Two distinct opinions support Bakke's judgment on this issue: Justice Powell's opinion announcing the judgment of the Court, id. at 269-324, and Justice Brennan's opinion concurring in the judgment in part and dissenting in part, in which Justices White, Marshall, and Blackmun joined, id. at 324-79.
Applying intermediate scrutiny, the Brennan concurrence found Davis could constitutionally justify its consideration of race as an effort to remedy the effects of societal discrimination. Id. at 362. Applying strict scrutiny, Justice Powell found "the attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education." Id. at 311-312.
Justice Powell recognized that a diverse student body promotes an atmosphere of "speculation, experiment and creation" that is "essential to the quality of higher education." Id. at 312 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (Frankfurter, J. concurring)). Moreover, he noted that, by enriching students' education with a variety of perspectives, experiences, and ideas, a university with a diverse student body helps equip its students to be productive members of society. Bakke, 438 U.S. at 313 ("[I]t is not too much to say that the 'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples.") (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)). Accordingly, he concluded "the interest of diversity is compelling in the context of a university's admission program." Id. at 314.
Justice Powell's recognition of the compelling nature of the state's interest in a diverse student body was not limited to undergraduate admissions: "[E]ven at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial." Id. Quoting Sweatt v. Painter, 339 U.S. 629, 634, 70 S.Ct. 848, 94 L.Ed. 1114 (1950), he observed: "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts." Bakke, 438 U.S. at 314.
The district court did not dispute the merits of student body diversity. Rather, it acknowledged "[t]he evidence defendants submitted . . . demonstrated that the educational atmosphere at the law school is improved by the presence of students who represent the greatest possible variety of backgrounds and viewpoints." Grutter v. Bollinger, 137 F. Supp. 2d 821, 849 (E.D. Mich. 2001). Nevertheless, it held that achieving a diverse student body is not a compelling state interest because (1) it was not bound by Justice Powell's conclusion in Bakke, and (2) achieving a diverse student body cannot be a compelling state interest because the Supreme Court has suggested that the only such interest is remedying specific instances of discrimination. See id. at 847-48.
Because Justice Powell's opinion is binding on this court under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), and because Bakke remains the law until the Supreme Court instructs otherwise, we reject the district court's conclusion and find that the Law School has a compelling interest in achieving a diverse student body.(4)
1.
"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks, 430 U.S. at 193 (citation and internal punctuation omitted). In Marks, the Court interpreted its fragmented decision in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), reversing the Massachusetts Supreme Court's holding that a book depicting a prostitute's life was suppressible obscenity. Three distinct rationales supported Memoirs's judgment, each representing a different view as to the scope of First Amendment protection afforded sexually explicit expression: (1) Justices Brennan and Fortas and the Chief Justice found the book was not suppressible obscenity because it was not "utterly without redeeming social value," see id. at 419; (2) Justice Stewart found the book was not suppressible obscenity because it was not hardcore pornography, see id. at 421; and (3) Justices Black and Douglas did not reach the issue of whether the book was suppressible obscenity because they believed the First Amendment provides an absolute shield against government regulation of expression, see id. at 421, 424-28 (opinions of Black, J. and Douglas, J.). See also Marks, 430 U.S. at 194. The Marks Court determined that the Brennan plurality opinion, which provided the most limited First Amendment protection, "constituted the holding of the [Memoirs] Court and provided the governing standards" because it was the narrowest rationale for the Memoirs judgment.(5) Id. at 193-94.
The district court declined to apply the Marks analysis to Bakke because Justice Powell's rationale was not "subsumed" in that of the Brennan concurrence. See Grutter, 137 F. Supp. 2d at 847 ("There is simply no overlap between the two rationales"). Accordingly, it found that "Justice Powell's discussion of the diversity rationale is not among the governing standards to be gleaned from Bakke." Id.
The Marks Court's treatment of the divergent Memoirs rationales, however, demonstrates that the rationales supporting the Court's judgment need not overlap on essential points in order to provide a holding that binds lower courts. Indeed, if the Justices agreed on essential points, the Marks analysis would be unnecessary. Cf. Alexander v. Sandoval, 532 U.S. 275, 282, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (citing discrete portions of the opinions of Justice Powell and the Brennan concurrence for the proposition that the Bakke Court determined Title VI's coverage is coextensive with that of the Equal Protection Clause).
The Marks Court adopted the "utterly without redeeming social value" test as the Memoirs holding even though, by rejecting the possibility of suppression, Justices Black and Douglas rejected the possibility of any test for identifying suppressible obscenity. In contrast to Justices Black and Douglas in Memoirs, the Brennan concurrence did not assert that Davis's admissions program was wholly insulated from review. In fact, the Brennan concurrence agreed with Justice Powell that Davis's admissions program was subject to heightened scrutiny, see Bakke, 438 U.S. at 359 (advocating intermediate scrutiny); it expressly disagreed only with his application of strict scrutiny. Because Bakke is, if anything, more susceptible to the Marks analysis than the case examined in Marks itself, we find the district court erred in failing to analyze Bakke under Marks.
The Bakke Court addressed the permissibility of racial classifications in academic admissions programs. Under the Brennan concurrence's rationale, the more permissive intermediate scrutiny standard would apply to "benign" racial classifications. Id. Under Justice Powell's rationale, strict scrutiny would apply to all racial classifications. Id. at 304-07. Because the set of constitutionally permissible racial classifications under intermediate scrutiny by definition includes those classifications constitutionally permissible under strict scrutiny, Justice Powell's rationale would permit the most limited consideration of race; therefore, it is Bakke's narrowest rationale. Accordingly, Justice Powell's opinion constitutes Bakke's holding and provides the governing standard here.(6) See Marks, 430 U.S. at 193-94; see also Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir. 1994) ("While there is some awkwardness in attributing precedential value to an opinion of one Supreme Court justice to which no justice adhered, it is the usual practice when that is the determinative opinion."); Smith v. Univ. of Washington, 233 F.3d 1188, 1200 (9th Cir. 2000).
Because this court is bound by Justice Powell's Bakke opinion, we find that the Law School has a compelling state interest in achieving a diverse student body.
2.
Our determination that Justice Powell's diversity conclusion binds this court also finds some support in the Brennan concurrence's qualified approval of the Harvard plan in the first footnote of its opinion: "We also agree with Mr. Justice POWELL that a plan like the 'Harvard' plan . . . 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 of past discrimination." Bakke, 438 U.S. at 326 n.1 (Brennan, J., concurring) (citation omitted) (emphasis added). Under the Harvard plan, Harvard College justified its race-conscious admissions policy solely on the basis of its efforts to achieve a diverse student body. See id. at 316. Harvard's consideration of race could not be constitutional if it did not further a constitutionally permissible goal; therefore, by indicating that the Harvard plan could be constitutional under its approach, the Brennan concurrence implicitly - but unequivocally - signaled its agreement with Justice Powell's conclusion that achieving a diverse student body is a constitutionally permissible goal.(7)
Although there is no support - either within or without the footnote - for the contention that the Brennan concurrence believed that the desirability of an "integrated student body" turns on whether the consideration of race is necessary to achieve that integration, some courts have read the Harvard footnote's qualifying language, "at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination," to suggest that the Brennan concurrence implicitly rejected the goal of achieving student body diversity. See Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996).
It is a mistake, however, to read the qualifying language as a rejection of any rationale. "[A]t least so long as" simply does not mean "only if." Moreover, the qualifying language modifies when race may be used: 'at least so long as . . . necessitated by the lingering effects of past discrimination.' It does not modify why.(8) This Court cannot ignore the distinction between a constitutionally permissible goal - 'achieving an integrated student body' - and a constitutionally permissible use of race to achieve that goal - 'so long as necessitated by the lingering effects of past discrimination.' Therefore, we cannot read the Harvard footnote's qualifying language to detract from the Brennan concurrence's agreement with Justice Powell's diversity conclusion.
3.
The Court's subsequent characterization of Bakke further supports our determination that Justice Powell's conclusion is binding. See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), overruled on other grounds, Adarand, 515 U.S. at 227. In Metro Broadcasting, Justice Brennan, speaking for the Court in an opinion joined by Justices White, Blackmun, Marshall, and Stevens, 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 program may be predicated." Metro Broadcasting, 497 U.S. at 568 (quoting Bakke, 438 U.S. at 311-13 (Opinion of Powell, J.)). Metro Broadcasting's insight into Bakke's holding is persuasive authority, which this court may not ignore. See Wright v. Morris, 111 F.3d 414, 419 (6th Cir. 1997).
4.
Relying on Adarand and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), the district court found that "racial classifications are unconstitutional unless they are intended to remedy carefully documented effects of past discrimination" and therefore concluded that the Law School's interest in achieving a diverse student body "is not a compelling state interest because it is not a remedy for past discrimination." See Grutter, 137 F. Supp. 2d at 849. Because the Supreme Court alone retains the ability to overrule its decisions, we reject the district court's conclusion.
In Bakke, the Supreme Court determined that Davis - an institution that did not purport to justify its race-conscious admissions program as necessary to remedy specific past discrimination - could consider its applicants' race. See Bakke, 438 U.S. at 320. Thus, if the only constitutionally permissible reason to consider race is remedying specific past discrimination, Bakke's judgment is no longer good law. In other words, adopting the district court's conclusion that the Law School could only justify race-conscious admissions decisions as a remedy for specific past discrimination would necessitate a finding that the Supreme Court has implicitly overruled Bakke.
The Supreme Court, however, has explicitly prohibited just such a finding. See Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 138 L.Ed.2d 391 (1997). Rather, "[i]f a precedent of [the] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." Id. (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)).
Moreover, given that (1) Bakke's judgment suggests that remedying specific past discrimination cannot be the only constitutional justification for a race-conscious admissions program, and (2) institutions of higher education have been relying on Bakke for more than twenty years, see, e.g., Kenneth L. Karst & Harold W. Horowitz, The Bakke Opinions and Equal Protection Doctrine, 14 Harv. C.R.-C.L. L. Rev. 7, 7 (1979) (noting that Bakke provides a "how-to-do-it manual for the admission of minority applicants to professional schools"), we are unwilling to infer an intent to overrule Bakke - implicitly or otherwise - into the Court's Adarand decision. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 855, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (noting that the Court must consider "the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application" and suggesting that stare decisis precludes overruling a decision that cannot be overruled "without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it"); see also Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
B.
Although he found that achieving a diverse student body was a compelling interest, Justice Powell declared Davis's admissions system unconstitutional because it was not narrowly tailored. Bakke, 438 U.S. at 319-20. Davis operated a dual-track admissions system featuring a separate admissions committee and separate review process for minority applicants. Id. at 273-74. Davis also established a quota for minority students - for example, in 1974, Davis reserved sixteen spots for minority applicants. Id. at 275. According to Justice Powell, the critical defect in Davis's program was that non-minority students were "totally excluded from a specific percentage of seats in an entering class." Id. at 319.
As an example of a constitutionally permissible admissions plan, Justice Powell advanced the Harvard plan in which race or ethnicity was deemed a "plus," but did not insulate a minority applicant from comparison with other applicants. Id. at 316. Under the Harvard plan, an institution could consider the race and ethnicity of applicants, but race and ethnicity alone were not the exclusive components of academic diversity. Id. at 317. Thus, a black applicant could be "examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with . . . an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism." Id. According to Justice Powell, such qualities included "exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important." Id. The Harvard plan was "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Id. Race could "tip the balance" in an applicant's favor, but so could other factors like "geographic origin or a life spent on a farm." Id. at 316.
Above all, the Harvard plan "treat[ed] each applicant as an individual in the admissions process." Id. at 318. "The applicant who loses out on the last available seat to another candidate receiving a 'plus' on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname." Id. Rather, his denied admission "would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant." Id.
In endorsing the Harvard plan, Justice Powell accepted that a university could not provide "a truly heterogen[e]ous environment . . . without some attention to numbers." Id. at 323. As the Harvard plan detailed:
10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted. But that awareness does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that in choosing among thousands of applicants who are not only 'admissible' academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students.Id. at 323-24.
Justice Powell rejected Justice Brennan's contention that the distinction between a quota and a program that considered race and ethnicity as a potential "plus" was largely illusory. In Justice Powell's view, a "plus" program - unlike a quota - lacked a "facial intent to discriminate." Id. at 318. Emphasizing that the fine distinction between a "plus" and quota system was both discernible and constitutionally significant, Justice Powell recalled Justice Frankfurter's declaration that "'[a] boundary line is none the worse for being narrow.'" Id. (quoting McLeod v. Dilworth, 322 U.S. 327, 329, 64 S.Ct. 1023, 88 L.Ed. 1304 (1944)). Justice Powell added that "a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system." Id.; see also Johnson v. Transp. Agency, 480 U.S. 616, 656, 107 S.Ct. 1442, 94 L.E.2d 615 (1987) (O'Connor, J., concurring) (approving gender-conscious promotion where defendant "tried to look at the whole picture, the combination of [her] qualifications and [plaintiff's] qualifications, their test scores, their experience, their background, [and] affirmative action matters").
In summary, Justice Powell's opinion sets forth two guidelines regarding race-conscious admissions policies - (1) segregated, dual-track admissions systems utilizing quotas for under-represented minorities are unconstitutional; and (2) an admissions policy modeled on the Harvard plan, where race and ethnicity are considered a "plus," does not offend the Equal Protection Clause. Neither party questions the applicability of Justice Powell's opinion regarding the narrowly tailored component of strict scrutiny, and it is our view that whether the Law School's admissions policy passes constitutional muster turns on Justice Powell's opinion.(9)
1.
Drafted to comply with Bakke, the Law School's consideration of race and ethnicity does not use quotas and closely tracks the Harvard plan. Race and ethnicity, along with a range of other factors, are potential "plus" factors in a particular applicant's file, but they do not insulate an under-represented minority applicant from competition or act to foreclose competition from non-minority applicants. As part of its policy of evaluating each applicant individually, the Law School's officials read each application and factor all of the accompanying information into their decision. The Law School, like Harvard, attends to the numbers and distribution of under-represented minority applicants in an effort to ensure all of its students obtain the benefits of an academically diverse student body.
The record demonstrates that the Law School does not employ a quota for under-represented minority students. The Law School's witnesses, including the current and former admissions directors, all testified that the Law School does not reserve or set aside seats. For example, Dean Lehman testified: "We do not have a portion of the class that is set aside for a critical mass of under-represented minority students." Moreover, the Law School operates a single admissions system; there is no separate track for minority applicants insulating them from comparison with non-minority applicants. Thus, the Law School's admissions policy avoids the critical defect of the Davis admissions program.
The Law School's competitive consideration of the race and ethnicity of African-Americans, Hispanics and Native Americans closely tracks the Harvard plan. In its admission policy, quoted in Bakke, Harvard details that race is a "factor in some admissions decisions" and that "the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases." Id. at 316. Explaining the rationale behind this policy, Harvard highlighted that a "black student can usually bring something [to Harvard] that a white person cannot offer." Id. The Law School considers an applicant's race and ethnicity as a potential "plus" factor, or as Professor Lempert testified, as one element among other elements. Because race and ethnicity are a "plus," they undoubtedly "tip the balance" in some applicants' favor. Importantly, however, the Law School's consideration of race and ethnicity does not operate to insulate any prospective student from competition with any other applicants. The Law School's explanation for its consideration of race and ethnicity also mirrors the Harvard plan. According to the Law School, students from these groups "are particularly likely to have experiences and perspectives of special importance to [the Law School's] mission."
In seeking an academically diverse class, the record indicates that the Law School considers more than an applicant's race and ethnicity. In Bakke, Justice Powell stressed factors in addition to race and ethnicity that could contribute to academic diversity. See id. at 317. He cited "exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important." Id. Mirroring Justice Powell's discussion, the Law School's admissions policy states that "[t]here are many possible bases for diversity admissions" and that in evaluating "soft" variables, it considers a range of factors such as leadership, work experience, unique talents or interests and the enthusiasm of an applicant's letters of recommendation. Illustrating this range, the policy provides that particular weight might be given to "an Olympic gold medal, a Ph. D in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person."
The Law School's pursuit of a "critical mass" of under-represented minority students also tracks the Harvard plan's pursuit of a class with meaningful numbers of minority students. Explaining its attention to the numbers and distribution of minority students, Harvard emphasized that "10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States." Id. at 323. Moreover, "[t]heir small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential." Id. In defining the term "critical mass," the Law School's witnesses voiced virtually identical concerns. Director Munzel testified that "critical mass" is a number sufficient so that under-represented minority students can contribute to classroom dialogue and not feel isolated. Dean Lehman similarly equated "critical mass" with sufficient numbers to ensure under-represented minority students do not feel isolated or like spokespersons for their race, and feel comfortable discussing issues freely based on their personal experiences. Professor Lempert and Kent Syverud, the current dean of Vanderbilt Law School and a former Michigan Law School professor, offered similar explanations for the Law School's pursuit of a "critical mass" of under-represented minority students. Essentially, both the Law School's admission policy and the Harvard plan attend to the numbers of under-represented minority students to ensure that all students - minority and majority alike - will be able to enjoy the educational benefits of an academically diverse student body.
In light of the foregoing, we find that the Law School's consideration of race and ethnicity is virtually indistinguishable from the Harvard plan Justice Powell approved in Bakke.
2.
The unsuccessful applicants focus principally on the effects of the Law School's policy, contending first that the Law School's pursuit of a "critical mass" is the functional equivalent of a quota because it has resulted in a range of under-represented minority enrollment from 10%-17%. As a matter of definition, we are satisfied that the Law School's "critical mass" is not the equivalent of a quota, because unlike Davis's reservation of sixteen spots for minority candidates, the Law School has no fixed goal or target. That the Law School's pursuit of a "critical mass" has resulted in an approximate range of under-represented minority enrollment does not transform "critical mass" into a quota. Because Bakke allows institutions of higher education to pay some attention to the numbers and distribution of under-represented minority students, see id. at 316-17, over time, reliance on Bakke will always produce some percentage range of minority enrollment. And that range will always have a bottom, which, of course, can be labeled the "minimum." These results are the logical consequence of reliance on Bakke and establishment of an admissions policy, like the Harvard plan, that attends to the numbers and distribution of under-represented minority students. As such, they cannot serve as the basis for a charge that the Law School's admissions policy is unconstitutional.
In analyzing actual admissions data, the dissent tries out a variation of the unsuccessful applicants' contention and focuses only on the years 1995 through 1998. Dissenting Op. at 75 (Boggs, J.). Based on this grouping, the tightest four-year range available, the dissent concludes that the Law School seeks a "critical mass" of forty-four to forty-seven under-represented minorities per class, or "around 13.5%." But as the dissent confesses in a footnote, the rest of the picture "deviate[s] a bit." Id. at 75 n.29. From 1987 to 1994, under-represented minority enrollment was 12.3%, 13.6%, 14.3%, 13.4%, 19.1%, 19.8%, 14.5%, 20.1%, respectively. More importantly for present purposes, if we examine under-represented minority enrollment from 1993 until 1998, we see that the Law School's under-represented minority enrollment ranged from 13.5% to 20.1%. In light of (1) the overwhelming testimony by Law School professors, admissions counselors and deans that the Law School does not employ a quota or otherwise reserve seats for under-represented minority applicants and (2) Justice Powell's instruction that lower courts presume that academic institutions act in good faith in operating their "plus" programs, we simply cannot conclude that the Law School is using the "functional equivalent" of the Davis Medical School quota struck down in Bakke.
Relying on statistical evidence that under-represented minority students are admitted to the Law School with comparatively lower undergraduate grade-point averages and standardized test scores, the unsuccessful applicants also argue that the Law School considers race and ethnicity too much.(10) Although they concede that all admitted students are qualified, the unsuccessful applicants contend that this disparity evidences an unconstitutional double standard for admission of under-represented minority applicants and non-minority applicants. Upon inspection, however, the unsuccessful applicants' statistical evidence demonstrates just what one would expect a plan like the Harvard plan to demonstrate - that race and ethnicity, as "plus" factors, play an important role in some admissions decisions. As the logical result of reliance on the Harvard plan, the unsuccessful applicants' statistical evidence accordingly cannot sustain their contention that the Law School's admissions policy is unconstitutional.
In advancing the Harvard plan, Justice Powell, unfortunately, did not define or discuss a permissible "plus" with respect to the test scores and high school grades of under-represented minority Harvard applicants. And Harvard did not append a statistical comparison of minority and non-minority standardized test scores and/or grades to its admissions plan. Perhaps Harvard, in enrolling meaningful numbers of under-represented minority students, could select under-represented minority applicants with test scores or high school grades equivalent to their non-minority counterparts. And then again, perhaps Harvard grappled with some of the same admissions challenges as the Law School does today. Of course, such admissions statistics are neither in the record before us nor explicitly incorporated into Justice Powell's opinion. Under these circumstances, we cannot hold that the Law School's admissions program, which is virtually identical to the Harvard plan, would nevertheless fail Justice Powell's test for constitutionality. Without some indication that Justice Powell specifically meant to limit the consideration of race or ethnicity - as a "plus," to "tip the balance," or as a "factor in some admissions decisions" - to instances where standardized test scores or high school grade-point averages were equivalent, we cannot adopt the limited definition of "plus" urged by the dissenting opinions. See Dissenting Op. at 71-73 (Boggs, J.); Dissenting Op. at 93 (Gilman, J.). And thus, we cannot conclude that the difference, on average, between the standardized test scores and/or undergraduate grades of qualified under-represented minority students and qualified non-minority students renders the Law School's admissions policy unconstitutional.
3.
The district court relied on five factors in concluding that the Law School's consideration of race and ethnicity was not narrowly tailored: (1) the Law School did not define "critical mass" with sufficient clarity; (2) the apparent lack of a time limit on the Law School's consideration of race and ethnicity; (3) the admissions policy was "practically indistinguishable" from a quota system; (4) the Law School did not have a logical basis for considering the race and ethnicity of African-Americans, Native Americans and Puerto Ricans; (5) the Law School did not "investigate alternative means for increasing minority enrollment." Grutter, 137 F. Supp. 2d at 850-52. As a initial matter, we have serious reservations regarding the district court's consideration of five factors not found in Bakke, which, as we have stated, is the only Supreme Court case to directly address the consideration of race and ethnicity in academic admissions. Nevertheless, we are satisfied that the remaining factors relied on by the district court cannot sustain its holding.
Although not addressed in Bakke, subsequent Supreme Court opinions suggest consideration of race-neutral means is necessary to satisfy the narrowly tailored component of strict scrutiny. E.g., Croson, 488 U.S. at 507 ("In determining whether race-conscious remedies are appropriate, we look to several factors, including the efficacy of alternative remedies.") (quoting United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987)). Although the Law School's consideration of race and ethnicity differs from the racial classifications at issue in Croson, and the context of higher education differs materially from the government contracting context, see, e.g., Hopwood, 78 F.3d at 965 n.21 (Wiener, J., concurring) ("This unique context, first identified by Justice Powell, differs from the employment context, differs from the minority business set aside context, and differs from the re-districting context; it comprises only the public education context and implicates the uneasy marriage of the First and Fourteenth Amendments."), we nevertheless assess whether the Law School adequately considered race-neutral alternatives.
The district court acknowledged that the Law School introduced evidence indicating that under-represented minority students could not be enrolled in significant numbers without explicit consideration of race and ethnicity, but ruled that the Law School "fail[ed] to investigate alternative means for increasing minority enrollment." 137 F. Supp. 2d at 852. Upon examination, however, the record does indicate the Law School considered and ultimately rejected various race-neutral alternatives to the consideration of race and ethnicity. Director Munzel, former Director Shields and Dean Lehman all testified that the Law School engaged in both pre- and post- admission recruiting activities but that such activities were not enough to enroll a "critical mass" of under-represented minority students. Additionally, Professor Lempert testified regarding the lottery system, in which the Law School would lower its admissions standards, establish a numerical cut-off for "qualified" applicants, and then select randomly from among those applicants. According to Professor Lempert, such a system would admit greater numbers of non-minority students, but would not yield meaningful racial and ethnic diversity. Given the Law School's consideration of race-neutral alternatives and the evidence that "under-represented minority students cannot be enrolled in significant numbers unless their race is explicitly considered in the admissions process," we find that the Law School has adequately considered race-neutral alternatives.
The dissent proposes the Law School pursue "experiential diversity in a race-neutral manner" and characterizes such an approach as a superior alternative to the Law School's current admissions system. Dissenting Op. at 80-81 (Boggs, J.). In effect, then, the dissent proposes that the Law School only focus on its race-neutral bases of diversity admissions. But as the dissent essentially acknowledges, this proposed alternative could not possibly achieve the same robust academic diversity currently sought and obtained by the Law School. The dissent says that it is "fully willing to stipulate that race does matter in American society, and that, on average, it matters more negatively for some, if not all, of the groups favored by the Law School than it does for some, if not all disfavored by the Law School." Id. at 82. As to the impact of income, the dissent also offers to "stipulate that such impact or disadvantage is not strictly limited by present income or status." Id. Yet the dissent nevertheless proposes that the Law School ignore the influence of race and ethnicity in pursuing a broad "pluralism of ideas and experiences" and, at the same time, reassures us that the pursuit of race-neutral diversity will still somehow produce the broadest "pluralism of ideas and experiences." Id. at 81. In reality, by reducing the range of experiences the Law School can consider - namely, the experience of being an African-American, Hispanic or Native American in a society where race matters - the dissent proposes only a narrowed and inferior version of the academic diversity currently sought by the Law School.
Lastly, we note that we do not read Bakke and the Supreme Court's subsequent decisions to require the Law School to choose between meaningful racial and ethnic diversity and academic selectivity. An institution of higher education must consider race-neutral alternatives, but it need not abandon its academic mission to achieve absolute racial and ethnic neutrality. Thus, in applying strict scrutiny we cannot ignore the educational judgment and expertise of the Law School's faculty and admissions personnel regarding the efficacy of race-neutral alternatives. We are ill-equipped to ascertain which race-neutral alternatives merit which degree of consideration or which alternatives will allow an institution such as the Law School to assemble both a highly qualified and richly diverse academic class. See Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 226, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (noting that a federal court is ill-suited "to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public education institutions - decisions that require an expert evaluation of cumulative information and are not readily adapted to the procedural tools of judicial or administrative decisionmaking.") (citations and internal punctuation omitted). Mindful of both our constitutional obligations and our practical limitations, we also assume - along the lines suggested by Justice Powell - that the Law School acts in good faith in exercising its educational judgment and expertise. See Bakke, 438 U.S. at 318-19.
4.
We are not persuaded by the remaining factors that the district court relied on to invalidate the Law School's admissions policy. First, the district court's conclusion that the term "critical mass" is not sufficiently defined is at odds with the extensive record in this case, and the district court's own characterization of "critical mass" as the functional equivalent of a quota. See Grutter, 137 F. Supp. 2d at 850. Numerous law school witnesses testified regarding the meaning of the term "critical mass." For example, Dean Lehman equated "critical mass" with sufficient numbers such that under-represented minority students do not feel isolated or like spokespersons for their race, and do not feel uncomfortable discussing issues freely based on their personal experiences. We also emphasize the considerable tension between the district court's findings that "critical mass" is both insufficiently defined and the functional equivalent of a quota. In any event, the district court's apparent insistence that "critical mass" correspond with a more definite percentage is also fatally at odds with Bakke's prohibition of fixed quotas. See Bakke, 438 U.S. at 319.
Second, the district court's statement that "there is no logical basis for the law school to have chosen the particular groups which receive special attention under the admissions policy," Grutter, 137 F. Supp. 2d at 851-52, ignores both the Harvard plan and the Law School's admissions policy. The Harvard plan specifically identified "blacks and Chicanos and other minority students" among the under-represented groups that Harvard sought to enroll through its admissions policy. Bakke, 438 U.S. at 322. The Law School's similar reference to African-Americans, Hispanics and Native Americans accordingly cannot be faulted in this respect. Moreover, the policy itself supplies the logical basis for considering the race and ethnicity of these groups - without such consideration, they would probably not be represented in the Law School's student body in "meaningful numbers." As with the formulation and consideration of race-neutral alternatives, some degree of deference must be accorded to the educational judgment of the Law School in its determination of which groups to target. See Ewing, 474 U.S. at 226.
Finally, the district court's determination that the Law School's consideration of race and ethnicity lacks a definite stopping point also does not render the admissions policy unconstitutional. See Grutter, 131 F. Supp. 2d at 851. Although the district court correctly recited Adarand's directive that a race-conscious remedial program must be limited so that it "will not last longer than the discriminatory effects it is designed to eliminate," this directive does not neatly transfer to an institution of higher education's non-remedial consideration of race and ethnicity. Unlike a remedial interest, an interest in academic diversity does not have a self-contained stopping point. Indeed, an interest in academic diversity exists independently of a race-conscious admissions policy. Nevertheless, even if we were to apply a durational constraint, we are satisfied that the Law School's admissions policy sets appropriate limits on the competitive consideration of race and ethnicity. The record indicates that the Law School intends to consider race and ethnicity to achieve a diverse and robust student body only until it becomes possible to enroll a "critical mass" of under-represented minority students through race-neutral means. Thus, we are satisfied that the admissions policy is "sensit[ive] to the possibility that [it] might someday have satisfied its purpose." See Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 737 (6th Cir. 2000), cert. denied, 121 S. Ct. 1089 (2001).
III.
For the foregoing reasons, we REVERSE the judgment of the district court and VACATE its injunction prohibiting the Law School from considering race and ethnicity in its admissions decisions.
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CONCURRENCE
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KAREN NELSON MOORE, Circuit Judge, concurring. I write separately both to note my disapproval of Judge Boggs's decision to include a "Procedural Appendix" as part of his dissenting opinion and to provide an accurate account of how this case came to be argued before the present en banc court.
I.
In publishing their "Procedural Appendix," I believe that Judge Boggs and those joining his opinion have done a grave harm not only to themselves, but to this court and even to the Nation as a whole. A court's opinions state the reasons for its holdings and provide the public with the principled justifications for them. Dissenting opinions typically present principled disagreements with the majority's holding. Such disagreements over principle are perfectly legitimate and do not undermine public confidence in our ability as judges to do what we have sworn to do because, as a culture, we have long recognized that disagreements over principle are unavoidable. Given this cultural backdrop, disagreements over principle can be phrased in strong terms without damaging the court's ability to function as a decision-making institution in a democratic society. Judges criticize their colleagues' reasoning all the time, and, if they are to carry out their oaths of office, they must do so. This robust exchange of ideas sharpens the focus and improves our analysis of the legal issues.
In the present case, Judge Boggs has written a lengthy and strongly worded critique of the substance of the majority's holding in the present case. Although I disagree with his analysis and conclusions, I acknowledge his abilities as a jurist.
The final section of Judge Boggs's dissent, labeled "Procedural Appendix," however, publicizes disagreements over the internal workings of the court, which, as my colleague states, "do not directly affect the legal principles discussed in this case." Given that these procedural matters are, at best, peripheral to the matter at hand, the only reason that "it is important that they be placed in the record" is to declare publicly the dissent's unfounded assertion that the majority's decision today is the result of political maneuvering and manipulation. The baseless argument of the "Procedural Appendix" is that the decisions of this court are not grounded in principle and reasoned argument, but in power,(1) and that the judges of this court manipulate and ignore the rules in order to advance political agendas. I am saddened that Judge Boggs and those joining his opinion believe these things. But, more importantly, I am concerned that my dissenting colleagues' actions will severely undermine public confidence in this court. Cf. Memphis Planned Parenthood, Inc. v. Sundquist, 184 F.3d 600, 608 (6th Cir. 1999) (Batchelder, J., separate statement on denial of rehearing en banc) ("Our dissenting colleague's own purposes may be furthered by publicly impugning the integrity of his colleagues. Collegiality, cooperation and the court's decision-making process clearly are not. And public confidence in the judicial system and in this court clearly are not.").
Because we judges are unelected and serve during good behavior, our only source of democratic legitimacy is the perception that we engage in principled decision-making. See Planned Parenthood v. Casey, 505 U.S. 833, 865-66 (1992). This perception is based both in the reality of our practice -- I believe that my colleagues, all of them, strive to decide cases in a principled manner -- and in the presentation of our decisions to the public in written opinions.
The decisions of this court are not self-executing but instead must be carried into practice by other actors. They will do so only as long as they regard us as legitimate, as we possess neither the purse nor the sword, but only judgment. For this reason, we are often described as the weakest branch, but a court without purse, sword, or legitimacy would be weaker still. This is not to argue that protecting the relative strength of the judicial branch should be our primary concern. Indeed, we have all sworn to uphold the Constitution, and the Nation needs a strong judiciary to check the occasional excesses of the other branches and, more importantly, to preserve the rule of law.
Our ability to perform these crucial tasks is imperiled when members of this court take it upon themselves to "expose to public view" disagreements over procedure. The damage done by such exposés is, at least in part, the responsibility of those who report them, despite the efforts of Judge Boggs and those joining his opinion to disclaim responsibility for their own conduct. It is understandable, however, that they do so, as their conduct in the present case is nothing short of shameful.
II.
With great reluctance, I find myself forced to respond to Judge Boggs's inaccurate and misleading account of the procedural facts underlying the present case.(2) As discussed in Part I of this opinion, I firmly believe that matters of internal court procedure should not be exposed to public view. But when one is attacked in the way that the members of the majority have been attacked, it is necessary to present an accurate account of the events in question; to fail to do so would create the impression that Judge Boggs's assertions are, in fact, correct.
Judge Boggs and those joining his opinion have numerous complaints regarding the procedures that were followed in the present case. In the end, however, their chief complaint is that the present case has been decided by a nine-judge en banc court ("the particular decision-making body that has . . . decided [the case]") rather than an eleven-judge en banc court, and that the members of the hearing panel originally assigned this case (Chief Judge Martin, Judge Daughtrey, and myself) purposefully engineered this result. A number of Judge Boggs's unfounded assertions involve the May 14, 2001 petition for initial en banc hearing filed by Barbara Grutter. Judge Boggs repeatedly asserts that the "preselected" hearing panel withheld this petition from the other members of the court until after Judges Norris and Suhrheinrich took senior status, on July 1 and August 15, 2001, respectively.
The Sixth Circuit's private docket, however, indicates that the May 14 petition for hearing en banc was first referred to the hearing panel on August 23, 2001, and it was not received by the panel until several days thereafter.(3) By August 23, both Judges Norris and Suhrheinrich had taken senior status. Even if the hearing panel had taken immediate action to circulate the en banc petition to the whole court on that date, the case would have been heard by the same en banc court that in fact heard it on December 6, 2001. The record simply does not support any other conclusion on this point. Similarly, the June 4, 2001 order holding the en banc petition in abeyance was also referred to the hearing panel in August 2001. Thus, Judge Boggs's claim that the June 4 order was not circulated to the en banc court, on June 4, is true, as far as it goes, but misleading, because that order was not circulated to any judges at that time, including the hearing panel. This ministerial order was signed by the clerk of the court and was not issued as a result of any action by the hearing panel.
In addition, Judge Boggs's assertion that the hearing panel violated the rules or internal operating procedures of the Sixth Circuit in not circulating the en banc petition to the entire court after August 23 but prior to October 15, 2001, is simply incorrect.(4) On December 5, 2000, months before the filing of the petition in the present case, Chief Judge Martin instituted a policy regarding the treatment of petitions for initial hearing en banc. This change in policy was spurred by the increasing frequency of such petitions, especially in pro se appeals. In the letter detailing the policy, the chief judge instructed that, when such a petition is filed, the clerk of the court should enter an order, such as that issued in the present case, holding the petition in abeyance until the completion of briefing, and then refer the petition to the hearing panel assigned the cases. This procedure was followed in the present case. In each case, the assigned hearing panel would then decide, as an initial matter, whether to deny the petition and proceed with the scheduled panel consideration or, if the petition raised a legitimate ground for initial hearing en banc, to circulate the petition to the rest of the court. To my knowledge, no one raised any objection to this policy when it was circulated to the court for comment and instituted in December 2000. Pursuant to this policy, the hearing panel in the present case decided, in September 2001, not to circulate the en banc petition to the entire court. Whatever the prior practice of the Sixth Circuit with respect to the circulation of petitions for initial hearing en banc, see Dissenting Op. at 86 n.43 (discussing petitions filed in the year 2000), the hearing panel in the present case was not required to circulate the May 14 en banc petition under the policy in effect in September 2001.
As Judge Boggs indicates in his dissent, an initial hearing of a case en banc is an extremely rare occurrence. See Dissenting Op. at 88 ("I have been on the court for [sixteen] years, and I do not recall an initial hearing en banc in my tenure."). Thus, the hearing panel's decision not to circulate the petition for an initial hearing en banc in the present case -- prior to the events discussed infra -- is perfectly understandable. Indeed, if the members of the hearing panel had circulated the May 14 petition in September 2001, the other members of the court would have likely voted not to hear the case initially en banc, since Judge Boggs cannot recall any other instance of such a petition having been granted in the past sixteen years. In light of this consideration, however, I do not see how the hearing panel can be faulted for not circulating the petition.
Judge Boggs also objects to the treatment of the present case as a "must panel" case, the composition of the "preselected" hearing panel, and the handling of all actions and motions related to this appeal by the "preselected" hearing panel. These objections are relatively minor, given the subsequent decision to hear the case initially en banc.(5) Indeed, this court's decision to hear the present case en banc was motivated by the concerns related to the composition of the hearing panel. These concerns were raised by Senior Circuit Judge Ralph Guy in a letter to Chief Judge Martin, which was dated October 15, 2001. The poll letter, issued by the hearing panel to the en banc court that very day, stated the following rationale for circulating the petition for hearing en banc:
Re: Petition for Initial Hearing En Banc; Request for a PollPlaintiffs Gratz and Grutter have filed a petition for initial hearing en banc in these two cases concerning the admissions policies of the University of Michigan and its law school. Pursuant to the usual court policy, this petition for initial hearing en banc was referred to the panel hearing the case. The reasons stated for initial hearing en banc were the "exceptional importance" of the case, the "inevitable conflict" with another federal circuit's opinion in view of the already conflicting decisions of the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), and 236 F.3d 256 (5th Cir. 2000), and the Ninth Circuit in Smith v. University of Washington Law Sch., 233 F.3d 1188 (9th Cir. 2000), and the need for expedited resolution.The panel that was assigned this case is Chief Judge Martin, Judge Daughtrey, and Judge Moore. The panel believed that the usual court policy referring a petition for initial hearing en banc should be followed, and that the reasons set forth for initial hearing en banc did not warrant such an initial hearing. The panel already had expedited the appeal process, the conflict between the circuits already existed, and we had not heard en banc any number of other exceptionally important cases.Because of a question that has been raised regarding the composition of the panel, the panel believes that the en banc court should vote on the petition for initial hearing en banc. Hence the petition is attached for a vote. Since the case is scheduled to be heard by the panel on Wednesday, October 23, time is of the essence in deciding whether to proceed initially en banc.Judges Daughtrey and Moore were on the initial panel in 1999 considering questions of intervention. Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999). The third judge was Judge Stafford, a Senior District Judge from the Northern District of Florida. Pursuant to our "must panel" practice, Judges Daughtrey and Moore have continued on this case. Chief Judge Martin was substituted for Judge Stafford.The panel requests that the en banc court be polled regarding the petition for initial hearing en banc.The vote for hearing en banc was seven in favor -- Chief Judge Martin, Judges Siler, Daughtrey, Moore, Cole, Clay, and Gilman -- with no votes cast against hearing en banc. Neither Judge Boggs nor Judge Batchelder voted in this matter, but, pursuant to our rules, their non-votes were in effect votes against the en banc hearing of the present case.
This court voted to hear the present case en banc in order to resolve the concerns of certain members of the court about the composition of the hearing panel. Judge Boggs and those joining his opinion now complain about the composition of the en banc court. But, as I have demonstrated supra, these complaints are without merit. Moreover, even if the "preselected" hearing panel had acted as Judge Boggs claims, which it did not, it is important to note that this did not deprive Judge Boggs and the other dissenters of the opportunity to call for initial hearing en banc on their own initiative at any time.
The internal operating procedures of this court permit any active judge to request a poll for hearing a case initially en banc, regardless of whether a party has filed a petition for hearing en banc. See 6 Cir. I.O.P. 35(c). If, then, Judges Boggs and others were concerned with the selection of the hearing panel in the present case at some point prior to October 15, 2001, there was an internal procedure by which they could have addressed those concerns. As the present appeal was filed on April 2, 2001, prompt action by Judges Boggs and the other dissenters would have resulted in an en banc hearing before a different en banc court -- or, in other words, Judge Boggs and the other dissenters could have called for an en banc hearing before the eleven-judge en banc court they now argue was deprived of this opportunity.
The simple fact of the matter is that the present case was treated as a "must panel" case as early as July 2000. In Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999), a panel consisting of Judge Daughtrey, myself, and Judge William H. Stafford, a senior district judge from the Northern District of Florida, reversed district court orders denying the motions of prospective intervenors to intervene in the present case and in its companion case, Gratz v. Bollinger. The opinion in the intervenors' case was issued on August 10, 1999. Subsequent to that decision, the defendants requested permission to appeal the district courts' certification of plaintiff classes in Grutter and Gratz, pursuant to Federal Rule of Civil Procedure 23(f). On July 10, 2000, the clerk of the court contacted Judge Daughtrey and me regarding whether those appeals (Sixth Circuit docket numbers 00-0107 and 00-0109), which were consolidated for purposes of appeal, represented a "must panel" situation. We decided that these cases did represent a "must panel" situation, where subsequent matters should be returned to the original panel due to their interrelatedness with the original matter, and these cases were transferred to a motions panel including Judge Daughtrey and myself.
At that time, Chief Judge Martin was substituted for Judge Stafford on the motions panel. Sixth Circuit rules give the active members of a panel the option of recalling the district judge or senior circuit judge from another circuit who sat on the panel previously or replacing that judge with a third Sixth Circuit judge. See 6 Cir. I.O.P. 34(b)(2). Although that rule states that the third Sixth Circuit judge should be drawn at random, Chief Judge Martin has frequently substituted himself in a variety of matters, of varying degrees of importance, throughout his tenure as chief judge, in order to avoid inconveniencing other circuit judges. Thus, it was not unusual for him to place himself on the panel in July 2000. To my knowledge, no one has objected before to Chief Judge Martin's filling of vacancies in other cases, even though his practice of doing so is a matter of common knowledge among the judges of this court.
This motions panel denied the defendants' request for permission to appeal the class certification decisions on September 26, 2000. The same motions panel also granted the parties' request for permission to file interlocutory appeals in Gratz, pursuant to 28 U.S.C. ß 1292(b), on March 26, 2001 (Sixth Circuit docket numbers 01-0102 and 01-0104).
When the appeal in the present case was filed, the defendants moved this court to stay the district court's order enjoining the Law School from considering race as a factor in admissions. The panel of Chief Judge Martin, Judge Daughtrey, and myself granted this stay in a published order on April 5, 2001 (Sixth Circuit docket number 01-1447). See Grutter v. Bollinger, 247 F.3d 631 (6th Cir. 2001). On that same date, the chief judge ordered that the appeals in Grutter and Gratz be expedited, setting August 1, 2001, as the deadline for the filing of briefs and appendices. Oral argument was set for the court's October term.
Thus, it should have been clear to the other members of the court, as of the published order of April 5, 2001, if not sooner, that the present case was being treated as a "must panel" case and that the hearing panel would consist of Chief Judge Martin, Judge Daughtrey, and myself. At any point thereafter, Judge Boggs or any other member of the en banc court -- including Judges Norris and Suhrheinrich, before they took senior status -- could have called for a poll to determine whether the case should be heard initially en banc. If there were questions regarding the composition of the hearing panel, then Judge Boggs and those joining his dissent could have raised those questions through this means at any time.
Judge Boggs and those joining his dissent did not raise these concerns in this manner, however. In fact, the dissenters themselves did not raise any complaints with the composition of the en banc court when the en banc petition was circulated, when the case was argued before the en banc court, or even in the first circulated draft of Judge Boggs's dissent. The lateness of their complaints suggests that their primary complaint is with the outcome of the present case rather than with the procedures that were followed in arriving at that outcome. But unhappiness over the outcome of the case cannot justify the dissenters' "Procedural Appendix." Judge Boggs's opinion marks a new low point in the history of the Sixth Circuit. It will irreparably damage the already strained working relationships among the judges of this court, and, as discussed in Part I supra, serve to undermine public confidence in our ability to perform our important role in American democracy. And for what reason? What purpose does the "Procedural Appendix" serve? Its author does not defend its inclusion, except to suggest that by placing his version of events in the record, some "remediation" may be "possible." Dissenting Op. at 89 n.49. Whatever "remediation" Judge Boggs may envision is properly the subject of a court meeting, but not the basis for an unprecedented "Procedural Appendix."
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CONCURRENCE
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CLAY, Circuit Judge, concurring. I concur in Chief Judge Martin's majority opinion, finding it correct and insightful in all respects. I write separately, however, for the purpose of speaking to the misrepresentations made by Judge Boggs in his dissenting opinion which unjustifiably distort and seek to cast doubt upon the majority opinion.(1)
A. Justice Powell's Opinion in Bakke remains "the Law of the Land"The dissent's many fallacies begin with its attempt to undermine the majority's holding that Justice Powell's opinion in Bakke is controlling. Indeed, now Supreme Court Justice Scalia once described Justice Powell's opinion as "the law of the land." See Antonin Scalia, Commentary, The Disease as Cure: "In order to get beyond racism, we must first take account of race.", 1979 Wash. U. L.Q. 147, 148 (1979) (speaking then as Professor Scalia on Justice Powell's opinion in Bakke). And significantly, since Bakke the Supreme Court has done nothing to render this description of Justice Powell's opinion any different. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming that "'[i]f a precedent of this Court has direct application in a case, . . . the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions'") (quoting Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)); see also Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir. 1998) (recognizing that absent a clear holding from the Supreme Court, the precedential value of Justice Powell's opinion in Bakke, that diversity is a sufficiently compelling governmental interest to justify a race-based classification, should not be disturbed, especially where various individual justices have "from time to time . . . written approvingly of ethnic diversity in comparable settings"); Mark R. Killenbeck, Pushing Things Up to Their First Principles: Reflections on the Values of Affirmative Action, 87 Cal. L. Rev. 1299, 1352 (1999) (illustrating why Justice Powell's opinion in Bakke is controlling, and why any other conclusion elevates form over substance inasmuch as Justice Brennan's opinion cannot be distinguished from Justice Powell's opinion on the basis of the level of scrutiny applied, or on any other basis) (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., concurring) (finding that "[a]lthough Justice Powell's formulation may be viewed as more stringent than that suggested by Justices Brennan, White, Marshall, and Blackmun, the disparities between the two tests do not preclude a fair measure of consensus[,]" particularly where "the distinction between a 'compelling' and an 'important' governmental purpose may be a negligible one"); Bush v. Vera, 517 U.S. 952, 1010 (1996) (Stevens, J., dissenting) (noting that "all equal protection jurisprudence might be described as a form of rational basis scrutiny; we apply 'strict scrutiny' more to describe the likelihood of success than the character of the test to be applied"); United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting) (contending that "[t]hese tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case")). One should therefore not be taken in by the dissent's many contortions to convolute and undermine the majority's holding that diversity in a student body is a recognized compelling governmental interest pursuant to Justice Powell's controlling opinion in Bakke.(2)
B. The Evidence Supports Diversity as a Compelling Governmental InterestLikewise, one should not be led astray by the dissent's contention that, Justice Powell's opinion aside, developing a diverse student body cannot serve as a compelling state interest. While criticizing the majority and implying that it is simply huddling behind Justice Powell's opinion, the dissent claims that "the majority has given us no argument as to why the engineering of a diverse student body should be a compelling state interest sufficient to satisfy strict scrutiny." In an apparent attempt to elevate itself over the majority opinion, the dissent goes on to claim that it, on the other hand, considers "the arguments on both sides of this question . . . and conclude[s] that constructing a diverse educational environment is not a compelling state interest." The dissent's claim that it considers the arguments on both sides is suspect because conspicuously absent from its consideration of the benefits of a diverse student body is any meaningful recognition of the wealth of legal scholarship - including a study involving students at the University of Michigan - speaking of, as well as documenting through empirical data, the positive impact of diversity in education, not just for the student throughout the educational journey but for years after the educational process is completed. Although the dissent criticizes this study on various points, the fact remains that the study has been hailed on many fronts.
Specifically, the major study conducted by University of Michigan Professor of Psychology and Women's Studies Patricia Gurin, encompassed a wide scale analysis of the effects of a diverse learning environment, particularly that at the University of Michigan, on a student's overall development, and included data from the Michigan Student Study, the study of Intergroup Relations, Conflict, and Community Program at the University of Michigan, and the 4-year and 9-year data on a large national sample of institutions and students from the Cooperative Institutional Research Program. See Patricia Gurin, Reports submitted on behalf of the University of Michigan: The Compelling Need for Diversity in Higher Education, 5 Mich. J. Race & Law 363, 364 (1999); see also Steven A. Holmes, A New Turn in Defense of Affirmative Action, N.Y. Times, May 11, 1999, at A1 (citing Professor Gurin's report and concluding that "the marshaling of statistical evidence of the benefits of racial diversity" distinguished the present case involving the University of Michigan from similar cases involving Universities in California and Texas inasmuch as these institutions defended their affirmative action policies with only "anecdotal evidence").
Professor Gurin's studies, and resulting statistical data, led her to conclude as follows:
A racially and ethnically diverse university student body has far-ranging and significant benefits for all students, non-minorities and minorities alike. Students learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting. In fact, patterns of racial segregation and separation historically rooted in our national life can be broken by diversity experiences in higher education. This Report describes the strong evidence supporting these conclusions derived from three parallel empirical analyses of university students, as well as from existing social science theory and research.Students come to universities at a critical stage of their development, a time during which they define themselves in relation to others and experiment with different social roles before making permanent commitments to occupations, social groups, and intimate personal relationships. In addition, for many students college is the first sustained exposure to an environment other than their communities. Higher education is especially influential when its social milieu is different from the community background from which the students come, and when it is diverse enough and complex enough to encourage intellectual experimentation. . . .Students learn more and think deeper, more complex ways in a diverse educational environment. Extensive research in social psychology demonstrates that active engagement in learning cannot be taken for granted. . . . Complex thinking occurs when people encounter a novel situation for which, by definition, they have no script, or when the environment demands more than their current scripts provide. Racial diversity in a college or university student body provides the very features that research has determined are central to producing the conscious mode of thought educators demand from their students. This is particularly true at the University of Michigan, because most of the University's students come to Ann Arbor from segregated backgrounds. For most students, then, Michigan's social diversity is new and unfamiliar, a source or multiple and different perspectives, and likely to produce contradictory expectations. Social diversity is especially likely to increase effortful, active thinking when institutions of higher education capitalize on these conditions in the classroom and provide a climate in which students from diverse backgrounds frequently interact with each other.Gurin, supra at 364-65. Professor Gurin backed these conclusions with "one of the most broad and extensive series of empirical analyses conducted on college students in relation to diversity." Id. at 365. For example, Professor Gurin examined "multi-institutional national data, the results of an extensive survey of students at the University of Michigan, and data drawn from a specific classroom program at the University of Michigan." Id. All of these studies clearly indicated that interaction with peers from diverse racial backgrounds, both in the classroom and informally, positively led to what Professor Gurin referred to as "learning outcomes." That is, "[s]tudents who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills." Id.
Professor Gurin's study also indicated that the benefits of a racially diverse student body were seen in a second major area, that being preparing students for a meaningful role in a democratic society, or what Professor Gurin called positive "democracy outcomes." Id. at 365-66. "Students educated in diverse settings are more motivated and better able to participate in an increasingly heterogeneous and complex democracy." Id. at 366. The results of Professor Gurin's empirical analysis indicated that these diversity experiences during college "had impressive effects on the extent to which graduates in the national study were living racially and ethnically integrated lives in the post-college world. Students with the most diversity experiences during college had the most cross-racial interactions five years after leaving college." Id. The analysis also indicated that "[t]he long-term pattern of racial separation noted by many social scientists can be broken by diversity experiences in higher education." Id.
Counsel for Plaintiffs in these underlying actions have been critical of Professor Gurin's study and conclusions, claiming that they do nothing to refute the contention that race plays a predominate role in the admissions process. As one legal commentator has replied to this criticism,
[t]he critical question is not, however, whether or not race, or any other arguably 'suspect' group characteristic, plays a 'predominate role' in the admissions process. It is, rather, whether there is a compelling educational justification for allowing that characteristic to enter the decision-making mix, and it is in that specific context that the Gurin study makes a contribution.Killenbeck, supra at 1328. Professor Gurin possibly best illustrated the significance of her findings as to whether seeking a diverse student body may be considered a compelling state interest when she concluded that,
[i]n the face of this research evidence, one can only remain unconvinced about the impact of diversity if one believes that students are "empty vessels" to be filled with specific content knowledge. Much to our chagrin as educators, we are compelled to understand that students' hearts and minds may be impacted the most by what they learn from their peers. This is precisely why the diversity of the student body is essential to fulfilling higher education's mission to enhance learning and encourage democratic outcomes and values.Gurin, supra at 422. In light of Gurin's study and, perhaps more importantly, the data and empirical evidence backing her findings on the value of a diverse student body, those who like the dissent are skeptical of characterizing diversity as a compelling governmental interest because "diversity" is not defined or because they believe it to be a nebulous concept based on anecdotal evidence, find themselves standing on ill footings. See John Friedl, Making a Compelling Case for Diversity in College Admissions, 61 U. Pitt. L. Rev. 1, 29-32 (1999) (noting that "[t]o date, almost all of the evidence in support of diversity in higher education is anecdotal in nature[,]" while discussing the lack of concrete, empirical evidence substantiating the value of a diverse student body as a compelling state interest); see also Wessmann, 160 F.3d at 797 ("[A]ny proponent of any notion of diversity could recite a . . . litany of virtues. Hence, an inquiring court cannot content itself with abstractions.").
Professor Gurin's empirical evidence supports what Justice Powell found to be true in Bakke regarding diversity's place as a compelling state interest. That is, regardless of whether one agrees that Justice Powell's opinion in Bakke is controlling, the fact remains that Justice Powell recognized that a diverse student body is a compelling interest because it promotes the atmosphere of higher education to which our nation is committed inasmuch as it allows the students to train in an environment embodied with ideas and mores "as diverse as this Nation of many peoples." See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 312-313 (1978) (Powell, J.) (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)). And, along the lines of Professor Gurin's study, it was expressly noted by Justice Powell that it is the student learning from the other student that makes a diverse student body a compelling need. See id. at 313 n.48. Specifically, Justice Powell noted and embraced the comments of the president of Princeton University as follows:
"[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, 'People do not learn very much when they are surrounded only the by the likes of themselves.'* * *"In the nature of things, it is hard to know how, and when, and even if, this informal 'learning through diversity' actually occurs. It does not occur for everyone. For many, however, the unplanned, casual encounters with roommates, fellow sufferers in an organic chemistry class, student workers in the library, teammates on a basketball squad, or other participants in class affairs or student government can be subtle and yet powerful sources of improved understanding and personal growth."Id. (quoting William Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly 7, 9 (Sept. 26, 1977)). Justice Powell then expressly found that the benefits derived from a diverse student body apply with substantial force at the graduate level as well as the undergraduate level. See id. Relying on Sweatt v. Painter, 339 U.S. 629 (1950), he reiterated that the Court made a similar point with specific reference to legal education: "'Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.'" Bakke, 438 U.S. at 313-14 (quoting Sweatt, 339 U.S. at 634).
In addition to the proffered, and indeed statistically proven, benefits of a diverse student body in order to fulfill higher education's mission to enhance learning and encourage democratic outcomes and values, other reasons for justifying state imposed diversity in the educational realm have also been proposed. For example, supporters of diversity in the university setting have argued that seeking a diverse student body is consistent with this country's historical commitment to absolute equality in education. See Association of American Universities, On the Importance of Diversity in University Admissions, N.Y. Times, April 24, 1997, at A17; see also Brown v. Bd. of Educ., 347 U.S. 483, 494-95 (1954) (rejecting the "separate but equal" doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), while recognizing and rejecting the past practices of making it illegal to educate African Americans, or educating them in inferior surroundings). The law school's concern with the impact of racial isolation and stigmatization when only a few "token" minorities are allowed to attend echos this point.
It has also been argued that designing a system that takes into account factors other than traditional notions of merit is nothing new, inasmuch as the very reason affirmative action arose was because for years some groups - particularly white males - were provided an advantage over others. See Killenbeck, supra at 1320. In fact, as indicated in a detailed study conducted by Professor Linda F. Wightman, who at the time of her research served as Vice President for Testing, Operations, and Research, Law School Admission Council, Inc., on the realities of affirmative action - "perhaps the most compelling finding to emerge is not the extent to which affirmative action has opened the doors of legal education to African Americans and other minorities. Instead, it is the extent to which white law school applicants routinely benefit from the exceptions to the merit principle." See id. at 1321 (citing Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. Rev. 1, 16 tbl.2 (1997)). Killenbeck explains that "[d]ata in [table 2 of Wightman's study] indicate that 14.9% of accepted white applicants would not have been predicted as suitable for acceptance based on the combination of their undergraduate grade point average and LSAT score. That is, if the purportedly objective merit criteria embraced by opponents of affirmative action were in fact dispositive, nearly one in every six white applicants actually accepted were arguably not 'qualified' in the traditional sense." See id. at 1321 n.100. Accordingly, for these white applicants, something more than merit was considered in the admissions process, just as something more is considered in a program designed to promote diversity. See id.; see also Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Calif. L. Rev. 953, 968-80 (1996) (criticizing the use of standardized test scores as an indicator of candidates' suitability for admission).
In short, the legal scholarship has indicated that a diverse student body serves to promote our nation's deep commitment to educational equality, provides significant benefits to all students - minorities and non-minorities alike, and does so using a system which is not foreign to the admissions process, but which allows for the benefit of all and not just some. Thus, although the majority does base its holding that diversity is a compelling governmental interest on Justice Powell's opinion in Bakke, it is clear that contrary to the dissent's criticism, this holding is not without foundation even when standing alone. On the other hand, the dissent's conclusion that diversity cannot serve as a compelling state interest for purposes of surviving constitutional muster under the Equal Protection Clause, is supported by neither legal scholarship nor empirical evidence.
For example, the dissent questions why race is at all relevant to promoting a student body rich in diversity of experience. Statistics have shown, however, that using factors other than race such as socioeconomic status, failed to produce the highly qualified, ethnically diverse student body achieved when race was also factored into the admissions process. See Wightman, supra at 39-45. The dissent's position simply misses that point advanced by Defendants in this case at oral argument; that is, that a comparably-situated white applicant is a "different person" from the black applicant. This is obvious when one considers the dissent's criticism that the University would give diversity preference to a "conventionally liberal" black student who is the child of "lawyer parents living in Grosse Pointe" (typically thought of as one of Michigan's more affluent suburbs).(3) 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. See A. Leon Higginbotham, Jr., Shades of Freedom, 195-96, 203 (Oxford University Press 1996) (formulating ten precepts of American slavery jurisprudence, with the seventh precept being the historical denial of any education to blacks and making it a crime to teach those who were slaves how to read and write); see also Frederick Douglass, What to the Slave is the Fourth of July? (1852) (addressing Rochester Ladies' Anti-Slavery Society, and noting that "[i]t is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write").
It is insulting to African Americans, or to any race or ethnicity that has known oppression and discrimination the likes of which slavery embodies, to think that a generation enjoying the end product of a life of affluence has forgotten or cannot relate the enormous personal sacrifice made by their family members and ancestors not all that long ago in order to make the end possible. Indeed, we in this country 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, as well as employment, housing, health care and even basic public facilities. In addition, it is naive to believe that because an African American lives in an affluent neighborhood, he or she has not known or been the victim of discrimination such that he or she cannot relate the same life experiences as the impoverished black person. A well dressed black woman of wealthy means shopping at Neiman Marcus or in an affluent shopping center may very well be treated with the same suspect eye and bigotry as the poorly dressed black woman of limited means shopping at Target. See Elise O'Shaughnessy, Shopping While Black, Good Housekeeping, Nov. 2001, at 129 (recounting Oprah Winphrey's experience of being turned away from an affluent store while she was shopping with a black female companion, even though white customers were allowed admittance, allegedly on the premise that the store employees were of the belief that Oprah and her friend were the black transsexuals who had previously tried to rob the store; also recounting the discrimination other successful black females such as Congresswoman Maxine Waters have experienced while shopping).
Thus, the dissent's arguments as to why diversity cannot serve as a compelling state interest constitute nothing more than myopic, baseless conclusions that ignore the daily affairs and interactions of society today which very well may be experienced by all. And the dissent's offer to "stipulate" to the fact that race continues to play a negative role in the lives of minorities is nothing more than a mere expression of words made in an attempt to minimize the force of the many benefits of diversity as illustrated above. Anyone who has read the entire dissent quickly realizes that the dissent's offer to stipulate that "race does matter," constitutes a thinly-veiled offer of dubious sincerity, to say the least.
This is evident by the dissent's contention that the arguments made in favor of diversity merely address societal ills that should not be confused with individual rights.(4) The "societal ills" as characterized by the dissent are in fact borne out of the denial of individual rights such that the two cannot be separated. Indeed, history tells us that the Equal Protection Clause was enacted in an attempt to cure the "societal ills" that had denied African Americans the individual rights to which they were entitled, such as the right to an education. See Albert P. Blaustein & Clarence Clyde Ferguson, Jr., Desegregation and the Law - The Meaning and Effect of the School Segregation Cases 59-67 (Rutgers University Press 1985) (1957). It has been recognized that "the evil to remedied by this clause" was the "gross injustice and hardship" faced by the "newly emancipated Negroes" as a class. See In re Slaughter-House Cases, 16 Wall. 36, 81 (1873). And it has been further recognized that the justifications for the Fourteenth Amendment's ratification "retain their validity in modern times, for 114 years after the close of the War Between the States, . . . racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole." See Vasquez v. Hillery, 474 U.S. 254, 264 (1986). Accordingly, for the dissent to claim that "people like Barbara Grutter" are being denied equal treatment under the law school's admission policy such that the Equal Protection Clause is being "ignored," particularly while irreverently invoking the name of Abraham Lincoln, is completely unfounded. The law school's goal of creating a diverse student body, which has not existed previously and would not otherwise exist without its admissions policy, rests in the very heart of the Equal Protection Clause.
Moreover, contrary to the dissent's assertion, there is nothing to indicate that the law school's admission's policy has "taken" anything "from the Barbara Grutters of our society." As one legal scholar has recently illustrated, the idea that an admissions policy which provides minority applicants with an advantage does so at the expense of white applicants is simply a myth. See Goodwin Liu, The Myth & Math of Affirmative Action, The Washington Post, April 14, 2002, at B01 (citing excerpts from his article "The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions" which is to be published in the upcoming edition of the Michigan Law Review). As Liu makes note,
[f]or many Americans, the success of Bakke's lawsuit has long highlighted what is unfair about affirmative action: Giving minority applicants a significant advantage causes deserving white applicants to lose out. But to draw such an inference in Bakke's case - or in the case of the vast majority of rejected white applicants - is to indulge in . . . "the causation fallacy."There's no doubt, based on test scores and grades, that Bakke was a highly qualified applicant. Justice Lewis Powell, who authored the decisive opinion in the case, observed that Bakke's Medical College Admission Test (MCAT) scores placed him in the top tier of test-takers, whereas the average scores of the quota beneficiaries in 1974 placed them in the bottom third. Likewise, his science grade point average was 3.44 on a 4.0 scale, compared with at 2.42 average for the special admittees, and his overall GPA was similarly superior. Given these numbers, the only reason for Bakke's rejection was the school's need to make room for less qualified minority applicants, right?Wrong. Although Justice Powell pointed out that minority applicants were admitted with grades and test scores much lower than Bakke's, he did not discuss what I found to be the most striking data that appeared in his opinion: Bakke's grades and scores were significantly higher than the average for the regular admittees. In other words, his academic qualifications were better than those of the majority of applicants admitted outside the racial quota. So why didn't he earn one of the 84 regular places?It is clear that the medical school admitted students not only on the basis of grades and test scores, but on other factors relevant to the study and practice of medicine, such as compassion, communication skills and commitment to research. Justice Powell's opinion does not tell us exactly what qualities the regular admittees had that Bakke lacked. But it notes that the head of the admissions committee, who interviewed Bakke, found him "rather limited in approach" to medical problems and thought he had "very definite opinions which were based more on his personal viewpoints than upon a study of the total problem."Whatever Bakke's weaknesses were, there were several reasons, apart from affirmative action, that might have led the medical school to reject his application. Grades and test scores do not tell us the whole story.Id.
Liu went on to recognize that although affirmative action did lower Bakke's chance of admission to the medical school, what was significant and most telling is "by how much?" Id. Setting forth the statistical data Liu then observed:
One way to answer this question is to compare Bakke's chance of admission had he competed for all 100 seats in the class with his chance of admission competing for the 84 seats outside of the racial quota. To simplify, let's assume none of the special applicants would have been admitted ahead of any regular candidate.In 1974, Bakke was one of 3,109 regular applicants to the medical school. With the racial quota, the average likelihood of admission for regular applicants was 2.7 percent (84 divided by 3,109). With no racial quota, the average likelihood of admission would have been 3.2 percent (100 divided by 3,109). So the quota increased the average likelihood of rejection from 96.8 percent to 97.3 percent.To be sure, Bakke was not an average applicant. Only one-sixth of regular applicants (roughly 520) received an interview. But even among these highly qualified applicants, eliminating the racial quota would have increased the average rate of admission from 16 percent (84 divided by 520) to only 19 percent (100 divided by 520). Certainly a few more regular applicants would have been admitted were it not for affirmative action. But Bakke, upon receiving his rejection letter, had no reason to believe he would have been among the lucky few.In fact, Bakke applied in both 1973 and 1974 and, according to evidence in the lawsuit, he did not even make the waiting list in either year.The statistical pattern in Bakke's case is not an anomaly. It occurs in any selection process in which the applicants who do not benefit from affirmative action greatly outnumber those who do.Recent research confirms this point. Using 1989 data from a representative sample of selective schools, former university presidents William Bowen and Derek Bok showed in their 1998 book, "The Shape of the River," that eliminating racial preferences would have increased the likelihood of admission for white undergraduate applicants from 25 percent to only 26.5 percent.The Mellon Foundation, which sponsored the study, provided me with additional data to calculate admission rates by SAT score. If the schools in the Bowen/Bok sample had admitted applicants with similar SAT scores at the same rate regardless of race, the chance of admission for white applicants would have increased by one percentage point or less at scores 1300 and above, by three to four percentage points at scores from 1150 to 1299, and by four to seven percentage points at scores below 1150.It is true that black applicants were admitted at much higher rates than white applicants with similar grades and test scores. But that fact does not prove that affirmative action imposes a substantial disadvantage on white applicants. The extent of the disadvantage depends on the number of blacks and whites in the applicant pool. Because the number of black applicants to selective institutions is relatively small, admitting them a higher rates does not significantly lower the chance of admission for the average individual in the relatively large sea of white applicants.Id. (emphasis added).
Liu provided further statistical data to back this conclusion as follows:
In the Bowen/Bok study, for example, 60 percent of black applicants scoring 1200-1249 on the SAT were admitted, compared with 19 percent of whites. In the 1250-1299 range, 74 percent of blacks were admitted, compared with 23 percent of whites. These data indicate - more so than proponents of affirmative action typically acknowledge - that racial preferences give minority applicants a substantial advantage. But eliminating affirmative action would have increased the admission rate for whites from 19 percent to only 21 percent in the 1200-1249 range, and from 23 percent to only 24 percent in the 1250-1299 range.These figures show that rejected white applicants have every reason not to blame their misfortune on affirmative action. In selective admissions, the competition is so intense that even without affirmative action, the overwhelming majority of rejected white applicants still wouldn't get in.Id. (emphasis added). And so, contrary to the dissent's assertion, "the Barbara Grutters of our society" have no reason to claim that anything has been "taken" from them by virtue of the law school's admission policy. In purporting otherwise, the dissent is simply advancing "the causation fallacy" which Liu exposes for the myth that it is.
The dissent also contends that one cannot consider the remedial qualities of correcting past - or for that matter present - discrimination as a way of supporting the law school's admissions policy because past discrimination is not the basis upon which the school claims that its admissions policy is operating. Once again, the dissent's narrow-mindedness misses the point. While it is true that the law school's policy is based upon its desire to achieve a diverse student body, the very reason that the law school is in need of a program to create a diverse environment is because the discrimination faced by African Americans and other minorities throughout the educational process has not produced a diverse student body in the normal course of things. Diversity in education, at its base, is the desegregation of a historically segregated population and, as the intervenors essentially argue, Bakke and Brown must therefore be read together so as to allow a school to consider race or ethnicity in its admissions for many reasons, including to remedy past discrimination or present racial bias in the educational system. See Trevor W. Coleman, A well-deserved honor for a lifelong legal barrier breaker, The Detroit Free Press, April 26, 2002, at 10A (chronicling the life of the Honorable William McClain, the University of Michigan's oldest living African-American law graduate, and describing how, as the only black law student in his class at the University, McClain was "fed humiliation nearly every day," was forbidden from living in the law quad, and was "prevented from joining study groups which are essential to a legal education").
In summary, the dissent's attempt to cast the law school's interest in achieving a diverse student body as anything but compelling simply cannot carry the day, and its claim that white applicants are being denied equal protection under the law as a result of the school's attempt to achieve a diverse student body is fallacious. As next illustrated, the dissent's arguments as to why the school's admissions policy is not narrowly tailored to achieve this compelling interest are just as ill-conceived.
C. The Law School's Policy is Narrowly TailoredThe dissent quarters its argument as to why the law school's admissions policy is not narrowly tailored to achieve the compelling interest of diversity. Each of the four subparts bear arguments that are unfounded and inflammatory. For example, in first discussing what the dissent characterizes as the true magnitude of the law school's policy, the dissent focuses on LSAT and UGPA data. It then advances the outrageous contention that the law school's policy allows for a minority applicant to put forth less effort than the otherwise similarly situated white applicant, and that somehow the minority will therefore use his race to compensate for his lack of effort. There is nothing whatsoever in the record to support the allegation that the law school's admissions policy would be manipulated in this fashion by people of color or ethnicity.
Similarly, the dissent's assertion that the law schools treatment of numerical credentials (UGPA and LSAT scores) for purposes of admission is "shocking," ignores the scholarly writings showing no correlation between these numerical credentials and success in law school or bar passage rates. See Wightman, supra at 1-2 (explaining that while a "numbers only" policy resulted in a sharp decline in the number of minority students who would have been admitted to law school, there were no significant differences in the graduation rates and bar passage rates between those minority students who would have been admitted and those who would not have been admitted, thus leading to the conclusion that a "numbers only" policy would deny a legal education to many minority students who were fully capable of the rigors of a legal education and of entering the legal profession); Sturm & Guinier, supra at 968-80 (explaining standardized test scores' lack of predictive value with respect to students' future performance). The law school's effort to insure that its admissions process is inclusionary and is not substantively unfair should be viewed as an effort to advance the cause of both educational excellence and diversity, not as a counterpoint to a "merit" plan as suggested by the dissent. The case has not been convincingly made that conventional admissions plans which equate to higher socio-economic status persuasively correlate to consideration of "merit." See id. at 992-96.
The dissent barely conceals its disbelief in the truth of the law school's assertion that its admissions officer reads every applicant's file and makes an individualized determination regarding the applicant's suitability for admission. Accepting the dissent's argument requires, in part, rejecting the law school's description of the manner in which its admissions program is administered without any adequate justifiable basis for doing so. The dissent goes so far as to claim the above-referenced criticisms of using standardized test scores such as the LSAT and numerical credentials as means to admission should be directed to the law school and not to the dissent inasmuch as the law school chooses to consider such credentials in its admission policy. However, the dissent's claim in this regard misses the point, and is an example of the misrepresentations made by the dissent in an apparent attempt to reframe the issues. Criticism of the use of numerical credentials such as LSAT scores is made in this opinion to support the law school's use of other criteria in its admission policy - one of which is race or ethnicity. And, contrary to the dissent's inflammatory assertion, the law school relies upon many factors in addition to LSAT scores, UGPAs, and race in its admission process. Although this assertion undoubtedly bolsters the dissent's position, it is unfounded and flies in the face of the record before us.
The dissent next calls into question the law school's designation of a "critical mass" of minority students in its student body. Claiming that the term "critical mass" is simply a phrase used to disguise what is actually an impermissible quota system, the dissent relies heavily upon the fact that the numbers of minorities admitted over the years has varied only sightly. There may be any number of likely benign explanations for the numerical configurations, including a consistency in the quality of minority applications for a few successive years and/or the application of a uniformity of perspective in evaluating the applications resulting from having the same evaluators read all the applications for admissions. Even idiosyncratic explanations for a relatively narrow numerical range for a number of years would be constitutionally acceptable in the absence of a quota or other invidious motivation on the part of the law school. The point is that on the record of this case, there are at least as many reasons to presume that there is not a quota as there are to presume that there is one, and the balance certainly tips in favor of the law school's representation that it does not employ a quota in the absence of any evidence to the contrary.(5)
Typically, the purpose of the narrow tailoring inquiry involves an evaluation of the fit between the compelling interest and the policy adopted to advance that interest. See Recent Cases, 115 Harv. L. Rev. 1239, 1244-45 (2002) (criticizing the Eleventh Circuit's decision that found the University of Georgia's race-conscious admissions policy unconstitutional, while noting that the court's opinion "reveals both overt and covert hostility toward affirmative action policies" and that "[b]y introducing its own substantive agenda under the guise of a narrow tailoring analysis, the court strayed from the purpose of the narrow tailoring inquiry"). Here, the dissent claims that the link between the law school's "critical mass" and the values of diversity is lacking. Oddly, the dissent cites the report from Professor Gurin, the same report that others have hailed as showing documented evidence for the benefits of a diverse student body, claiming that the results indicate