Case No. 01-1516


UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BARBARA GRUTTER,

Plaintiff/Appellee

v.

LEE BOLLINGER, et al.,

Defendants

and

KIMBERLY JAMES, et al.,

Defendants-Appellants



On Appeal from the United States District Court
for the Eastern District of Michigan


DEFENDANT-INTERVENORS' FINAL BRIEF


Miranda K.S. Massie (P-56564)
George B. Washington (P-26201)
Jodi-Marie Masley (P-62116)
Scheff & Washington, P.C.
3800 Cadillac Tower
Detroit, Michigan 48226
313-963-1921

Attorneys for Defendant-Intervenors

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to Rule 26.1 of the Sixth Circuit Rules, the defendant
intervenors make the following disclosure:

1.       Is said party a subsidiary or affiliate of a publicly owned corporation?
None of the defendant intervenors are corporations or subsidiaries or
affiliates of a public owned corporation.

2.       Is there a publicly owned corporation, not a party to the appeal, that
has a financial interest in the outcome? No.

___________________________
MIRANDA K.S. MASSIE
Dated: July 26, 2001

i


TABLE OF CONTENTS

DISCLOSURE OF FINANCIAL AFFILIATIONS AND FINANCIAL INTEREST … … … i

TABLE OF CONTENTS … … … ii

TABLE OF AUTHORITIES … … … v

STATEMENT IN SUPPORT OF ORAL ARGUMENT … … … vii

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION … … … 1

STATEMENT OF ISSUES FOR REVIEW … … … 2

STATEMENT OF THE CASE … … … 3

STATEMENT OF FACTS 4

  1.       Introduction. … … … 4
  2.       Social and individual relations to experiences, status, world-
    view and self-definition are shaped by race and racism in
    American society. … … … 6
  3.       The separate and unequal reality of American primary and
    secondary education. … … … 9
    1.       Black students. … … … 10
    2.       Latino/a students. … … … 14
    3.       Native Americans students. … … … 15
  4. The continuing reality of racism in American colleges and
    universities, and its impact on UGPAs. … … … 16
  5.       Race and the Law School Admissions Test. … … … 21
    1.       The discriminatory impact of the LSAT. … … … 21
    2.       Sources of the LSAT gap. … … … 26
  6.       The Law School's admission plan. … … … 29
    1.       The development of the affirmative action plan. … … … 29
    2.       The Law School's current admission plan. … … … 32
  7.       The district court's decision. … … … 34
    1.       The central contradiction in the district court's factual
      findings. … … … 34
    2.       The effect of the district court's decision. … … … 36

SUMMARY OF THE ARGUMENT … … … 39

ARGUMENT … … … 41

  1.       BECAUSE INTEGRATION IS A COMPELLING STATE
    INTEREST AND AFFIRMATIVE ACTION IS THE ONLY
    AVAILABLE MEANS OF INTEGRATING THE LAW
    SCHOOL AND THE LEGAL PROFESSION, THE
    DISTRICT COURT COMMITTED A FUNDAMENTAL
    AND HISTORIC ERROR OF LAW IN STRIKING DOWN
    THE UMLS PLAN. … … … 41
    1.       Standard of review. … … … 41
    2.       The integration of a public university is the most
      compelling state interest possible under the Fourteenth
      Amendment. … … … 41
    3.       The Bakke decision reaffirms the legality of
      affirmative action while circumscribing both the
      rationales that support it and the means to achieve it … … … 45
    4.       The district court erred as a matter of law in striking
      down the Law School's affirmative action plan. … … … 53
      1.       The district court erred in defying Bakke. … … … 53
      2.       The district court erred in ruling that the Law
        School plan failed to comply with Bakke. … … … 55
    5.       The district court erred in usurping the right of the
      people of the State of Michigan to democratically
      determine the steps needed to integrate their
      universities. … … … 57
  2.       THE DISTRICT COURT ERRED WHEN IT FAILED TO
    RECOGNIZE THE SIGNIFICANCE OF RACE AND
    RACISM FOR VIEWPOINT AND FOR ACADEMIC
    CREDENTIALS. … … … 60
    1.       Because race and viewpoint are inseparably linked, the
      district court erred when it disregarded the compelling
      state interest in racial diversity as a necessary
      component of intellectual diversity. … … … 61
    2.       The district court clearly erred in rubber-stamping the
      plaintiff's view that admissions criteria are race-neutral
      measures of merit in the face of overwhelming and
      largely uncontested evidence that they are saturated
      with racial bias and discrimination. … … … 63
    3.       UMLS has the right, if not the obligation, to maintain
      an affirmative action plan that reduces the reign of
      racism and race in admissions. … … … 66

CONCLUSION … … … 69

STATEMENT OF COMPLIANCE … … … 70

DEFENDANT INTERVENORS' DESIGNATION
OF APPENDIX CONTENTS … … … A-1


iv


TABLE OF AUTHORITIES

Adarand Constructors, Inc v Pena, 515 US 200 (1995) … … … 54

Brewer v West Irondequoit Central School District, 212 F 3d
738 (CA 2 2000) … … … 45

Brown v Board of Education of Topeka, Kansas, 347 US 483
(1954) … … … 2, 7, 10, 41, 42, 59, 60

City of Richmond v J.A. Croson Co, 488 US 469 (1989) … … … 54, 68

Cousin v Sundquist, 145 F3d 818 (CA6 1988), cert den 525 US
1138 (1999) … … … 41

Deal v Cincinnati Board of Education, 369 F 2d 55 (CA 6
1966), cert den 389 US 847 (1967) … … … 44

Grutter v Bollinger, 188 F3d 394 (CA6 1999) … … … 68

Hopwood v State of Texas, 78 F 3d 932 (CA 5 1996), reh and
reh en banc den
84 F 3d 720 (1996), cert den 518 US 1033 (1996) … … … 53

Hopwood v State of Texas, 236 F 3d (CA 5 2000), cert den __
US __, 69 USLW 3702 (June 25, 2001) … … … 53

Hunter v Regents, 190 F 3d 1061 (CA9 1999), cert den 121 S
Ct 186 … … … 55

Johnson v Board of Education, 604 F 2d 504 (CA 7 1979),
rev'd on other grounds 449 US 915 (1980) … … … 45

Larry P. v Riles, 793 F 2d 969, 980 (CA9 1986) … … … 54

Parents Ass'n of Andrew Jackson High Sch v Ambach, 738 F 2d
574 (CA 2 1984) … … … 45

Plessy v Ferguson, 163 US 537 (1896) … … … 42, 67


v


Regents of the University of California v Bakke, 438 US 265
(1978) … … … 2, 3, 32, 44-57, 68

School Committee of Springfield v Board of Education, 362
Mass 417 (1972) … … … 44

Smith v University of Wash Law Sch, 233 F 3d 1188 (CA 9
2000) cert den __ US __, 69 USLW 3593 … … … 53

Swann v Charlotte Mecklenberg Bd of Educ, 402 US 1 (1971) … … … 44

Tometz v Board of Education, Waukegan City School District
No. 61,
39 Ill 2d 593 (1968) … … … 44

Wittmer v Peters, 87 F 3d 916 (1996) … … … 54

Wygant v Jackson Bd of Education, 476 US 267 (1986) … … … 54

STATUTES AND CONSTITUTION

USCA Const Amd 14 … … … passim

USCA Const Amd 1 … … … 46, 49

OTHER AUTHORITY

"UC regents' symbolic step to spur change in admissions," San Jose
Mercury News,
May 16, 2001, p. 1. … … … 8

William Bowen and Derek Bok, Shape of the River, Princeton
University Press, 1998. … … … 43


vi


STATEMENT IN SUPPORT OF ORAL ARGUMENT

The intervening defendants request that oral argument be scheduled
because of the overriding importance of the issues in the case.


vii


STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION

The plaintiff, claiming to represent a class of persons purportedly
treated less favorably on account of race in seeking admission to the
University of Michigan Law School, asserted that the defendants violated
her rights under the Fourteenth Amendment to the Constitution of the United
States and under 42 USC 1981, 1983, and 2000d et seq. The plaintiff
asserted subject matter jurisdiction under 28 USC 1331 and 1343.

On March 27, 2001, the district court enjoined the use of race in
admissions at the Law School. On April 11, 2001, the intervening
defendants timely filed a Notice of Appeal of right. This Court has
jurisdiction under 28 USC 1292.


1


STATEMENT OF ISSUES FOR REVIEW

1. Whether the district court erred as a matter of law when it held that it
was not bound by the United States Supreme Court decision in Regents of
the University of California v Bakke, 438 US 265 (1978).
2. Whether the district court erred as a matter of law when it held that
the University of Michigan Law School may not take the race of black,
Latino and Native American applicants into account in order to ensure that
the student body is racially and ethnically integrated, following Brown v
Board of Education, 347 US 483 (1954) and its progeny.
3. Whether the district court erred as a matter of law when it held that
the University of Michigan Law School may not take the race of black,
Latino and Native American applicants into account when the evidence
demonstrated and the district court in part found that the differing
undergraduate grades and LSAT scores of whites and underrepresented
minorities reflected discrimination against those minorities.
4. Whether the district court's disregard for various sources of bias and
discrimination in admissions criteria, proved by unrebutted testimony,
constituted clearly erroneous factual findings.


2


STATEMENT OF THE CASE

The plaintiff, a rejected white applicant to the University of Michigan
Law School ("UMLS" or "the Law School"), brought this action alleging
that she and others purportedly similarly situated were victims of racial
discrimination because of the University of Michigan's affirmative action
plan.

In a March 27, 2001 Opinion sustaining her claim, the district court
declared that it is not bound by the decision of the United States Supreme
Court in Regents of the University of California v Bakke, 438 US 265
(1978). It issued an order, now stayed by this Court, prohibiting UMLS from
considering the race of black, Latino and Native American applicants and
rejecting all arguments for integration, fairness, and diversity made by the
intervenor-defendants and UMLS in defense of affirmative action.


3


STATEMENT OF FACTS

A.       Introduction.

"Race has been a dividing line in American society since the
settlement of the colonies in the beginning of the Seventeenth
Century. …As historians … we talk about … race as socially
constructed … as something that has developed and changed over
time. It's a set of ideals. It's what society deals with, the coexistence
of people of different backgrounds of that society. Different societies
define race in different ways, and our society has made race a very,
very rigid dividing line between its citizens."
(Foner, TR10, 193, Apx 8413).

Erika Dowdell, the daughter of a nurse's aide, attended a middle school
in Detroit without windows, without usable athletic facilities, and
without sufficient books for its students. By her musical talent, she secured
admission to Cass Technical High School, one of Detroit's best public
schools. Cass was "run down" and "falling apart" and it lacked sufficient
books for its students. But having achieved a 3.7 grade point average and
having taught herself to play four musical instruments, Ms. Dowdell secured
admission to the University of Michigan under its affirmative action
program. (Dowdell, TR6, 8-9, 12-20, 22, 32-36, 43, Apx 7787-7788, 7791-
7799, 7801, 7811-7815, 7822).

She has done well at Michigan, is a student leader of the Defend
Affirmative Action Party, is the only black student to be repeatedly elected
to the Michigan Student Assembly, and now hopes to go to the University of


4


Michigan Law School. If the decision rendered by the district court in this
case is allowed to stand, she will have little hope of going there or desire to
go there. (Dowdell, TR6, 73-76, Apx 7852-7855).

Concepción Escobar is the daughter of an Apache father, who died
when she was young, and a Mexican immigrant mother who has spent her
life as a factory worker. Ms. Escobar went to elementary and middle schools
in Chicago like those that Ms. Dowdell attended in Detroit. By early
tracking, Ms. Escobar entered Whitney Young High School, the best public
high school in Chicago. She, too, did well, securing, without the help of her
counselor, both admission to and a scholarship from Amherst College.
Overcoming a particularly acute form of racial and class prejudice there, she
achieved a 3.43 grade point average and secured admission to UMLS under
its affirmative action plan (Escobar, TR8, 160-161, 165-166, 177-178, 192-
196, Apx 8105-8106, 8110-8111, 8122-8123, 8137-8141).

As set forth in the record below—developed in large part by the
student intervenors and acknowledged in part in the grudging findings by the
district court, Ms. Dowdell and Ms. Escobar are not unique. The undisputed
facts demonstrate that the overwhelming majority of black, Latino/a and
Native American students receive a segregated and unequal education. This
is the result of conscious social policy and judicial decisions. The two main


5


admissions criteria used by the Law School, standardized test scores and
undergraduate grade point averages, both reflect and magnify this inequality.

The inescapable factual conclusion, so systematically avoided by the
district court, is that without affirmative action, tens of thousands of talented
black, Latino/a and Native American students will never be admitted to
UMLS or to any other selective school.

If the district court's decision is allowed to stand, under the purported
command of the Fourteenth Amendment, these schools will soon return to
what they were not so very long ago: segregated institutions, with only token
numbers of black, Latino/a and Native American students, in the midst of a
society that will be majority nonwhite within the lifetimes of Erika Dowdell
and Connie Escobar.

B.       Social and individual relations to experiences, status, world-view and
            self-definition are shaped by race and racism in American society.

At trial, Professor Eric Foner, the DeWitt Clinton Professor of History
at Columbia University, and this nation's most distinguished scholar on
Reconstruction and the history of race relations in America, explained the
role that race has played in the development of every social institution in the
United States. Professor Foner made clear that the fundamental contradiction
of American history has been our claim to stand for equality, freedom and


6


democracy while our institutions implement and enforce social policies that
deny black and other minority citizens basic rights and equal opportunities.
He explained that the ideology of black inferiority derives from the material
reality of socially planned and enforced inequality. He also made clear that
the success of unified struggles of black and white citizens beginning with
the abolitionist movement is due to their mass character. These struggles
have determined the direction and character of our society. The question of
race has led to some of this nation's largest, most tumultuous, and violent
upheavals, including the Civil War and the civil rights movement. (Foner,
TR10, 193, 200, 208-214, Apx 8413, 8420, 8428-8434).

Professor John Hope Franklin, Emeritus Professor of History at Duke
University and one of the nation's preeminent historians and leading
authorities on the struggle for black equality, offered extensive testimony on
how race and racism shaped the twentieth century. Professor Franklin made
clear that racism is "improvisational" and that segregation and inequality are
used to give white people a "vertical advantage and have been the basis of a
caste system based on race." Professor Franklin made clear that the struggle
against racism is ongoing and requires constant vigilance, and that while we
have made great progress since Brown v Board of Education, the attack on
affirmative action represents the latest improvisation of segregationist


7


impulses that still exist in our nation. (Franklin, TR7, 14-37, 54-62, 98-99,
104-106, 124-125, 155, Apx 7931-7954, 7971-7979, 8015-8016, 8021-8023, 8041-8042, 8057).

Tania Kappner, an Oakland high school teacher, a named student
intervenor, and a founding member of the Coalition to Defend Affirmative
Action & Integration, and Fight for Equality By Any Means Necessary
(BAMN), offered testimony on how the fight to defend affirmative action is
developing a new generation of student and youth integrationist leaders and
a new militant, mass, integrated civil rights movement. As a result of this
new civil rights movement, on May 16, 2001, the Regents of the University
of California unanimously voted to reverse their 1995 ban on affirmative
action in the University of California (UC) System. The 1995 ban was the
point-of-departure victory for opponents of affirmative action—its reversal
has been hailed as the turning of the tide in the struggle to defend affirmative
action and to make real the nation's promises about integration. 1

Ms. Kappner, a recent graduate from the University of California at
Berkeley Graduate School of Education, described the determined and
dynamic fight that students and youth across California have been making to
defend affirmative action and integration. She also described the

___________________
1/       "UC regents' symbolic step to spur change in admissions," San Jose
(continued on next page) Mercury News,
May 16, 2001, p. 1.

8


unwillingness of students to accept the proposition that ballot measures or
court decrees could return this society to segregation, and she stressed how
important minority student participation in mass actions has been to lifting
the stigma of inferiority. (Kappner, TR14, 183-190, Apx 8766-8773).

C.       The separate and unequal reality of American primary and secondary
            education.

As the testimony below definitively established, the path to admission
to UMLS is permeated with discrimination against black, Latino/a and
Native American students. To understand the need for affirmative
action—and the inevitable resegregation that will result if it is eliminated—it
is necessary to begin by sketching that path.

As the UMLS draws two-thirds of its students from outside Michigan,
that path begins in the nation's primary and secondary schools. (Shields,
TR4, 196, Apx 7679; Lehman, TR5, 152, Apx 7759; Munzel, TR1, 147,
Apx 7238). In uncontradicted testimony, the foremost authorities in the
country described how those schools systematically disadvantage black,
Latino/a, and Native American students of all social and economic
backgrounds.


9


            1.       Black students.

Gary Orfield, Professor of Education at Harvard University and one of
the nation's most distinguished experts on race and education, described the
separate and unequal education received by the overwhelming majority of
black students in the nation's primary and secondary schools.

As a result of conscious government policies, both housing and
schools were and are segregated, with Michigan among the most segregated
areas in the country. In Professor Orfield's words, before Brown, the
nation's schools were "very segregated," with an "apartheid" structure in the
South. After 1970, however, when the federal executive finally began
enforcing Brown, the South became the most integrated region. Since then,
the most intense segregation has been located in the schools of the major
industrial states of the Northeast and Midwest, with Michigan one of four
"absolute center[s] of segregation". In the nation as a whole, two-thirds of
black students and 70 percent of Latino/a students attend segregated schools
today; in Michigan, 83 percent of black students are in segregated schools,
with 64 percent in "extremely segregated" schools. (Orfield, TR6, 86-91, 96-
97, 126-127, Apx 7856-7861, 7866-7867, 7881-7882; Ex 195, Apx 6053; Ex
196, Apx 6054; Ex 167-C, Apx 5882).


10


The students in these segregated schools are generally very poor. For
schools with over 90 percent black and Latino/a students, almost 90 percent
have a majority of students on free or reduced-cost school lunches. In
contrast, in schools with less than 10 percent black or Latino/a students, only
7.7 percent have a majority of students on free or reduced school lunches.
(Orfield, TR6, 97-100, Apx 7867-7870; Ex 197, Apx 6055).

While poverty distorts educational opportunities for everyone, the
burden of poverty and segregation bears down far harder on black students.
Poor white people are more dispersed residentially. Thus, their children are
far less likely to end up in schools with heavy concentrations of students
from poor backgrounds. (Orfield, TR6, 99, Apx 7869).

Even for black students from middle and upper middle class families,
substantial disadvantage remains. While the income or employment of many
black middle class families may be equivalent to some white families, black
middle class families have less wealth, less education, and fewer relatives
who can provide—rather than request—financial assistance in times of
trouble. (Orfield, TR6, 102-104, Apx 7872-7874).

In education, very few white middle-class children attend inner city
schools; but many middle-class black and Latino/a children attend those
schools. As Professor Orfield testified, even if those students attend the best


11


magnet schools in the segregated city school systems, the education they
receive is "very average or low average" in comparison to suburban districts.
(Orfield, TR6, 132, 135-138, Apx 7887, 7890-7893).

Partly as a result, there has been a "huge increase" in the migration of
middle-class black people and Latinos/as to nearby suburbs. Many of those
suburbs, however, are, or quickly become, segregated. As the white middle
class leaves, the tax base declines, trained teachers retire or leave rather than
adapt, and the school systems quickly decline. (Orfield, TR6, 102-107, Apx
7872-7877).

Even for those very few black families who "escape" into stable
white, upper-middle class suburbs with excellent school systems, there
remain racial isolation, stereotyping, tracking, and stigma. (Orfield, TR6,
104-106, Apx 7874-7876).

As has been shown in "thousands of cases for many generations," the
segregated education received by the overwhelming majority of black and
Latino/a students means that those students receive an unequal education:

There never was a separate but equal school system. That's because of
many things. It's because the poverty levels in segregated schools are
much higher....[T]here are fewer minorities in teacher training. There
are many fewer teachers who choose to go to work in schools of this
sort. Most teachers who start in segregated schools leave faster. The
curriculum that is offered is more limited. The probability that the
teacher will be trained in their field is much more limited. The level of
competition is less. The respect for the institution in the outside world


12


is less. The connections to colleges are less. There are more children
with health problems...The population is much more unstable. ... The
kids don't have books....There [are] no facilities....[I]t is like a
different planet, a different society.
(Orfield, TR6, 92-93, Apx 7862-7863).

As Oakland, California English teacher Tania Kappner testified, and
as Professor Orfield confirmed, within segregated schools very talented
students work extremely hard to obtain an education. (Kappner, TR14, 180-
181, Apx 8763-8764; Orfield, TR6, 134, Apx 7889). Even with affirmative
action, however, admission officers at schools such as the University of
Chicago "routinely reject[ed] valedictorians from Chicago high
schools...because of the experience that they could not survive for a single
quarter on the campus." (Orfield, TR6, 127-128, Apx 7882-7883).

Thus, long before the Law School sends out its applications, the
American educational system has rendered the vast majority of black
students ineligible for admission—and has imposed on the remaining black
students serious handicaps in entering, completing, and succeeding in the
college education required to even apply to the Law School.


13


            2.       Latino/a students.

Eugene García, the Dean of the Graduate School of Education at UC
Berkeley and one of the nation's foremost authorities on bilingual education,
described the analogous burdens imposed upon Latino/a students.

Dean García began by describing the education received by the largest
concentration of Latinos/as in the country—the Latino/a population of
California. As he later testified, the conditions faced by Latinos/as elsewhere
in the United States differ only in detail. (García, TR11, 66-67, Apx 8505-
8506).

Like the black population, Latinos/as live in segregated housing and
attend segregated schools. But in addition to segregation by race and
ethnicity, they face segregation by citizenship and language, with over 50
percent of the state's Latinos/as speaking Spanish in their home. (García,
TR10, 160, Apx 8393).

As described by Dean García, California's segregated public school
system is vastly "underresourced" for Latinos/as and black people. Fifty
percent of Latino/a third graders have a teacher who is "not credentialed, has
not been trained as a teacher, and is in almost every term unqualified to
teach in the classroom." In predominantly black and Latino/a schools, the
curriculum, textbooks, laboratories and educational experiences are seriously


14


deficient, with many such schools not even offering prerequisites for
admission to the University of California. Forty percent of the Latino/a
students in California never graduate from high school. (García, TR10, 152-
155, 174-175, Apx __, 8401-8402; García, TR11, 65, Apx 8504).

For the sixty percent who do graduate, a single statistic captures the
disadvantage they face. By law, the eight campuses of the University of
California—including its world-renowned campuses at UC Berkeley and
UCLA—are the elite institutions in the state, required to serve the top 12.5
percent of the state's students. Last year, only 3.8 percent of Latino/a high
school graduates—and 3.2 percent of black graduates—were eligible to
apply
to any of the eight UC schools. (García, TR10, 142-143, Apx 8391-
8392; García, TR11, 60, Apx 8499).

As with Chicago's valedictorians, the separate and unequal education
imposed upon Latinos/as in California and across the country eliminates a
vastly disproportionate number of such students from any hope of ever
applying to UMLS or any school like it.

            3.       Native American students.

Faith Smith, the President of Native American Educational Services
(NAES) College, the only private college controlled by Native Americans in


15


the United States, described the separate and unequal education received by
Native Americans. (Smith, TR13, 158-160, Apx 8674-8676). Many are still
relegated to underfunded and segregated government-run reservation and
boarding schools, while others attend schools in the poorest sections of the
major cities. President Smith characterized Native American education as
suffering from "discrimination by omission." Most Native Americans learn
nothing about the role that Native Americans have played in the
development of this nation. (Smith, TR13, 164, Apx 8680).

President Smith ascribed the huge increase of Native Americans in
higher education to the creation of affirmative action programs, but made
clear that many Native American students have difficulty surviving the
experience of being on a majority white campus because of the isolation
caused by their numbers being too small. (Smith, TR13, 175, Apx 8681).

D.       The continuing reality of racism in American colleges
            and universities.

While the achievements of affirmative action have been historic, the
continuing racism on American campuses has depressed the grades of black,
Latino/a, and Native American students and thus placed a further barrier in
their path to schools like Michigan's Law School. While the gap between the
undergraduate grade point averages (UGPAs) of white and minority


16


applicants at Michigan is small, in the context of a very competitive
admissions process in which UGPA is one of two major factors, it is
nevertheless significant. (Dist Op, 74-75, n55, Apx 169-170).

One of the most eminent authorities on the education of black,
Latino/a, and Native American students at the nation's universities,
Professor Walter Allen of UCLA, described the special hurdles facing black,
Latino/a, and other minority students on the nation's campuses. (Allen, TR9,
82-85, 174-176; Apx 8210-8213, 8266-8268; Ex 211, Apx 6069).

When students are brought together for the first substantial interracial
experience of their lives, the legacy of segregation and discrimination does
not simply disappear. While the majority of white administrators, faculty,
and students harbor good will, many also exhibit varying degrees of
ignorance and prejudice. As set forth in direct testimony by Ms. Dowdell
and Ms. Escobar and in repeated examples from Professor Allen's work,
black and other minority students face systematic racism—a daily run of
slights, slurs, profiling, and even physical assaults. These include professors
who cannot tell one black student from another; white students who exclude
black people from their study groups or laugh as minority students talk in
class; teaching assistants who automatically charge cheating when a black
student scores well on a math exam; white students who ask all black males


17


what sport they play; library employees who search Latino students' book
bags with particular regularity; and campus police who require
predominantly black parties to use the back doors and who question, arrest,
and search black students with disturbing regularity. In all, the message sent
is that minority students do not belong on mostly white campuses—a
message that is inextricably bound up with the racist stigma of intellectual
inferiority faced by black and other minority students. (Allen, TR9, 101-102,
134-135, 138-145, 153-158, 177-181, Apx 8229-8230, 8239-8240, 8243-
8250, 8258-8263, 8269-8273; James, TR9, 10-12, Apx 8144-8146).

In contrast, Frank Wu, Associate Professor of Law at Howard
University and this nation's leading expert on Asian Americans and
affirmative action, testified that while the racist stigma of intellectual
inferiority is generally not directed against Asian Americans, other
stereotypes including the myth of the "model minority" attach to Asian
Americans. This stereotype isolates and stigmatizes Asian Americans, and
has been used by anti-affirmative action advocates to pit Asian Americans
against other minority students and to reinforce the myth of black inferiority.
(Wu, TR13, 52-64, 78-80, Apx 8637-8649, 8663-8665).


18


The myth of racial inferiority and similar prejudices—whether
conscious or unconscious—have two consequences for black, Latino, and
Native American students who may eventually apply to UMLS.

As an initial matter, racism affects the way professors and teaching
assistants assign grades. While grades are seemingly objective, grading is
not a science, but an art—particularly in the humanities and social sciences,
where prospective law students tend to congregate. At the cut points in
particular, prejudice, whether or not conscious, affects the grade a student
receives. (Allen, TR9, 99-100, Apx 8227-8228).

The second effect of campus climate on grades is less visible but more
pernicious. Racist incidents that might seem trivial in isolation have the
cumulative effect of "wearing down" the morale of minority students. As
Professor Allen testified—and as the district court ignored—extensive
literature and several surveys of representative samples of college students
have documented that black students feel higher levels of isolation, more
often consider dropping out of school, and have more problematic relations
with faculty than their white peers. Even for students from similar economic
status and with roughly similar academic performance, the surveys have
demonstrated that black and other minority students experience higher


19


degrees of "despair, discouragement and isolation." (Allen, TR9, 88-89,
102-107, Apx 8216-8217, 8230-8235).

For purposes of this litigation, Professor Allen conducted smaller
surveys and twelve focus groups on four of the top ten feeder campuses for
the Law School: University of Michigan, Michigan State University, UC
Berkeley, and Harvard. (Ex 157 at 7, Apx 5649). In extended transcribed
discussions led by trained sociologists, including Daniel Solórzano, the
Chair of UCLA's Graduate School of Education and Information Sciences,
the black and other minority students recounted experiences of the same
forms of prejudice and the same reactions of anger, despair, and
disengagement documented in the representative surveys and in the
literature. Based upon the professional literature (including his own), the
large-scale surveys described above, and the in-depth research reflected in
the focus groups on the four feeder campuses, Professor Allen concluded
that racism on campus diminishes the graduation rates and grade point
averages of black and other minority students:

In very aggregate quantitative terms, the impact is one that translates
into a diminishment of black representation...and lower levels of
success in terms of the accepted indicators of academic success
[including]...grades and the test score performance[.]
(Allen, TR9, 88-89, Apx 8216-8217).


20


Professor Allen testified that increasing the representation of minority
students on campuses through more vigorous affirmative action plans could
further reduce the GPA gap and eventually eliminate it. (Allen, TR9, 88-91,
160, 165, Apx 8216-8219, 8265, __).

Currently, however, the B+ of a black, Latino, or Native American
student simply does not mean the same thing as the B+ of a white student.
(Allen, TR9, 159-160, Apx 8264-8265).

While it launched into an unfounded criticism of Professor Allen's
work, the district court conceded his point: "[M]any underrepresented
minority students find the racial climate hostile at the Law School's 'feeder'
institutions," which doubtless has a "negative effect on these students'
academic performance." (Dist Ct Op, 75-76, Apx 170-171).

E.       Race and the Law School Admissions Test.

            1.       The discriminatory impact of the LSAT.

LSAT scores, the second major factor in admissions, not only capture
and reflect racial discrimination—they concentrate and intensify it.
As required by the American Bar Association, and like every
accredited law school in the country, the UMLS uses the only standardized


21


law school admissions test in existence—the LSAT. (Shields, TR4, 178,
Apx 7660; Munzel, TR1, 134, Apx 7225).

Despite the persistent myth that such tests measure intelligence or
aptitude, the manufacturer of the LSAT claims only that it predicts some of
the variation in academic performance in the first year of law school. Even
on that, its predictive value varies considerably among institutions (Shapiro,
TR8, 62, Apx 8082), with test scores and grades together predicting only 27
percent of the variation in first-year grades at Michigan. (Ex 4 at 3, Apx
4231; Lempert, TR3, 101-102, Apx 7500-7501). As UMLS Professor
Richard Lempert testified and the district court noted, the LSAT has no
ability to predict a UMLS graduate's success as a lawyer. (Dist Ct Op, 71-
73, Apx 166-168).

The LSAT, however, imposes a terrible cost on black, Latino/a and
Native American applicants. Professor Orfield prepared graphs dramatically
demonstrating the vast difference in scores on this test by underrepresented
minorities:


22


LSAT scores by race percentages chart

Using the same data—plotted to show the far greater numbers of
white applicants—Professor Orfield demonstrated that any rigid use of the
LSAT, including as a cutoff point in a lottery, would necessarily result in a
vast drop in the number of successful applicants from underrepresented
minorities:


23


LSAT scores by race levels chart

(Orfield, TR6, 153-160, Apx 7900-7907; Ex's 199-200, Apx 6057-6058).

Mr. David White—Director of the non-profit research group Testing
for the Public, and a man who has spent his professional life studying
standardized tests—assembled data that demonstrate the tremendous
significance of this gap. While 46 percent of white students scored at or
above 155 on the LSAT, only 8 percent of black law school applicants did
so. (Dist Ct Op, 69, Apx 165; White, Ex 219, Apx __). While that difference
was in part due to social class—with richer students of all races scoring
higher on the tests—Mr. White's unchallenged data demonstrated that black
students from the wealthiest backgrounds scored worse on average than
white students from the poorest backgrounds:


24


LSAT scores by socioeconomic status chart

(White, Ex 220, Apx 6185).

As Mr. White's data demonstrated, even for students with the same
grade point average from the same elite schools, whites on average score 9.2
points higher on the LSAT than blacks, 6.8 points higher than Latinos/as,
and 4.0 points higher than Native Americans. That LSAT gap has remained
constant for the last 20 years. As 9.2 points is greater than the average score
differential between the most prestigious and least prestigious law schools in
the country, the rigid use of LSAT scores in admissions would force black
people out of not just the most selective schools, but out of law school
altogether. (White, TR11, 144-152, Apx 8550-8558; Ex 173-D (final page),
Apx 5976; Ex 223, Apx 6188; Lempert, TR14, 83-84, Apx 8720-8721).


25


            2.       Sources of the LSAT gap.

In finding that the Law School "discriminated" against white
applicants by admitting blacks and others with lower LSAT scores, the
district court essentially held that the LSAT, if used at all, had to be rigidly
used across racial and ethnic lines. Before entering such a directive, it would
seem vital to determine the sources of the gap in test scores. But the district
court simply opined that the reasons for the gap are very "difficult to
explain." (Dist Ct Op 79-81, Apx 174-176).

The court did find two reasons "plausible." First, whether due to lack
of money or information or to race-related anxiety about the test, black
people and other minorities take LSAT preparation courses, which
substantially boost scores, far less frequently than whites. (Dist Ct Op, 81,
Apx 176). Second, the LSAT, like the SAT, favors monolingual applicants
raised in households in which academic English is spoken—i.e., applicants
whose first and only major language exposure is to the English spoken in
privileged, white households. (Dist Ct Op, 81, Apx 176; Shapiro, TR8, 55-
56, Apx 8075-8076; García, TR10, 165-167, Apx 8397-8399).

While its own findings were more than sufficient to discard its
directive that the test scores be applied rigidly across racial lines, the district


26


court went out of its way to dismiss other evidence demonstrating that the
tests incorporated racial discrimination within them.

As the court noted, Professor Claude Steele of Stanford has conducted
a series of experiments demonstrating that blacks and other minorities do
poorly on any test billed as high stakes, while performing at the same level
as whites if the test is billed differently. Professor Steele concluded that the
students were aware of racist stereotypes about intellectual ability and that
the high-stakes testing triggered a heightened anxiety, causing them to
perform worse because they were so concerned to avoid confirming those
stereotypes. (Steele Exp Rep, 6-8, Apx 2506-2508; Dep of Steele, 77, 80-81,
177-182, Apx 7043, 7043-7044, 7068-7069).

While Professor Steele testified by deposition and Dean
García—himself a substantial expert on educational testing—expressed his
agreement with Professor Steele's work, the district court claimed the record
was too sparse to support the claim that "stereotype threat" had resulted in
the gap in scores on the LSAT—even though the district court had precluded
Professor Steele's trial testimony after the University unexpectedly dropped
him from its "will call" list at the last minute. (Dist Ct Op, 79-81, Apx 174-
176; García, TR11, 33-42, 72, Apx 8472-8481, 8511).


27


Similarly, the district court went out of its way to minimize the
significance of the unrebutted testimony of Professor Martin Shapiro of
Emory University. (Dist Ct Op, 67-69, 79, Apx 162-164, 174). As he
testified, the LSAT was patterned on the SAT, which was developed in the
1930's by a noted advocate of the "superiority of the Nordic races" for the
specific purpose of cutting down the number of supposedly "overachieving"
Jewish students in Ivy League colleges. (Shapiro, TR8, 66-68, Apx 8086-
8088). While Professor Shapiro testified that the test maker no longer
proclaimed such an openly racist intent, the district court simply ignored
Professor Shapiro's testimony that the content of the LSAT exam still
reflected the "value judgments" of the test maker, not any objective
requirements for the study of law. (Shapiro, TR8, 25-26, 31-32, 34-37, Apx
8058-8059, 8064-8065, 8067-8070).

Similarly, the district court ignored the significance of Professor
Shapiro's description of the manufacturer's process of pre-testing new
questions, keeping only those that high scorers answered at a high rate and
low scorers answered at a low rate—and thus perpetuating the biases in past
exams. (Shapiro, TR8, 39-41, Apx 8072-8074).

The district court was even more hostile to the testimony of Mr. Jay
Rosner of the Princeton Review Foundation. Consistent with Professor


28


Shapiro's work, Mr. Rosner studied those few questions for which the test
maker had released demographic data. He found that the manufacturer
excluded from the actual exam questions on which black people scored
better on pretests than whites—while including questions on which whites
scored better. The district court ignored the conclusion that test scores
purportedly showing qualifications for the study of law are based on the
particular questions which the test manufacturer chose to use on the exam.
(Dist Ct Op, 79, Apx 174; Rosner, TR8, 118-127; Ex 210, Apx 8093-8102).

Having rejected all the student intervenors' evidence of bias intrinsic to
the test, the district court found that no bias had been proven—even
though the record was largely undisputed and even though the district court
found plausible two reasons for the score gap that are rooted in
discrimination. (Dist Ct Op, 79, 81, Apx 174, 176).

F.       The Law School's admission plan.

            1.       The development of the affirmative action plan.

As the Law School learned from three decades of experience, in the
face of discrimination in the path applicants took to enter the School, it
could not achieve a racially integrated student body without affirmative action.


29


Until 1966, UMLS based admissions on a rigid mathematical index
derived from the applicant's UGPA and LSAT score. For two decades, this
produced virtually all white classes, discouraging black college graduates
from even applying. (Ex 53 at 7, Apx 4857; Ex 97, Apx 5064). 2

In 1966, the Law School adopted its first affirmative action plan by
departing from numerical credentials for a small part of the class, with
particular concern expressed for the admission of black students,
disadvantaged students, students with significant non-academic
achievements, and students with military service. As grounds for the shift,
the Admissions Committee asserted that black students would "introduce
more heterogeneity in our student body, hopefully adding to the variety of
attitudes and views expressed in the classroom." Under this policy, nine
black students gained admission for the fall 1966 semester. (Ex 53 at 4, 7,
Apx 4854, 4857).

In its continuing debate over admission policies, the faculty deepened
its understanding that numerical credentials discriminated against black and
other minority applicants, "caus[ing] [their] actual potential…to be

___________________
2/       Exhibit 53 is a document entitled "The History of Special Admissions
at UMLS, 1966-1981," published in July 1992 by Alissa Leonard, who was
then Assistant Director of Admissions at the Law School.

30


underestimated, especially when gauged by standard testing
procedures…thought to be 'culturally biased.'" By 1970, the Dean of
Admissions had generalized some of the lessons learned from early black
recruitment and advocated abandoning the rigid use of numerical criteria for
all applicants, resulting in an increase in economically disadvantaged
students of all races. (Ex 53 at 6, 16-19, 22-23, Apx 4856, 4866-4869, 4872-
4873).

The resulting integration transformed the life of the Law School. The
campus was animated by debate on affirmative action. In reports, meetings,
and resolutions, the faculty supported affirmative action because of the
urgent need to integrate the profession, to open a door of opportunity to
minorities, and to provide a more diverse learning environment for all its
students. (Ex 53 at 4-5, 8, 33, 35-38, 40, Apx 4854-4855, 4858, 4883, 4885-
4888, 4890).

In 1973, UMLS graduated 41 black law students and the first Latino/a
in recorded history. In 1975, the Law School graduated its first two Asian-
Americans, followed by the first Native American in 1976. The increasing
number of black and other minority students cleared the way for the
admission of increasing numbers of women students of all races. (Ex 97,
Apx 5065; Wildman Rep, 2, Apx 3139).


31


After Bakke was decided in June 1978, UMLS reaffirmed its
affirmative action program, including its intent to evaluate students'
potential by flexible criteria. (Ex 53 at 53-55, Apx 4903). For fourteen years,
the policy remained unchanged.

            2.       The Law School's current admission plan.

In 1992, the then Dean of UMLS, Lee Bollinger, appointed a new
Director of Admissions and a committee to review the admissions program
and to develop a clear mission statement for it.

Committee member Professor Theodore Shaw testified that the
committee determined that "…in the absence of special efforts to be
conscious about producing diversity, [an] institution like University of
Michigan Law School could end up being very racially exclusive." (Dep of
Shaw, 72, 78, 80-81, Apx 3871, 3872, 3873). When pressed for an
explanation, he explained that standardized test scores are correlated with
privilege and do not "adequately explore all of the qualities of the
applicant." As a result, the committee adopted a "holistic review process that
reflected real individualized considerations of each applicant's qualifications
and background." (Dep of Shaw, 91-92, Apx 3875).


32


While that policy declared that the Law School would use grades and
LSAT scores as a guide to admissions, it foreswore any rigid adherence to
them because these criteria predicted first-year grades only weakly, and
because "the asserted connection between graded law school performance
and the likelihood of success in practice is based more on faith and anecdote
than it is on rigorous research findings." (Ex 4 at 3-6, Apx 4232-4235).

Moreover, the policy declared that admitting some students with
lower index scores would help "achieve that diversity which has the
potential to enrich everyone's education and thus make the law school class
stronger than the sum of its parts." (Ex 4 at 8-10, Apx 4237-4239). In that
context, the Policy singled out the gains of integration by reaffirming the
School's committed to admit 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." Noting that such students are
"likely to have experiences and perspectives of special importance to our
mission," the Law School reaffirmed its commitment to enroll a "critical
mass" of such students in order to ensure their actual ability "to make unique
contributions to the character of the Law School." (Ex 4, 8-10, 12; Apx
4237-4239, 4241).


33


Under the 1992 policy, the Law School has paid some attention to the
numbers of minorities. However, enrollment has fluctuated greatly, and
because the numbers are still too low, minority students face a hostile
environment at the Law School. (Allen, TR10, 90-91, Apx 8218-8219; Ex
98, Apx 5066).

G.       The district court's decision.

            1.       The central contradiction in the district court's factual findings.

In its lengthy opinion, the district court struck down the Law School's affirmative action plan because it believed that the school could not consider
race at all in the absence of proof that it had engaged in intentional racial
discrimination in the recent past. (Dist Ct Op, 46, Apx 141). In reaching this
conclusion, the district court strained to minimize evidence as to the
continued existence of racism in American society and to reject much of the
students' testimony regarding grades and test scores. Nevertheless, the
largely unrebutted evidence—and the plain truth about American
society—did force the district court to reach some very contradictory factual
findings.

The district court agreed that there was a vast disparity in educational
opportunities for whites and minorities; that this difference, along with a


34


racially hostile climate in the nation's undergraduate colleges, helped cause
the difference in UGPA between white and minority applicants; and that the
even larger difference in LSAT scores reflects nothing about what kind of
lawyer the applicant may become, but instead may indicate nothing more
than the availability of test preparation classes or household linguistic
experience of the applicant or other causes not known to the district court.
(Dist Ct Op, 61-65, 69-70, 71-73, 75-76, 81, Apx 156-160, 164-165, 166-
168, 170-171, 176).

Having made those findings, however, the district court specifically
adopted the plaintiff's claim that white applicants suffered discrimination at
the Law School based upon the cell-by-cell comparisons propounded by the
plaintiff's statistician, Dr. Kinley Larntz. (Dist Ct Op, 33, Apx ). As
summarized by the district court, those comparisons grouped applicants by
criteria that it had found incorporated discrimination—the UGPA and LSAT
scores—and then compared the odds of admission for white students in each
cell with the odds of admission for each category of minority in the same
cell. According to Dr. Larntz and the district court, the difference in the odds
of acceptance—the "odds ratio"—showed an "enormous preference" for
underrepresented minorities—even though the district court admitted that
the very criteria on which these odds ratios were based contained an


35


enormous preference for white students! (Dist Ct Op, 26, 32-34, Apx 121,
127-129).

According to the district court, if the Law School uses criteria that the
court recognizes contain racial discrimination within them, the Fourteenth
Amendment requires that it must either abandon those criteria altogether or
must use them with a rigidity across racial lines that guarantees that they will
exclude the vast majority of blacks, Latinos/as, and Native Americans.

            2.       The effect of the district court's decision.

While the district court accepted Dr. Raudenbush's conclusion that its
decision would result in an immediate drop in minority enrollment of over
65 percent (Dist Ct Op, 28-29, 34-35, Apx 123-124, 129-130), the actual
effect of its decision is far greater than that. If adopted by this court or by the
Supreme Court, the district court's decision would quickly choke off the
supply of black, Latino/a and Native American applicants from
undergraduate colleges across the country. Even if at first the Law School
somehow managed to enroll a student body with four percent
underrepresented minorities, the percentage would quickly drop to where it
once was: at or near zero.


36


Even before that occurred, the district court's decision would result in
conditions that would drive out some black, Latino/a and Native American
students. In her testimony, Chrystal James, one of two black students in her
entering class at UCLA Law School, described the wave of racial hostility
and isolation that swept that school after the passage of Proposition 209.
(James, TR9, 8-75, Apx 8142-8209). In his deposition, Eric Brooks
described similar conditions when he was the only black law student
entering Boalt Hall after the passage of Proposition 209. (Dep of Brooks, 25-
31, Apx 6546-6547).

The district court suppressed evidence it did not want to consider. It
asserted that the percentage of underrepresented minorities at the three law
schools in the University of California system increased slightly from 1999
to 2000—but it did not mention that at those law schools most comparable to
Michigan—UCLA and Berkeley—the entering classes of black law students
dropped from 7.9% in 1995 to 2.6% in 2000 at Berkeley, and from 7.4% in
1995 to 1.6% in 2000 at UCLA. (Dist Ct Op, 84-85, Apx 179-180; Ex 118,
Apx 5102).

Similarly, the district court claimed that there has been a drop in
underrepresented minority students of only one percent throughout the
University of California system, while neglecting to note that even in the


37


face of a vast increase in the Latino/a population, there has been a 42 and 45
percent drop in black and Latino/a students entering UCLA and Berkeley.
(García, TR10, 180, Apx 8407; Ex 213, Apx 6102). As Professor Allen
testified—and the district court ignored—at UCLA, barely 15 miles from
South Central Los Angeles, the entering class of 4,000 undergraduate
students had exactly 25 black men who were not scholarship athletes. (Allen,
TR9, 175, Apx 8267).

As Dean García's unrefuted testimony demonstrated—and as the
district court again ignored—the only reason that the UC system as a whole
has shown only a 1% drop in such enrollment is that there has been a large
increase of minority enrollment at UC Riverside and UC Santa Cruz. (Ex
213, Apx 6102). As Dean García testified, without contradiction, that
increase will end as the swelling population forces those schools to become
more selective, and as the continuing inability to use affirmative action
drives out the black and Latino/a students who have now found a temporary
refuge there.

As Dean García and Professor Orfield testified, California's
universities have found no way to replace the conscious use of
race—affirmative action—to assure an integrated student body. At UCLA,
officials attempted to use income as a substitute for race; it did not work


38


because there are too many poor white people who do not suffer the same
degree of deprivation as blacks, Latinos/as, and Native Americans. (Orfield,
TR6, 100-101, 150-151, 175-176, Apx 7870-7871, 7879-7880, 7913-7914;
Foner, TR10, 219, Apx 8439). At Berkeley, officials attempted to use
holistic file review as a substitute for affirmative action; it has not worked
because the lack of resources in predominantly black and Latino/a schools
simply camouflages the achievements of the students in those schools.
(García, TR11, 62-63, Apx 8501-8502; Orfield, TR6, 150-151, 176-177,
Apx 7879-7880, 7914-7915). The passage of Proposition 209 is forcing the
resegregation of the largest public university in the country. (García, TR11,
108-110, Apx 8540-8542). 3

SUMMARY OF THE ARGUMENT

Race inflects every experience. More specifically, racism saturates the
educational process. The impact of racial discrimination in education—from
gross to subtle—is determinative. To deny this fact is to accept the

___________________
3/       In its attempt to obscure that result, the district court cites Dean
García's own school, the Graduate School of Education, which had been
able to slow the decline of minority enrollment for a variety of idiosyncratic
reasons. The other graduate schools in the UC System have suffered
dramatic declines in minority enrollment, as have the undergraduate
institutions campuses at UCLA and Berkeley.

39


biological determinist lie that the gaps in test scores and GPAs between
white and underrepresented minority students is a function of biology rather
than a creation of social policies and conditions. Integration, democracy,
freedom, and equality require defeating this lie. We have made our greatest
progress when we have acknowledged the role that race and racism play
within our society and when we have taken conscious and positive action to
achieve integration. Integration is the key to social progress and equality.

The district court never engaged with either side of the fundamentality
of race—not with the students' arguments about racism and meritocracy and
not with their arguments for integration, diversity, and progress. The opinion
is rife with legal and factual errors that all have the same source—a
complete failure to recognize that racism and race matter deeply for social
experience, for intellectual and social viewpoint, for performance on
measures of academic achievement and potential, and for our common future.


40


ARGUMENT

I

BECAUSE INTEGRATION IS A COMPELLING STATE
INTEREST AND AFFIRMATIVE ACTION IS THE ONLY
AVAILABLE MEANS OF INTEGRATING THE LAW SCHOOL
AND THE LEGAL PROFESSION, THE DISTRICT COURT
COMMITTED A FUNDAMENTAL AND HISTORIC ERROR OF
LAW IN STRIKING DOWN THE UMLS PLAN.

A.       Standard of review.

This Court reviews the district court's legal rulings de novo and its
factual findings for clear error. Cousin v Sundquist, 145 F 3d 818 (CA6
1988), cert den 525 US 1138 (1999).

B.       The integration of a public university is the most compelling state
interest possible under the Fourteenth Amendment.

In Brown v Board of Education, 347 US 483 (1954), the Supreme Court
reaffirmed the original intent of the Fourteenth Amendment to extend
the basic guarantees of equality, democracy and freedom to the oppressed
minorities of the nation. Brown stated a simple but profound truth: "Separate
educational facilities are inherently unequal." 347 US at 495.

No other decision has fashioned so sweeping, radical, and just a
solution—the integration of public education—as the means to address the
persistence of inequality and injustice. No other decision has declared so


41


boldly that black and other minority citizens could only realize the full rights
of citizenship if public education were desegregated.

Brown resuscitated the Fourteenth Amendment and transformed the
concept of equal protection under the law from a hollow and meaningless
platitude to the living expression of the fight for equality. The Plessy era of
"separate but equal" had turned the Fourteenth Amendment on its head,
using it to disenfranchise and degrade black people and other minorities and
to cast them into second-class citizenship.

In Brown, the Court asserted that the Constitution could protect the
interests of black people and other minorities. Not surprisingly, this change
in constitutional interpretation extended new rights to white people as well.
The interests of white people and black people and other minorities were no
longer counterposed. The struggles for equality that were initiated in
response to Brown proved that through integration we can advance together.

The fact that the federal judiciary had taken a stand in favor of
expanding the rights of black people inspired hundreds of thousands of black
and white students and youth to stand and fight for equality, even in the face
of great danger and resistance. The integrated struggles of the civil rights
movement and in particular the courage, determination, and leadership of
black youth challenged the racist lie of black inferiority and convinced


42


millions of Americans of all races that we could become a multiracial and
multiethnic nation of equals.

The new civil rights "revolution"—the second American
Reconstruction—swept out of the South into the entire country. The 1963
March on Washington, the 1964 Civil Rights Act and the 1965 Voting
Rights Act made clear that there was a national mandate for integration and
equality. Urban uprisings in many northern black communities, including
Watts, Detroit, and Newark, made clear that the time to end de facto
segregation had come as well.

Thousands of northern university students traveled to the South to
fight for integration and voting rights. Most of these students returned to the
North determined to fight against segregation and inequality on their own
campuses. Many also became active in the movement to end the Vietnam
War. Together, the anti-war and the civil rights movements changed the
consciousness and the culture of almost every university campus and won
broad, new rights and power for students. Student activists demanded that
the American ideals of democracy, equality, and justice be realized in action.
In response to the demands of the student movements and the change in
consciousness within American society, university faculty and
administrations began to develop and implement affirmative action


43


programs. (Bowen and Bok,Shape of the River,6-8).

The resulting partial integration of higher education stands as one of
the great achievements of the civil rights movement. For the first time in
American history, minorities, women, and poor and working-class whites
gained new access to higher education and opportunities for careers never
before possible. Affirmative action facilitated the expansion of the whole
middle class—and virtually created the black middle class.

In recognition of the popular demands and the crying need for
equality, this Court, the Supreme Court, and numerous state courts
emphatically recognized before Bakke that duly elected public officials had
the obligation to take affirmative, racially conscious steps to eliminate de
jure segregation—and the right to take affirmative, racially conscious steps
to eliminate de facto segregation. Swann v Charlotte Mecklenberg Bd of
Educ,
402 US 1, 15-16 (1971); Deal v Cincinnati Board of Education, 369 F
2d 55, 61 (CA 6 1966), cert den 389 US 847 (1967). 4

___________________
4/       Among many other pre-Bakke cases expressing this consensus, see,
e.g., School Committee of Springfield v Board of Education, 362 Mass 417
(1972)("…State may, in its discretion, adopt a policy of achieving racial
balance in its public schools"); Tometz v Board of Education, Waukegan
City School District No. 61,
39 Ill 2d 593, 597 (1968)("State laws or
administrative policies, directed toward the reduction and eventual
elimination of de facto segregation of children…have been approved by
every high State court which has considered the issue…").

44


After Bakke, including very recently, the other circuits have continued
to recognize that duly elected local officials have the right to take
affirmative, racially conscious steps to eliminate the de facto segregation of
public education. Brewer v West Irondequoit Central School District, 212 F
3d 738 (CA 2 2000); Parents Ass'n of Andrew Jackson High Sch v Ambach,
738 F 2d 574, 577 (CA 2 1984)(Lumbard, J); Johnson v Board of Education,
604 F 2d 504, 514-515 (CA 7 1979), rev'd on other grounds 449 US 915
(1980).

The District Court in this case rejected the obvious and fundamental
truth that maintaining the integration of higher education is a compelling
state interest. (Dist Ct Op, 44-47, 49, Apx 139-142, 144). It is hard to
imagine any state interest that could be more compelling.

C.       The Bakke decision reaffirms the legality of affirmative action while
circumscribing both the rationales that support it and the means to
achieve it.

In 1978, the United States Supreme Court rejected the first sustained
attack on the programs that were successfully integrating the universities and
the professions. Regents of the University of California v Bakke, 438 US 265
(1978).


45


In that case, Allan Bakke, a rejected applicant at the University of
California at Davis Medical School, claimed that he had suffered
discrimination because he had higher scores and grades than many of the
minorities admitted to one of the 16 slots reserved for minorities under that
school's affirmative action plan. Justices Brennan, White, Marshall and
Blackmun upheld that plan as a valid means to achieve the compelling
interest of overcoming historic discrimination and achieving a racially
integrated student body. Justice Powell cast the deciding fifth vote holding
on narrower grounds that the university could validly consider race as a
factor in admitting students because attaining "a diverse student
body...clearly is a constitutionally permissible goal for an institution of
higher learning."Id.,438 US at 312.

As Justice Powell's Opinion has shaped both the law and public
debate over affirmative action ever since, it demands further examination.

Justice Powell based his decision on the right under the First
Amendment for the university "to determine for itself on academic grounds
who will teach, what may be taught, how it shall be taught, [and] who may
be admitted to study."Id.,438 US at 312. After noting that "speculation,
experiment and creation" was "widely believed to be promoted by a diverse
student body," Justice Powell held that it was clear that "[p]eople do not


46


learn very much when they are surrounded only by the likes of themselves."
Id., 438 US at 313 n48. Quoting with approval the Harvard admissions plan,
Justice Powell recognized that "a black student can usually bring something
that a white person cannot offer."Id.,438 US at 318 n 51.

While Justice Powell declared that he could not support quotas, he
made clear that diversity requires "the necessity of including more than a
token number of black students," which could not be accomplished "without
some attention to numbers."Id.,438 US at 323. As declared in the Harvard
plan that he appended to his Opinion, if there were to be enough black
students "to bring to their classmates and to each other the variety of points
of view, backgrounds, and experiences of black people in the United States,"
and to overcome the "sense of isolation among the black students themselves
[which would] make it more difficult for them to develop and achieve their
potential," the university had to have the right to take the steps necessary to
achieve a critical mass of black and other minority students.Id.,438 US at
323.

While there might be a fine line between a quota and a plan that
granted a plus factor for race and "paid some attention to numbers," Justice
Powell held that "[a] boundary line...is none the worse for being narrow."
As if to ward off suits like this one, he declared that the courts should


47


presume that "a university, professing to employ a facially
nondiscriminatory admissions policy, would [not] operate it as a cover for
the functional equivalent of a quota system."Id.,432 US at 318-319.

By rejecting the racist challenge to affirmative action, by declaring
that universities could award a "plus factor" for race, and by establishing a
very broad range of discretion in which the universities could "pay attention
to numbers," Justice Powell's Opinion allowed the universities to preserve the essential gains achieved by affirmative action.

But even at that time, and increasingly over the years, the
contradictory way in which Justice Powell's Opinion treated the question of
race left affirmative action programs vulnerable to political, legal, and
intellectual attack. By dissolving racial integration into "diversity," the
Bakke opinion suggested that being born and growing up black, Latino/a, or
Native American could be equated with becoming a tuba player, a chess
champion, or an Olympic diver. Because it stated that the use of race in
admissions programs could not be justified to correct the effects of societal
discrimination, university administrators and other supporters of affirmative
action began to treat race as if it were just an abstract personal quality.

The use of race in admissions was increasingly justified as a way to
get a greater variety of different types of individuals in a particular class.


48


The significance of race and the social imperative of desegregating higher
education were completely played down. The First Amendment diversity
rationale for affirmative action programs became the main social and
political justification for their existence. Race was turned into a discrete
personal characteristic that could be abstracted from the central role it plays
in defining every American's viewpoint about the fundamental issues of
American society.

If universities and supporters of affirmative action had continued to
argue that these programs were necessary to integrate higher education and
the legal profession, and to counteract the continued impact of inequality
based on race, then affirmative action programs would have maintained
greater support not only from minorities and women, but also from a larger
majority of white people. The more universities framed affirmative action
programs as being beneficial to the education of whites rather than being
necessary to achieve equality, the more they strangled support for the
programs. To this day, affirmative action programs have the support of the
majority of this nation when it is clear that they counter discrimination and
inequality and promote integration and equal opportunity.

Over time, when university administrators were pressed by anti-
integrationist opponents of affirmative action to explain what the benefit of a


49


diverse student body is, they responded that diversity enhanced classroom
debates and discussion, increased the chance for socializing with people of different races, and therefore improved the educational experiences of
mostly white student bodies.

While these arguments are undeniably true, they opened the door to
the view that affirmative action brought black people and other minorities
into the universities not as a matter of right but in order to broaden the
experience of white students. As this more narrow rationale for affirmative
action programs weakened popular support for them, the opponents of
affirmative action began to press the claim that if affirmative action
programs existed only to introduce different viewpoints into a classroom
discussion, then there was no reason to consider race in admissions.

Again, the response of university administrators was to further
obscure the integrationist purposes and gains of affirmative action and the
obvious truth that race completely shapes a person's viewpoint, by claiming
that affirmative action programs were necessary in order to give white
students the opportunity to see that blacks, Latinos/as, and Native Americans
do not all think alike. Many of UMLS witnesses in this case, for example,
explained in part the benefits of diversity by describing how important it was


50


for white students to hear minority students make very conservative and
reactionary legal and political arguments.

At the same time that Justice Powell's decision minimized and
distorted the significance of race, it placed the consideration of race in
admissions decisions in a separate category from all other admissions
factors. Race is the only factor used in admissions decisions that is subject to
strict scrutiny. This has placed universities in the absurd position of being
able to give great weight to any factor used in the admissions process apart
from race.

Finally, by outlawing quotas, Justice Powell's Opinion lessened
public accountability, deprived supporters of the popular, democratic
argument that public universities in particular should at least approximately
reflect the racial and ethnic composition of their state or of the nation, and
opened the doors to attacks on any actual attempt to "pay attention to
numbers."

As this case makes clear, taken as a whole, the set of contradictions
contained in the Bakke decision has left universities in the impossible and
odious position of attempting to carry out a vital social policy—the
integration of education and society—without stating their true aims; of
having to mitigate against the continued existence of racism, segregation,


51


and inequality without being able to openly state that it is impossible to
fairly assess an applicant without looking at his or her race; and of trying to
admit a critical mass of minority students without ever being able to openly
state what constitutes a critical mass. In this case, the student intervenor
defendants were the only party who could tell the truth about race and
racism in this society and about the purpose and aims of affirmative action.

While, as will be seen, the University's plan is squarely in the middle
of plans approved by Bakke, the artificial debate over that plan demonstrates
that affirmative action plans must be upheld on more than just diversity
grounds. Race-conscious admission plans must be upheld on the more solid
and more straightforward ground that they are justified and essential as a
means to achieve the integration of higher education, the professions, and
American society. The Law School and other institutions of higher education
must be given the freedom to continue carrying out the critical social
policies furthered by affirmative action and to declare all the actual reasons
for doing so.


52


D.       The district court erred as a matter of law in striking down the Law
            School's affirmative action plan.

            1.       The district court erred in defying Bakke.

After a generation in which courts, universities and students had
regarded Justice Powell's decision as the definitive approval of affirmative
action plans in higher education, a single panel of the Fifth Circuit suddenly
declared that Justice Powell's Opinion was no longer binding. Hopwood v
State of Texas,
78 F 3d 932 (CA 5 1996), reh and reh en banc den 84 F 3d
720 (1996), cert den 518 US 1033 (1996). Seven members of the Fifth
Circuit dissented from this decision when that court denied en banc
consideration. Id, 84 F 3d at 723-724. Not a single other circuit has adopted
the Hopwood panel's decision—and that panel's decision is still subject to
almost constant challenge. See Smith v University of Wash Law Sch, 233 F
3d 1188, 1200-1201 (CA 9 2000) cert den __ US __, 69 USLW 3593 (May
29, 2001); Hopwood v State of Texas, 236 F 3d 256 (CA 5 2000), cert den
__ US __, 69 USLW 3702 (June 25, 2001).

The district court claimed that later Supreme Court decisions had
undercut the Bakke decision. (Dist Ct Op, 45-46, Apx 140-141). But
whatever unfortunate force those later decisions may have in the area of
public contracting, the Supreme Court emphatically did not apply them to
affirmative action plans in colleges and universities. See City of Richmond v


53


J.A. Croson Co, 488 US 469 (1989); Adarand Constructors, Inc v Pena, 515
US 200 (1995); see also Larry P. v Riles, 793 F 2d 969, 980 (CA9 1986)
(refusing to extend Title VII cases on employment testing to the educational
context). In striking down a plan to afford equal opportunity to black,
Latino/a and Native American students on the basis of decisions striking
down set-aside plans in public contracting, the district court erred
grievously.

Finally, the district court erroneously held that past discrimination by
the institution in question is the only basis for affirmative action. The
Supreme Court has never so held, and it is in fact clear that new rationales
for race-conscious decision-making must be considered as they arise. See,
e.g., Wygant v Jackson Bd of Education,
476 US 267, 286 (1986)
("[C]ertainly nothing the Court has said today necessarily forecloses the
possibility that the Court will find other interests which have been relied
upon in the lower courts but which have not been passed on here to be
sufficiently 'important' or 'compelling' to sustain the use of affirmative
action policies.")(O'Connor, J.); see also Wittmer v. Peters, 87 F 3d 916,
919 (1996) (noting, in response to arguments like those put forward by the
district court, and en route to finding that correctional needs justified
affirmative action in promotions at boot camp, that "there is a reason that


54


dicta are dicta and not holdings, that is, are not authoritative"); Hunter v.
Regents,
190 F 3d 1061 (CA9 1999), cert den 121 S Ct 186 (use of race in
admissions to a laboratory school justified by research needs).

            2.       The district court erred in ruling that the Law School plan failed
                        to comply with Bakke.

Having declared its right to ignore Bakke, the district court proceeded
in two major and countless minor ways to give that decision the narrowest
possible construction in order to reach the conclusion that the Law School
plan did not comply with Bakke in any event. (Dist Ct Op, 49-54, Apx 144-
149).

First, the district court asserted that the University's goal of achieving
a "critical mass" of minority students is both too "amorphous," because it
"cannot be quantified," and too definite "because it is an essentially fixed
minimum percentage figure." (Dist Ct Op, 50-51, Apx 145-146). How a goal
can simultaneously be too "amorphous" and too "fixed" the district court
does not say—but the logical conclusion is that any attention to numbers is,
in the district court's opinion, improper.

Yet that is precisely what is allowed by five justices in Bakke—four
who accepted a hard quota and one who rejected such a quota but declared


55


that he recognized that the universities had to "pay some attention to
numbers."

In its zeal to strike down the Law School's "attention to numbers," the
district court seizes upon any attention to numbers, however flexible, as
evidence of a quota. Ignoring Bakke's directive that the university be
afforded wide latitude and a presumption of good faith, the district court
disregards the wide fluctuations in each underrepresented minority group,
amalgamates all groups of underrepresented minorities together, and asserts
that there is a "quota" variously described as from 10 to 12 percent and from 10 to 17 percent. (Dist Ct Op, 36, 50-51, Apx 131, 145-146).

According to the district court, there is a quota because the total
number of underrepresented minorities has never dropped below 10 percent.
By this logic, the minimum number enrolled will always be a quota—unless
the university allows its underrepresented minorities to drop to zero in a
particular year. (Dist Ct Op, 36, 50-51, Apx 131, 145-146).

The district court's claim that "there is no logical basis for [choosing]
the groups which receive special attention under the current admissions
policy" is belied by the record. (Dist Ct Op, 51-52, Apx 146-147). The
district court ignores the very distinct and extreme history of discrimination
and persecution visited upon blacks, Latinos/as and Native Americans. It


56


ignores as well the voluminous testimony establishing the reasons
affirmative action is necessary for these groups, and how affirmative action
opens up education to other groups, including Asian Americans. (Wu, TR13,
54-56, Apx 8639-8641). Even more to the point, in its professed desire to
avoid singling out any particular group that has faced discrimination, the
district court makes it impossible for the university to use affirmative action
at all. (Dist Ct Op, 51-52, Apx 146-147).

In sum, to find the Law School plan unlawful, the district court first
defied Bakke and then distorted it beyond recognition.

E.       The district court erred in usurping the right of the people of the
            State of Michigan to democratically determine the steps needed to integrate
            their universities.

By popular votes, the people of the State of Michigan have repeatedly
reelected Regents favoring the use of affirmative action. In place of the wide
deference given to universities in Bakke, the district court has held that the
Fourteenth Amendment allows popularly elected Regents to use criteria that
incorporate discrimination within them—but prohibits them from taking any
conscious steps to integrate the Law School and the University.

To be sure, the district court hopes that the "unfortunate" result of the
resegregation of the Law School does not come about—and glibly suggests


57


spurious and unrealistic solutions to avoid that outcome, e.g., "eliminating
the alumni preference"; creating a lottery system whereby prospective
lawyers are chosen by chance; and having the state invest in its primary and
secondary schools to eliminate the gaps in undergraduate grades and LSAT
scores, something clearly beyond the law school's power to realize. (Dist Ct Op, 53-54, 87, 88, Apx 148-149, 182, 183).

Additionally, the court "suggests" that the law school utilize methods
that have completely failed to maintain a real measure of integration and
diversity. It suggests that the Law School "increase recruiting
efforts"—despite voluminous evidence that the Law School already heavily
recruits black and Latino/a students but cannot admit them without its
affirmative action program. (Dist Ct Op, 53-54, Apx 148-149; Shields, TR4,
186-188, Apx 7668-7670; Stillwagon, TR1, 199-122, Apx 7210-7216;
García, TR11, 49-50, Apx 8488-8489).

The district court suggests "decreasing the emphasis for all applicants
on undergraduate GPA and LSAT scores"—while ignoring the fact that in
California the attempt to do this at UCLA and Boalt Hall Law Schools and
at every selective undergraduate institution in the UC system has failed
utterly. (Dist Ct Op 53-54, Apx 148-149; Orfield, TR6, 150-151, 175-177,
Apx 7879-7880, 7913-7915; García, TR11, 49-64, Apx 8488-8503).


58


Put bluntly, the district court favors every ineffective plan for
integrating the universities and bars the one plan that has worked.

Despite the district court's "suggestions"—which amount to nothing
more than a fig leaf—the historic experience of California makes clear that
the end of affirmative action means the resegregation of American
universities.

At a time when there is rising dissatisfaction among black people with
the legal system—as most recently revealed in Cincinnati—the district court
threatens to make that system even more segregated. In place of the
Governor standing in the school house door shouting about segregation
lasting forever, the district court proposes putting the federal courts in that
door, shouting that the schools cannot be integrated because of the
Fourteenth Amendment!

As Brown makes clear, the Fourteenth Amendment was never
intended for that shameful role. The intervening defendants ask that this
Court uphold on broad and straightforward grounds the right of the
University and the people of Michigan to use racially conscious measures to
continue and deepen the integration of their Law School and their
university.


59


II

THE DISTRICT COURT ERRED WHEN IT FAILED TO
RECOGNIZE THE SIGNIFICANCE OF RACE AND RACISM FOR
VIEWPOINT AND FOR ACADEMIC CREDENTIALS.

Race and racial inequality permeate American society. Race largely
determines one's relations to healthcare, to housing, to criminal justice, to
political participation and representation, and to education. (Franklin, TR7,
54-61, Apx 7971-7978; Orfield, TR6, 87-97, Apx 7857-7867; Foner, TR10,
199, Apx 8419; García, TR10, 135, Apx 8384). It shapes day-to-day
interactions and perceptions, including our perceptions of ourselves. (Foner,
TR10, 193-199, Apx 8413-8419; García, TR11, 20, Apx 8470 ; Franklin,
TR7, 115-116, 122-124, Apx 8032-8033, 8039-8041; Dowdell, TR6, 55-57,
65-67, Apx 7834-7836, 7844-7846; Escobar, TR8, 182-184, Apx 8127-
8129). It has been built into basic public institutions and has shaped the experiences of all since colonization. (Foner, TR10, 199-202, Apx 8419-
8422). Racial inequality confers benefits and privileges on white people. It
sharply though sometimes subtly disadvantages all others, not least through
the imposition of baseless racist stigmas—above all the stigma of
intellectual inferiority the Brown Court sought to eradicate. (Allen, TR9, 97-
98, 140-144, Apx 8225-8226, 8245-8249; James, TR9, 31, 35, Apx 8165,


60


8169; Dowdell, TR6, 57-65, Apx 7836-7844; García, TR11, 39-40, Apx
8478-8479).

The signal importance of race has two consequences for this litigation.
First, in the United States, the idea of intellectual diversity without racial
diversity is an insult and a sham. Second, given the way in which racism
operates in education, one cannot measure performance or qualification
without taking race and racism into account; specifically, UGPA and LSAT
scores cannot be regarded as race-neutral, either for the sake of admissions
decisions or for the sake of legal proofs.

A.       Because race and viewpoint are inseparably linked, the district court
            erred when it disregarded the compelling state interest in racial
            diversity as a necessary component of intellectual diversity.

The district court ignored copious evidence of the inextricable links
between race and viewpoint. In rejecting the argument of both the University
and the students that achieving racial diversity is a compelling state interest,
the court found that "a distinction should be drawn between viewpoint
diversity and racial diversity," and indicated that the benefits of the former
are clear while those of the latter are "less so." The court then dismissed any
link between the two: "[t]he connection between race and viewpoint is
tenuous, at best." (Dist Ct Op, 47, Apx 142).


61


The district court disregarded evidence presented at trial and in summary
judgment proceedings that was overwhelming in quantity and in
quality. The two statisticians, Professors Larntz and Raudenbush, may have
been the only witnesses in the trial who did not help elucidate the
connections between race and viewpoint and the indispensability of racial
diversity for meaningful intellectual diversity.

As one example among many, Professor Foner offered substantial
testimony on the relationship of race to viewpoints about our most
fundamental political and civic concepts. After describing the history of
slavery, segregation and discrimination—and that of heroic, integrated
efforts to end racism in Reconstruction, in the 1930's, and in the modern
civil rights movement—Professor Foner described how students'
experiences and that of their parents, their families and their communities
led to very different attitudes toward the federal government, local
authorities, the police and the courts, educational institutions, and American
and world history. Because of their different historical and present reality, he
testified, black and white people have different ideas about freedom itself:

[M]ost white people in America think freedom is something they
have. Sometimes they're afraid that someone is trying to take it away
from them, whether it's the federal government, or terrorists, or
conspirators, or big corporations. Most African Americans [however]
think freedom is something they are still striving to achieve. It's
something that lies in the future. It's not a given, it's a struggle. It's an


62


aspiration. And since freedom is such a central value in our
society...that basic difference in outlook percolates out into many,
many other areas.
(Foner, TR10, 198-199, Apx 8418-8419)

The real question is not whether race affects viewpoint. Everyone
knows that it does. It is rather whether one values the viewpoints of black,
Latino/a, and Native American students, or whether one prefers to leave
undisturbed the presumptions of race privilege, the taking-for-granted of
freedom.

B.       The district court erred in rubber-stamping the plaintiff's view that
            admissions criteria are race-neutral measures of merit in the face of
            overwhelming and largely uncontested evidence that they are
            saturated with racial bias and discrimination.

The affirmative action plan at UMLS has the effect of reducing the
bias and discrimination in admissions that otherwise would constitute a clear
double standard disfavoring minority applicants. This bias and
discrimination are racial. They are captured in LSAT and UGPA, the Law
School's chief meters of selection and the plaintiff's chief meters of proof,
and they would be inscribed in any putative measure of academic or
intellectual wherewithal. Affirmative action makes admissions more fair, not
less so.


63


The district court criticizes the students' position on the grounds that
"[t]here is no basis in logic or in the evidence for assuming that all members
of some racial groups are victims of adverse circumstances or, conversely,
that all members of other racial groups are beneficiaries of privilege." (Dist
Ct Op, 82, Apx 177). However, the evidence showed that across class, and
whatever the idiosyncrasies and vicissitudes of individual history, race and
racism matter. The caste system in America is not absolute, and there are
other kinds of privilege and disadvantage besides those strictly based on
race. Nevertheless, racial bias on the LSAT means that the black daughter of
bankers will be outscored by the white daughter of municipal employees by
on average 6 points, the difference between attending a competitive law
school or none at all. (White, TR11, 139-141, Apx 8547-8549; Ex 221, Apx
6186). Further, the latter will never confront on her college campus the
disabling stigma that she does not belong because her entire race is
intellectually inferior.

The district court rejected the students' arguments on the grounds that
"the Supreme Court has held that the effects of general, societal
discrimination cannot constitutionally be remedied by race-conscious
decision-making." (Dist Ct Op, 83, Apx 178). So it has, but famously
enough to ensure that the student intervenors never argued that the


64


affirmative action plan at UMLS is justified on the basis that it remedies
general societal discrimination. On the contrary, their arguments and
evidence about discrimination and bias, while grounded in a broader
exposition of the context of race in America, were centered on the two
academic criteria at the heart of law school admissions across the country
and at the heart of the plaintiff's case.

As discussed in more detail above, the district court, after wrongly
criticizing the evidence on UGPA presented by the students, conceded their
main point: undergraduate grades are saturated with bias.

As the court found, grades for black and other minority students are
depressed by the hostile racial climate on campuses and the legacy of
segregated education. While science does not allow the precise effect on
each minority student to be calculated, that is not and cannot be the basis for
refusing to consider the conceded fact that UGPA discriminates against
minority students as a whole. (Dist Ct Op, 77-78, Apx 172-173).

Even more significantly, the court recognized that LSAT scores
predict little or nothing and substantially disadvantage underrepresented
minorities. (Dist Ct Op, 81, Apx 176). And as the discussion above
demonstrates, the bias in the tests in fact extends far beyond what the district
court found. The test content is arbitrary and racialized; questions are


65


selected in a manner that reproduces the racial bias in past tests; and the tests
are administered in a way that maximizes their discriminatory impact. As
Mr. White testified—and as the study of students with the same grades at the
same schools demonstrates—the achievements made by black, Latino/a and
Native American students over the course of four years are sharply diminished
in the four hours allotted to the LSAT.

When the evidence and even the findings about the discrimination
incorporated in the UGPA and the LSAT scores are considered in light of
the extent to which racial inequality and segregation restrict the educational
opportunities of black, Latino/a and Native American students from every
social class, the case against the plaintiff's cynical number crunching—and
against the district court's opinion—becomes overwhelming.

C.       UMLS has the right, if not the obligation, to maintain an affirmative
            action plan that reduces the reign of racism and race in admissions.

Differences by race in law school entry credentials are a direct
product of stigma and discrimination on college campuses, of bias and
unfairness in standardized tests, and of segregation and inequality in K-12
education. To use them as a meter for evaluating alleged reverse
discrimination, as the district court did, or as a rigid means of distributing
opportunities in legal education, as every law school will if the decision


66


below is upheld, is to guarantee a rigid double standard. It is not possible to
make any fair assessment of the meaning of any academic credential,
including UGPA and LSAT, without taking race and racism into account.

Thus, in addition to threatening the resegregation of higher education,
the district court's decision threatens to intensify the unfair stigma and
prejudice minority students already face. When the window-dressing is
pulled aside, the court has ratified the validity of test scores and grades as
measures of merit, lending the authority of the federal judiciary to the racist
view that black, Latino, and Native American students are less able, less
gifted, and less deserving than white students. The brand of dishonesty in the
opinion of the district court is reminiscent of that of the majority in Plessy v
Ferguson,
163 US 537 (1896), which commented that if black people take
segregation as an insult, it is their own fault:

We consider the underlying fallacy of the plaintiff's argument to
consist in the assumption that the enforced separation of the two races
stamps the colored race with a badge of inferiority. If this be so, it is
not by reason of anything found in the act, but solely because the
colored race chooses to put that construction upon it.
Plessy, 163 US at 551.

The Supreme Court has made it clear that the Fourteenth Amendment
cannot be taken to compel the Law School to function as a "passive
participant" in racial discrimination such as that which permeates any and all


67


academic criteria. Croson, 488 US at 492. In Bakke itself, Justice Powell
went out of his way to observe that the University of California had not
presented evidence showing that affirmative action was made necessary by
bias in academic criteria: "Racial classifications conceivably could serve a
fifth purpose, one which petitioner does not articulate: fair appraisal of each
individual's academic promise in the light of some cultural bias in grading
or testing[.]" 438 US 265, 306 n43. He went on to say that such
consideration of race might not be a "preference" at all.

The record that was missing in 1978 has finally been presented to the
public and to this Court—as this Court anticipated in reversing the district
court to grant the students' motion to intervene. Grutter v Bollinger, 188 F
3d 394, 401 (CA6 1999) (allowing students to intervene in part on grounds
that "the disparate impact of some current admissions criteria…may be
important and relevant factors in determining the legality of a race-conscious
admissions policy").

There are no race-neutral measures of merit, and there will not be
until racial inequality has been eradicated. The Law School has a compelling
interest in taking account of that unmistakable fact and in acting as a force
for equality. So too does this Court. The Fourteenth Amendment must tell
the truth of this society. The decision below forces it to lie.


68


CONCLUSION

For these reasons, the student intervenors ask the Court to reverse the
district court's injunction and to remand the matter to the district court with
instructions to enter judgment in favor of the student intervenors and UMLS.

By Intervening Defendants' Attorneys,
SCHEFF & WASHINGTON, P.C.


BY: __________________________
Miranda K.S. Massie (P-56564)
George B. Washington (P-26201)
Jodi-Marie Masley (P-62116)
3800 Cadillac Tower
Detroit, Michigan 48221
(313) 963-1921

Date: July 26, 2001


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CERTIFICATE OF COMPLIANCE

Pursuant to Sixth Circuit Rule 32(a)(7)(c) and Sixth Circuit Rule
32(a), the undersigned certifies that this brief complies with the type-volume
limitations of Sixth Circuit Rule 32(a)(7)(b).

The brief has been prepared in proportional typeface using Times
New Roman 14 point.

Exclusive of the portions of the brief exempted by Sixth Circuit Rule
32(a)(7)(R)(iii), the brief contains 13,846 words, including graphs. If the
Court so requests, the undersigned will provide an electronic version of the
brief and/or a copy of the word or line printout.

The undersigned understands a material misrepresentation in
completing this certificate or circumvention of the type volume limits in
Sixth Circuit Rule 32(A)(7), may result in the Court's striking the brief and
imposing sanctions against the person signing the brief.

___________________________
MIRANDA K.S. MASSIE

70


DEFENDANT INTERVENORS'
DESIGNATION OF APPENDIX CONTENTS

Defendant intervenors, pursuant to Sixth Circuit Rule 28(d), hereby
designate the following filings in the district's record as items to be included
in the joint appendix:

Description of Entry Date Filed in
District Court
Transcript Page
Nos.
SELECTED TRIAL TRANSCRIPTS
Testimony of Allen 2/7/01 Vol. 9, 82-110,
134-160, 174-
181
Testimony of Dowdell 1/23/01 Vol. 6, 8-76
Testimony of Escobar 2/6/01 Vol. 8, 159-196
Testimony of Foner 2/8/01 Vol. 10, 192-
228, 235-245,
249-254
Testimony of Franklin 1/24/01 Vol. 7, 5-129,
155
Testimony of García 2/8/01







2/9/01
Vol. 10, 20, 25-
26, 52-63, 81,
135-143, 160-
167, 174-181
Vol. 11, 33-72,
108-110
Testimony of James 2/7/01 Vol. 9, 8-75
Testimony of Kappner 2/15/01 Vol. 14, 170-198
Testimony of Lehman 1/22/01 Vol. 5, 152
Testimony of Lempert 1/18/01



2/15/01
Vol. 3, 101-102
Vol. 14, 61, 83-
87, 139, 141
Testimony of Munzel 1/16/01 Vol. 1, 134, 147,
159-161

A-1

Testimony of Orfield 1/23/01 Vol. 6, 86-110,
126-138, 150-
160, 171-179
Testimony of Rosner 2/6/01 Vol. 8, 118-127
Testimony of Shapiro 2/6/01 Vol. 8, 25-41,
55-68
Testimony of Shields 1/19/01 Vol. 4, 178-196,
206
Testimony of Smith 2/12/01 Vol. 13, 158-
164, 175
Testimony of Stillwagon 1/16/01 Vol. 1, 119-122
Testimony of White 2/9/01 Vol. 11, 136,
139-141, 144-
152, 155
Testimony of Wu 2/12/01 Vol. 13, 41-88
DESIGNATED DEPOSITIONS:
Deposition of Eric Brooks 2/21/01 25-31
Deposition of Theodore Shaw 2/21/01 72, 78, 80-81,
91-92
Deposition of Claude Steele 2/21/01 26-27, 77, 80-81,
177-182
Description of Entry Date Filed or
Admitted in
District Court
Record Entry
Number
SUMMARY JUDGMENT EXHIBITS:
Expert Report of Bok 10/10/00 219
Expert Report of Foner 10/10/00 219
Expert Report of García 12/11/00 254
Expert Report of Rosner 12/11/00 254
Expert Report of Shapiro 12/20/00 262
Expert Report of Steele 10/10/00 219
Expert Report of Wildman 12/11/00 255
LIST OF SELECTED EXHIBITS

A-2

Ex 4 - Admissions Policy 1/16/01
Ex 53 - The History of Special Admissions at the University of Michigan Law School (1966-1981) 1/16/01
Ex 97 - Exhibit A of Defendant-Intervenors Brief in Support of Defendants' Motion for Summary Judgment and In Opposition to Plaintiff's Motion for Summary Judgment — Chart re: race and ethnicity by graduation years 1950-1999 1/21/01
Ex 98 - Exhibit B of Defendant-Intervenors' Brief in Support of Defendants' Motion for Summary Judgment and In Opposition to Plaintiff's Motion for Summary Judgment — Chart re: residency, gender and ethnicity matriculants of 1987-1998 11/21/00
Ex 118 - University of California Law Schools: Law School Applicants, Admits and First-Year Class Enrollments 1/23/01
Ex 132 - Official tabulations of demographic figures for the University of California system 1/23/01
Ex 133 - University of California Distribution of New California Freshman Admit Offers, Fall 1997-2000 1/23/01
Ex 157 - Expert Report of Walter Allen and Daniel Solórzano - Affirmative Action, Educational Equity and Campus Racial Climate: A Case Study of the University of Michigan Law School 2/7/01
Ex 167-C - Expert Report of Gary Orfield 1/23/01

A-3

Ex 173-D - Expert Report of David White 2/9/01
Ex 195 - Enrollment of Largest Central City School Districts in U.S. 1/23/01
Ex 196 - Most Segregated States for Black Students 1/23/01
Ex 197 - Relationship between Segregation by Race and by Poverty 1/23/01
Ex 198 - Change in Admissions, California Public Law Schools 1/23/01
Ex 199 - LSAT Scores by Race/Ethnicity (percent) 1/23/01
Ex 200 - LSAT Scores by Race/Ethnicity (absolute numbers) 1/23/01
Ex 202 - Black or White Preference Question? - Reneg Question from SAT 2/7/01
Ex 203 - Black or White Preference Question? - Actor's Question from SAT 2/7/01
Ex 204 - Black or White Preference Question? - Square Root Question from SAT 2/7/01
Ex 205 - Black-White Summary Table 2/7/01
Ex 206 - Hispanic Summary Table 2/7/01
Ex 207 - Black or White Preference Question? - Oblivious Question from SAT 2/7/01
Ex 208 - Black or White Preference Question? - Quantitative Comparison Question from SAT 2/7/01
Ex 209 - Black or White Preference Question? - Parallelogram Question from SAT 2/7/01
Ex 210 - Range of Percent Gaps 2/7/01
Ex 210A - New "Reduced White Preference" SAT Form 2/7/01

A-4

Ex 211 - Walter Allen's Curriculum Vitae 2/7/01
Ex 213 - Percent Change in Underrepresented Minority Admissions by Campus, 1995-2000 2/9/01
Ex 214 - University of California Application, Admissions and Enrollment - Fall 1995 through 2000 2/9/01
Ex 220 - Mean LSAT Scores for Ethnic Groups of Various Socioeconomic Status (1991 First-Year Law School Students) 2/9/01
Ex 221 - LSAT Scores by Race and SES 2/9/01
Ex 222 - Minority-Nonminority LSAT Score Differences among Applicants with equal GPAs (+/- 0.10) from the same Undergraduate Institution 1978-1980 2/9/01
Ex 223 - Minority-Nonminority LSAT Score Differences among Applicants with equal GPAs (+/- 0.10) from the same 15 Undergraduate Institutions 1996-1998 2/9/01
Ex 224 - Minority-Nonminority LSAT Score Differences among Applicants with equal GPAs (+/- 0.10) with the same Major from the same 15 Undergraduate Institutions 1996-1998 2/9/01
Ex 230 - Richard Lempert article 2/15/01
Findings of Fact and Conclusions of Law (Opinion of Friedman, J) 3/27/01 311

A-5


CERTIFICATE OF SERVICE

I hereby certify that on July 26, 2001, I served one copy of the
attached Final Brief of Defendant-Intervenors on the following by regular
United States mail:

John Payton
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037

Kirk Kolbo
Maslon, Edelman, Borman & Brand
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140

____________________________
MIRANDA K.S. MASSIE


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