Case No. 01-1516










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


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

Attorneys for Defendant-Intervenors





ARGUMENT … … … 3

    PROFESSION. … … … 3
    1. The integration of a public university is a compelling
      state interest under the Fourteenth Amendment. … … … 3
    2. The Law School Plan is clearly narrowly tailored. … … … 13
      1. Paying attention to numbers. … … … 14
      2. The fictitious "racially neutral" alternative. … … … 16
    CRITERIA. … … … 22
    1. The plaintiff's case is based on criteria contaminated
      with racial prejudice. … … … 22
    2. UMLS has the right to maintain an affirmative action
      plan that reduces the effects of racism in admissions. … … … 27






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

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

Bustop, Inc., v Bd of Ed of Los Angeles, 439 US 1380, 1383
(1978) … … … 10

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

Mississippi Univ for Women v Hogan, 458 US 718 (1982) … … … 28

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

Regents of the University of California v Bakke, 438 US 265
(1978) … … … 4, 5, 9, 14-16, 30

Shaw v Hunt, 517 US 899 (1996) … … … 28

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

Sweatt v Painter, et al. 339 US 629 (1950) … … … 4-6, 9, 22

Village of Arlington Heights v Metropolitan Housing
Development Corporation,
429 US 252 (1977) … … … 28

Washington v Seattle School District, 458 US 457 (1982) … … … 10

United States v Fordice, 505 US 717 (1992) … … … 11-12

United States v Virginia, 518 US 515 (1996) … … … 28


USCA Const Amd 1 … … … 9

USCA Const Amd 14 … … … 46, passim



Associated Press, "UC Regents Rescind Affirmative Action
Ban," 5/16/2001. … … … 2

Stephen Eisdorfer, Public School Choice and Racial
24 Seton Hall L Rev 937 (1993) … … … 10



The struggle for integration and equality has shaped and defined this
nation. This struggle has taken many forms. Sometimes, the battles have
occurred in open fields or at crowded lunch counters. Other times, they have occurred in courtrooms or legislative halls. When the cause of integration
and equality has prevailed, we have moved forward together as one society.

Today, the struggle to defend affirmative action and integration is the
touchstone issue in the struggle for equality and democracy.

Nothing in recent history has awakened the minds of students and
youth, and stirred them into action as much as the defense of affirmative
action. Six years ago, when the University of California (UC) Regents
banned the use of affirmative action in the UC system, most political pundits
and legal commentators predicted the end of affirmative action.

But black, Latino/a, other minority, and white students, unwilling to
accept the possibility that their education and their lives could become more
segregated, started to organize to get the UC ban on affirmative action
overturned. Building a new, integrated civil rights movement, these youth


On March 8, 2001, 7,000 students and youth rallied at the University
of California at Berkeley campus in support of affirmative action and
integration. On May 16, 2001, the UC Regents voted unanimously to reverse
the ban on affirmative action in the UC System.1 The new youth-led civil
rights movement had achieved what many believed was impossible.

The University of Michigan Law School (UMLS) case, like the UC
Regents' ban on affirmative action, has rallied students to act. In 1999, this
Court granted students the right to stand as defendants in this case. The
importance of this decision cannot be overstated. This case has already
affected the lives of tens of thousands of students, who increasingly regard it
as their own.

During the last period, thousands of students and youth have attended
rallies, forums, and debates in support of affirmative action and integration
educational equality. Hundreds of university and high school students from
southeast Michigan attended the district court trial of this case.

On March 29, 2001, two days after district court judge Bernard
Friedman issued his decision in this case, 3,000 students, many of whom had
never participated in a single political event, and some of whom had only

1       Associated Press, "UC Regents Rescind Affirmative Action Ban,"


been won to supporting affirmative action through the course of the trial, rallied against the decision.

For the students, the issues in this case are stark and clear.

Erika Dowdell, Concepción Escobar, and the tens of thousands of
students they represent believe that higher education must not be
resegregated. Like the University and the amici representing a vast array of
different institutions of American society, they believe that we must preserve
the gains that have been made in integrating this nation. Indeed, they
believe it far more deeply—for they will live the future that will be
determined here.




A.       The integration of a public university is a compelling state
            interest under the Fourteenth Amendment.

The plaintiff's brief ignores the voluminous and undisputed evidence
of the effects of racism and segregation on educational opportunity and on


student performance. She asks this Court to join her in ignoring and
disregarding this evidence. To prevail, the plaintiff must convince the Court
to ignore reality and to adopt the lie that equality exists. This was the method
of Plessy v Ferguson 163 US 537 (1896), overturned by Brown v Board of
347 US 483 (1954). Because the plaintiff knows that it is very
unlikely that any court will directly overturn Brown, she must distort,
constrict, and attempt to limit its holding.

To achieve this, the plaintiff attempts to marginalize the relevance of
Brown to this case and to sever it from the line of desegregation cases in
public education, most importantly, Bakke2, that rest upon it. Plaintiff begins
her attack on Brown by claiming that the student defendants "misapprehend
the nature and scope of the Brown decision." (Pl Br, 54). She is wrong.

Brown rests on a set of decisions that resulted from the Court's
consideration of desegregation in higher education, most importantly, Sweatt
v Painter, et al.
339 US 629 (1950), the University of Texas Law School
desegregation case.

Like Erika Dowdell and Concepción Escobar, Heman Sweatt wanted
to be a lawyer. He applied to the University of Texas—but was rejected
because he was black. According to the State, he could receive a supposedly

2       Regents of the University of California v Bakke, 438 US 265 (1978).


equal education at an all-black law school. In a decision that laid the
foundation for Brown—and was later quoted extensively by Justice Powell
in Bakke—the Court held that even if tangible resources could be equalized
between the University of Texas's (UT's) all white and all black law
schools, "the intangible characteristics that make for greatness in a law
school, including…the reputation of the faculty, experience of the
administration, position and influence of the alumni, standing in the
community, tradition and prestige …" could never be equalized. Sweatt v
Painter, et al.,
339 US 629, 634 (1950).

Denial of admission to UT's white law school would therefore deprive
Heman Sweatt of the opportunity to an equal education. It would also
deprive him of the right to participate as an equal member of Texas's legal
establishment upon graduation. As the Court stated, if Sweatt was denied
acceptance to Texas's most respected and renowned law school, he would be
deprived of contact and familiarity with "…judges and other officials with
whom petitioner will inevitably be dealing when he becomes a member of
the Texas bar." Id. If upheld, the district court's decision would deprive
prospective UMLS black, Latino/a, and Native American law students of the
rights won by Sweatt.


Brown, decided four years later, built on the analysis in Sweatt to
strike down separate but equal. Starting from the premise that the only way
to address the inequalities based on race was to attack racism, Brown
rejected the view that equalizing unequal "tangible factors"—just throwing
money at the problem—could solve the problem of educational inequality.
In Brown, the Court reasserted that it was the intangible factors like those
cited in Sweatt that gave white students privileges and opportunities that
were denied to black students. Recognizing the crucial role of education, the
Court held that only integration could level the playing field and give black
students access to the opportunities and benefits of the society denied to
them by segregation.

The Brown Court understood that the harms of racism go beyond
material inequalities. So long as the racist lie of black inferiority persisted,
full social equality would be impossible. The racist myth of black inferiority,
never based on science or rational thought, provided the ideological
justification for segregation. The fact that some black people—including the
students' witness, historian John Hope Franklin—had attended and received
advanced degrees from elite Northern universities with overwhelmingly
white student bodies and had proven they were gifted scholars had done
little to dispel the racist myth of black inferiority.


Brown recognized that only a broad social restructuring of education
that mandated contact between white and black students could bury the lie of
black inferiority. Integrating all public education was key. Acting on this
understanding, the Court extended the integration of public education from
law schools and professional schools to primary and secondary education.

Precisely because Brown is such a powerful indictment of segregation
and because it makes an irrefutable case for the complete integration of
education, the plaintiff must bury it and then distort it by claiming that
Brown and the legion of cases that followed it "only" involved "remedies for
past intentional discrimination, such as that practiced by school districts that
had a history of excluding students based on their race." (Pl Br, at 54).

Again, this is not true. In Brown, a unanimous Court declared in no
uncertain terms that all forms of segregation in public education are
with segregation imposed by law being especially harmful:

Segregation of white and colored children in public schools has a
detrimental effect upon the colored children. The impact is greater
when it has the sanction of the law; for the policy of separating the
races is usually interpreted as denoting the inferiority of the negro
Id., at 483.

Another dishonest claim of the plaintiff is that the Court never
recognized integration "as such" as a compelling state interest. The Court in


Brown recognized that integrating education was the key to building a
democratic America with full citizenship rights afforded to all. In subsequent
cases, the Court recognized that the promotion of integration, the
dismantling of de facto segregation, was a "compelling" state interest
authorizing local officials to take racially conscious steps.

As the students set forth in their initial brief, in the most important
Supreme Court desegregation case after Brown itself, the Court explicitly
recognized that local authorities had the power to take racially conscious
steps to eliminate de facto desegregation. (Def Int Br, at 43, citing Swann v
Charlotte Mecklenberg Bd of Educ,
402 US 1, 15-16 (1971)). While the
plaintiff claims that Swann is irrelevant because it "…concerned past
intentional racial discrimination by the school district" (Pl Br, at 55, n22), she
can only do so by ignoring the specific language from Swann referenced by
the students in their initial brief:

School authorities are traditionally charged with broad power to
formulate and implement educational policy and might well conclude,
for example, that in order to prepare students to live in a pluralistic
society each school should have a prescribed ratio of Negro to white
students reflecting the proportion for the district as a whole. To do this
as an educational policy is within the broad discretionary powers of
school authorities; absent a finding of a constitutional violation,
however, that would not be within the authority of a federal court.
Swann, 402 US at 15-16.


In her zeal to declare that the Court "never" recognized a compelling
interest in "promoting integration as such," the plaintiff also has to ignore the
real holding of Regents of the University of California v Bakke, 438 US 265
(1978). Four justices clearly recognized that local officials had compelling
reasons for promoting integration "as such."

While Justice Powell premised his Opinion on the First Amendment,
he implicitly incorporated the Fourteenth Amendment into his analysis by his
extensive reliance on the Court's decision in Sweatt and by his declaration
that racial and ethnic diversity was an important part of the diversity he
recognized as a compelling interest in his Opinion. Bakke, 438 US at 315.
Only by falsely attempting to dissolve "diversity" into viewpoint diversity
abstracted from race can the plaintiff maintain the fiction that Justice Powell
did not recognize racial integration as a necessary, component part of the
compelling state interest of diversity established in his Opinion in Bakke.

To say that the courts have never recognized a compelling interest to
promote integration "as such," the plaintiff has to ignore a volume of other
authority as well. In 1978, Justice, now Chief Justice, Rehnquist opined that
he had "very little doubt" that the State of California could constitutionally
use racially conscious measures, including busing, to remedy de facto
segregation of its public schools—even though those same steps were not


required by the United States Constitution. Bustop, Inc., v Bd of Ed of Los
439 US 1380, 1383 (1978).

Similarly, in 1982, the full Court struck down a state's attempt to
restrict the power of local districts to impose racially conscious measures to
end de facto segregation, noting that in the absence of constitutional
violations, "…the desireability and efficacy of school desegregation are
matters to be resolved through the political process." Washington v Seattle
School District,
458 US 457, 474 (1982).

As late as 2000—as also cited by the students and ignored by the
plaintiff—the other circuits, save one, have continued to recognize that the
states further a "compelling interest" by taking racially conscious steps to
advance the integration of the public schools. See Brewer v West Irondequoit
Central High School District,
212 F 3d 738 (CA 2 2000), and cases cited

While the plaintiff has chosen to ignore it, eight state supreme courts
have held that local school officials have the authority to take racially
conscious steps to end the de facto segregation of public schools. See state
cases collected in Stephen Eisdorfer, Public School Choice and Racial
24 Seton Hall L Rev 937, 948 n50 (1993).


Having been driven from the field defending her claim that the Court
has "never" recognized the interest in furthering integration "as such," the
plaintiff seeks final refuge in the claim that "[t]he Court has never adopted
racial balancing remedies from its grade school segregation jurisprudence
and applied it (sic) to higher education." (Pl Br, at 55, citing United States v
505 US 717, 730 n4 (1992). Apart from the demagogic equation of
integration with "racial balancing," the plaintiff is flat wrong.

In Fordice and the other higher education decisions, the Court
explicitly incorporated Brown's mandate that states take affirmative action
to dismantle the remnants of previously segregated systems of higher
education. Fordice, 505 US at 727-728. The only recognized difference
derived from the inherently different nature of primary and secondary
education on the one hand and colleges and universities on the other.
Historically, the states had never assigned particular districts for particular
universities, had never attempted to assign individual students to particular
campuses, and had never attempted to create a series of institutions with
common curricula and requirements, as exist in primary and secondary
schools. As a result, the Fordice Court held, the usual remedies of
mandatory pupil assignments, differing attendance zones, and inter-district
busing were simply not applicable to universities.


But both the eight members in the majority and the lone dissenting
Justice agreed that the principles derived from Brown apply with full force
to the admission standards of formerly segregated institutions of higher
education—in part because admission standards in higher education serve
many of the same functions as district assignments and the like in primary
and secondary education. Fordice, 505 US at 733-738, 758.

In the face of clear holdings, deriving from Brown, that the State may
take voluntary measures to end the de facto segregation of primary and
secondary schools, it is abundantly clear that the State may do the same to
end the de facto segregation of its law schools and its universities.

While the plaintiff does not care for the term, there is no question that
the Law School was a de facto segregated school. From 1950 to 1969, it
graduated 5,573 white students and 30 black students, and for the entire
decade of the 1960's, it graduated only 9 black students, 5 of them in 1969.
(Ex 97; Apx 5064). Although the plaintiff suggests otherwise (Pl Br, 53),
when UMLS began the process of desegregation in 1967, many of its faculty
clearly recognized that they had an obligation and a right to end this blatant
de facto segregation. (Ex 53, 4-5, 9-10; Apx 4854-4855, 4859-4860).

To assert that the Court has "never" recognized that a public
institution furthers a compelling interest when it acts to end de facto


segregation (Pl Br, 53-54) is to ask this Court to ignore a half century of
legal precedent and social achievement.

As the motive force of history remains truth, not lies, the student
intervenors ask that this Court reject the fundamental premise of the
plaintiff's arguments, by recognizing, as Brown did, that the State furthers
the most compelling interest possible when it acts to end segregation and to
promote the equality that can only be achieved through full integration.

B.       The Law School Plan is clearly narrowly tailored.

As the plaintiff and the district court make clear repeatedly, their
fundamental position is that the integration of a public school serves no
compelling state interest. But because they recognize that the vast majority
of Americans disagree with that assertion, they attempt to achieve through
the back door what they cannot achieve through the front door. They assert
that the Law School's affirmative action plan is not "narrowly tailored" to
achieve any state interest in diversity. (Pl Br, 44-53).

In reality, the plaintiff's claims that the Law School's plan is not
"narrowly tailored" merely repeat her fundamental objections to integration
and diversity.


The plaintiff's two major arguments make this clear. First, she
asserts, the Law School plan is not "narrowly tailored" because it is a
"disguised quota." (Pl Br, 30-35). Second, she claims, the University failed
to consider racially neutral or "less drastic" means of achieving diversity. (Pl
Br, 49-52).

      1.       Paying attention to numbers.

In asserting the first of those arguments, the plaintiff ignores
completely the point made clear by Justice Powell in Bakke—and made
more clearly in the unanimous decisions in Brown and Swann. As those
decisions declare, integration and diversity means paying attention to
numbers. Bakke, like Brown, rejects token solutions to the problem of

As Justice Powell declared—and as the experiences of Chrystal James
at UCLA Law School and Eric Brooks at Boalt Hall amply demonstrate
(James, TR9, 8-75; Apx 8142-8209; Dep of Brooks, 25-31; Apx 6546-
6547)—numbers are vital if integration and diversity are to be real. Black,
Latino/a, Native American, and other minority students can not overcome
isolation and prejudice without sufficient numbers to combat the continuing,
daily expressions of that prejudice. Nor can they bring to their classmates


the real benefits of diversity and integration unless they are there in
sufficient numbers to interact with their classmates. Bakke, 438 US at 323.

As a matter of legal argument, the plaintiff, following the lead of the
district court (Dist Ct Op, 50-53), fails to even discuss the governing section
of Justice Powell's Opinion. Neither the district court nor the plaintiff
provide even a single explanation for what Justice Powell meant by
authorizing the universities to "pay attention to numbers." Both ignore the
fact that both Justice Powell and the four members of the Brennan group
recognized that there was a very fine line between a quota, which Justice
Powell declared unlawful, and "paying attention to numbers," which he
declared proper and indeed entitled to a presumption of good faith. Bakke,
438 at 316-319, 378, 379.

The plaintiff's failure is not accidental. She can only call the Law
School plan a quota by ignoring the wide variations in the admission of
underrepresented minorities under that plan:

Minority: Highest number
enrolled in
entering class:
Lowest number
enrolled in
entering class:

Native American

37 (1992)
12 (1994)
21 (1994)

23 (1996)
3 (1995, 1996)
11 (1995, 1997)

(Ex 98; Apx 5066).


And she can only assert that this flexible attention to numbers violates
Bakke by ignoring what Bakke meant when it authorized universities to pay
attention to numbers. Paying attention to numbers obviously means that the
admission committee and the faculty could discuss numbers and the
admissions officers could review data sheets containing numbers. By
suggesting otherwise, the plaintiff hopes to end even modest levels of
integration by preventing universities from paying any attention to the
numbers of minority students actually enrolled.

      2.       The fictitious "racially neutral" alternative.

The plaintiff's second major "narrow tailoring" argument is even
more clearly an attack on integration. She claims that the Law School failed
to consider supposedly race-neutral means to achieve the objective of

Preliminarily, the plaintiff ignores the fact that her implicit proposal
of using test scores and grades privileges white applicants and is not racially
neutral at all. (Def Int Br, 16-28 and infra, at 22-28).

Substantively, the plaintiff ignores the Law School faculty's three-
decade long debate over how to integrate the School—during which
proposals of all sorts were debated and implemented. As the faculty learned


through years of debate, in the real context of continuing segregation and
inequality, only affirmative action—that is, only racially conscious action
that pays attention to numbers—can assure the dismantling of de facto
segregation at the Law School. (Ex 53, 8, 13, 19-21, and passim).

Unlike the district court—which suggested lotteries, ending alumni
preferences and a host of irrelevant proposals—the plaintiff does not even
suggest what racially neutral alternative to affirmative action the Law
School faculty failed to consider.

Given the undisputed fact of separate and unequal education in the
United States, the undisputed fact that racism lowers the undergraduate
grade point average of those few black, Latino/a and Native American
students able to attend college, and the undisputed fact that the LSAT has a
wildly differential impact on students of different races who achieve the
same grades at the same institutions, the plaintiff cannot specify an effective
"racially-neutral" alternative to affirmative action because there is no such

Instead of clearly stating that the end of affirmative action means the
end of integration, the plaintiff disingenuously suggests the contrary. Glibly,
she asserts that one school at the University of California at Berkeley—the
graduate school of Education—has somehow enrolled 28 to 30 percent


underrepresented minorities without affirmative action. (Pl Br, 49-50). But
she ignores the fact that admission to Law Schools differs fundamentally and
that even the district court found that the end of affirmative action at UMLS
would mean an immediate drop in minority enrollment of over 65 percent.
(Dist Ct Op, 28-29, 34-35; Apx 123-124, 129-130).

The plaintiff further proclaims that the number of underrepresented
minorities at UCLA, Boalt Hall and University of Texas Law Schools was
"nearly ten percent" in the last few years. (Pl Br, 50). She fails to note,
however, that those states have large and growing minority populations and
that in the face of that growth, the end of affirmative action has meant a
dramatic drop in the number of underrepresented minorities at those schools:

(in percents)
U Texas Law 1996 1999
Native American
UCLA Law School 1996 2000
Native American
UC Berkeley (Boalt Hall) 1996 2000
Native American


(Ex's 131, 198; Apx 5123, 6056).

Cynically, the plaintiff uses the figures at the Graduate School of
Education at the University of California at Berkeley as a soothing balm to
suggest that resegregation need not occur if affirmative action is ended—but
then ignores the testimony of the Dean of that School, Dr. Eugene García,
which demonstrates that exactly the reverse is true.

As Dean García and Professor Gary Orfield testified, admissions
officials throughout the University of California have attempted to find a
"racially neutral" means of achieving a "diverse" student body. They have
attempted to substitute class for race—but it has not worked because, as
Erika Dowdell, Connie Escobar and Chrystal James testified, being black,
Latino/a or Native American imposes very special stigmas and burdens on
students that are a function of racism and cannot simply be dissolved into
class. They have also attempted to have a "racially neutral" review of the
"whole file"—but it does not work because the disparities in educational
opportunities mean that the real achievements of black, Latino/a, and Native
American students are hidden by the lower grades and test scores that are the
product of multiple layers of racial discrimination. (García, TR11, 47-63;
Apx 8486-8502; Orfield, TR6, 100-101, 176-177; Apx 7870-7871, 7914-


The plaintiff has not disputed this testimony because she cannot
dispute it.

As described by Dean García, the end of affirmative action in
California has meant that black people and Latinos/as—who are becoming
an increasingly large share of the population of that state—are being forced
out of the most selective institutions in the UC system and are "cascading"
down into the less selective campuses. Because there is no effective
"racially neutral" alternative to affirmative action, black people and
Latinos/as have been virtually driven out of the world-renowned campuses
at Berkeley and UCLA, are being driven out of the other selective campuses
in the UC system, and are able to find refuge only at the least selective
schools in the UC system:

Underrepresented Minority chart
Ex. 213; Apx 6102.

As Dean García testified, without contradiction, the refuge that black,
Latino/a and Native American students have found at the least selective UC
campuses is only temporary. With the increasing population and continuing
segregation and inequality in K-12 education, black, Latino/a and Native
American students will be virtually driven out of those schools as well in the
years to come. (García, TR10, 181-184; Apx 8408-8411).

But the catastrophe that has fallen upon undergraduates in California
would be even worse in legal education. As Professor Richard Lempert—a
sociologist and member of the faculty at the Law School—set forth in his
testimony, the difference in scores and grades between black and white
applicants means that black applicants would "cascade out" of most law
schools almost immediately. UMLS and other selective law schools would
soon be "very close" to the numbers of black students admitted just after
Sweatt was decided. (Lempert, TR14, 83-88; Apx 8720-8725).

As the most selective schools are the ones that can offer financial aid,
many black students would be deprived of legal education altogether. The
competition for admission into one of the eight historically black law
schools would increase, causing the displacement of some existing students.
As Professor Lempert testified, the end of affirmative action would mean a


drastic reduction in black and other minority law students and thus of black
and other minority lawyers. (Lempert, TR14, 83-88; Apx 8720-8725).

When coupled with the second-wave effects upon the applicant pool
caused by the end of affirmative action in undergraduate colleges, the
district court's decision would mean the return to a segregated legal
profession. This would in turn almost certainly result in the further
conservatising of the law. The schism between the law and the aims,
interests, and values of the majority of Americans could grow. America
would become a dramatically more polarized society.



A.       The plaintiff's case is based on criteria contaminated with racial

As set forth again in the plaintiff's brief, her essential claim is based
on comparing the undergraduate grade point averages and LSAT scores of
underrepresented minorities admitted to the Law School with those of white
students admitted in the same year. In essence, the plaintiff's entire claim
that the Law School has awarded an unlawful preference to black, Latino/a


and Native American applicants is based on the grids that she constructed
from the admission data supplied by the University. (Pl Br, 39-44).

Since the University and the student defendants have never contested
the fact that the average undergraduate grades and LSAT scores of black,
Latino/a, and Native American students admitted are lower than the white
students in the same year, the plaintiff's grids and calculated odds ratios
serve only to obfuscate the truth. In the hands of plaintiff's statistician, small
differences—a 0.3 point gap in the undergraduate grades and a 9.6 point gap
in the average LSAT scores of admitted black and white students—suddenly
appear as an "enormous" odds ratio—an allegedly astronomical
"preference"—for the black students. (Dist Ct Op, 74-75, n. 55, 56).

Apart from the vastly misleading appearance of these odds ratios,
there are two fundamental problems with the plaintiff's "analysis."
First, as set forth by the University, the method is statistically false. It
is, for example, based on excluding consideration of 40 percent of the
underrepresented minorities who apply to the Law School.

Second, and more fundamentally, to make her case, the plaintiff must
ignore the fundamental truth of the student defendants' case—that there are
no race-neutral measures of academic achievement or merit. The plaintiff's
data is itself contaminated by racial prejudice and bias.


The plaintiff, like the district court, reduces the question of race to
checking off a box on an application form. Like the district court, she
ignores that race shapes and defines our social relations, opportunities, and
viewpoints. The meaning of every supposedly objective criterion of
academic performance cannot be assessed without taking into account a
person's race. Every so-called objective measure of academic ability and
merit privileges white students and disadvantages black and other minority
students. The clearest example of this is standardized tests.

As the student defendants' undisputed evidence showed, a variety of
factors ranging from test question selection to the effects of stereotype threat
to the cultural bias embedded in the tests to the availability of test
preparation courses give white test takers an unfair and unearned advantage.
Grade point averages also capture and magnify the effects of racial prejudice
and bias in education. (Def Int Br, 16-28).

As even the district court found—and the plaintiff persists in
ignoring—the undergraduate grades of underrepresented minorities are
systematically lowered by the combined effects of discrimination in K-12
education and the persisting racism on American campuses. Erika Dowdell,
Connie Escobar, and Chrystal James all testified, and the district court


accepted, that their grade point averages were affected by the hostile racial

climate they faced. (Dist Ct Op, 75-76, 82; Apx 170-171, 177).

As even the district court found—and the plaintiff persists in
ignoring—the LSAT test scores of underrepresented minorities are
systematically lower than those of white students who achieved the same
grades at the same institutions. (Dist Ct Op, 69; Apx 164).

In the face of this uncontradicted data, the plaintiff cannot prove a
preference for black, Latino/a, and Native American students when the very
data on which she bases her claim are uncontestedly biased against those
same students.

A single concrete example demonstrates the fundamental failure of
plaintiff's case. Concepción Escobar secured admission to the Law School
in fall 2000 with an undergraduate grade point average of 3.43 and an LSAT
score of 158. (Escobar, TR8, 159; Apx 8104). As set forth in the admission
grids for that year, 2 out of 51 Caucasian applicants secured admission with
those grades and scores, while one of four Mexican American applicants,
Ms. Escobar, secured admission with those same credentials. (Ex 141,
Admiss grids; Apx 5465-5466).

Let us review for a moment this one bit of data, this one "odds ratio,"
as calculated in Dr. Larntz's charts. Ms. Escobar grew up in a Spanish-


speaking household, a fact that the district court acknowledged could lower
her LSAT score; her father, a Native American, died when she was young;
her mother, a factory worker, could not possibly provide her with the
benefits common in white middle class homes; her high school, although the
best in the City of Chicago, was nowhere near the quality of suburban high
schools across the country; and her college, Amherst, while excellent by
conventional standards, subjected her to a gauntlet of racial and class
prejudice. (Escobar, TR8, 158-196; Apx 8103-8141; Dist Ct Op, 60, 69-70,
81; Apx 155, 164-165, 176).

Ms. Escobar's odds of ever going to UMLS or any school like it were
infinitesimal. But, according to Dr. Larntz, Ms. Escobar is the beneficiary of
an enormous "racial preference." When compared to Caucasian applicants
with the same scores and grades, her odds of being accepted are about 64
times greater by Dr. Larntz's methods.3 The truth speaks for itself.

3       Mexican American students in her cell on the grid had a one in four (.25)
chance of being admitted, while Caucasians in the same cell had a two in 51
(.0039) chance of being admitted (Ex 141; Apx 5428). The odds ratio thus
favors Ms. Escobar by about 64 to 1.


B.       UMLS has the right to maintain an affirmative action plan that
            reduces the effects of racism in admissions.

Throughout her brief, the plaintiff mischaracterizes the students'
arguments by asserting that they claim that the affirmative action plan at
issue here was justified as a remedy for "past" or "societal" discrimination.
(Pl Br, 53-57).

Having thus mischaracterized the students' arguments, the plaintiff
then claims that the Court need not trouble itself with them since the
University has not made the arguments the students also never made. Citing
clearly distinguishable cases where the Court struck down after-the-fact
rationalizations offered in a redistricting case and in cases involving the
exclusion of women from a military school and of men from a nursing
school, the plaintiff ignores, and asserts that this Court should also ignore,
the undisputed evidence as to the bias in the admission criteria for the Law
School. (Pl Br, 53-57, citing Shaw v Hunt, 517 US 899 (1996), United States
v Virginia, 518 US 515 (1996), and Mississippi Univ for Women v Hogan,
458 US 718 (1982)).

As noted above, and despite her best efforts, the plaintiff cannot avoid
the question of the fairness of the grades and testing criteria since her claim
is based on those criteria. She also can not avoid them because she is simply
wrong in asserting that the inadequacy of and discrimination and bias in


those criteria were not a motivating force in the formulation of the Law
School's affirmative action plan.

As with any policy adopted by a deliberative body, the faculty
committees and assembly that approved this plan acted with multiple
motives. See Village of Arlington Heights v Metropolitan Housing
Development Corporation,
429 US 252, 265-266 (1977)(legislation
"frequently multipurposed"). As both the History of Special Admissions at
the Law School and the testimony make clear, however, a motivating factor
of the affirmative action plan was precisely the view that grades, test scores,
and other "objective" criteria failed to properly reflect the real credentials of
black and other minority applicants. (Ex 53; Apx 4850-4908).

As Professor and later Dean Theodore St. Antoine wrote, some
members of the faculty initially supported affirmative action because they
recognized "…the actual potential for minority candidates to be
underestimated, especially when judged by standard testing procedures that
were thought to be 'culturally biased.'" (Ex 53, 6; Apx 4856).

By 1970, the Dean of Admissions had generalized some of the lessons
learned from early black recruitment and advocated abandoning the rigid
testing and grades criteria for considering the applications of all students.
(Ex 53, 10, 18; Apx 4860, 4868).


The 1992 policy at issue in this case—adopted at a time when the Law
School knew very well that there was a differential in the scores and grades
of minority and white applicants—expresses considerable skepticism about
the predictive value of those "objective criteria." (Ex 4, 3-9; Apx 4231-

As Professor Theodore Shaw, one of six members of the Committee
that drafted the policy, testified in deposition, he voted for the policy in
committee and in the faculty because "…[I]n the absence of special efforts
to be conscious about producing diversity, [an] institution like the University
of Michigan Law School could end up being very racially exclusive." (Dep
of Shaw, 73, 78, 80-81, Apx 3871, 3872, 3873). When pressed as to why
this was so, Professor Shaw testified that he believed that scores on
standardized tests are correlated with privilege and may not "adequately
explore all of the qualities of the applicant." Thus, he testified, the
Committee and the faculty adopted a "holistic review process that reflected
real individualized considerations of each applicant's qualifications and
background," including "…consideration of issues like class, income, and
background for all applicants." (Dep of Shaw, 91-92, 3875-3876).

As Professor Lempert, another member of the Committee, testified,
his later research showed that among those students admitted at UMLS, the


lower LSAT scores for minority applicants were completely unrelated to
their later success as attorneys. (Lempert, TR14, 45-83; Apx 8682-8720).

As the students set forth in their initial brief, Justice Powell
recognized that affirmative action could serve a "fifth purpose," not asserted
in Bakke, of making possible a "fair appraisal of each individual's academic promise in light of some cultural bias in grading or testing[.]" Bakke, 438 US
at 306 n43. As he asserted in yet more words that the plaintiff and the
district court ignore, such consideration of race might not be a preference at
all. Id.

In granting the motion to intervene, Grutter v Bollinger, 188 F 3d 394,
401 (CA 6 1999), this Court expressed the view that the discriminatory
impact of test scores, grades, and other purportedly objective criteria "may
be important and relevant factors in determining the legality of a race
conscious admissions policy." The Court was right.

As the undisputed evidence below demonstrated, both grades and test
scores encapsulate and magnify racial discrimination. Indeed, as long as
racial discrimination continues, any "objective" criteria will encapsulate that

The remedy is not, as the plaintiff suggests, to ignore those facts—to
throw up one's hands and say that nothing should be done because


discrimination is boundless and timeless. The remedy is to take account of
the undisputed facts and work as a force for changing the reality of
discrimination in this country.

The plaintiffs urge this Court to reaffirm the progress that has been
made and to deepen and expand the fight to assure that America's
universities and professions are fully integrated.


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 the
University of Michigan Law School.

By Intervening Defendants' Attorneys,

BY: __________________________
Miranda K.S. Massie (P-56564)
George B. Washington (P-26201)
Jodi-Marie Masley (P-62116)
3800 Cadillac Tower
Detroit, Michigan 48226
(313) 963-1921
Date: July 26, 2001


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.




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
Testimony of García 2/8/01
Vol. 10, 181-184
Vol. 11, 47-67
Testimony of Lempert 2/15/01 Vol. 14, 45-88
Ex. 131 - University of Texas Fall
Enrollment of New Students by Group
and Ethnicity


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


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