No. 01-1447

United States Court of Appeals
for the
Sixth Circuit

BARBARA GRUTTER,
                  Plaintiff-Appellee,
v.

LEE BOLLINGER, et al.,
                Defendants-Appellants,
and
KIMBERLY JAMES, et al.,
                Intervening Defendants.

_________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN (FRIEDMAN, J.)

PROOF BRIEF OF DEFENDANTS-APPELLANTS

PHILIP J. KESSLER, P15921
LEONARD M. NIEHOFF, P36695
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625
JOHN H. PICKERING
JOHN PAYTON
STUART F. DELERY
CRAIG GOLDBLATT
ROBIN A. LENHARDT
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Counsel for Defendants-Appellants


TABLE OF CONTENTS

TABLE OF AUTHORITIES … … … iii

STATEMENT IN SUPPORT OF ORAL ARGUMENT … … … viii

JURISDICTIONAL STATEMENT … … … 1

ISSUES PRESENTED … … … 1

STATEMENT OF THE CASE … … … 1

STATEMENT OF FACTS … … … 5

  1. The Law School's 1992 Admissions Policy … … … 6

  2. Implementing the Admissions Policy … … … 13

  3. The Data … … … 15

SUMMARY OF ARGUMENT … … … 17

ARGUMENT … … … 19

  1. BAKKE IS CONTROLLING PRECEDENT AND
    PERMITS THE COMPETITIVE CONSIDERATION OF RACE AND
    ETHNICITY IN LAW SCHOOL ADMISSIONS TO
    ACHIEVE THE COMPELLING STATE INTEREST IN
    ENROLLING A DIVERSE STUDENT BODY … … … 19

    1. A Properly Devised Admissions Program Involving the
      Competitive Consideration of Race and Ethnicity in
      Admissions Is Constitutional Under Bakke … … … 20

    2. Bakke Remains Binding Precedent … … … 23

    3. The Law School Proved that Racial and Ethnic Diversity is
      Important to a Quality Legal Education Today … … … 29
i


  1. THE LAW SCHOOL'S ADMISSIONS SYSTEM IS
    NARROWLY TAILORED UNDER Bakke … … … 33

    1. The Law School Complies With Bakke's Narrow
      Tailoring Requirements … … … 34

      1. Bakke Establishes the Limits on Consideration of
        Race in Law School Admissions … … … 34

      2. The Law School's Admissions Policy Is Consistent
        with the Harvard Plan Approved in Bakke … … … 36

    1. Each of the District Court's Narrow Tailoring Rationales
      Is Wrong … … … 42

      1. The Term Critical Mass Has Been Defined With
        Sufficient Particularity … … … 43

      2. The Law School's Policy Sets Appropriate
        Durational Limits on the Competitive Consideration of Race … … … 46

      3. The Law School Does Not Employ a Racial Quota
        or Its Functional Equivalent … … … 47

      4. The Policy's Reference to Particular Minority
        Groups Makes Sense and Reflects an Educational
        Judgment By the Law School … … … 49

      5. No Viable Alternatives to the Consideration of Race
        and Ethnicity as a Factor in Admissions Exist … … … 51

CONCLUSION … … … 56

CERTIFICATE OF COMPLIANCE … … … 57

CERTIFICATE OF SERVICE … … … 58

APPENDIX DESIGNATIONS … … … 59

ii


TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) … … … 25, 26

Agostini v. Felton,
521 U.S. 203 (1997) … … … 28

Alexander v. Sandoval,
121 S. Ct. 1511 (2001) … … … 24

Associated General Contractors of Ohio, Inc. v. Drabik,
214 F.3d 730 (6th Cir. 2000), cert. denied, 121 S. Ct. 1089 (2001) … … … 46

Bakke v. Regents of University of California,
553 P.2d 1152 (Cal. 1976) … … … 24, 55

Board of Regents of the University of Wisconsin System v. Southworth,
529 U.S. 217 (2000) … … … 23

Bratton v. City of Detroit,
704 F.2d 878 (6th Cir. 1983),
modified on other grounds, 712 F.2d 722 (6th Cir. 1983) … … … 33

Brewer v. West Irondequoit Central School District,
212 F.3d 738 (2d Cir. 2000) … … … 29

Brown v. Board of Education,
347 U.S. 483 (1954) … … … 22

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) … … … 25-26, 35

Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) … … … 40

iii


Davis v. Halpern,
768 F. Supp. 968 (E.D.N.Y. 1991) … … … 29

Eisenberg v. Montgomery County Public Schools,
197 F.3d 123 (4th Cir. 1999), cert. denied, 529 U.S. 1019 (2000) … … … 29

Fullilove v. Klutnik,
448 U.S. 448 (1980) … … … 26

Gratz v. Bollinger,
122 F. Supp. 2d 811 (E.D. Mich. 2000) … … … 30

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

Healy v. James,
408 U.S. 169 (1972) … … … 23

Hohn v. United States,
534 U.S. 236 (1998) … … … 28

Hopwood v. State of Texas,
78 F.3d 932 (5th Cir. 1996) … … … 24, 30

Hopwood v. State of Texas,
236 F.3d 256 (5th Cir. 2000), cert. filed (U.S. April 17, 2001) … … … 24

Hunt v. Cromartie,
121 S. Ct. 1452 (2001) … … … 33

Hunter v. Regents of the University of California,
190 F.3d 1061 (9th Cir. 1999), cert. denied, 121 S. Ct. 186 (2000) … … … 26

Jacobson v. Cincinnati Board of Education,
961 F.2d 100 (6th Cir. 1992) … … … 29

Johnson v. Economic Development Corp. of the County of Oakland,
241 F.3d 501 (6th Cir. 2001) … … … 19

iv


Johnson v. Board of Regents of University System of Georgia,
106 F. Supp. 2d 1362 (S.D. Ga. 2000),
appeal docketed, No. __ (11th Cir. __ 2000) … … … 29, 30

Johnson v. Transportation Agency,
480 U.S. 616 (1987) … … … 25

Keyishian v. Board of Regents,
385 U.S. 589 (1967) … … … 18, 22

Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) … … … 40

Marks v. United States,
430 U.S. 188 (1977) … … … 27

Metro Broadcasting, Inc. v. FCC,
497 U.S. 547 (1990) … … … 24

Minnick v. California Department of Corrections,
452 U.S. 105 (1981) … … … 24

Oliver v. Kalamazoo Board of Education,
706 F.2d 757 (6th Cir. 1983) … … … 29

Poyner v. Lear Siegler, Inc.,
542 F.2d 955 (6th Cir. 1976) … … … 33

Regents of the University of Michigan v. Ewing,
474 U.S. 214 (1985) … … … 23, 43, 51

Regents of University of California v. Bakke,
438 U.S. 265 (1978) … … … passim

Rodriguez DeQuijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989) … … … 28

Rosenberger v. Rector and Visitors of the University of Virginia,
515 U.S. 819 (1995) … … … 23

v


Sheehan v. Daily Racing Form, Inc.,
104 F.3d 940 (7th Cir. 1997) … … … 40

Smith v. University of Washington Law School,
233 F.3d 1188 (9th Cir. 2000),
petition for cert. filed, 69 U.S.L.W. 3593 (U.S. Feb. 21, 2001) (No. 00-13) … 27, 29

State Oil Co. v. Kahn,
522 U.S. 3 (1997) … … … 28

Sweatt v. Painter,
339 U.S. 629 (1950) … … … 22

Sweezy v. New Hampshire,
354 U.S. 234 (1957) … … … 21, 23

Triplett Grille, Inc. v. City of Akron,
40 F.3d 129 (6th Cir. 1994) … … … 28

Tuttle v. Arlington County School Board,
195 F.3d 698 (4th Cir. 1999), cert. dismissed, 529 U.S. 1050 (2000) … … … 29, 52

United States v. Paradise,
480 U.S. 149 (1987) … … … 52

United States v. Ovalle,
136 F.3d 1092 (6th Cir. 1998) … … … 26-27

University and Community College System of Nevada v. Farmer,
930 P.2d 730 (Nev. 1997) … … … 29

Wado v. Xerox Corp.,
991 F. Supp. 174 (W.D.N.Y. 1998) … … … 40

Wessman v. Gittens,
160 F.3d 790 (1st Cir. 1998) … … … 29, 52

Winkes v. Brown University,
747 F.2d 792 (1st Cir. 1984) … … … 29

vi


Wittmer v. Peters,
87 F.3d 916 (7th Cir. 1996) … … … 26

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) … … … 25

STATUTES

59 Fed. Reg. 8756, 8761 (1994) … … … 29

Mich. Const., art. 8, §§ 4, 5 … … … 3

28 U.S.C. § 1292(a) … … … 1

28 U.S.C. § 1331, 1343 … … … 1

vii


STATEMENT IN SUPPORT OF ORAL ARGUMENT

This case presents an issue of great national importance whose resolution
will affect the admissions program of every public and private institution of higher
education in this country. The University of Michigan Law School believes that
the Court would benefit from oral argument in this matter.

viii


JURISDICTIONAL STATEMENT

Plaintiff invoked the jurisdiction of the district court pursuant to 28 U.S.C.
§§ 1331 and 1343, challenging the University of Michigan Law School's
admissions policy under the Fourteenth Amendment and Title VI of the Civil
Rights Act of 1964. The district court held the policy unconstitutional and granted
injunctive relief. Defendants filed a timely notice of appeal on March 30, 2001.
This Court -- which stayed the injunction pending appeal -- has jurisdiction
pursuant to 28 U.S.C. § 1292(a).

ISSUES PRESENTED

1.     Whether a public institution of higher education has a compelling
state interest in achieving the educational benefits of diversity that justifies
the competitive consideration of an applicant's race in admissions.

2.     Whether the admissions policy and system currently employed by the
University of Michigan Law School are narrowly tailored to achieve that interest.

STATEMENT OF THE CASE

This case presents a crucially important question, the answer to which will
dramatically affect this country's preeminent institutions of higher education:
whether the educational benefits of a racially and ethnically diverse, and highly
qualified, student body justify the competitive consideration of race and ethnicity
in admissions. Both Plaintiff and the district court expressly recognized that

1


substantial educational benefits flow from a diverse student body, including one
that is racially and ethnically diverse. Nonetheless, the district court concluded
that race may not be considered to any degree in admissions and permanently
enjoined the University of Michigan Law School from doing so.

The court's conclusion rested on its complete rejection of the essential
holding in Regents of University of California v. Bakke, 438 U.S. 265 (1978), that a
"State has a substantial interest that legitimately may be served by a properly
devised admissions program involving the competitive consideration of race and
ethnic origin." Id. at 320. Justice Powell's decisive opinion concluded that
achieving the educational benefits of a racially and ethnically diverse student body
is a compelling state interest. The Supreme Court has neither overruled nor even
questioned Bakke since it became the law governing higher education admissions
throughout the United States twenty years ago. 1/

Barbara Grutter brought this action in 1997, challenging the legality of the
University of Michigan Law School's admissions system on behalf of herself and a
class of similarly situated individuals. She named as defendants the Board of

___________________
1/       Because Title VI -- which has been read to incorporate constitutional
requirements, see University of California v. Bakke, 438 U.S. at 287 -- applies to
all institutions of higher education that receive federal funding, the Court's
decision in this case will affect private, as well as public, schools.

2


Regents of the University of Michigan, 2/ and President (and former Dean) Lee
Bollinger, Dean Jeffrey Lehman, and former Admissions Director Dennis Shields
in their individual capacities. A group of students and prospective law students
intervened as defendants. See Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999).

After extensive discovery, Plaintiff and the Law School (supported by
Defendant-Intervenors) filed cross-motions for summary judgment. Defendants
maintained that the case is governed by Bakke, and that the Law School's
admissions system complies with Bakke. Plaintiff urged the district court to ignore
Bakke and to hold any consideration of race in admissions unconstitutional. The
district court declined to resolve the legal questions at that stage and reserved
them, ordering a trial on three limited issues: "(1) the extent to which race is a
factor in the law school's admissions decisions; (2) whether the law school's
consideration of race in making admissions decisions constitutes a double standard
in which minority and majority students are treated differently; and (3) whether the
law school may take race into account to level the playing field between minority
and non-minority applicants." 3/ (R-311, Opinion at 4, JA-__.) The district court

___________________
2/       The Board of Regents is the body responsible for making decisions
regarding the University and its numerous schools and programs. See Mich.
Const., art. 8, §§ 4, 5.

3/       Defendant-Intervenors argued that the Law School's Admissions Policy was
justified by interests in "leveling the playing field" for underrepresented minorities,
[continued onto next page]
and in preventing the resegregation of higher education. The district court rejected
these arguments. (See R-311, Opinion at 59-89, JA-__.) The Law School has not
argued, and does not argue here, that its consideration of race is motivated by an
interest in remedying past discrimination.

3


specifically determined that the question whether achieving the educational
benefits of diversity constitutes a compelling state interest in the context of higher
education is a legal issue. Based on that determination, the court excluded
additional testimony on those benefits from the trial. (See, e.g., R-330, SJ Hearing
at 93, JA-__.)

After a fifteen day trial, the court returned to Bakke. It held the Law
School's Admissions Policy unconstitutional and granted an injunction prohibiting
the "us[e] [of] applicants' race as a factor in its admissions decisions." (R-311,
Opinion at 90, JA-__.) The district court concluded that "Bakke does not stand for
the proposition that a university's desire to assemble a racially diverse student
body is a compelling state interest," (id. at 44-45, JA-__), and that, "under the
Supreme Court's post-Bakke decisions, the achievement of such diversity is not a
compelling state interest because it is not a remedy for past discrimination," (id. at
46-47, JA-__). The court also concluded that, even if the interest in diversity
could be regarded as compelling, the Law School's admissions system was not narrowly
tailored to advance that interest, (id. at 49-54, JA-__). Despite these conclusions,
the district court also held that the individual Defendants were entitled to qualified

4


immunity because they "acted reasonably and in good faith in adopting and
administering the policy in question," (id. at 56, JA-__).

The Law School sought a stay of the injunction and appealed. The district
court refused to stay its injunction, but this Court granted the Law School's motion
for a stay pending appeal.

STATEMENT OF FACTS

The University of Michigan Law School is one of the premier law schools in
the United States, with one of the country's most talented law faculties and
graduates who have become distinguished leaders of the bar, the judiciary,
government, and many other fields. The Law School enrolls approximately 350
students in each class, but thousands more apply for admission each year. (R-282,
Final Pretrial Order at 4, JA-__.) Assembling a class from among its talented
applicants is one of the Law School's most important and defining activities.
(Lehman, 5TR at 122, JA-__.) A written Admissions Policy ("Policy") carefully
sets out how the Law School's admissions professionals should select a class. (Ex.
4, Policy, JA-__.) The Policy also explains why the Law School values a broadly
diverse student body, why racial diversity is one component of general diversity,
and how the admissions office is to achieve it. (Id. at 9-12, JA-__.)

5


1. The Law School's 1992 Admissions Policy.

The Policy was adopted by the full faculty on April 24, 1992. It reflects
eight months of work by a committee of distinguished faculty and administrators
charged with rethinking the Law School's admissions policies and ensuring that
they were consistent with both the Law School's educational mission and
applicable law. (E.g., Bollinger, 3TR at 63, JA-__.) The Policy was specifically
designed to comply with Bakke. (Lempert, 3TR at 150-51, JA-__; see also
Bollinger, 3TR at 62, JA-__.) It ratified the Law School's longstanding
commitment to broad diversity, but changed the Law School's prior admissions
practices. (Id. at 92-93, 106, JA-__, __; Bollinger, 3TR at 55-56, JA-__.) The
Policy eliminated the "pool" system and the "special admissions" system (which
had set a target range for the number of underrepresented minority students the
Law School would seek to enroll each year (see id., JA-__), and replaced them
with a unitary system in which each applicant competes with every other applicant
for admission, (id. at 130-31, 142, 165-66, JA-__, ___, ___; Lehman, 5TR at 183-
84, JA-__).

The 1992 Policy has three parts:

First, the Policy recognizes the important role students play in educating
each other inside and outside the classroom. (Ex. 4, Policy at 1-2, JA-__.)
Because it seeks "a mix of students with varying backgrounds and experiences

6


who will respect and learn from each other" (id. at 1, JA-__), the Policy insists that
each application be considered in its entirety, with an eye toward all the ways an
applicant might contribute to life and learning at the Law School, (id. at 5, JA-__).
The Policy requires careful consideration of a range of factors in addition to
undergraduate grades and standardized test scores, such as an applicant's
recommendations and essays, leadership and work experience, unique talents or
interests, residency status, the rigor of an applicant's undergraduate course
selection, and the quality of an applicant's undergraduate institution. (Id., JA-__.)

Second, the Policy makes clear that grades and test scores alone do not drive
admissions decisions. In general, grades and test scores are helpful in ensuring that
every admitted student can succeed academically in a rigorous environment (id. at
2, JA-__), and "the higher one's [scores] the greater the chance of admission," (id.
at 4, JA-__). However, there is no combination of grades and test scores below
which an applicant will automatically be denied admission, or above which
admission is guaranteed. (See Munzel, 1TR at 139, 250, JA-__, __; Lempert, 3TR
at 115, JA-__.) The Policy squarely rejects the idea that grades and test scores
define an applicant's "qualifications," or that an applicant with somewhat lower
grades or test scores is necessarily "less qualified" than another with higher

7


scores. 4/ (Ex. 4, Policy at 5-6, JA-__.) Comparatively small differences in grades
and test scores within a range of qualified applicants do not produce meaningful
distinctions between applicants. (Id. at 4-5, JA-__.) Moreover, raw numbers alone
do not shed light on important issues like strength of curriculum, whether the trend
in undergraduate grades is increasing or decreasing, or whether the student has out-
performed his or her college SAT scores. (See Munzel, 1TR at 200, 212-13, JA-
__, __; see also Ex. 4, Policy at 4-5, JA-__.)

Because the Policy requires a holistic review of each applicant's file,
applicants with lower grades and test scores often "are accepted while those who
seem to have more attractive [quantitative] credentials are denied admission." (Ex.
4, Policy at 7, JA-__.) For example, in 1997 (the year Plaintiff applied), more than
450 admitted white applicants had either grades or test scores lower than Plaintiff's
(which were a 3.8 GPA and 161 LSAT). (Ex. 137, Larntz Supp. Report at 38 of
68.) The Policy explains that this pattern is inevitable in a system that seeks to

___________________
4/       Defendant-Intervenors submitted a study of Law School alumni conducted
by Professor Richard Lempert and colleagues, which found no correlation between
undergraduate grades and standardized test scores, on the one hand, and career
success, on the other, as measured by factors such as self-satisfaction, income, and
public service. (Ex. 166, Lempert Report, JA-__.) The report supports the Law
School's judgment that relatively small grade or test score differences should not
be overemphasized in admissions, and that, within the ranges achieved by
Michigan students, they cannot be used to predict whether an applicant will be
more successful than another in law practice.

8


identify "qualities not captured in grades and test scores." (Ex. 4, Policy at 7, JA-
__.)

Third, the Policy describes how a complete file review best allows the Law
School to "achieve that diversity which has the potential to enrich everyone's
education and thus make a law school class stronger than the sum of its parts." (Id. at
9-10, JA-__.) The Policy contemplates that a host of characteristics will be
regarded as diversity-enhancing, from winning an Olympic gold medal to earning a
Ph.D., from being age 50 in a class consisting primarily of students under 30 to the
"experience of having been a Vietnamese boat person." (Id. at 10-11, JA-__.) The
faculty admissions committee and the Director of Admissions are charged with
assembling a broadly diverse and intellectually vibrant class each year. (See id. at
11-12, JA-__.) As part of the overall goal of enrolling a diverse class, the Policy describes
"a commitment to one particular type of diversity that the school has long had and
which should continue. This is a commitment to racial and ethnic diversity with
special reference to the inclusion of students from groups which have been
historically discriminated against, like African-Americans, Hispanics and Native
Americans, who without this commitment might not be represented in our student
body in meaningful numbers." (Id. at 12, JA-__.) Students from racial and ethnic
minority groups "are particularly likely to have experiences and perspectives of
9


special importance to our mission," and "enrolling a 'critical mass' of minority
students" can ensure the ability of such students to make "unique contributions to
the character of the Law School." (Id. at 12, JA-__.) Although the faculty has
made a judgment that having a racially and ethnically diverse group of students
will improve legal education, the Policy does not "mean to define diversity solely
in terms of racial and ethnic status." (Id., JA-__; Lempert, 3TR at 118, 130, JA-__,
__.)

The Policy does not define "meaningful numbers" or a "critical mass" of
underrepresented minority students in terms of minimum percentages or numerical
targets. (Munzel, 1TR at 160-61, JA-__; Lempert, 3TR at 140, JA-__; Lehman,
5TR at 137-38, JA-__.) Rather, the objective is to seek a level of underrepresented
minority enrollment sufficient to ensure that all students -- minority and majority
alike -- will be able to enjoy the educational benefits of diversity. (Lempert, 3TR
at 124, 129, 158, JA-__, __, __; Munzel, 1TR at 159, JA-__.) A student body with
meaningful numbers of underrepresented minorities provides opportunities to
challenge stereotypes and to illustrate both differences in views held by members
of a minority group and similarities in the views held by members of different
racial groups. (Lempert, 3TR at 125, JA-__; Syverud, 5TR at 42-43, JA-__.) By
contrast, according to many Law School faculty, when there are few
underrepresented minority students on campus, they often report feeling isolated as

10


tokens and pressured to serve as a "representative" for their racial or ethnic group.
(Id. at 119-20, 125, JA-__, __; Lehman, 5TR at 134, JA-__; Syverud, 5TR at 37-
38, JA-__.)

As a number of witnesses testified, the concept of critical mass is not
susceptible to quantitative definition (Munzel, 1TR at 160-62, JA-__); instead the
existence or absence of critical mass is apparent in the nature and quality of student
interactions. (See id. at 159, JA-__; Lempert, 3TR at 125, JA-__; Lehman, 5TR at
38-45, 135-37, JA-__, __.) Thus, the drafters of the Policy concluded that a target
range of underrepresented minority students would be inappropriate and could be
misunderstood as suggesting a rigidity in admissions that is inconsistent with the
Law School's objective of assembling a broadly diverse class. 5/ (See Lempert,
3TR at 139, 144-45, 148-49, 170-71, JA-__, __, __, __.) The Admissions Director
relies on feedback from the Dean, the Faculty Admissions Committee, and

___________________
5/       During the drafting process, Professor Donald Regan wrote a memorandum
suggesting that having a target range was desirable for "candor" and to avoid any
misunderstanding about the goals of the Policy, (see Ex. 32, Regan Memorandum),
but his view did not prevail. The Committee concluded that a target range would
violate applicable law, and would, for reasons stated above, be inconsistent with
how the Committee intended the Policy to operate. (Lempert, 3TR at 149-50, JA-
__.) The faculty vote was based solely on the final version of the Policy, and not
on an early draft that had included a range as a way of describing the varying
levels of minority enrollment by which some faculty believed that critical mass had
been achieved under past policies. (Id. at 144-45, 177, 182 JA-__, __, __.)

11


individual faculty to determine whether the Law School is achieving these benefits.
(Munzel, 1TR at 159-60, 163, JA-__, __; Lempert, 3TR at 128, JA-__.)

Under the Policy, once the conceded educational benefits that flow from
enrolling meaningful numbers of underrepresented minority students have been
achieved or can be achieved without the conscious consideration of race, the
admissions office must stop considering race or ethnicity as a factor. (Ex. 4, Policy
at 13, JA-__; Lehman, 5TR at 131, JA-__.) At the time the Policy was drafted, like
today, there were no viable race-neutral alternatives for achieving the educational
benefits of diversity. 6/ (Lehman, 5TR at 143, JA-__; Lempert, 3TR at 193-94, JA-__.)

The Law School presented an extensive expert case proving that a racially
and ethnically diverse student body is essential to an outstanding legal education

___________________
6/       The district court speculated that the Law School might be able to enroll a
racially diverse student body without considering race and ethnicity, and it
criticized the Law School for not considering such possibilities. (See R-311,
Opinion at 53-54, JA-__.) The district court did not include the existence of such
alternatives among the issues for trial (Id. at 4, JA-__), and it excluded testimony
on this subject from the record. For example, the Law School offered to provide
testimony from Derek Bok -- former President of Harvard and Dean of Harvard
Law School, and a nationally respected expert on higher education -- on why race-
neutral alternatives to the competitive consideration of race in admissions would
not work, but the district court repeatedly stated that such testimony would not be
necessary. (See, e.g., 1TR, Trial at 9-10, JA-__.) Defendant-Intervenors presented
testimony confirming the correctness of the Law School's judgment that no viable
race-neutral alternatives exist. (See, e.g., Orfield, 6TR at 100-01, 153-56; 159-60,
179, JA-__, __, __, __.)

12


for all students. The district court had before it reports and testimony from
numerous experts in the fields of education, social psychology, and history. (See
R-219, SJ Exhibits, Expert Reports, JA-__.) The court also heard testimony from
Law School educators (including Dean Lehman, President Bollinger, Professor
Richard Lempert, and former Law School professor, and Vanderbilt Law School
Dean Kent Syverud) who described the positive impact a racially and ethnically
diverse student body has on classroom learning and teaching. (See Lempert, 3TR
at 118-21, JA-__; Syverud, 5TR at 38-45, JA-__; Lehman, 5TR at 137, JA-__.)

These educational benefits are conceded. Indeed, despite its conclusion that
race may not be considered by the Law School as it composes its classes, the
district court did "not doubt that racial diversity in the law school population may
provide these educational and societal benefits." (R-311, Opinion at 49, JA-__.) It
recognized that diversity had "important educational benefits" (id. at 47, JA-__), and
noted that "these benefits [are not] disputed by the plaintiffs in this case," (id.
at 49, JA-__).

2. Implementing the Admissions Policy.

A small staff of admissions professionals faithfully implements the Law
School's Policy. (Munzel, 1TR at 154-55, 229 JA-__, __.) The admissions staff
reads all the files, and the Assistant Dean and Director of Admissions makes
practically all the admissions decisions. (R-282, Final Pretrial Order at 5, JA-__.)

13


In recent years, the Law School, which has a rolling admissions process, received
between 3,300 and 4,000 applications each year. (Id. at 4, JA-__.) This volume is
manageable because each application is accompanied by a report from the Law
School Data Assembly Service that summarizes each applicant's grades and test
scores, and provides some information about the relative strength of applicants.
(Munzel, 1TR at 213, 240-41, JA-__, __.)

In making decisions among qualified applicants, all students compete
against each other for a place in the entering class, regardless of race or ethnicity,
under a single set of standards. (Shields, 4TR at 193-94, JA-__; Lehman, 5TR at
145, JA-__.) The admissions office does not operate a separate review process for
underrepresented minorities. (Munzel, 1TR at 229, JA-__.) Although the
admissions office seeks to enroll "meaningful numbers" of underrepresented
minority students, it does not employ fixed quotas, enrollment targets, or set-
asides. (Id. at 160-61, 224-25, JA-__, __; Lempert, 3TR at 124-25, JA-__;
Lehman, 5TR at 137-38, JA-__; Shields, 4TR at 216-17, JA-__.)

Throughout the admissions cycle, the admissions office monitors its overall
decision-making process by reference to reports called "dailies." These reports,
which provide a snapshot of the current applicant pool, are used for several
functions, including monitoring the number of decisions the admissions office has
extended, gauging the yield rate, pacing the office's review of files, and evaluating

14


the Law School's success in carrying out the goals of the Policy. (Munzel, 1TR at
270-71, JA-__.) The Law School has never used the dailies to enroll a certain
number of underrepresented minority students and does not consider race and
ethnicity to a greater or lesser extent based on information contained in those
reports. (Id. at 27, JA-__; Lehman, 5TR at 174-75, JA-__.)

3. The Data.

The data confirm that the Policy is followed. As Plaintiff concedes, the Law
School admits only students who are fully qualified to be successful in school and
in the profession. (Closing Argument, 15 TR at 7, JA-__.) "Cloud charts" plotting
all the admissions decisions by GPA and LSAT scores show significant overlap in
the grades and test scores of admitted and rejected applicants, demonstrating that
admissions decisions are not based on quantitative factors alone. (See Exs. 180-83,
1997 Applicants, JA-__.)

The data also show that, despite extensive recruiting efforts,
underrepresented minority students make up only a small fraction of the applicant
pool. (E.g., Ex. 146, Raudenbush Supp. Report, Tables 1-3, JA-__.) Even though
diversity is valued and the minority pool size is quite small, approximately two-
thirds of underrepresented minority applicants are denied admission. (Id., Tables
4-6, JA-__, __, __; Ex. 149, Raudenbush Supp. Report, Tables A1, A3, A5, JA-__,
__, __, __.) In fact, in each year between 1995-2000, the Law School denied

15


admission to a greater proportion of its underrepresented minority applicants than
to its majority applicants. (See id., JA-__, __, __, __.) Moreover, as the district
court observed, the number of underrepresented minority applicants who are
admitted and enroll in the Law School has fluctuated from year to year. (R-311,
Opinion at 31-32, JA-__.) The court's opinion, for example, says that
underrepresented minority students constituted 19.2% of the graduating class in
1994, 5.4% of the class in 1998, and 9.8% in 1999. 7/ (Id. at 35, JA-__.)

Plaintiff presented testimony from a statistician, Dr. Kinley Larntz, who
claimed the Law School gave an "incredibly large allowance" in admissions for
members of underrepresented minority groups. (R-311, Opinion at 28, JA-__.)
Dr. Larntz agreed, however, that his analysis could not quantify the extent to which

___________________
7/       In describing the number of underrepresented minority students who
enrolled in the Law School, the district court relied on graduation statistics
provided by the Law School in response to an interrogatory asking for figures at
graduation over many years rather than data on enrolled students. (R-311, Opinion
at 31-32, JA-__.) Complete admissions and enrollment statistics (broken down by
race) for all years relevant to the litigation were separately produced and
introduced into evidence. (See, e.g., Exs. 137, 139, 141, Larntz Reports; Exs. 146,
149, Raudenbush Reports; R-107, CD-ROM with 1995-2000 Admissions Data.)
The graduation data were taken from student self-reports to the alumni office; any
graduate who did not identify his or her race was listed as white. For this reason,
where the graduation statistics are materially different from the enrollment
statistics -- as is the case for the class that enrolled in 1995 and graduated in 1998
-- the Law School believes that the enrollment data is more accurate.

16


the admissions officers took race into account in making decisions. (Larntz, 2TR
at 181-82, JA-__; Larntz, 12TR at 64-66, JA-__.)

Dr. Stephen W. Raudenbush, one of the country's leading educational
statisticians and a professor at the University of Michigan with a joint appointment
in the School of Education and the Department of Statistics, testified for the Law
School. Professor Raudenbush explained that Dr. Larntz's analysis could not
measure the extent to which race is considered, and that it was fundamentally
flawed because, among other things, he used a method that required the exclusion
of a large portion of the relevant data. (Raudenbush, 4TR at 72-81, 106-07, JA-__,
__; Raudenbush, 13TR at 9-14, 22-23, JA-__, __.) Professor Raudenbush also
testified that, because of the nature of the Law School's various applicant pools, a
race-neutral admissions program would substantially reduce the number of
underrepresented minority students admitted, while majority students would see
only a very small increase in their probability of admission. (Raudenbush, 4TR at
12-14, 41-43 JA-__, __.)

SUMMARY OF ARGUMENT

The district court's decision -- which declared the Law School's
admissions system unconstitutional and in violation of Title VI of the Civil Rights
Act of 1964, and which enjoined any consideration of race in admissions -- was a
complete rejection of the Supreme Court's decision in Bakke. Bakke held that the

17


Constitution does not mandate colorblind admissions systems. In America today,
such systems would leave preeminent public and private institutions of higher
education with no more than token levels of racial and ethnic diversity. Bakke
ratified the prerogative of universities to provide the educational benefits that flow
from a racially and ethnically diverse student body, provided that they do so
through admissions systems that, like the Law School's, consider race or ethnicity
as one of many factors in a competitive system of evaluation.

The district court was not free to ignore Bakke, or the unbroken line of
authority and educational experience on which it is grounded. Part V.C. of Justice
Powell's opinion was joined by four other Justices and held that the consideration
of race and ethnicity in university and professional school admissions is
constitutional. Additionally, recognizing a university's academic freedom to select
its students, Justice Powell held that "the interest of diversity is compelling in the
context of a university's admissions program." 438 U.S. at 314. Justice Powell's
opinion has been widely recognized -- including by the Supreme Court and this
Court -- as controlling authority. A diverse student body is at least as central to
higher education today as it was when the Supreme Court decided Bakke. As
Justice Powell put it, "it is not too much to say that the 'nation's future depends
upon leaders trained through wide exposure' to the ideas and mores of students as

18


diverse as this Nation of many peoples." Id. at 313 (quoting Keyishian v. Bd. of
Regents,
385 U.S. 589, 603 (1967)).

The court also wrongly concluded that the Law School's admissions system
is not narrowly tailored to achieve the interest in diversity. The Law School's
admissions system, both as set out in the faculty Policy and as implemented, is
entirely consistent with the Harvard admissions plan expressly approved by a
majority of the Court in Bakke. Neither the Plaintiff nor the district court contends
otherwise. Because the Supreme Court has never overruled or even called into
question its judgment in Bakke, this Court must uphold the Law School's Policy.

ARGUMENT

I.       BAKKE IS CONTROLLING PRECEDENT AND PERMITS THE
COMPETITIVE CONSIDERATION OF RACE AND ETHNICITY IN
LAW SCHOOL ADMISSIONS TO ACHIEVE THE COMPELLING
STATE INTEREST IN ENROLLING A DIVERSE STUDENT BODY.

As the district court acknowledged, "the central issue in this case" is
"whether the Constitution permits the consideration of race in order to achieve
racial diversity." (R-311, Opinion at 36, JA-__.) In concluding that the
Constitution does not, the district court wrongly substituted its views for the
holding of the Supreme Court in Bakke. Because the district court's refusal to
accept Bakke turns solely on a question of constitutional law, this Court reviews it
de novo. See Johnson v. Econ. Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001).

19


A.       A Properly Devised Admissions Program Involving the
Competitive Consideration of Race and Ethnicity in Admissions Is
Constitutional Under Bakke.

Bakke considered the admissions policy at the University of California at
Davis Medical School. In clear contrast to the Law School here, Davis operated
what it called a "special admissions" system, a two-track system in which fixed
numbers of seats were reserved for minority applicants. Bakke, 438 U.S. at 272-
73. The California Supreme Court held the Davis admissions plan unconstitutional
and in violation of Title VI, and enjoined the Medical School from any
consideration of race in admissions. Id. at 279-80.

The U.S. Supreme Court overturned the injunction. Justice Powell delivered
the judgment of the Court and authored the pivotal opinion. Four other Justices
(Justices Brennan, White, Marshall, and Blackmun) joined with Justice Powell in
Bakke's core holding and judgment: 8/

In enjoining petitioner from ever considering the race of any
applicant, however, the courts below failed to recognize that the State
has a substantial interest that legitimately may be served by a properly
devised admissions program involving the competitive consideration

___________________
8/       These four Justices would have reversed the entire judgment below and
upheld the entire Davis admissions program, including the "special admissions"
program reserving a fixed number of seats for minority applicants. Bakke, 438
U.S. at 324-79. Four other Justices would have affirmed the entire judgment
below, holding that Title VI forbids institutions of higher education from
considering race as a factor in admissions. Id. at 408-21 (Stevens, J., joined by
Burger, C.J., Rehnquist, and Stewart, JJ.)

20


of race and ethnic origin. For this reason, so much of the California
court's judgment as enjoins petitioner from any consideration of the
race of any applicant must be reversed.

Id. at 320 (emphasis added). The same majority also approved the Harvard plan
(attached to Justice Powell's opinion) as an example of a "properly devised"
admissions program. Id. at 316-18, 326 n.1.

In his decisive opinion, Justice Powell described the State's "substantial
interest" in a diverse student body. He concluded that "the interest in diversity is
compelling in the context of a university's admissions program," id.at 314
(emphasis added), because "our tradition and experience lend support to the view
that the contribution of diversity is substantial" to producing a quality education,
id.at 313. Justice Powell emphasized that this was not his view alone, but instead
reflected a broad consensus: "[t]he atmosphere of 'speculation, experiment and
creation' -- so essential to the quality of higher education -- is widely believed to be
promoted by a diverse student body." Id. at 312 (emphasis added) (quoting Sweezy
v. New Hampshire,
354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)). 9/

___________________
9/       Justice Powell's Bakke opinion quoted an article by Dr. William Bowen,
then President of Princeton University, which explained that providing students
with 'exposure' to a diverse group of students was essential to a university's
educational mission because 'a great deal of learning occurs informally…
through interactions among students of," among other characteristics, "different
races." 438 U.S. at 312-13 n.48.

21


Because of the salience of race in American life, and because different
individuals -- with their wide range of experiences -- are necessary to fuel a vibrant
exchange of ideas, Justice Powell concluded that racial and ethnic diversity is a
"single though important element" of the diversity "that furthers a compelling state
interest." 438 U.S. at 315. This principle was not novel. In Sweatt v. Painter, 339
U.S. 629, 634 (1950), which held segregated legal education unconstitutional, the
Court noted that "[t]he law school, the proving ground for legal learning and
practice, cannot be effective in isolation from the individuals and institutions with
which the law interacts."

Justice Powell's conclusions are supported by a rich heritage of cases
emphasizing the importance of education to our democracy, see, e.g., Brown v.
Board of Education,
347 U.S. 483, 493 (1954) (identifying education as "the very
foundation of good citizenship"), and the unique role that higher education plays in
encouraging the "robust exchange of ideas," Bakke, 438 U.S. at 312 (quoting
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)), which is "a goal that is
of paramount importance in the fulfillment of its mission," id.at 313. In
concluding that its interest in the educational benefits of diversity is compelling,
Justice Powell recognized that a university invokes a "countervailing constitutional
interest, that of the First Amendment," when it asserts a "right to select those
students who will contribute the most to the 'robust exchange of ideas." Id.

22


"Though not a specifically enumerated constitutional right, [academic freedom]
long has been viewed as a special concern of the First Amendment." 10/ Bakke, 438
U.S. at 312. Moreover, "[t]he freedom of a university to make its own judgments
as to education include the selection of its student body." Id. To Justice Powell,
institutions like the Law School should be permitted to "make individualized
decisions" concerning "who may be admitted to study," id.at 312 (quoting Sweezy,
354 U.S. at 263 (Frankfurter, J., concurring)), and should operate "under a
presumption of legality and legitimate purpose," so long as they employ only the
competitive consideration of race. Id. at 319 n.53.

B.       Bakke Remains Binding Precedent.

Justice Powell's opinion stated the Bakke Court's holding that "a properly
devised admissions program involving the competitive consideration of race and
ethnic origin" is constitutional. Moreover, Justice Powell's conclusion that
diversity is a compelling state interest is the "narrowest ground" offered in support
of the judgment in Bakke and is therefore controlling. The district court's decision
represents a complete rejection of that precedent.

___________________
10/       See also Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S.
217, 232-33 (2000); Rosenberger v. Rector and Visitors of the University of
Virginia,
515 U.S. 819, 835 (1995); Regents of Univ. of Michigan v. Ewing, 474
U.S. 214, 225-26 (1985); Healy v. James, 408 U.S. 169, 180-81 (1972).

23


The district court granted virtually the same injunction that the Supreme
Court overturned in Bakke. It enjoined the Law School "from using applicants'
race as a factor in its admissions decisions." (R-311, Opinion at 90, JA-__.) The
Bakke Court overturned an injunction barring "any consideration of the race of any
applicant," Bakke v. Regents University of California, 553 P.2d 1152 (Cal.
1976). 11/ The district court lacked the authority to ignore Bakke's ruling and to
conclude that there could be no constitutional consideration of race by the Law
School.

The district court followed the lead of the Fifth Circuit in Hopwood v. Texas,
78 F.3d 932 (5th Cir. 1996). 12/ Both courts wrongly concluded that the Supreme Court's
recent decisions implicitly have rejected both Bakke's judgment and
Justice Powell's controlling opinion. Far from overruling Bakke, however, the
Supreme Court has recognized its holding on a number of occasions.

In Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), the Court upheld
Federal Communications Commission regulations designed to "enhanc[e]

___________________
11/       See Alexander v. Sandoval, 121 S. Ct. 1511 (2001) (describing Bakke's
reversal of injunction against "according any consideration to race in [the]
admissions process"); Minnick v. Cal. Dep't of Corr., 452 U.S. 105, 115 (1981)
(majority in Bakke "unequivocally stated that race may be used in the admissions
process in some circumstances").

___________________
12/       A petition for certiorari is now pending in the Supreme Court in the newest
incarnation Hopwood. See Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000),
petition for cert. filed (U.S. April 17, 2001) (No. 00-1609).

24


broadcast diversity" and explicitly relied on Justice Powell's opinion in Bakke,
reasoning that the interest in achieving broadcast diversity was constitutional, just
as "a 'diverse student body' contributing to a 'robust exchange of ideas' is a
'constitutionally permissible goal' on which a race-conscious university
admissions program may be predicated." 13/ Id. at 568. Similarly, although she did
not speak for the Court in Wygant v. Jackson Board of Education, 476 U.S. 267,
286 (1986), Justice O'Connor relied in her separate opinion directly on Justice
Powell in Bakke as support for the view that "a state interest in the promotion of
racial diversity has been found sufficiently 'compelling,' at least in the context of
higher education, to support the use of racial considerations in furthering that
interest." See also Johnson v. Transp. Agency, 480 U.S. 616, 638 (1987)
(upholding a promotion plan that considered gender and noting the plan's
similarity to the Harvard plan "approvingly noted by Justice Powell" in Bakke).

The district court, like the Fifth Circuit in Hopwood, placed great weight on
the decisions in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), and City

___________________
13/       Metro Broadcasting held that raced-based classifications employed by the
federal government are evaluated under an intermediate standard of review.
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), which held that strict
scrutiny applies to all uses of race by government actors, overruled only that one
aspect of Metro Broadcasting, and did not disturb other parts of that decision
relying on Justice Powell's conclusion in Bakke that efforts to achieve the
educational benefits of diversity are constitutional. See id. at 227.

25


of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Those cases reflect a
general determination that strict scrutiny applies to racial classifications, and both
concerned the use of race to remedy past discrimination in government contracting.
Neither case addressed the competitive consideration of race in admissions, as the
district court acknowledged in holding that the individual Defendants were entitled
to qualified immunity because their actions in this case did not violate "clearly
established law." (See R-311, Opinion at 55, JA-__.) In addition, because Justice
Powell applied "the most exacting judicial examination" in Bakke, 438 U.S. at 291,
and said that the use of race must be "precisely tailored to serve a compelling
governmental interest," id.at 299, Adarand and Croson do not undermine Bakke's
holding. 14/ Further, as many courts have recognized, Adarand and Croson do not
stand for the proposition that race may be considered only to remedy past
discrimination. 15/

___________________
14/       It is clear from Justice Powell's opinion in Fullilove v. Klutznick, 448 U.S.
448, 496 (1980), that the "most exacting judicial examination" he referred to in
Bakke is what is now generally known as strict scrutiny. See also Adarand, 515
U.S. at 218-20 (recognizing Justice Powell applied strict scrutiny in Bakke and
Fullilove).

___________________
15/       See, e.g., Hunter v. Regents of the University of California, 190 F.3d 1061
(9th Cir. 1999), cert. denied, 121 S. Ct. 186 (2000) (recognizing improving quality
of education in urban public schools as compelling interest); Wittmer v. Peters, 87
F.3d 916 (7th Cir. 1996) (recognizing operating correctional facilities as
compelling interest); see also United States v. Ovalle, 136 F.3d 1092, 1105 (6th

[continued onto next page]
Cir. 1998) (relying on Bakke in discussing importance of "fair cross section" in
jury pools).

26


The district court also erred in rejecting the precedential value of Justice
Powell's Bakke opinion on the ground that it was not an opinion for the full Court.
Lower courts may not disregard Supreme Court decisions just because no single
opinion was signed by five Justices. Rather, under Marks v. United States, 430
U.S. 188, 193 (1977), the judicial task is to find the "narrowest ground" that
supports the judgment, and to examine how the instant case would have come out
under that rationale. In Bakke, Justice Powell's opinion plainly is the narrowest
ground because Justice Brennan's opinion (which also supported the Bakke
judgment) would have upheld a much broader range of admissions programs,
including that of the Davis Medical School.

The Ninth Circuit recently reached this conclusion in Smith v. University of
Washington Law School, 233 F.3d 1188 (9th Cir. 2000), petition for cert. filed, 69
U.S.L.W. 3593 (U.S. Feb. 21, 2001) (No. 00-13), which upheld the former race-
conscious admissions program of the University of Washington Law School. It
concluded that Justice Powell's opinion articulated the most conservative rationale
for the judgment in Bakke and best navigated the "polar possibilities" set forth by
the other Justices -- that race could never be considered under Title VI, on the one

27


hand, and that "benign" racial classifications were permissible even where they
involved quotas, on the other. Id. at 1198-2000.

The district court, however, concluded that it would be "nonsensical" even
to ask which Bakke opinion was controlling because they were "different." (R-
311, Opinion at 44, JA-__.) This was error. 16/ It is precisely when a "fragmented"
Court relies on "different" rationales that the Marks analysis applies, and lower
courts have an obligation to identify the "determinative opinion" and accord it
precedential value. Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 132 (6th Cir.
1994).

The Supreme Court has consistently admonished lower courts not to read tea
leaves as the court did in this case. 17/

___________________
16/       In effect, the district court looked to dissenters as precedent. This was clear
error under any reading of Marks. Only Justice Powell's opinion or that of Justice
Brennan could have provided the "narrowest" ground for the judgment that the
competitive consideration of race and ethnicity in admissions is constitutional; the
Stevens group would have prohibited any use of race in admissions.

___________________
17/       See Rodriguez DeQuijas v. Shearson/American Express, Inc., 490 U.S. 477,
484 (1989) (exhorting courts to apply precedent with "direct application," even if
reasoning "appears to rest on reasons rejected in some other line of decisions").
See also Hohn v. United States, 534 U.S. 236, 253 (1998) ("Our decisions remain
binding precedent until we see fit to reconsider them, regardless of whether
subsequent cases have raised doubts about their continuing vitality."); State Oil Co.
v. Kahn,
522 U.S. 3, 20 (1997) (emphasizing that the Court retains the "prerogative
of overruling its own decisions"); Agostini v. Felton, 521 U.S. 203, 237 (1997)
("[O]ther courts [should not] conclude [that] our more recent cases have, by
implication, overruled an earlier precedent.").

28


Except for the Fifth Circuit in Hopwood, and a district court in the Eleventh
Circuit, Johnson v. Board of Regents of University System of Georgia, 106 F.
Supp. 2d 1362 (S.D. Ga. 2000), appeal docketed, No. __ (11th Cir. __ 2000), all
the other lower courts to consider the issues posed by this case have followed
Justice Powell's Bakke opinion. 18/ In Oliver v. Kalamazoo Board of Education,
706 F.2d 757, 763 (6th Cir. 1983), for example, this Court cited Bakke for the
proposition that "affirmative action admission programs of educational institutions
may take race into account, but racial quotas are prohibited." See also Jacobson v.
Cincinnati Board of Education,
961 F.2d 100, 103 (6th Cir. 1992) (relying on
Bakke). Bakke must be applied in this case.

C.       The Law School Proved that Racial and Ethnic Diversity is
Important to a Quality Legal Education Today.

The district court's rejection of diversity as a compelling state interest in the
face of binding precedent is all the more disturbing because the Plaintiff conceded

___________________
18/       See Smith, 233 F.3d at 1188; Eisenberg v. Montgomery County Pub. Sch.,
197 F.3d 123, 131 (4th Cir. 1999), cert. denied, 529 U.S. 1019 (2000) (assuming
that Bakke is controlling authority); Tuttle v. Arlington County Sch. Bd., 195 F.3d
698, 705 (4th Cir. 1999), cert. dismissed, 529 U.S. 1050 (2000) (same); Wessman
v. Gittens,
160 F.3d 790 (1st Cir. 1998) (same); Winkes v. Brown Univ., 747 F.2d
792, 799 (1st Cir. 1984); cf. Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d
738 (2d Cir. 2000). See also Davis v. Halpern, 768 F. Supp. 968, 975 (E.D.N.Y.
1991); Univ. & Cmty. Coll. Sys. v. Farmer, 930 P.2d 730, 734 (Nev. 1997).
Government agencies, such as the Department of Education have also recognized
Bakke as controlling precedent. (See 59 Fed. Reg. 8756, 8761 (1994); R-217, SJ
Exhibits, Office for Civil Rights Letter at 1, JA-__.)

29


the significant educational benefits of diversity to all students, and the district court
agreed that these benefits are "important and laudable." (R-311, Opinion at 49,
JA-__.) As Justice Powell recognized, the educational mission of higher education
is in fundamental ways dependent on such diversity. (See supra at 21-23.)

Indeed, the voluminous evidence from nationally recognized experts that the
Law School amassed in this case 19/ demonstrates that -- because racial separation in
the United States is, in many ways, more extreme today than it was before the
Bakke decision, the Civil Rights Act of 1964, and even Brown v. Board of
Education, (see
R-219, SJ Exhibits, Sugrue Report at 7-8, 19-44, JA-__, __; see
also id.,
SJ Exhibits, Foner Report at 48-49, JA-__; id., SJ Exhibits, Camarillo
Report at 23-26, JA-__) -- the educational benefits of diversity are at least as
important today as they were when Justice Powell recognized them in Bakke. 20/
Dean Syverud, for example, explained that "racial heterogeneity dramatically
enhances the ability of the best active, Socratic teaching to achieve its purposes" of
requiring law students to "see any set of facts from different points of view." (R-

___________________
19/       The evidence presented by the Law School distinguishes this case from other
recent cases considering Justice Powell's decision in Bakke. See, e.g., Hopwood,
78 F.3d at 944; Johnson, 106 F. Supp. 2d at 1362.

___________________
20/       In Gratz v. Bollinger, 122 F. Supp. 2d 811, 822 (E.D. Mich. 2000), another
judge of the district court held that these expert reports "presented… solid
evidence regarding the educational benefits that flow from a racially and ethnically
diverse student body."

30


219, SJ Exhibits, Syverud Report at 3, JA-__.) Judge Robert Webster, former
President of the Michigan State Bar and former Chief Judge of the Oakland County
Circuit Court, emphasized that racial and ethnic diversity in legal education is
important both to a law school's mission to train effective lawyers, and to the
perception that our legal system is able to administer equal justice. (R-219, SJ
Exhibits, Webster Report at 5, JA-__.) Derek Bok -- an expert in higher education
who has served as both Dean of Harvard Law School and President of Harvard
University -- echoed this point, noting that the "bar has made clear that it views the
participation of minority attorneys as essential to public confidence in the
machinery of justice." (R-219, SJ Exhibits, Bok Report at 23, JA-__.)

As the district court recognized, (R-311, Opinion at 49, JA-__), Professor
Patricia Gurin, Chair of the Department of Psychology at the University of
Michigan, provided empirical evidence and support from social psychology
literature, and from her own extensive analyses, that students learn more
effectively when they are educated in racially and ethnically diverse environments,
and are better prepared to participate in our pluralistic democracy when they leave.
(Id., JA-__.) Dr. Gurin and the Law School's other experts showed that these
benefits exist because, given our racial separation, Americans ordinarily have little
contact with members of different racial groups, such that exposure to a diverse
student body provides unique educational opportunities.

31


While crediting the testimony of the Law School's experts, the district court
misunderstood a key point: the conceded educational benefits of diversity do not
depend upon an underrepresented minority student expressing any particular
"viewpoint." 21/ (See Lempert, 3TR at 123-24, JA-__; Lehman, 5TR at 130, JA-
__.) Students are likely to have certain experiences because of their race that have
an impact on their views and perspectives, and learning occurs when a student
articulates a perspective that would not have been raised in a non-diverse class.
However, given the racial separation in our society, learning also occurs when a
minority student does not express a view that might be expected, when students see
that members of one racial or ethnic group often have differing views, or when
they discover that individuals of different racial groups may have similar attitudes
on an issue. (R-219, SJ Exhibits, Gurin Report, JA-__.) To the extent the district court
focused solely on "[t]he connection between race and viewpoint," (R-311,
Opinion at 47, JA-__), it failed to appreciate the full measure of diversity's
educational benefits.

___________________
21/       Plaintiff has argued that Justice Powell's Bakke opinion concerned only
viewpoint diversity and not an interest in achieving broad diversity, including
racial and ethnic diversity. (See, e.g., R-330, SJ Hearing at 12, JA-__.) While it is
true that Justice Powell spoke of the benefits of a diverse student body, it is plain
that he recognized -- as the Law School does -- that racial and ethnic diversity has
particular value. See, e.g., 438 U.S. at 316-19.

32


II. THE LAW SCHOOL'S ADMISSIONS SYSTEM IS NARROWLY
TAILORED UNDER BAKKE.

The district court also erred in concluding that "the law school's admissions
policy is not narrowly tailored to serve" the interest in "attainment of a racially
diverse student body." (R-311, Opinion at 47, JA-__.) Because that conclusion
was based on undisputed facts, this Court reviews it de novo. 22/ See Poyner v. Lear
Siegler, Inc.,
542 F.2d 955, 959 (6th Cir. 1976) (legal significance of evidentiary
facts is question of law); see also Bratton v. City of Detroit, 704 F.2d 878, 899 (6th
Cir. 1983), modified on other grounds, 712 F.2d 722 (6th Cir. 1983) (constitutional
significance of historical fact is question of law).

The Law School's 1992 Policy is entirely consistent with the Harvard
admissions system approved by a five-Justice majority in Bakke. The program is
narrowly tailored, and each of the five reasons that the district court gave for its
contrary holding is infected by its erroneous view that the Constitution mandates
colorblind admissions. If allowed to stand, the decision would end the admissions

___________________
22/       Should this Court conclude that any of the district court's narrow tailoring
statements are findings of fact, rather than conclusions of law, this Court
nevertheless should conduct a searching review of the court's decision. The
Supreme Court recently held that an "extensive review" by an appellate court "is
warranted" when a lower court has held that a State has impermissibly used race --
particularly where, as here, many of the facts in the record are undisputed, much of
the evidence came from documents and expert testimony, and no adverse
credibility evaluations have been made. See Hunt v. Cromartie, 121 S. Ct. 1452
(2001).

33


programs of the countless public and private institutions of higher education that,
like the Law School, have designed their systems to comply with Bakke.

A. The Law School Complies With Bakke's Narrow Tailoring
Requirements.

1. Bakke Establishes the Limits on Consideration of Race in
Law School Admissions.

Under Bakke, a fixed racial admissions quota is not narrowly tailored to
achieve the benefits of diversity, but a more flexible admissions system that
considers race or ethnicity as one of many factors passes constitutional muster.
Admissions programs that operate within Bakke's limits are "precisely tailored" to
obtain the educational benefits of diversity and therefore satisfy strict scrutiny. See
Bakke, 438 U.S. at 316-19. The Harvard plan thus serves as a model for
institutions to emulate.

Justice Powell's Bakke opinion places limitations on the manner and extent
to which race may be used in a properly devised admissions system. First, on the
question of manner, the "fatal flaw" in the Davis admissions system was its use of
a two-track, segregated admissions system. Where "a specified percentage of the
student body is in effect guaranteed to be members of selected ethnic groups," id.
at 315 (emphasis added), minority applicants are impermissibly insulated "from

34


competition with all other applicants," id. at 315. 23/ In contrast, the Harvard
admissions system used race and ethnicity as a constitutionally permissible
consideration, a "plus factor" to select an integrated student body:

This kind of program treats each applicant as an individual in the
admissions process. The applicant who loses out on the last available
seat to another candidate receiving a "plus" on the basis of ethnic
background will not have been foreclosed from all consideration for
that seat simply because he was not the right color or had the wrong
surname. It would mean only that his combined qualifications, which
may have included similar nonobjective factors, did not outweigh
those of the other applicant. His qualifications would have been
weighed fairly and competitively, and he would have no basis to
complain of unequal treatment under the Fourteenth Amendment.
Id. at 318.

Second, on the question of extent, Justice Powell makes clear that a
"properly devised" admissions system considers race and ethnicity as one of many
factors in choosing among "otherwise qualified" applicants in order to achieve the
educational benefits of diversity, id. at 314, rather than striking a racial balance
"for its own sake." Id. at 307. It does not consider race and ethnicity more than
necessary to achieve the educational benefits of diversity, and does not focus on
them to the exclusion of other factors. Bakke does not require that all factors be

___________________
23/       Justice O'Connor repeated this reading of Bakke in City of Richmond v. J.A.
Croson Co.,
488 U.S. 469, 496 (1989). She described the flaw identified by a
majority of the Court in the Davis plan as the "complete[] eliminat[ion] [of]
nonminorities from consideration for a specified percentage of opportunities." Id.

35


weighed equally. Rather, a "properly devised" admissions program "is flexible
enough to consider all pertinent elements of diversity in light of the particular
qualifications of each applicant, and to place them on the same footing for
consideration, although not necessarily according them the same weight." Id. at
317 (emphasis added).

2. The Law School's Admissions Policy Is Consistent with the
Harvard Plan Approved in Bakke.

Neither the district court nor Plaintiff has identified any material difference
between the Law School's Policy and the Harvard plan. The Policy requires
exactly the "competitive consideration" of race and ethnicity that Bakke
authorized: the Law School "treats each applicant as an individual in the
admissions process," id. at 318, and does not insulate any prospective student from
competition with any other applicants. (Lempert, 3TR at 124-25, JA-__; Shields,
4TR at 173, JA-__.) The admissions staff reads every file and renders a judgment
on each applicant, considering a broad range of factors. (R-311, Opinion at 18,
JA-__.) Plaintiff concedes that all of the students admitted to the Law School are
fully qualified. 24/ (Plaintiff's Closing, 15 TR at 7, 27, JA-__, __; R-311, Opinion at

___________________
24/       For example, in 2000, the median GPA was 3.68 for white admitted students
and 3.4 for African-American admitted students. (See Ex. 141, Larntz Supp.
Report, Table 5.) Taken in isolation, this difference -- which is the difference
between an A- and a B+ -- says little about who will be a successful law student,
let alone a successful lawyer. (See, e.g., Munzel, 1TR at 255, JA-__.)

36


49, JA-__.) Additionally, "cloud charts" in the record show that there is
substantial overlap in grades and test scores of admitted and rejected minority and
majority applicants. (See Exs. 180-83, 1997 Applicants, JA-__.) So long as the
Law School selects from "otherwise qualified" candidates and considers the race
and ethnicity of applicants to the extent necessary to achieve the benefits of
diversity, while still considering the other distinguishing qualities of those and
other applicants, it uses race to an appropriate extent. Bakke, 438 U.S. at 314.

The court did not say that the Law School used race "too much" in its
narrow tailoring discussion (see R-311, Opinion at 49-54, JA-__), but earlier in its
opinion the court did say -- extrapolating from the testimony of Dr. Kinley Larntz
-- that "the law school places a very heavy emphasis on an applicant's race in
deciding whether to accept or reject." (Id. at 31, JA-__.) That conclusion
collapses under scrutiny.

First, the district court confused the question of whether race was considered
in admissions with the question of how much it was considered. Although the
court said it looked to Dr. Larntz's analysis because "[t]he issue in this case is
whether similarly situated applicants are treated differently because of their race"
(R-311, Opinion at 33, JA-__), that is not an issue under the 1992 Policy. The Law
School has, throughout the litigation, acknowledged that it takes race into account
as a factor in admissions. (See, e.g., R-8, Answer, JA-__; R-175, Renewed SJ

37


Motion Memorandum, JA-__.) Both Dr. Larntz and the Law School's statistics
expert agreed that, while Dr. Larntz's "odds ratio" analysis illustrated that race is
considered as a factor in admissions, it did not reveal anything about how much
weight the admissions officers actually gave to the race of applicants. 25/ (See, e.g.,
Larntz, 2TR at 181-82, JA-__, Larntz, 12TR at 64-66, JA-__; Raudenbush, 4TR at
12, 62-64, 106-07, JA-__, __, __.) In fact, as Plaintiff acknowledged, the extent to
which race is considered in making admissions decisions varies from application to
application, both because of the Law School's rolling admissions system and
because race is only one -- even if an important one -- of many admissions
factors. 26/ In many cases, the same decision would have been reached had the

___________________
25/       An "odds ratio" is a technical statistical concept that expresses the ratio
between two sets of odds. It is non-intuitive and can be misleading when used to
describe the chances of admission. (See Raudenbush, 4TR at 66-70, JA-__.) For
example, if one group has a 75% admission rate -- "odds" of 3 to 1 to get in -- and
another has a 25% admission rate -- "odds" of 1 to 3 -- the "odds ratio" is 3/1 ÷ 1/3
= 9. (Ex. 143, Larntz Presentation at 29.) To take another example, if a group has
a 50% admission rate and another has a 25% admission rate, the "odds ratio" is 1/1
÷ 1/3 = 3. Finally, for a cell in which one minority student applied and was
admitted (100%), while 73 out of 75 majority students (97%) were admitted, the
"odds ratio" is "infinity." (Ex. 192, Raudenbush Chart of Larntz Analyses, JA-__.)

___________________
26/       Several witnesses testified without contradiction that (1) the value placed on
having a diverse class is balanced against other academic interests, (e.g., Lempert,
3TR at 124-25, JA-__; Lehman, 5TR at 145, JA-__; see also Munzel, 1TR at 175,
JA-__), and that (2) under the Policy, applicants who would contribute to the racial
and ethnic diversity of the Law School are not automatically admitted and are,
instead, subjected to the same file review and evaluation as all applicants, (e.g.,
Lehman, 5TR at 183-84, 193-94, JA-__, __).



student been of a different race. For other applicants, consideration of race may be
more important, even decisive. 27/ (Raudenbush, 4TR at 97, JA-__; Larntz, 2TR at
151-52, JA-__; Plaintiff's Closing, 15TR at 7, JA-__.)

Second, Dr. Larntz's method was fundamentally flawed. (See R-304, Defts'
Post-Trial Brief at 23-26, JA-__.) Dr. Larntz excluded from his analysis all the
applicants with the same grades and test scores who were treated identically (either
admitted or rejected), because he thought that these data contributed no
"comparative information." (Larntz, 2TR at 144-46, JA-__.) The district court
accepted Dr. Larntz's approach. Like Dr. Larntz, the court looked at only a
fraction of the data -- only situations in which applicants of different races were
treated differently -- and failed to consider many situations in which members of
different racial groups were treated the same. 28/ Professor Raudenbush explained

___________________
27/       Dr. Raudenbush clarified this point at trial: Consider a playground with
seesaws. For some seesaws, the left side is down and the right side is up.
Counting how many of the seesaws are tipped will not reveal how much extra
weight is on the left side of these seesaws (which could be a brick or a feather).
(Raudenbush, 4TR at 87-91, JA-__.)

___________________
28/       The district court misunderstood how to interpret odds ratios. It appears to
have thought that (1) from the probability of admission of any underrepresented
minority applicant, one can determine the chance of admission of a white applicant
with the same grades and test scores, and that (2) the chances of admission of those
two applicants must add up to 100%. (R-311, Opinion at 25 n.20, JA-__, __.)
Both of these propositions are false. The odds ratios that Dr. Larntz reported were
composites employing historical admissions rates; they do not tell the probability of
admission for any individual students. (Larntz, 2TR at 128, JA-__.) A single
[continued onto next page]
odds ratio can respond to many sets of probabilities. For example, an odds ratio of
11 could correspond to probabilities of .90 and .99, or of .10 and .01. (See
Raudenbush, 4TR at 67-69, JA-__.)

39


that Dr. Larntz's discarding of data was not done in a random manner but was
selective -- "based on the outcomes of the admissions process" that were
"discrepant with the [Larntz] hypothesis." (Raudenbush, 4TR at 63, JA-__.) Dr.
Larntz's results are therefore biased. 29/

Third, as the district court describes, Dr. Larntz structured his analyses
around GPA and LSAT "grids" that he wrongly assumed reflected how the Law
School makes admissions decisions. (R-311, Opinion at 23-24, JA-__; see also
Larntz, 2TR at 130, JA-__; Larntz, 12TR at 89-91, JA-__.) The Law School does
not use any such mechanism. The grids employed by the Law School reflect the
results of past admissions decisions, not the process by which decisions are made.
(Munzel, 1TR at 198-99, 209, JA-__, __; Lehman, 5TR at 215-16, JA-__.) By
focusing exclusively on small cells of students defined as having essentially

___________________
29/       Rules 702 and 703 of the Federal Rules of Evidence require that expert
testimony satisfy certain standards. See Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 597 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153
(1999). The Court must determine that the testimony of an expert is reliable and
that there is a "fit" between the testimony and the issues to be resolved. Daubert,
509 U.S. at 590-93. That basic "fit" is missing here. Moreover, no statistical
methodology that purposefully ignores unfavorable data, as the Larntz analysis
does, can be deemed reliable. See, e.g., Sheehan v. Daily Racing Form, Inc., 104
F.3d 940, 942 (7th Cir. 1997); Wado v. Xerox Corp., 991 F. Supp. 174, 184
(W.D.N.Y. 1998).

40


identical grades and test scores, and thereby ignoring the many admissions factors
that could not be quantified (such as strength of recommendation letters or
leadership ability), Dr. Larntz guaranteed that his analysis would attribute any
difference in admissions rates entirely to race. Even Dr. Larntz admitted that he
would have found substantially lower "odds ratios" if he had simply drawn his
grids differently. (Larntz, 2TR at 172-75, JA-__; Larntz, 12TR at 97-98, JA-__.)

Moreover, the differences that Dr. Larntz found for members of different
racial groups are attributable to a fairly small number of applicants in the middle
ranges of grades and test scores. In the upper ranges, where, as the district court
notes, the overwhelming majority of admitted students are found, (R-311, Opinion at
6, JA-__), the admission rates of minority and majority students are quite
similar, and certainly do not suggest a system in which race and ethnicity is an
overwhelming factor. (Ex. 146, Raudenbush Report at 6, JA-__.)

Fourth, both statisticians agreed that, even using only the limited
quantitative data available (which ignore most of what the Law School considers in
admissions), the Larntz regression analysis shows that other factors -- at least
undergraduate grades and standardized test scores -- were more important than
race. (Larntz, 2TR at 213, JA-__.) This result makes sense given that two thirds
of the underrepresented minority applicants -- including many who are fully

41


qualified -- are rejected by the Law School each year. (Raudenbush, 4TR at 20,
JA-__.) This pattern would not hold if race were an enormous factor.

B. Each of the District Court's Narrow Tailoring Rationales Is Wrong.

The district court invented its own narrow tailoring test and listed five
reasons why the Law School's admissions system does not satisfy it. These five
reasons are inconsistent with Bakke, some are inconsistent with each other, and
none withstands scrutiny.

Equally disturbing, the district court impermissibly substituted its own views
for the Law School's educational judgment. Under Bakke, once an institution of
higher education's admissions program is justified by the compelling state interest
in diversity, the details of how decisions are made must be left to the school -- so
long as its admissions program comports with Bakke's limitations. Justice Powell
emphasized that such admissions programs are entitled to a "presumption of
legality and legitimate educational purpose," Bakke, 438 U.S. at 318-19 and n.53,
given the "narrow avenue for judicial review" that exists when courts review
educational decisions, Regents of the University of Michigan v. Ewing, 474 U.S.
214, 227 (1985). Of course, given that he struck down the Davis admissions
program, Justice Powell was not suggesting that the First Amendment gives
universities a "license to discriminate." He did conclude, however, that, where the
use of race is justified by the compelling state interest in a diverse student body,

42


and where an institution proceeds "on an individualized, case-by-case basis, there
is no warrant for judicial interference in the academic process." Bakke, 438 U.S. at 319 n.53.

1. The Term Critical Mass Has Been Defined With Sufficient
Particularity.

The district court first suggested that a "critical mass" of underrepresented
minority students is an "amorphous concept" and that "[n]arrow tailoring is
difficult, if not impossible, to achieve when the contours of the interest
being served are so ill-defined." (R-311, Opinion at 50, JA-__.) The district court's
view cannot be reconciled with Bakke or with its equally erroneous statement that a
"critical mass" is the functional equivalent of a quota. (See id., JA-__.)

The district court's suggestion that "critical mass" is itself the "interest being
served" shows how deeply it misunderstood Bakke and this case. Under Justice
Powell's opinion in Bakke, there can be no interest in obtaining meaningful
numbers of minority students for its own sake. Bakke, 438 U.S. at 307. The Law
School has never asserted such an interest in support of its Policy. The Law
School's interest in achieving the educational benefits of diversity is proper and
has been defined with sufficient specificity.

Further, although the Law School's witnesses testified that they could not
identify a specific "number or percentage of the entering class [that] would
constitute critical mass" of minority students because "critical mass" is not a

43


quantitative concept in the educational context, they also testified that there is no
mystery about the meaning of the term. An idea does not have to be a number in
order to be well defined. Witness after witness described in detail what "critical
mass" means for law school admissions. (See, e.g., Munzel, 1TR at 158-60, JA-
__; Lempert, 3TR at 124-25, JA-__; Lehman, 5TR at 135-37, JA-__.) Dean
Jeffrey Lehman and Dean Kent Syverud explained that it involves educational
judgments regarding the level of enrollment necessary to create an environment in
which preconceptions about groups can be challenged, differences within groups
can be identified, and similarities between groups can be appreciated. (Lehman,
5TR at 135-37, JA-__; Syverud, 5TR at 37-45, JA-__.) Dean Syverud also
testified that critical mass is highly contextual, turning on the nature of the student
body, the size of a class, and perhaps even the number of students in a particular
course. (Syverud, 5TR at 39-41, JA-__.) Professor Richard Lempert, as chair of
the committee that drafted the Policy, addressed why the drafters of the Policy
chose not to define critical mass as a specific number or target range, explaining
that they believed such numbers would be inconsistent with Bakke and the Law
School's educational mission, and that they were concerned that future admissions
officers and perhaps even other faculty would misunderstand a numerical target as
a floor or ceiling on the number of underrepresented minorities who could be
enrolled. (Lempert, 3TR at 113-15, 144, 149-50, 178-79, JA-__, __, __, __.) The

44


concept of "critical mass" is no less an educational judgment for the inability of
professionals to be quantitative in describing it.

Finally, it would turn Bakke on its head to require educational institutions to
attempt to enroll a specific number of underrepresented minority students as part of
a program to advance the overall benefits of diversity. Justice Powell said that race
and ethnicity are among the range of factors "a university properly may consider in
attaining the goal of a heterogeneous student body," 438 U.S. at 314, but did not
define "heterogeneous" in terms of percentages of minority students and
recognized that "the 'mix' both of the student body and the applicants for the
incoming class" would vary from year to year. Id. at 318. The Harvard plan
rejected the notion that the "proper" number of underrepresented minority students
could be specified, but recognized generally that a very small number of such
students "could not begin to bring to their classmates and to each other the variety
of points of view, backgrounds and experiences" necessary for learning. Id. at 323.
It therefore concluded "that there is some relationship between numbers and
achieving the benefits to be derived from a diverse student body, and between
numbers and providing a reasonable environment for those students admitted." Id.
Thus, Bakke is concerned with rigidity and forbids only the reservation of a
"specified percentage of the student body" for minority students. Id. at 315. The

45


district court's call for greater specificity was a demand for precisely what Bakke
forbids.

2. The Law School's Policy Sets Appropriate Durational
Limits on the Competitive Consideration of Race.

The district court found the Law School's Policy is not narrowly tailored
because it lacks an adequate "time limit" on the use of race and ethnicity in
admissions decisions. (See R-311, Opinion at 50, JA-__.) Yet, neither this Court
nor the Supreme Court requires a government actor to specify the exact date and
time for the termination of a race-conscious program. On the contrary, such a
program must merely be "sensitiv[e] to the possibility that [it] might someday have
satisfied its purposes." Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214
F.3d 730, 737 (6th Cir. 2000), cert. denied, 121 S. Ct. 1089 (2001). While the Law
School does seek to enroll meaningful numbers of underrepresented minority
students, it has not, as the district court suggests, expressed an intent to use race
indefinitely or even "for as long as necessary to admit a critical mass of
underrepresented minority students … ." (See R-311, Opinion at 50, JA-__.)
The Law School only intends to consider race and ethnicity to achieve diversity until it
becomes possible to enroll a critical mass of underrepresented minority students
through race-neutral means. (Lehman, 5TR at 138-39, JA-__.) Even within a
given admissions cycle, the 1992 Policy provides that "the relevance … of the
possession of various diversity-relevant characteristics as such may be greatly

46


diminished or exhausted" if the Law School becomes otherwise able to admit
meaningful numbers of underrepresented minority students. (See Ex. 4, Policy at
13, JA-__.) This is precisely the type of "check" on the use of race and ethnicity
that Bakke requires.

3. The Law School Does Not Employ a Racial Quota or Its Functional Equivalent.

Even as it faulted the Law School's concept of a "critical mass" as too
"amorphous," the court also said that the Law School's current admissions system
is "practically indistinguishable from a quota system." (R-311, Opinion at 50, JA-
__.) The data cited by the district court cannot support its confusing use of the
label "quota system." The district court referred to data showing underrepresented
minority students constituted 19.2% of the class in 1994, 5.4% of the class in
1998, and 9.8% the very next year in 1999. (Id. at 35 n.27, JA-__, __.) Clearly
this is not a quota system. Elsewhere in the opinion, the district court
acknowledged that the percentage of underrepresented minority students "has
fluctuated somewhat from one year to another," but the court nevertheless asserted
a "commitment" by the Law School to enroll underrepresented minority students
"in the 10-17% range" (id. at 31, JA-__). The district court cited as evidence that
"from 1986 to 1999 students from these groups constituted approximately 12-13%

47


of the graduating class." (Id. at 32, JA-__.) 30/ Yet a footnote reveals that the
district court calculated the "12-13%" figure as an average of widely discrepant
enrollment rates in those years, ranging from 5.4% in 1998 to 19.2% in 1994. (Id.
at 32 n.26, JA-__, __.) An average is not a fixed quota.

If percentages such as 5.4%, 9.8%, and 19.2% constitute a fixed quota or
target range, then any three numbers do. A homeowner would not call a loan with
an interest rate that varied from 5.4% to 19.2% a "fixed-rate" loan. As Justice
Powell explained in Bakke, a racial quota ensures a "fixed number of places to a
minority group." 438 U.S. at 316. That is what Davis did, but the Law School has
done nothing of the kind. Indeed, the Harvard plan that Justice Powell and four
other Justices recognized as a constitutional model stated that in order to "provide
a truly heterogeneous environment that reflects the rich diversity of the United
States," admissions decisions cannot be made "without some attention to the
numbers." Id. at 323.

The Law School seeks to enroll meaningful numbers of underrepresented
minority students, as Bakke permits, 31/ (see Ex. 4, Policy at 11-12, JA-__), but

___________________
30/       The district court mixes apples and oranges when it combines data under the
1992 Policy with data from earlier years when decisions were made under systems
that are no longer in effect.

___________________
31/       Thus, the conclusion that the district court draws from Dennis Shields's
testimony that he consulted admissions data summaries called the "dailies"
[continued onto next page]
throughout the admissions process, (see R-311, Opinion at 16, JA-__), is simply
wrong. Even if Mr. Shields had consulted the dailies only to monitor whether the
Law School was enrolling a critical mass of underrepresented minority students --
which is incorrect -- that would not, without more, be evidence of a quota under
Bakke. See 438 U.S. at 323.

48


does not employ racial quotas, targets, or numerical percentages. (Munzel, 1TR at
225, JA-__; Lempert, 3TR at 140, JA-__; Shields, 4TR at 173, JA-__; Lehman,
5TR at 137-38, JA-__.) It admits only highly qualified individuals, and, by
conducting a holistic review of each application, ensures that each applicant
competes with all other applicants for admission. (Munzel, 1TR at 229, 251, JA-
__, __.) It considers race and ethnicity competitively, as factors that must be
weighed against all other factors in the admissions process. (See, e.g., Lempert,
3TR at 130, JA-__; Shields, 4TR at 183-84, JA-__.)

4. The Policy's Reference to Particular Minority Groups
Makes Sense and Reflects an Educational Judgment By the
Law School.

The district court thought that "there is no logical basis" for the Law School
to have identified African Americans, Hispanics, and Native Americans as
"underrepresented" minority groups in the 1992 Policy. (See R-311, Opinion at
51-52, JA-__.) This conclusion is wrong.

Justice Powell's opinion in Bakke contemplates that institutions of higher
education will seek to obtain the benefits of racial and ethnic diversity with

49


attention to groups that might otherwise be underrepresented in the school. The
Harvard plan specifically identified "blacks and Chicanos and other minority
students" among the underrepresented groups that Harvard would seek to enroll
through its admissions policy. See Bakke, 438 U.S. at 323. The Law School's
similar reference to "African-Americans, Hispanics and Native Americans" (Ex. 4,
Policy at 12, JA-__), cannot then be faulted in this respect. Bakke does not require
a more exhaustive list of the groups whose members could contribute to the Law
School's academic community. 32/

There is a sound reason for the Policy to identify the groups it does: these
are groups that, without a "commitment to racial and ethnic diversity," might not
be represented at the Law School in "meaningful numbers." (Id., JA-__.) The
Policy focuses on groups that not only have historically been discriminated against
in our society, but that are also "underrepresented" in the Law School community
today and whose presence in meaningful numbers is necessary, and not optional, if
the Law School is to meet its educational mission. 33/ (See Lempert, 3TR at 118,

___________________
32/       The district court suggests that the Law School "distinguish[es] between
Puerto Ricans who were raised in the U.S. mainland from Puerto Ricans who were
raised on Puerto Rico or elsewhere." (R-311, Opinion at 52, JA-__.) There was no
testimony from any witness at trial regarding any such distinction being made in
implementing the 1992 Policy.

___________________
33/       The Law School does, however, consider the extent to which applicants of
groups not specifically mentioned in the Policy, such as Asian Americans, would
[continued onto next page]
contribute to diversity when reviewing their applications. (See, e.g., Ex. 4, Policy
at 10-11, JA-__.) If the Law School discovered that it could not enroll meaningful
numbers of these groups without special attention to their race or ethnicity, the
Policy would permit special attention to their presence. (Lehman, 5TR at 206-07,
JA-__.)

50


124, JA-__, __.) The Policy reflects the Law School's considered judgment about
its ability to advance its overall educational mission given our society and the
backgrounds of the incoming students, not mere guesses about the kinds of
contributions that members of a racial or ethnic group are likely to make to the
intellectual life of the Law School. These kinds of judgments about the
composition of a class are precisely the kinds of academic judgments to which the
courts owe substantial deference. See Regents of the University of Michigan v.
Ewing,
474 U.S. 214, 226 (1985).

5. No Viable Alternatives to the Consideration of Race and
Ethnicity as a Factor in Admissions Exist.

As a final reason for its injunction, the district court asserted that the Law
School had given insufficient consideration to race-neutral alternatives. Although
it acknowledged testimony from Law School witnesses demonstrating that the
drafters of the Policy had considered such alternatives, the court concluded that the
Law School had not done enough. (See R-311, Opinion at 53, JA-__.) The court
made no finding that race-neutral alternatives actually exist, but decided that the
Law School was nevertheless obligated to "experiment" with various admissions

51


strategies, even where such strategies would -- based on the experience of
educators and admissions professionals -- clearly be ineffective. (See id. at 54, JA-
__.)

Even assuming that institutions of higher education are required to consider
such race-neutral alternatives after Bakke, the law has never required the
performance of futile acts. See, e.g., United States v. Paradise, 480 U.S. 149
(1987) (holding that efficacy of alternative remedies is consideration in narrow
tailoring analysis). It is clear that the options about which the district court
speculated would not further the compelling state interest in achieving the benefits
of diversity. 34/

The experience of universities in California and Texas confirm the Law
School's judgment that, at this time and given the pool of minority applicants,
there are no race-neutral alternatives to the Policy. 35/ After California and Texas
state schools were prohibited, by law, from considering race as a factor in

___________________
34/       Cf. Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998) (invalidating
admissions program where school could achieve diversity without considering
race); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999) (same),
cert. dismissed, 529 U.S. 1050 (2000).

___________________
35/       The district court also accepted as reliable Professor Raudenbush's analysis
showing that the adoption of a race-neutral admissions policy would seriously
impede the Law School's ability to enroll a critical mass of underrepresented
minority students, with only a very small increase in the chance of admission for
majority students. (See R-311, Opinion at 35, JA-__.)

52


admissions, the number of underrepresented minority students enrolled in leading
public law schools, such as the University of California at Berkeley's Boalt Hall
School of Law, UCLA Law School, and the University of Texas Law School,
dropped precipitously. (See Exs. 131-33, Texas and California Admissions Data,
JA-__.) These law schools attempted to increase minority enrollment to prior
levels by utilizing various race-neutral alternatives, but have not been successful.
(See Lehman, 5TR at 143, JA-__.) There is no reason to expect the Law School's
experience to be any different.

Indeed, record testimony conclusively shows that the hypothetical options
thrown out by the district court could not assist the Law School in enrolling
meaningful numbers of underrepresented minority students. For example, the Law
School engaged in both pre- and post-admission recruiting activities and that such
activities are not enough, in and of themselves, to enroll a critical mass of
underrepresented minority students. (Munzel, 1TR at 148, JA-__; Lehman, 5TR at
143-44, JA-__; see also Shields, 4TR at 185-88, JA-__.)

Additionally, Professor Lempert testified at length about the viability of an
alternative the court mentioned during the summary judgment hearing and at a
number of points during the trial: the so-called lottery system, in which the Law
School would lower its admissions standards, establish a numerical cut-off for
"qualified" applicants, and then select randomly from among those applicants

53


regarded as "qualified." (See Lempert, 14TR at 97-101, JA-__.) Such a lottery
system would lead to the admission of a large number of white applicants who
would otherwise not be admitted to the Law School, but would not yield
meaningful racial and ethnic diversity. (Id., JA-__.) Further, such a system could
not be designed to obtain a student body that is diverse in many ways, including
with respect to race and ethnicity, because its sole focus would be achieving racial
diversity rather than addressing the other ways in which enrolling a diverse class is
important to the Law School. (Id. at 102, JA-__.) In this way, such an admissions
system would suffer from many of the defects Justice Powell identified in the
admissions system at Davis. Most notably, it would seek to achieve some measure
of racial balance "for its own sake." Bakke, 438 U.S. at 307.

Bakke does not require the Law School to make the kind of choices that the
district court's imagined alternatives require. For example, the notion that the Law
School should become less selective in order to achieve the educational benefits of
diversity was considered and rejected in Bakke. 36/ One of the bases for the
California Supreme Court's proscription against any consideration of race was its
conclusion that Davis could achieve diversity if it did not "afford determinative

___________________
36/       The district court's selectivity idea first surfaced at the summary judgment
hearing, only weeks before trial. The court raised this idea occasionally at trial, but
then told the parties that it was not an issue in the case. (See supra at 12.)

54


weight in admissions to … quantitative factors" such as "grade point averages and
test scores." Bakke v. Regents of University of California, 553 P.2d 1152 (Cal.
1976). Columbia University, the American Association of Law Schools, and the
Law School Admissions Council responded directly to this conclusion in briefs
filed before the Supreme Court, in which they argued that these institutions should
not be put to the "Hobson's choice" of selecting between high academic standards
and diversity. (R-305, Defs.' Post-Trial Br. Appendices, Amicus Briefs, JA-__.)
That argument prevailed, and a majority of the Supreme Court endorsed the
admissions policy of Harvard College -- a school it knew was highly selective and
relied heavily on grades and test scores.

The district court's litany of suggested alternatives -- particularly the idea
that the Law School should become less selective -- represents a violation of the
deference owed to academic institutions under the First Amendment. The Court in
Bakke allowed Harvard to be Harvard, and to pursue the compelling state interest
in diversity at the same time. In the same way, this Court should allow the
University of Michigan Law School to retain its character as it pursues the same
goal. The Law School has made an educational judgment about the best way to
define its academic community and to advance its educational objectives, and that
judgment should not be disturbed.

55


CONCLUSION

For the foregoing reasons, the district court's injunction should be reversed
and the matter remanded to the district court with instructions to enter judgment in
favor of the Law School.

 

 

Respectfully submitted,

 


___________________________
Philip J. Kessler
Leonard M. Niehoff
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625
John H. Pickering
John Payton
Stuart Delery
Craig Goldblatt
Robin A. Lenhardt
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000
Dated: May 24, 2001
56


CERTIFICATE OF COMPLIANCE

Pursuant to FRAP 32(a)(7) and 6 Cir. 32(a), the undersigned certifies that
this brief complies with the type-volume limitations of FRAP 32(a)(7)(C).
  1. Exclusive of the portions of the brief exempted by 6 Cir. 32(a)(7)(B)(iii), the
    brief contains 13, 904 words.
  2. The brief has been prepared in proportionately spaced typeface using
    Microsoft Word Version 2000 in Times New Roman 14 point type.
  3. If the Court so requests, the undersigned will provide an electronic version
    of the brief and/or a copy of the work or line printout.
  4. The undersigned understands that a material misrepresentation in completing
    this certificate, or circumvention of the type-volume limits in 6 Cir. 32(a)(7)
    may result in the Court's striking the brief and imposing sanctions against
    the person signing the brief.

 

 

_________________________
John Payton
57


CERTIFICATE OF SERVICE

I hereby certify that, on this 24th day of May, 2001, pursuant to FRAP 25
and 6 Cir. R. 31, I caused a copy of the foregoing Proof Brief to be filed, by
Federal Express, with:

Mr. Bryant Crutcher, Office of the Clerk
U.S. Court of Appeals for the Sixth Circuit,
Potter Stewart U.S. Courthouse
100 E. Fifth Street
Cincinnati, OH 45202-3988

I further certify that, on the same day and pursuant to the same provisions, I
caused a copy of the above brief to be served, by Fax and Federal Express, on:

David F. Herr, Esq.
Kirk O. Kolbo, Esq.
Maslon, Edelman,
Borman & Brand
300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402
Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180
Michael E. Rosman, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 20036
George B. Washington, Esq.
Eileen R. Scheff, Esq.
Miranda K.S. Massie, Esq.
One Kennedy Square, Suite 2137
Detroit, MI 48226

 

_____________________________
Robin A. Lenhardt
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000
58


APPELLANTS' DESIGNATION OF APPENDIX CONTENTS

Appellants, pursuant to 6 Cir. R. 28(d), hereby designate the following
filings in the district court record as items to be included in the joint appendix.

Description of Entry Date Filed or
Admitted in
District Court
Record Entry Number
Complaint 12/03/97 1
Answer 12/22/97 8
Brief of Amici Curiae American Council on
Education
5/03/99 111
Brief of the United States as Amicus Curiae 5/03/99 112
Brief Of The State Of Ohio As Amicus Curiae
In Support Of Defendants
5/28/99 119
Brief of Association of American Law
Schools, et al., as Amici Curiae in Support of
Defendants
5/28/99 120
Defendants' Response to Plaintiff's Motion for
Partial Summary Judgment on Liability
6/07/99 125
Renewed Motion by Defendants for Summary
Judgment on Grounds of Qualified Immunity
6/15/00 174
Memorandum of Law in Support of
Renewed Motion by Defendants for Summary Judgment
on Grounds of Qualified Immunity
6/15/00 175
Brief of General Motors Corporation as
Amicus Curiae in Support of Defendants
7/17/00 189
Reply in Support of Renewed Motion by
Defendants for Summary Judgment on
Grounds of Qualified Immunity
8/11/00 198
Defendants' Motion and Memorandum of Law
in Support of Renewed Motion for Summary
Judgment
10/10/00 216

59


Summary Judgment Exhibits
Appendix, Vol. I

Exhibit R
Letter from U.S. Dept. of Education to
Dr. Don Randel, University of Chicago
10/10/00 219
Summary Judgment Exhibits
Appendix, Vol. III
Expert Report of Derek Bok

Expert Report of Albert Camarillo

Expert Report of Patricia Y. Gurin

Expert Report of Claude Steele

Expert Report of Thomas J. Sugrue

Expert Report of Robert Webster
10/10/00 219
Brief of Steelcase, Inc., et al. as Amici Curiae
in Support of Defendants
10/16/01 223
Defendants' Opposition to Plaintiff's Renewed
Motion for Summary Judgment
11/06/00 233
Brief of the Attorney General Jennifer M.
Granholm as Amicus Curiae
11/29/00 246
Order Taking Plaintiff's Motion for Summary
Judgment Under Advisement
12/28/00 268
Final Pretrial Order 1/16/01 282
Supp. Expert Report of Patricia Gurin 1/18/01 287
Defendants' Motion to Clarify the Record 1/24/01 289
Defendants' Reply to Plaintiff's Response to
Motion to Clarify the Record
2/02/01 294

60


Defendants' Post-Trial Memorandum 2/27/01 304
Appendices to Defendants' Post-Trial
Memorandum
Brief of Amicus Curiae of The Law School
Admission Council (in Regents of the
University of California v. Bakke)


Brief of Amicus Curiae for the Association
of American Law Schools (in Regents of
the University of California v. Bakke)


Brief of Columbia University, Harvard
University, Stanford University and the
University of Pennsylvania as Amici
Curiae (in Regents of the University of
California v. Bakke)
2/27/01 305
Findings of Fact and Conclusions of Law
(Opinion of Friedman, J.)
3/27/01 311
Motion by Defendants to Stay Injunction 3/28/01 312
Notice of Appeal to the United States Court of
Appeals for the Sixth Circuit
3/30/01 314
Opinion and Order Denying Motion to Stay
(Opinion of Friedman, J.)
4/03/01 318
Decision Granting Motion to Stay (Opinion of
the U.S. Court of Appeals for the Sixth
Circuit)
4/05/01 321
Civil Docket for Case No. 97-CV-75928
List of Selected Exhibits
Exhibit 4 (Policy) 1/16/01
Exhibit 5 (The Gospel According to Dennis) 1/19/01
Exhibit 10 (Daily Summary of Applicant
Status)
1/16/01

61


Exhibit 14 (Means and Medians for Selected
Groups-GPA/LSAT)
1/16/01
Exhibit 131 (Official Tabulations of
Demographic Figures for the University of
Texas Law School)
1/23/01
Exhibit 132 (Official Tabulations of
Demographic Figures for the University of
California System)
1/23/01
Exhibit 133 (University of California
Distribution of New Freshman Admit Offers)
1/23/01
Exhibit 145 (Expert Report of Stephen
Raudenbush)
1/19/01
Exhibit 146 (Supp. Expert Report of Stephen
Raudenbush)
1/19/01
Exhibit 147 (Second Supp. Expert Report of
Stephen Raudenbush)
1/19/01
Exhibit 148 (Addendum to Supp. Expert
Report of Stephen Raudenbush)
1/19/01
Exhibit 149 (Third Supp. Expert Report of
Stephen Raudenbush)
1/19/01
Exhibit 150 (Fourth Supp. Expert Report of
Stephen Raudenbush)
1/19/01
Exhibit 151 (Revised Raudenbush
Curriculum Vitae)
1/19/01
Exhibit 153 (Expert Report of Kent Syverud) 1/22/01
Exhibit 154 (Supp. Expert Report of Kent
Syverud)
1/22/01

62


Exhibit 155 (Second Supp. Expert Report of
Kent Syverud)
1/22/01
Exhibit 165 (Expert Report of Richard
Lempert)
2/15/01
Exhibit 180 (1997 Admitted Majority
Applicants)
1/16/01
Exhibit 181 (1997 Admitted
Underrepresented Minority Applicants)
1/16/01
Exhibit 182 (1997 Non-Admitted Majority
Applicants)
1/16/01
Exhibit 183 (1997 Non-Admitted
Underrepresented Minority Applicants)
1/16/01
Exhibit 184 (2000 Admissions Data-
Raudenbush Chart)
1/19/01
Exhibit 185 (Conception for Causal Link
Between Race and Admissions)
1/19/01
Exhibit 186 (Simulation of Alternative
Admissions Policy)
1/19/01
Exhibit 187 (Simulation Results) 1/19/01
Exhibit 188 (Non-UMS Probabilities of
Admission)
1/19/01
Exhibit 189 (Composition of Entering Law
School Class)
1/19/01
Exhibit 190 (Important Social Contexts for
Learning at the Law School)
1/19/01

63


Exhibit 191 (Simulation Results Law School
Learning Contexts)
1/19/01
Exhibit 192 (Cell-by-Cell Computation of
Odds Ratios in the Larntz Analyses)
1/19/01
Exhibit 193 (What Do Larntz Odds Ratios
Mean?)
1/19/01
Exhibit 194 (Larntz Estimated Relative Odds
of Admission)
1/19/01
Exhibit 215 (Expert Report of Eric Foner) 2/09/01
Exhibit 230 (Richard Lempert Article) 2/15/01

 

Description of Proceeding or
Testimony
Date Filed
or
Admitted
in District Court
Transcript Page
Numbers
Transcript--Summary Judgment Hearing 12/22/00 1-8, 15-18, 32-42, 81-82,
87-91, 93-94
Selected Transcripts--Trial (held
1/16/01 thru 2/16/01 before
Judge Friedman
U.S. District Court for the Eastern
District of Michigan)
Testimony of Bollinger 12/22/00 Vol. III, 50-51, 58, 60-64,
73
Testimony of Foner 2/08/01 Vol. X, 248-49

64


Testimony of Larntz 1/17/01 Vol. II, 49-51, 80-81,
128-34, 137-38, 144-46,
151-152, 172-75, 177-82,
213
1/18/01 Vol. III, 9-10
2/10/01 Vol. XII, 64-66, 73-74,
80, 84-86, 89-91, 95-98
Testimony of Lehman 1/22/01 Vol. V, 89, 103, 108-15,
117, 122, 127-140, 142-
145, 147, 150, 174-175,
178-179, 183-84, 192-
194, 215-216
Testimony of Lempert 1/18/01 Vol. III, 20, 89, 92-104,
106, 108-31, 135-41, 143-
53, 158, 160-61, 163-66,
170-71, 178-79, 187-88,
193
2/15/01 Vol. XIV, 90-95, 98-105,
111-112
Testimony of Munzel 1/16/01 Vol. I, 132-34, 136-40,
148, 150-55, 158-66, 168,
171, 175, 180, 195, 198-
200, 208-13, 215-16, 219-
26, 228-29, 240-41, 246,
249-51, 255, 267, 270-71
Testimony of Orfield 1/23/01 Vol. VI, 100-01, 139-41,
150-61, 179, 183-84

65


Testimony of Raudenbush 1/19/01 Vol. IV, 6-8, 12-14, 20,
41-45, 47-51, 61-64, 66-
70, 72-81, 87-91, 95-98,
104-107
2/12/01 Vol. XIII, 9-15, 19-23
Testimony of Shields 1/19/01 Vol. IV, 162-163, 168-
171, 173, 178-88, 191-94,
198-99, 203, 209-10, 216-
18
Testimony of Syverud 1/22/01 Vol. V, 35-51, 135-37
Trial--Motions in Limine Argument 1/16/01 Vol. I, 9-10
Closing Argument of Plaintiff 2/16/01 Vol. XV, 5-32
Closing Argument of Defendants 2/16/01 Vol. XV, 33-67

66


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