Brief in Support of Plaintiff/Appellee
Barbara Grutter Supporting Affirmance of
the Judgment of the United States District
Court for the Eastern District of Michigan

TABLE OF AUTHORITIES ....................................ii

 

CORPORATE DISCLOSURE STATEMENT ...........................1

 

DESCRIPTION OF AMICUS CURIAE AND INTEREST ................2

 

ARGUMENT.................................................3

 

CONCLUSION ..............................................15

 

CERTIFICATE OF SERVICE ..................................15

Adarand Const., Inc. v. Pena,

515 U.S. 200 (1995) ......................................14

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ...............................4, 12, 13

Grutter v. Bollinger, et al.,

137 F. Supp.2d 821 (E.D. Mich. 2001) ............3, 4, 8, 13

Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) ............13

Regents of the Univeristy of California v.

Bakke, 438 U.S. 265 (1978) .........................3, 9, 10

Smith v. University of Washington Law School,

233 F.3d 1188 (9th Cir. 2000) ............................13

Wygaant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) ......................................14

Fed. R. App. P. 29(a) .....................................2

The Center for Equal Opportunity is a non-profit corporation incorporated and based in Washington, D.C. The Center for Equal Opportunity has no parent corporation, and no publicly-held corporation owns ten percent or more of its stock.

The American Civil Rights Institute is a non-profit corporation incorporated in Washington, D.C. and based in Sacramento, California. It has no parent corporation, and no publicly-held corporation owns ten percent or more of its stock.

The Independent Women’s Forum is a non-profit organization based in Washington, D.C. It has no parent corporation, and no publicly-held corporation owns ten percent or more of its stock.

The Center for Equal Opportunity is a non-profit public-policy-research 501(c)(3) corporation. The Center for Equal Opportunity researches equality of opportunity in education, employment, contracting, and political participation.

The American Civil Rights Institute is a non-profit national civil rights organization created to educate the public about racial and gender preferences. The American Civil Rights Institute monitors implementation of California’s Proposition 209 and assists individuals throughout the nation who have been victims of racial discrimination.

The Independent Women’s Forum is a non-profit, non-partisan organization founded by women to foster public education and debate about legal, social, and economic policies affecting women and families.

Pursuant to Fed. R. App. P. 29(a), the Center for Equal Opportunity, the American Civil Rights Institute, and the Independent Women’s Forum may file this amicus brief because all parties have consented to its filing.

As amicus curiae, the Center for Equal Opportunity, the American Civil Rights Institute, and the Independent Women’s Forum respectfully submit that the decision of the United States Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), is directly determinative of the outcome of this appeal. In Bakke, the Supreme Court ruled that the use of racial preferences by a State to assure a desired percentage of students of a particular racial or ethnic group in a federally-funded educational institution is unlawful. Bakke, 438 U.S. at 307 (Powell, J.), 412 (Stevens, J., joined by Burger, C.J., and Stewart and Rehnquist, JJ.). In this case, as found by the district court, the University of Michigan Law School ("Michigan Law School") uses racial preferences in its admissions process to achieve a minimum 11% preferred-minority representation within its student body that is "practically indistinguishable from a quota system." Grutter v. Bollinger, et al., 137 F. Supp.2d 821, 851 (E.D. Mich. 2001). For this reason, application of the Supreme Court’s decision in Bakke should result in affirmance of the judgment of the district court.

Two additional reasons support affirmance. First, even if Michigan Law School’s admission process were not an unlawful quota system, the singular "diversity" rationale advanced by Michigan Law School to support its system of racial preferences has been rejected by the Supreme Court in Bakke and City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Additionally, Michigan Law School has not narrowly tailored its system of racial preferences.

For each of these three independent reasons, the judgment of the district court should be affirmed.

1. Facts.

Following a bench trial, the United States District Court for the Eastern District of Michigan, Friedman, J., found the following basic facts:

1. In 1992, the faculty of the Michigan Law School adopted a new, written admissions policy. (Grutter, 137 F. Supp.2d at 821, 825.)
2. Under the 1992 policy, Michigan Law School "clearly considers an applicant’s race in making admissions decisions." (Id. at 839.)
3. Michigan Law School’s reason for considering race in its admissions process is its belief that educational benefits flow from a racially diverse student body and that those benefits would not exist without racial preferences in law-school admissions. (Id. at 840.)
4. Under the 1992 policy, race is "an enormously important factor" in deciding whether an applicant is accepted or rejected. (Id. at 841.) According to Michigan Law School’s chosen expert, Dr. Stephen Raudenbush, twenty-five percent of African-American, Hispanic, Native American, and mainland Puerto Rican applicants in the year 2000 gained acceptance to the law school because of their race. According to Dr. Raudenbush, 35% of minority applicants were admitted using racial preferences; 10% would have been admitted without racial preferences. (Id. at 840, 842.)
5. Michigan Law School attempts to have an entering class consist of a "critical mass" of minority students. (Id. at 840.) According to Professor Richard Lempert, the professor who chaired the committee that drafted the 1992 policy, a "critical mass" consists of at least eleven percent minority students in each entering class. (Id. at 834, 840.)
6. Michigan Law School’s admissions office prepares a daily report of applicants, offers, and acceptances, broken down by race and ethnicity, which is used by admissions officers to ensure that the desired percentage of minority students in each entering class is achieved. (Id. at 832, 842.)
7. Minority students constituted at least 11% of each entering class selected under the 1992 admissions policy. (Id. at 834.)
8. A disparity between the academic qualifications of minority students and other students has existed in each class selected under the 1992 admissions policy. (Id. at 840.) This disparity has fluctuated from year to year, yet the percentage of minority students in each class has remained constant. (Id. at 841.)
9. No proof was presented at trial that either the greater University of Michigan or Michigan Law School has historically engaged in racial discrimination. (Id. at 869.)
10. Unlawful Quota.

    As amicus curiae, the Center for Equal Opportunity, the American Civil Rights Institute, and the Independent Women’s Forum respectfully submit that Michigan Law School’s admissions procedures since 1992 have constituted a direct racial quota system, setting aside at least eleven percent of each entering class for Michigan Law School’s preferred minority applicants. For this reason, Michigan Law School’s admissions system is entirely analogous to the University of California’s medical-school admissions policy that was held unlawful by the Supreme Court in Bakke.

    As found by the district court, Michigan Law School desires that each entering class consist of a "critical mass" of minority students. Grutter, 137 F. Supp.2d at 840. To achieve a "critical mass" of minority students, each entering class must have at least eleven (or possibly ten) percent minority students. (Id. at 834, 840.) Michigan Law School’s admissions office prepares a daily report of applicants, offers, and acceptances, broken down by race and ethnicity, which is used by that office to ensure that the desired quantum of minority students in each entering class is achieved. (Id. at 832, 842.)

    Since 1992, a disparity in the basic academic qualifications, consisting of college grades and LSAT scores, of minority applicants and other applicants has existed, and, importantly, the disparity has fluctuated from year to year. (Id. at 839.) This disparity results from the admissions office’s use of its daily, race-identifying admissions reports to assure that each law-school class contains at least eleven percent minority students. (Id. at 842.) By achieving a fixed minimum of eleven percent minority students in each class, comparable to the ten-percent quota used by the University of California in Bakke, the 1992 policy results in a direct quota system, with a disparity in academic qualifications between preferred students and regular students that is comparable to the University of California’s quota system. Cf. Bakke, 438 U.S. at 277, n. 7 (showing disparity in academic qualifications between "regular" and "special" admittees).

    Because Michigan Law School’s admissions process results in a direct quota system, the Supreme Court’s decision in Bakke mandates that the district court’s judgment be affirmed. In Bakke, the Supreme Court held that the University of California’s medical-school admissions process, setting aside ten percent of each entering class for particular minority students, was unlawful. Id. at 307 (Powell, J.)("If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid."), 412 (Stevens, J.)(joined by Burger, C.J., and Stewart and Rehnquist, JJ.)(Section 601 of the Civil Rights Act of 1964 bars discrimination on account of race or ethnicity in institutions that receive federal funds). Michigan Law School’s quota system, entirely comparable in purpose and effect to the quota system of the Univeristy of California in Bakke, is concomitantly unlawful.

11. Educational Benefits Rationale.

Even if Michigan Law School’s 1992 admissions policy were not an unlawful quota system, the rationale used by Michigan Law School to justify its system of racial preferences was specifically considered and rejected by eight of the nine justices in Bakke.

The Supreme Court’s decision in Bakke was divided three ways. As discussed above, Justice Powell sided with Justice Stevens and three other justices in holding the University of California’s race-based quota system to be unlawful. Bakke, 438 U.S. at 307, 412. Four justices dissented from that holding. Id. at 324 (Brennan, J.)(joined by White, Marshall, and Blackmun, JJ.).

In addition to holding that the University of California’s direct quota system was unlawful, Justice Powell was of the opinion that institutions of higher education may use racial preferences to serve an educational purpose, without any other validating considerations, as long as rigid quotas are not utilized. Bakke, 438 U.S. at 311-12, 315 ("The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education. . . . Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.") (italics in the original).

The other eight justices who decided Bakke, however, specifically rejected Justice Powell’s "educational benefits" justification, standing alone, for State racial preferences. Justice Stevens, with three other justices, rejected this justification under Title VI. Id. at 412. Justice Brennan, with three others, similarly rejected this justification. See id. at 328 (Brennan, J.)(adopting sections I and V-C of Justice Powell’s opinion and rejecting section IV-D of Justice Powell’s opinion.)

Importantly, Justice Brennan explained the basis for his refusal to accept Justice Powell’s "educational benefits" rationale. Justice Brennan wrote, " . . . [A] plan like the "Harvard" plan [premised on the educational benefits of diversity]. . . is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination." Id. at 326, n.1 (emphasis added). With this proviso, Justice Brennan specifically limited Justice Powell’s educational benefits rationale, by requiring an accompanying purpose of ameliorating the effects of general historical discrimination.

Just as Justice Brennan rejected Justice Powell’s "educational benefits" rationale, Justice Powell rejected Justice Brennan’s belief that general historical discrimination constitutionally justifies State racial preferences. Bakke, 438 U.S. at 307 (Powell, J.)("We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.")(citations omitted). Importantly, after its decision in Bakke, the Supreme Court has resolved this issue and has vindicated Justice Powell’s view. In City of Richmond v. J.A. Croson Co., 488 U.S. at 498-500, the Supreme Court squarely held that general historical discrimination against a class of citizens does not justify racial preferences designed to benefit current members of that class. In light of the Supreme Court’s decision in Croson, the United States Court of Appeals for the Fifth Circuit struck down the system of racial preferences employed by the University of Texas Law School. Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied sub nom, Thurgood Marshall Legal Society v. Hopwood, 518 U.S. 1033 (1996). But see, Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000), cert. denied, 69 U.S.L.W. 3593 (2001)(referendum ending racial preferences by State law school renders moot a class action seeking injunctive and declaratory relief against the eliminated State racial preferences)(in dicta, writing that racial diversity constitutes compelling interest to justify State racial preferences in law-school admissions).

Under the facts of this case, Michigan Law School’s 1992 admissions policy is premised on the law school’s belief that educational benefits arise from having a "critical mass" of minority students in each law-school class. Grutter, 137 F. Supp.2d at 840. Because eight of the nine justices in Bakke rejected purported educational benefits, standing alone, as a sufficient basis for State racial preferences in higher education, and because the Supreme Court has rejected the existence of general historical discrimination as a justification for discrete State racial preferences, Michigan Law School’s 1992 admissions policy is unlawful.

III. Narrow Tailoring.

The district court found that Michigan Law School failed to narrowly tailor its system of racial preferences. Grutter, 137 F. Supp.2d at 852-53. For that reason alone, the judgment of the district court should be affirmed. Cf., e.g., Adarand Constr., Inc. v. Pena, 515 U.S. 200, 227 (1995)(requiring narrow tailoring of State racial preferences); City of Richmond v. J.A. Croson Co., 488 U.S. at 469, 493 (same); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275 (1986)(same).

The judgment of the United States District Court for the Eastern District of Michigan, enjoining the University of Michigan Law School from using racial preferences in its admissions decisions, should be affirmed.

Respectfully Submitted,

Two copies of the foregoing brief were mailed by United States mail on June 22, 2001 to Kirk Kolbo, Maslon, Edelman, Borman & Brand, 90 S. Seventh St., Wells Fargo Center Suite 3300, Minneapolis, MN 55402-4140; John Payton, Wilmer, Cutler & Pickering, 2445 M Street, N.W., Washington, D.C. 20037-1420; and Miranda Massie, Scheff & Washington, One Kennedy Square, Suite 2137, Detroit, MI 48226.

C. Mark Pickrell