The United States Supreme Court
The University of Michigan Admissions Lawsuits

Gratz v. Bollinger
THE BRIEFS

The Initial Brief of Counsel for the Petitioner, Jennifer Gratz (pp 2-9, 13-15, 33-48, 49-50): Allowing educational institutions to consider race and ethnicity in the exercise of academic freedom would vitiate the "core purpose" of the Fourteenth Amendment. The pursuit of diversity cannot be a compelling interest, since there are no principled limits on its scope or duration. (The complete brief is online here.)

Comments by Curtis Crawford,* indented in italics.

STATEMENT OF THE CASE

I. Plaintiffs/Petitioners

Plaintiffs and petitioners Jennifer Gratz and Patrick Hamacher applied for admission to the respondent University of Michigan’s College of Literature, Science & the Arts (hereinafter "University" or "LSA") in 1995 and 1997, respectively. Pet. App. 109a. Both Gratz and Hamacher were initially placed on a "wait-list" and were subsequently denied admission. Id.

Ms. Gratz applied with an adjusted grade point average of 3.8,2 and an ACT score of 25. Id. at. 113a. She was notified by letter dated January 19, 1995, that the LSA had "delayed" a final decision on her application until early to mid-April. The letter also informed Gratz that her application was classified as "well qualified, but less competitive than the students who ha[d] been admitted on [-3-] first review." Pet. App. 109a; App. 73. By letter dated April 24, 1995, the University wrote to Ms. Gratz that "all of the applications have now been reviewed and [the University] regret[s] to inform you that we are unable to offer you admission." Pet. App. 109a; App. 75. She accepted an offer for admission into the freshman class of another institution, the University of Michigan at Dearborn, where she enrolled in the fall of 1995 and graduated in 1999. Pet. App. 109a.

Patrick Hamacher applied in 1996 for admission into the fall 1997 freshman class of the LSA. Id. at 109a. He applied with an adjusted grade point average of 3.0, and an ACT score of 28. Id. at 115a. By letter dated November 19, 1996, the University informed Mr. Hamacher that it "must postpone" a decision on his application until "mid-April." Pet. App. 109a; App. 77. The letter stated further that "[a]lthough your academic credentials are in the qualified range, they are not at the level needed for first review admission" to the LSA. Pet. App. 109a; App. 77. On or about April 8, 1997, the University informed Mr. Hamacher that after further review, it was unable to offer him admission to the LSA. Pet. App. 109a-10a. He accepted admission into another institution, Michigan State University, where he enrolled in the fall of 1997 and graduated in 2001.

II. The University’s Admissions Policies and Practices

The University admits that it uses race as a factor in making admissions decisions and that it is the recipient of federal funds. Pet. App. 108a-09a; App. 46. It justifies its use of race as a factor in the admissions process on one ground only: that it serves a "compelling interest in achieving diversity among its student body." Record 78, Cir. App. 314.3 Admission to the University is selective, [-4-] meaning that many more students apply each year than can be admitted, and the University rejects many qualified applicants. Pet. App. 108a. The University has a policy, however, to admit all qualified applicants who are members of one of three select racial minority groups which are considered to be "underrepresented" on the campus: African Americans, Hispanics, and Native Americans.

According to a 1995 document authored by the University:

The University acknowledges that its consideration of race in the admissions process has the effect of admitting virtually every qualified applicant from any of the designated underrepresented minority groups. Pet. App. 111a; Record 78, Cir. App. 355-56. It generally defines a "qualified" applicant to be one who could be expected, on the basis of the information contained in his or her application, to achieve passing grades as a student in the school to which the applicant has applied for admission. Record 78, Cir. App. 331, 383-84.

[-5-] The University’s Office of Undergraduate Admissions ("OUA") oversees and implements the LSA admissions process. OUA uses written guidelines in effect for each academic year. Pet. App. 110a. Admissions counselors are generally expected to make admissions decisions in accord with the guidelines, although there is some discretion to depart from them, and counselors are expected to discuss any departures with a supervisor. Id. at 110a; Record 78, Cir. App. 325, 326, 332, 353.

The guidelines for all the years at issue (1995-2000) vary somewhat because, after commencement of the litigation, the University made changes to them. Discussed below first are the guidelines that were in effect for freshman entering classes for 1995 to 1997, when the suit was filed. Following that is a discussion of the guidelines in effect for 1998 to 2000, when the motions for summary judgment were heard and decided. The parties stipulated that the changes in the guidelines over these years were changes in the "mechanics" only and that there was no substantive change in the University’s consideration of race. Pet. App. 116a.

A. Admissions Guidelines for 1995-1997

Written guidelines for all LSA classes commencing in 1995, 1996, and 1997 have in common the use of grids or tables that are divided into cells representing different combinations of small ranges of adjusted high school grade point averages and scores on ACT or SAT tests. Pet. App. 112a, 115a. The grade point averages are adjusted first by clerical employees and second by admissions counselors. Id. at 111a-12a. The adjustments made by the admissions counselors are based on application of separate written "SCUGA" guidelines, which result in a score on a four-point scale ("GPA 2") that is represented in the tables for each year. The SCUGA guidelines call for addition or subtraction of points based on the quality of an applicant’s high school ("S"), strength of curriculum ("C"), unusual circumstances ("U"), [-6-] geographic factors ("G"), and alumni relationships ("A"). Id. at 111a-12a.

Each cell in the Guidelines tables includes one or more possible actions for consideration by the admissions counselor reviewing an applicant’s file. Generally, the guidelines call for action on an application under one of the following categories: admit, reject, delay (for more information), or postpone (wait-list). The guidelines for applicants in 1995 (which included Jennifer Gratz) have four separate tables, one for each of the following groups of applicants: in-state non-minority students; out-of-state non-minority students; in-state minority students; and out-of-state minority students. Pet. App. 112a; App. 121- 24. For applicants in 1996 and 1997, there are two tables – one for in-state, and one for out-of-state applicants – with minority and non-minority action codes provided for separately in each of the individual cells. The top row of each cell represents the guidelines action for white or non-preferred- minority students, and the bottom rows are for "underrepresented" minority applicants and disadvantaged or other students designated as "underrepresented." App. 137-38, 153-54. The addition of a new "SCUGA" factor for underrepresented minority status in 1997 had another consequence: underrepresented minorities, solely based on their race, had one-half point (.5) added to their grade point average calculation used in the already discriminatory guidelines tables. App. 111-12.

The guidelines tables commonly call for different courses of action based on race for applicants whose credentials are in the same cell. Generally, the guidelines calling for admission are found in cells representing relatively higher combinations of adjusted grade points ("GPA 2" or "selection index") and test scores than in cells providing for delay, postpone, or rejection. The guidelines reflect that admissions decisions are generally more competitive for out-of-state than in-state applicants. The guidelines also establish that admissions decisions for whites and non-preferred minorities are generally more [-7-] selective (requiring higher GPA 2 and test scores for admission) than admission decisions for the "underrepresented" minority applicants. App. 121-24, 137-38, 153-54.5

Admissions data illustrate the consequences of the University’s two-track admissions policies. Given comparable grades and test scores, the rates of admission for students from the "underrepresented" racial and ethnic groups are generally much higher than the rates for students from the disfavored racial and ethnic groups. *In 1995, for example, students from the "underrepresented" minority groups whose grades and test scores placed them in the same cell as Jennifer Gratz (GPA of 3.80-3.99 and ACT of 24-26) had an admission rate of 100%. Record 79, Pl.Exh. GG, Cir. App. 590. For that same combination of grades and test scores a total of 378 "Not Underrepresented" students applied, while only 121 were offered admission.* Id. The 1996 data convey similar information. Record 79, Pl.Exh. LL, Cir. App. 595; Record 79, Pl.Exh. MM, Cir. App. 596.

Under the 1995-1997 guidelines (and in 1998), the University admitted all qualified applicants from the "underrepresented" minority groups as soon as possible, without deferring or postponing (waitlisting) their applications. Pet. App. 114a-15a. Students from other racial groups, like Jennifer Gratz and Patrick Hamacher, could have their applications deferred or postponed. In a change initiated after commencement of the lawsuit, however, beginning with the 1999 entering class, the University abandoned its approach of "immediately" admitting all qualified "underrepresented" minority students. Instead, admissions counselors were permitted to "flag" for later consideration a file that fell into certain established classifications. Id. at 117a. One of those classifications consisted of qualified "underrepresented" minority students meeting a designated selection index score. Id.

[-8-] For years 1995-1998, defendants also "reserved" or "protected" spaces in the class for members of certain groups of students, including students from one of the three "underrepresented" minority groups. Id. at 114a-15a. According to the University, "as applicants from a particular group are admitted over the course of the admissions season, the protected spaces reserved for that group are used." Record. 78, Pl.Exh. I, Cir. App. 319. If the pool of qualified applicants from these "underrepresented" minority groups never reached the number of "protected spaces," those slots "opened up" and could be filled by students who were not members of one of the "underrepresented" racial groups. Record 78, Pl.Exh. H, Cir. App. 310.

B. Admissions Guidelines for 1998-2000

The University dispensed with the grids after commencement of this lawsuit. The 1998 guidelines instead used a "selection index" calculated on a variety of factors and scored on a scale of up to 150 points. Pet. App. 33a; App. 173, 181-97. For example, the 1998 guidelines actions to be taken on an application are divided linearly as follows: 100 to 150 points (admit); 95-99 points (admit or postpone); 90-94 points (postpone or admit); 75-89 points (delay or postpone); 74 points and below (delay or reject). App. 173.

The factors used to calculate an applicant’s "selection index" under the 1998 guidelines are similar to factors used in prior years. Up to 80 points can be based on high school grade point average (e.g., 40 points for a 2.0 GPA; 60 points for a 3.0; and 80 points for a 4.0). App. 197. Up to 12 points, representing a perfect ACT/SAT score, can be earned for performance on either of the two standardized tests; up to 10 points for quality of school; from 8 to -4 points for strength or weakness of high school curriculum; 10 points for in-state residency; 4 points for alumni relationships; 1 point for an outstanding essay (changed to 3 points beginning in 1999); and 5 points for personal achievement or leadership on the national level. Id. Under a "miscellaneous" category, *a flat 20 points are added for one of several factors,* including an applicant’s membership in an [-9-] "underrepresented" racial or ethnic minority group. Pet. App. 116a; App. 195, 197.

The University adopted the 1998 guidelines with the intent to admit and enroll the same composition of class as had been admitted and enrolled under the previous guidelines. Pet. App. 34a; App. 277. The change was not intended to increase or decrease the extent to which race and ethnicity was considered in the admissions process from prior years. Record 78, Pl.Exh. J, Cir. App. 339; Record 78, Pl.Exh. K, Cir. App. 365. The University continued to use the 150-point selection index system for years 1999 and 2000 (the year the district court heard the motions for summary judgment). Pet. App. 117a.

* * * * *

ARGUMENT

The University of Michigan’s Use of Racial Preferences in Undergraduate Admissions Violates the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d), and 42 U.S.C. § 1981.

[-15-] The issues framed by this case present two fundamentally different visions of our country and hold out opposing prospects for its future. One seeks to realize "[t]he dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 505-06 (1989). The other is based on a view not only that "race matters,"8 but also that race should matter in the government’s treatment of individuals, now and indefinitely into the future. The "lesson of the great decisions" of this Court is to embrace the first of these visions and to resolutely repudiate the latter. See ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 133 (1975).9 Petitioners return to this lesson in asking the Court to invalidate the University’s program of racial preferences.

* * * * *

II. "Academic Freedom" and "Diversity" Are Not
Compelling Interests Justifying Racial Preferences.

B. Justice Powell articulated a compelling interest in diversity as an incident to a First Amendment right of academic freedom possessed by educational institutions. The issues at stake in the "academic freedom" cases cited by Justice Powell in support of his analysis in Bakke, however, had nothing to do with what criterion an educational institution might employ in selecting a student body. Sweezy v. New Hampshire, 354 U.S. 234 (1957), concerned a criminal contempt citation given to a professor who declined to answer questions about his classroom lectures and political affiliations propounded to him by the state’s attorney general. Similarly, Keyishian v. Board of Regents, 385 U.S. 589 (1967), involved a state statute requiring state-employed professors to sign oaths satisfying the state that a teacher employed by it was not a "subversive."

[-34-] In both cases, the Court invalidated the action taken against the professors as impermissible intrusions on their First Amendment rights. The cases plainly implicated rights of intellectual freedom, and they contain testaments to the importance in a free society of keeping a commitment to the openness to ideas – to academic freedom – that is essential to the character of university communities.

It was to one of the concurring opinions in Sweezy that Justice Powell looked for some direct connection between that case and Bakke. Justice Frankfurter had quoted in Sweezy a statement authored by besieged proponents of the "open" universities of South Africa. Their statement identified the "four essential freedoms" of a university to be the right to "determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Sweezy, 354 U.S. at 263 (opinion of Frankfurter, J., concurring in the result) (quoting THE OPEN UNIVERSITIES OF SOUTH AFRICA 10-12 (a statement of a conference of senior scholars from the University of Cape Town and the University of Witwaterstrand)).

It would be ironic and tragic if an eloquent statement intended as a plea against racial exclusion at university communities becomes instead a clarion call in service of the opposite proposition. None of the Court’s precedents stand for the principle that "academic freedom" encompasses the right to give any consideration to race or ethnicity as a reason for admitting or excluding students. It is inherent in the "lesson of the great decisions of the Court," that the principle is an intolerable one. BICKEL, supra, at 133. Indeed, the actual outcomes in a number of the Court’s cases constitute at least an implicit rejection of the notion that asserted "academic" justifications can make racial discrimination tolerable by educational institutions. See, e.g., Runyon v. McCrary, 427 U.S. 160, 173-75 (1976) (invalidating under 42 U.S.C. § 1981 the racially discriminatory admissions policies of private school); Bob Jones Univ. v. United States, 461 U.S. 574, 595 (1983) (upholding IRS revocation of tax-exempt status [-35-] of two universities based on their racially discriminatory policies). Cf. University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 197-202 (1990) (rejecting argument of university that its right to academic freedom protected from disclosure peer review materials relating to the tenure process for former faculty member who alleged discrimination on the basis of race and sex) ("In our view, petitioner’s reliance on the so-called academic-freedom cases is somewhat misplaced. In those cases [e.g., Sweezy and Keyishian] government was attempting to control or direct the content of the speech engaged in by the university or those affiliated with it.").

Even if not expressly articulated as such, an interest in furnishing role models to minority children by employing minority teachers is a classic fit with the academic freedom model. It is an interest that directly implicates one of the "four essential freedoms" inherent in academic freedom: the right to determine "who may teach." Sweezy, 354 U.S. at 263 (opinion of Frankfurter, J., concurring in the result). The use of race as a factor in choosing role model teachers is unquestionably one made on asserted "academic grounds." Id. Teachers teach, and certainly the reason for offering a teacher as any kind of a role model is to produce some educational benefit for the students taught. Yet laudable as the interest is, it is not one that can be a compelling interest justifying racial preferences in the employment of teachers. See Wygant v. Jackson Bd. of Educ., 476 U.S. 266, 276 (1986) (plurality opinion) (rejecting role model theory); id. at 288 (opinion of O’Connor, J., concurring in part and concurring in the judgment) (rejecting role model theory). See also J.A. Croson Co., 488 U.S. at 497-98 (holding that an interest in remedying lingering effects of societal discrimination had the same fatal defects as the "role model" theory employed in Wygant ).

Grounding a right to practice race discrimination on "academic freedom" principles would have dangerous and far-reaching consequences. It entails opening the door to racial considerations in student admissions or faculty [-36-] appointments whenever doing so is based on the kind of "speculation, experiment, and creation," Sweezy, 354 U.S. at 263 (opinion of Frankfurter, J., concurring in the result), that is at the heart of academic inquiry and judgments. Any principled and genuine acceptance of academic freedom as an exception to the requirements of the Fourteenth Amendment would have to recognize that the number of ways in which race might be a factor in admissions is limited only by the number of academic theories that might today or someday justify such consideration. If it could be shown that an educational theory supported the education of individuals in racially homogenous groups, a seriously recognized compelling interest in academic freedom as a justification for racial preferences would logically have to permit policies designed to further that end. See Grutter, 288 F.3d at 805 n.37 (Boggs, J., dissenting) (noting that at the time of Brown v. Board of Education "there were certainly researchers with academic degrees who argued that segregated education would provide greater educational benefits for both races"); id. ("Questions have been raised as to the ability or desirability of school districts implementing all-black academies in order to improve educational performance."). 15

It should be clear that academic freedom does not lose its status as an important freedom through adherence to the equality guarantee of the Fourteenth Amendment. 16

[-37-] The range of factors that a university may constitutionally consider in selecting its students (or faculty) is virtually infinite. Particularly as academic freedom has been recognized as an intellectual freedom, there is no limit to the viewpoints, perspectives, ideas, character traits, talents, and experiences that a university might properly consider in assembling its community. But our Constitution places "no value" on race discrimination. See Runyon, 427 U.S. 761. It forbids it when practiced or sponsored by the states. Enforcement of the constitutional command that state-sponsored universities not discriminate on the basis of race or ethnicity in student admissions does not impair any genuine interest in academic freedom. But a rule that would recognize the right of educational institutions to consider race and ethnicity in the exercise of academic freedom would vitiate the "core purpose" of the Fourteenth Amendment. Palmore v. Sidoti, 466 U.S. 429, 432 (1984).

C. Although the Court has not since Bakke directly addressed whether diversity can be a compelling interest, its precedents demonstrate why it is not one. The Court already has rejected significant parts of Justice Powell’s [-38-] analysis. Justice Powell did not view the difference between a "plus" system and a "set aside" system as simply the difference between a race-conscious system that is narrowly tailored and one that is not. Rather, he concluded that "a facial intent to discriminate" does not "exist[ ] in an admissions program where race or ethnic background is simply one element – to be weighed fairly against other elements – in the selection process." Bakke, 438 U.S. at 318 (opinion of Powell, J.). In such a system, "good faith would be presumed," id. at 318-19, there would be "a presumption of legality and legitimate educational purpose," id. at 319 n.53, and "there is no warrant for judicial interference in the academic process," id.

The absence of an intent to discriminate when race is used as a factor is inconsistent with modern equal protection analysis. This Court has made clear that the consideration of race, even if considered along with other factors, constitutes the kind of intentional discrimination that requires strict scrutiny. Price Waterhouse v. Hopkins, 490 U.S. 228, 265 (1989) (O’Connor, J., concurring in the judgment) ("This Court’s decisions under the Equal Protection Clause have long recognized that whatever the final outcome of a decisional process, the inclusion of race or sex as a consideration within it harms both society and the individual."). Surely a system like the University’s, which gives a set number of points to applicants for being members of an "underrepresented" minority but also gives points to applicants for other characteristics, reflects an "intent to discriminate" as that term is now used in equal protection jurisprudence. It treats similarly-situated applicants from different races differently. See also Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234, 1249 (11th Cir. 2001) (invalidating as unconstitutional an undergraduate admissions system that granted a fixed number of points for race and ethnicity and other factors). So, too, the presumption of good faith that Justice Powell attributed to school administrators is simply inconsistent with the notion that strict scrutiny must be applied to the use of race. One of strict scrutiny’s key [-39-] features is "skepticism," Adarand Constructors, Inc., 515 U.S. at 223-24, i.e., the bedrock proposition that all official actions that treat a person differently on account of race or ethnicity are inherently suspect. Even the University here has conceded throughout the course of this litigation that "strict scrutiny" applies to its consideration of race. While it has asked for deference to its judgment from the courts, based upon Justice Powell’s words, that deference simply cannot be reconciled with strict scrutiny. See id. at 236 (strict scrutiny requires a "detailed examination, both as to ends and as to means"); id. (strict scrutiny requires "the most searching judicial inquiry"). See also J.A. Croson Co., 488 U.S. at 500 ("Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice."); id. at 493 (opinion of O’Connor, J.) ("Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.").

When the strict-scrutiny analysis employed by the Court’s precedents in other contexts is applied to the rationale asserted by the University, it becomes clear that an *interest in diversity* cannot be a compelling one justifying racial preferences in student admissions. Like the role model theory in Wygant , an *interest in diversity* has "no logical stopping point." Wygant , 476 U.S. at 275 (plurality opinion). Because it bears no relationship to any remedial interest, there are no principled limits on its scope or duration. Tied instead (as the University urges) to the academic discretion and judgments of those who will impose the classifications, **a recognized compelling interest in promoting diversity is limited only by the different kinds of racial diversity** that educational institutions might seek to achieve. On such a footing, the interest is one that is not subject to any objective, uniform standards, and the preferences effectively become immune from meaningful judicial review. Its recognition would set loose a "potentially far-reaching principle disturbingly at odds [-40-] with our traditional equal protection doctrine." Metro Broadcasting, Inc., 497 U.S. at 613 (O’Connor, J., dissenting).

Measuring the logical consequences of a recognized compelling interest in diversity demonstrates why it is that "[m]odern equal protection doctrine has recognized only one [compelling] interest [for racial classifications]: remedying the effects of racial discrimination." Id. at 612. An interest in diversity "is simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications." Id. Moreover, the test of time has proven the essential truth of the proposition that "[u]nless they are strictly reserved for remedial settings, [racial classifications] may in fact promote notions of racial inferiority and lead to a politics of racial hostility." J.A. Croson Co., 488 U.S. at 493 (opinion of O’Connor, J.).

It is no satisfactory answer to the foregoing objections to argue that promoting diversity will produce "educational benefits". It certainly can be assumed that remedying the lingering effects of societal discrimination would produce benefits both in the educational system and throughout society generally. As discussed above, a "role model" theory for assigning teachers is premised precisely on the ground that it would produce educational benefits. See Wygant , 476 U.S. at 315 (Stevens, J., dissenting) ("In the context of public education, it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty."). But the reasons that make those interests not "compelling" ones for purposes of justifying racial classifications are the same kinds of reasons that preclude a determination that "diversity" is a compelling interest. See also Grutter, 288 F.3d at 788-95 (Boggs, J., dissenting) (discussing and dismissing the claim that the purported educational benefits of diversity make it a compelling interest).

*The University’s articulation of the diversity rationale throughout this case reveals how malleable the interest is.* The University often defends the interest on the basis that [-41-] it is an antidote for the lingering effects of societal discrimination. Hence, it points to patterns of segregation in housing, and elementary and secondary education, for example, as justification for race-based admissions at the university level. See, e.g., Final Brief of Appellees 36 (July 30, 2001). At oral argument on the motions for summary judgment, the University’s counsel made explicit reference to the "educational challenge" presented by "segregation" in various areas of society. Record 204, Tr. 34-35, Cir. App. 4163-64. The University and some of its amici have also touted diversity for the benefits accruing to students after they have graduated from college. These arguments demonstrate that there is no principle that confines the interest to the education context. If accepted as compelling, an interest in diversity could become a justification for using race to treat people differently in many walks of life.

D. 1. In the lower courts, the University has argued that in the intervening years since Bakke was decided, it has become accepted as "settled law" that diversity is a compelling interest in educational admissions and that colleges and universities generally have relied and acted accordingly on this proposition in considering race and ethnicity in admissions. See Final Brief of Appellees 2 (July 31, 2001). The argument is false for several reasons. First, it is a question-begging exercise that tries to assign stare decisis effect to a case not by analyzing what the case actually decided, but instead by accepting one view of how some have interpreted it.

Second, this Court has never given stare decisis effect, much less "extra" stare decisis effect, to the views of one Justice not joined by any other member of the Court. As already discussed, see discussion supra at 32-33, all nine current Justices (the majority in the 1995 decision in Adarand v. Pena and the dissenters in Alexander v. Sandoval) have recognized that there was no coherent rule supporting the use of race in college admissions emerging from Bakke. From the outset, both courts and academics have questioned whether Justice Powell’s discussion of "academic freedom" and "diversity" in Bakke was binding [-42-] precedent. Peters v. Moses, 613 F. Supp. 1328, 1335 (W.D. Va. 1985) ("I do not believe that Justice Powell’s concurring opinion represents the court’s opinion in Bakke with regard to this matter."); Drew S. Days, III, Minority Access to Higher Education in the Post-Bakke Era, 55 U. COLO. L. REV. 491, 492 (1984) (noting that "no other Justice joined in [Justice Powell’s] opinion" and "there was no opinion of the Court . . . ").

Third, a question of law can hardly be said to be considered "settled" when the lower courts are riven with disagreement on it. See Pet. 21-22 (discussing cases in which courts have disagreed on Bakke and the status of Justice Powell’s opinion, or have expressed reservations, skepticism, or uncertainty about whether an interest in diversity can justify racial preferences).

Fourth, as already discussed, see discussion supra at 37-39, Justice Powell’s Bakke opinion has already been superseded in significant ways. Accordingly, the fundamental doctrinal foundations upon which his analysis stood – that explicit racial considerations could be considered "facially nondiscriminatory" and that certain governmental actors are entitled to deference when using race – has been eroded to the point where it has been, at least implicitly, "left . . . behind as a mere survivor of obsolete constitutional thinking." Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992).

In light of all the foregoing, surely our nation’s leading colleges and universities, employing able in-house counsel and outstanding constitutional scholars, could not have been deluded into believing that whether diversity is a compelling interest justifying racial preferences in admissions was a matter free from doubt.

2. Apart from whether any reliance was justified, it is also far from accurate to say that the University has "relied" on Justice Powell’s articulated formulation for the proper consideration of race and ethnicity in admissions. A viewing of the facts in this and other reported cases arising in similar contexts leads to the conclusion that Justice Powell’s opinion has been used instead as a cover [-43-] to employ all manner of potent racial preferences. Many educational institutions seem to act as if simply describing their admissions programs in language employed by Justice Powell (e.g., "racial or ethnic origin is but a single though important element" considered in achieving diversity, or race and ethnicity are just a "plus" factor in the process, Bakke, 438 U.S. at 315, 317 (opinion of Powell, J.)), is enough to immunize them from successful attack. Thus, in this case alone, the University invokes the usual words to defend admissions policies that have at various times employed reserved seats, racially segregated waiting lists, guidelines on admission that on their face call for different admission outcomes based on race and ethnicity, and automatic assignment on the basis of race of a large enough number of fixed points to accomplish what the discriminatory grids formerly did.

The University of Georgia has used Justice Powell’s formulations to defend its undergraduate admissions systems, which contain similarities to the one at issue here. As recently as 1990-1995, the University of Georgia had an undergraduate admissions policy that had certain minimum qualifications (relating to SAT scores and high school GPA) that differed depending upon whether the applicant was black or non-black. See Wooden v. Board of Regents of Univ. of Georgia, 247 F.3d 1262, 1265 (11th Cir. 2001); Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234, 1240 (11th Cir. 2001). It changed the system in 1995 to one where, at the second stage of the appraisal process (after the admission and rejection of candidates based solely on academic characteristics), applicants mechanically received .5 points for self-designating as non-Caucasian and .25 points for being male (with a score below 5 being sufficient for admission). Johnson, 263 F.3d at 1241 (noting that the files were not read at the second stage, but processed based upon data requested by the application form). Not surprisingly, these admissions systems were found to be unlawful by the Eleventh Circuit. Id. at 1254-64.

Prior to 1992, and prior to being sued, the University of Texas Law School had a system that placed applicants [-44-] in one of three categories: presumptive admit, presumptive deny, and discretionary zone. The standards applied to African Americans and Mexican Americans for placement in these categories were dramatically lower than for all other candidates, to the point where the presumptive admit standard for those preferred races was lower than the presumptive deny standard for the non-preferred candidates (primarily whites, Asians, and other Hispanics). The law school color-coded the application files to reflect the applicant’s race, reviewed the applications of preferred race candidates with a separate minority admissions subcommittee, and maintained waiting lists segregated by race. Texas defended all of these practices as legitimate under Justice Powell’s rationale in Bakke. See Hopwood v. Texas, 78 F.3d 932, 935-38 (5th Cir.), cert. denied, 518 U.S. 1033 (1996); id. at 963; id. at 966 (Weiner, J., concurring) (finding the system "virtually indistinguishable from quotas").

In "relying" on Justice Powell’s opinion for support of their racial preferences, sometimes universities do not even take care to ensure that precise forms found illegal in Bakke are not copied. The University of Washington School of Law successfully invoked Justice Powell’s words to defend a system in effect in 1994 whereby all students with certain "index scores" (composites of LSAT scores and GPA) were sent to an admissions committee for comparative evaluation with other files; but minority candidates were evaluated separately by the Admissions Coordinator. Smith v. University of Washington, Law School, Civ. No. C97-335Z, slip op. at 18 (W.D. Wash. June 5, 2002). In the case pending before this Court involving the University of Michigan’s Law School, the law school until 1992 had a program of racial preferences called, like Davis, a "special admissions program." On its face, the policy had a "goal" or "target" of enrolling 10-12% of the class from designated racial and ethnic minority groups ("Black, Chicano, Native American, and mainland Puerto Rican"). In defending its admissions policies under a subsequent written policy adopted in 1992, the law school clearly has sought to [-45-] disown the "special admissions program," which it operated long after Bakke had been decided. See Final Reply Brief of Appellants 26 & n.11 (vehemently arguing against the assertion of the plaintiff in that case that the policy adopted in 1992 incorporated prior policies; "the 1992 policy eliminated the Law School’s previous policies"), filed in Grutter v. Bollinger, 288 F.3d 732 (6th Cir.), cert. granted, 123 S. Ct. 617 (2002) (No. 02-241).

Elementary and secondary schools have also invoked Justice Powell’s analysis to defend large racial preferences in the assignment of students to schools. The City of Boston used a formal set-aside (as always, obligingly called "flexible") to allocate seats on the basis of race and ethnicity to the popular "Boston Latin School." Wessmann v. Gittens, 160 F.3d 790, 793-94 (1st Cir. 1998); id. at 800 (holding policy unconstitutional because it effectively foreclosed competition for some seats based solely on race or ethnicity). The Arlington County Virginia School Board used a statistically weighted lottery to make school assignments on the basis of race. See Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698, 701-03 (4th Cir. 1999); id. at 705 (holding systems unconstitutional on narrow-tailoring grounds). The Montgomery County Maryland Public Schools devised a "diversity profile," with assignment of students into one of several formal "categories" determined by racial and ethnic characteristics. Eisenberg v. Montgomery County Public Schools, 197 F.3d 123, 126-27 (4th Cir. 1999); id. at 131-34 (holding preferences unconstitutional on narrow-tailoring grounds).

The cases discussed above are confined only to those that have been litigated, where discovery has allowed the hidden to be revealed in a manner that is not otherwise "immediately apparent to the public," Bakke, 438 U.S. at 379 (opinion of Brennan, J.), when an educational institution states generally that its use of race and ethnicity in admissions is designed to achieve "diversity" in the manner approved by Justice Powell. But it should be clear that educational institutions have run unrestrained with the use of racial preferences purported to implement only what Justice Powell authorized. This is not reliance. It is [-46-] licentiousness. In the manner that educational institutions like the University have applied their racial preferences, Justice Powell’s rationale is not even recognizable.

The emphasis on race (and, at the University of Georgia, gender) in these policies demonstrates also that intellectual diversity is hardly their goal. Indeed, when writing for journals and law reviews, many academics candidly admit that their school’s interest in diversity is primarily to avoid legal challenge. Peter H. Schuck, Affirmative Action: Past, Present, and Future, 20 YALE L. & POL’Y REV. 1, 34 (2002) ("many of affirmative action’s more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds"); id. at 28 ("even today when defenders of affirmative action use diversity rhetoric in order to avoid legal pitfalls, the heart of the case for affirmative action is unquestionably its capacity to remedy the current effects of past discrimination"); Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 471 (1997) ("Everyone knows that in most cases a true diversity of perspectives and backgrounds is not really being pursued. (Why no preferences for fundamentalist Christians or for neo-Nazis?)"); Kent Greenawalt, The Unresolved Problems of Reverse Discrimination, 67 CAL. L. REV. 87, 122 (1979) ("I have yet to find a professional academic who believes the primary motivation for preferential admission has been to promote diversity in the student body for the better education of all the students. . . . "); Samuel Issacharoff, Law and Misdirection in the Debate over Affirmative Action, 2002 U. CHI. LEGAL F. 11, 18 (2002) ("I have never heard the term seriously engaged on behalf of a Republican, a fundamentalist Christian, or a Muslim."); Alan M. Dershowitz & Laura Hanft, Affirmative Action And The Harvard College Diversity-Discretion Model: Paradigm Or Pretext, 1 CARDOZO L. REV. 379, 407 (1979) ("The raison d’etre for race-specific affirmative action programs has simply never been diversity for the sake of education. The checkered history of ‘diversity’ demonstrates that it was designed largely as a cover to achieve other legally, morally, and politically [-47-] controversial goals. In recent years, it has been invoked – especially by professional schools – as a clever post facto justification for increasing the number of minority group students in the student body.").

The use of diversity or academic freedom as a legal rationale suggests that colleges and universities have "relied" on Justice Powell’s opinion only in the sense that they have "relied" on it as a defense when they are sued (and none too successfully at that). In fact, the use of "diversity" as a rationalization has led to the diminution of integrity in our institutions before the nation and even before this Court. See Samuel Issacharoff, Can Affirmative Action Be Defended?, 59 OHIO ST. L. J. 669, 675 n.14 (1998) ("I remain embarrassed by the claim, not of my authoring but with my name attached nonetheless, that appeared in our reply brief in support of certiorari in Hopwood . . . [that] argued that race operated as simply one of many criteria that went into a selection process – a claim that could not be substantiated by the record and did not comport with the reality of how affirmative action works."). Ultimately, what history and the cases bear out is that there is no workable way to employ Justice Powell’s framework for the consideration of race and ethnicity in educational admissions. To say that race may be "weighed fairly" or considered "competitively" is to say that there is no real standard at all because it is tied only to the subjective interpretations of those who employ it as the measure for what is permissible. Although not unambiguously set forth in his opinion, a common understanding of Justice Powell’s analysis is that race may be used in a modest or "tie-breaking" way. See, e.g., Grutter, 288 F.3d at 817-18 (Gilman, J., dissenting). That common understanding simply does not reflect reality. See Issacharoff, 59 OHIO ST. L. J. at 676 ("Bakke had an unrealistic sense of the extent to which race-consciousness is required even to achieve the Harvard minimum floor of minority representation."). So too, at one time it was even suggested that a program for considering race in the manner suggested by Justice [-48-] Powell "contain[ed] the seed of its own termination." Metro Broadcasting, Inc., 497 U.S. at 596 (referring to the "Harvard admissions program discussed in Bakke"). At this juncture in our history, what is all too clear is that the opposite is true. To permit race to be used as a reason for achieving diversity is much more likely to forever "delay the time when race will become a truly irrelevant, or at least insignificant, factor." Adarand Constructors, Inc., 515 U.S. at 229.

* * * * *

IV. The University’s Preferences Violate 42 U.S.C. § 1981.

Petitioners’ proof that the University has engaged in intentional discrimination also establishes a violation of *42 U.S.C. § 1981.* See General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 383-91 (1982). Although its text, written in the aftermath of the Civil War, suggests that only non-whites are its intended beneficiaries, the Court has held that the statute prohibits discrimination against whites to the same extent as others. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295-96 (1976). Under § 1981(c), the statute’s substantive rights are protected from impairment under color of state authority.

A contract for educational services is a "contract" for purposes of § 1981. Runyon v. McCrary, 427 U.S. 160, 172 (1976). The racial discrimination practiced by the Law School in admissions is a "classic violation of § 1981." Id.

The University does not offer admission on an "equal basis" to members of all races. Id. On the contrary, as the district court found and the foregoing discussion elaborates, the Law School [sic] applies different standards in admission based on race and ethnicity. Section 1981 contains no exceptions to its rule of nondiscrimination. It does not provide, for example, that claimed interests in "diversity" or "academic freedom" excuse unequal treatment on the basis of race under the statute. Indeed, the Court has [-50-] specifically rejected a number of asserted defenses to the statute based on the exercise of constitutional rights. Id. at 175-79 (rejecting defenses based on the First Amendment rights of freedom of association, parental rights under the Due Process Clause of the Fourteenth Amendment, and the right of privacy). See also discussion supra at 34.

Notes:

2. Upon receipt of an application, the University recalculated an applicant’s high school grade point average based on the applicant’s academic courses from tenth and eleventh grades, plus other factors. Pet. App. 111a-12a.[return to text]

3. "Cir. App." refers to the Joint Appendix filed by the parties in the Sixth Circuit in this case.[return to text]

4. "App." refers to the Joint Appendix filed with petitioners’ brief on the merits.[return to text]

5. In some cases, the guidelines called for automatic rejection based on low grades or test scores. "Underrepresented" minorities, however, were never rejected automatically. Pet. App. 46a. [return to text]

6. Brief Amicus Curiae of the United States (1952) filed in Brown v. Board of Educ., 347 U.S. 483 (1954), quoted in 49 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT 118 (Philip B. Kurland & Gerhard Casper eds. 1975) .[return to text]

7. Record 81, Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment and Memorandum in Support of Defendants’ Cross-Motion for Summary Judgment (May 3, 1999). [return to text]

8. See, e.g., "Questions and Answers about the Lawsuit Against the University of Michigan Law School," http://www.law.umich.edu/news andinfo/lawsuit/qanda.htm. [return to text]

9. See also William Van Alstyne, Rites of Passage: Race, The Supreme Court, and the Constitution, 46 U. CHI. L. REV. 775, 797 (1979) ("This judicial resolve to remove the race line from our public life has been the most credible and admirable position for the Court steadfastly to maintain. . . . "). [return to text]

15. An academic freedom exception to the Fourteenth Amendment would also permit academic grounds to justify differential treatment on the basis of other invidious classifications. See, e.g., United States v. Virginia, 518 U.S. 515, 535 (1996) (state-supported school argued that interest in "diversity" of educational choices should permit all-male admissions policy). [return to text]

16. The first explicit mention of academic freedom in this Court’s cases was by Justice Douglas in his dissenting opinion in Adler v. Board of Education, 342 U.S. 485, 508 (1952) (Douglas, J., dissenting). In that opinion and in subsequent ones that he either authored or joined in, very broad expression is given to the importance and scope of the right of academic freedom. See, e.g., Whitehill v. Elkins, 389 U.S. 54, 59-60 (1967); Wieman v. Updegraff, 344 U.S. 183, 196-97 (1952) (opinion of Frankfurter, J., joined by Douglas, J., concurring in the judgment); Presidents Council District 25 v. Community Sch. Bd., 409 U.S. 998, 999-1000 (1972) (opinion of Douglas, J., dissenting to denial of petition for certiorari). Yet it is instructive that Justice Douglas wrote power-fully about the evils of racial considerations in the university admissions process. See DeFunis v. Odegaard, 416 U.S. 312, 333-34 (1974) (Douglas, J., dissenting from the Court’s decision to remand the case on mootness grounds) ("Once race is a starting point educators and courts are immediately embroiled in competing claims of different racial and ethnic groups that would make difficult, manageable standards consistent with the Equal Protection Clause."); id. at 334 ("Minorities in our midst who are to serve actively in our public affairs should be chosen on talent and character alone, not on cultural orientation or leanings."). [return to text]