The United States Supreme Court
The University of Michigan Admissions Lawsuits

Gratz v. Bollinger and Grutter v. Bollinger

Supporting the University, 65 leading American businesses as amici curiae, (pp 1-2, 3-10): The existence of racial and ethnic diversity in institutions of higher education is vital to amici’s efforts to hire and maintain a diverse workforce. Such a workforce is important to amici’s continued success in the global marketplace. (The complete brief is online here)

Comments by Curtis Crawford,* indented in italics.

This brief is filed on behalf of the following 65 businesses:

Abbott Laboratories Alcoa, Inc.
Alcoa, Inc.

Alliant Energy Corporation
Altria Group, Inc.
American Airlines, Inc.
American Express Company
Amgen Corporation
Ashland Inc.
Bank One Corporation
Baxter Healthcare Corporation
The Boeing Company
Charter One Financial, Inc.
Chevron Texaco Corporation
The Coca-Cola Company
Coca-Cola Enterprises Inc.
Daimler Chrysler Corporation
Deloitte Consulting L.P.
Deloitte & Touche LLP
The Dow Chemical Company
Eastman Kodak Company
Eaton Corporation
Eli Lilly & Company
Ernst & Young LLP
Exelon Corporation
Fannie Mae
General Dynamics Corporation
General Electric Company
General Mills, Inc.
John Hancock Financial Services
Harris Bankcorp, Inc.
Hewlett-Packard Company
Illinois Tool Works Inc.

Intel Corporation
Johnson & Johnson

Kaiser Found. Health Plan, Inc.
Kellogg Company
Kraft Foods Inc.
Lockheed Martin Corporation
Lucent Technologies, Inc.
Medtronic, Inc.
Merck & Co., Inc.
Microsoft Corporation
Mitsubishi Motors North America
MSC.Software Corporation Nationwide
Mutual Insurance Co.
NetCom Solutions International
Nike Inc.
Northrop Grumman Corporation
Pepsi Bottling Group, Inc.
PepsiCo Inc.
Pfizer Inc.
PPG Industries, Inc.
Pricewaterhouse Coopers LLP
The Procter & Gamble Company
Reebok International
Sara Lee Corporation
Schering-Plough Corporation
Shell Oil Company
Steelcase Inc.
Sterling Financial Group of Cos.
United Airlines, Inc.
Whirlpool Corporation
Xerox Corporation


Amici are global businesses that recruit at the University of Michigan or similar leading institutions of higher education. Collectively, amici have annual revenues well over a trillion dollars and hire thousands of graduates of the University of Michigan and other major public universities. Amici have a vital interest in who is admitted to our nation’s colleges and universities, and what kind of education and training those students receive. Many of the amici have substantial business presences in the state of Michigan, some are headquartered in Michigan, and all have substantial ties to Michigan suppliers and consumers.

The existence of racial and ethnic diversity in institutions of higher education is vital to *amici’s efforts to hire and maintain a diverse workforce,* and to employ individuals of all backgrounds who have been educated and trained in a diverse environment. As explained in this brief, such a workforce is important to amici’s continued success in the global marketplace.

  * Michigan admits that, in order to have a diverse enough student body, it treats applicants differently based on their race or ethnicity. Do amici, in order to have a sufficiently "diverse workforce," treat jobseekers and employees differently based on their race? If they do, are they aware that such conduct (by firms employing more than 15 workers) violates Title VII of the Civil Rights Act of 1964? This statute forbids an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin." (Sec. 703(a)(1). Other sections of the Act on this website are here.)

Amici have devoted substantial financial and human resources to create and maintain a diverse workforce. These extensive efforts are part of the very fabric of amici’s cultures, are implemented and overseen by senior managers, and are supported at the highest levels. In addition, many of the amici pursue a variety of endeavors to support minority students in higher education, including participating in numerous joint initiatives with the University of Michigan and other leading universities with strong academic programs and diverse student [-2-] bodies, *providing under-represented minority students with substantial financial assistance and summer internship opportunities, recruiting and mentoring minority students, extending financial grants, and partnering with university staff and chapters of national minority professional organizations.*

  * These programs appear to favor, and to exclude, students based on their race. *

* * * *



"[T]he attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education." Bakke, 438 U.S. at 311-12 (opinion of Powell, J.). And "[e]thnic diversity . . . is . . . one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." Id. at 314. *Thus*, the Court held in Bakke that "the 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 (opinion of Powell, J., joined by Brennan, White, Marshall, and Blackmun, JJ.).

  * Not "thus," but "also." The Brief slips by the fact that only Powell held diversity a compelling interest justifying some consideration of race. The cost of agreement with Brennan et al. concerning "a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin" was that the "substantial interest" remained wholly undefined.

[-4-] As Justice Powell recognized in his *controlling opinion* in Bakke, a diverse student body promotes **an atmosphere of "speculation, experiment and creation" that is "essential to the quality of higher education." Id. at 312 (internal quotations omitted). Moreover, by enriching students’ education with a variety of perspectives, experiences, and ideas, a university with a diverse student body equips all of its students with the skills and understanding necessary to succeed in any profession.** Id. at 314. Those skills include the ability to understand, learn from, and work and build consensus with individuals from different backgrounds and cultures. In finding the attainment of diversity to be a constitutionally permissible state interest, Justice Powell emphasized that "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 diverse as this Nation of many peoples."*** Id. at 313 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)).


* In a court of nine judges, an opinion or a holding concurred in by only one judge is not "controlling."

** Agreed, that an atmosphere of "speculation, experiment and creation" and "a variety of perspectives, experiences, and ideas" are "essential to the quality of higher education." But will amici claim that American universities have become richer in these good things since they started enrolling substantial numbers of black, Hispanic, Asian, and Native Americans? More racial variety, yes; but more speculation, experiment, creation, perspectives, experiences, and ideas? If they do make this claim, they have presented no evidence for it.

*** Must this "wide exposure to the ideas and mores of students as diverse as this Nation" occur at college and professional school? At our best universities, students and faculty are mostly in the top 5 or 10 percent of the population in verbal and mathematical ability. Should these schools therefore give preferential admission to dumber students, so that their graduates will have gained a more realistic experience of their fellow citizens? There would be no constitutional obstacle to such a policy: racial preference by the state is presumptively illegal, but preference based on lack of intelligence is not.

Justice Powell’s recognition of the compelling nature of the state’s interest in diversity was not limited to undergraduate admissions. "[E]ven at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial." 438 U.S. at 313. Quoting the Court’s decision in Sweatt v. Painter, 339 U.S. 629 (1950), Justice Powell observed, "‘The 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. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.’" Bakke, 438 U.S. at 314 (quoting Sweatt v. Painter, 339 U.S. 629, 634 (1950)).

[-5-] Justice Powell thus concluded that "the interest of diversity is compelling in the context of a university’s admissions program," and that "a university must have wide discretion in making the sensitive judgments as to who should be admitted." Id. Justice Powell emphasized that ethnic diversity is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Id. "The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Id. at 315.

The Court has not addressed since Bakke the importance of diversity in the context of higher education. But *Members of the Court have recognized the controlling force of Justice Powell’s opinion in Bakke in the 25 years since the case was decided.* See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267, 286 (1986) (O’Connor, J., concurring) ("Additionally, although its precise contours are uncertain, 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."); cf. id. at 313, 314 & n.7 (Stevens, J., dissenting).

  * Justice O'Connor's statement in Wygant does imply the view that Powell's holding on diversity spoke for the Court; the cited statements by Justice Stevens do not refer to Powell's holding.

In the practical experience of the amici businesses, the need for diversity in higher education is indeed compelling. Because our population is diverse, and because of the increasingly global reach of American business, the skills and training needed to succeed in business today demand exposure to widely diverse people, cultures, ideas and viewpoints. *Employees at every level of an organization must be able to work effectively with people who are different from [-6-] themselves.* Amici need the talent and creativity of a workforce that is as diverse as the world around it.

  * Very true! Indeed, do amici know of any time or country in which this was not true?

The population of the United States is increasingly defined by its diversity. Two years after Bakke was decided, the 1980 census showed that African Americans, Native Americans, Asian Americans and Hispanics constituted 20 percent of the nation’s population.2 By 1999, those groups made up 28 percent of the population of the United States.3 And by one estimate, these groups will constitute almost half – 47 percent – of the United States’ population by the year 2050.4 *The rich variety of ideas, perspectives and experiences to which both non-minority and minority students are exposed in a diverse university setting, and the cross-cultural interactions they experience, are essential to the students’ ability to function in and contribute to this increasingly diverse community.*

  * The Brief often sounds as if the primary source of a "rich variety of ideas, perspectives and experiences" in college were other students, and especially the interaction of "African Americans, Native Americans, Asian Americans and Hispanics" with whites. It forgets the enormous amount of ethnic, religious, political, social, cultural, occupational, and economic diversity that has always existed in the constituencies of our schools. Worse, it ignores the world of books, the supreme fountainhead of "ideas, perspectives and experiences" available to the college student. Here are the finest minds and deepest souls that ever lived, ready to free a student from the cultural limitations of his family, neighborhood, associates, time and place. Here is Diversity indeed, compared to which the currently fashionable diversity of certain racial and ethnic groups is a passing superficiality. Moreover, the teachers in these books have all the time in the world to share their jewels; all they ask of students is the ability to read well.

The nature of American business also is changing. Most of the amici are truly international companies, and virtually all are becoming so. Amicus 3M is a $16.7 billion diversified manufacturing and technology company with operations in more than 60 countries and customers in nearly 200 countries. Amicus Boeing makes 70 percent of its commercial airplane [-7-] sales to international customers. Amicus Procter & Gamble sold a branded product to more than 2.5 billion people across the world last year, yielding more than $40 billion in sales. Similar figures could be provided for many of the amici: they operate and compete in a global environment, serving and working with people and cultures of all kinds.

In the experience of amici, individuals who have been educated in a *diverse setting* are more likely to succeed, because they can make valuable contributions to the workforce in several important and concrete ways. First, a *diverse group* of individuals educated in a cross-cultural environment has the ability to facilitate unique and creative approaches to problem-solving arising from the integration of different perspectives. Second, such individuals are better able to develop products and services that appeal to a variety of consumers and to market offerings in ways that appeal to those consumers. Third, a *racially diverse* group of managers with cross-cultural experience is better able to work with business partners, employees, and clientele in the United States and around the world. Fourth, individuals who have been educated in a *diverse setting* are likely to contribute to a positive work environment, by decreasing incidents of discrimination and stereotyping. Overall, an educational environment that ensures participation by *diverse people, viewpoints and ideas* will help produce the most talented workforce.5


* Viewpoint diversity and racial diversity are not the same thing: either can exist without the other. When the Brief speaks of "diversity" unmodified, it is often impossible to know whether it means viewpoint diversity or racial diversity. Results that may be expected from one may not follow from the other.

Amici's Conclusion (stated in 1st and last sentences) is quite plausible as a result of viewpoint diversity, but uncertain as a result of racial diversity. One of the uncertainties is whether the push for racial diversity, producing racial decisions in student admissions, orientation programs, residence halls, faculty employment, courses offered, readings assigned, student mentoring, social organizations, freedom of expression, forbidden conduct and due process, actually constricts rather than broadens viewpoint diversity.

[-8-] Amici attest to the validity of these claims through their actions. Amici are hiring an increasingly diverse workforce. Drawing upon the diverse student bodies that have existed at schools like the University of Michigan, amicus Microsoft has steadily increased its percentage of minority employees, from 16.8% in 1997 to 25.6% of Microsoft’s domestic workforce today. Many of the amici spend millions of dollars each year to provide financial and other support for minority students to participate in undergraduate and graduate programs at the University of Michigan and other schools. For each of the amici, diversity is an increasingly critical component of their business, culture and planning.

*There is not, and cannot be, serious debate about the importance of maintaining racial and ethnic diversity in our nation’s leading colleges and universities.* Whatever methodology is employed to select those who will be afforded the opportunity to obtain the best education and training available in America today, that methodology must operate in such a way that students of all races, cultures and ethnic backgrounds are in fact meaningfully included.


* This statement is false, no matter how defined. If "maintaining racial and ethnic diversity" means that no one is excluded, based on race or ethnicity, such a policy is opposed by all who would use racial preference to achieve racial diversity. If "maintaining racial and ethnic diversity" means using racial preference, it is opposed by all who reject state-sponsored racial discrimination.

Statements like this make one wonder whether amici are aware that there are powerful arguments against racial discrimination.

The United States strongly endorses these core propositions. It recognizes that "[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective." Brief for the United States, Grutter v. Bollinger, No. 02-241, at 13. The United States argues that "[s]chools may identify and discard facially neutral criteria that, in practice, tend to skew admissions in a [-9-] manner that detracts from educational diversity." Id. at 13-14. The thrust of the government’s position is that it is permissible to take affirmative steps to ensure educational diversity – a goal that itself includes consideration of race. The United States defends particular admissions programs it prefers in Texas, Florida and California explicitly on the ground that those programs allegedly continue to produce, at least in raw numbers, the same racial and ethnic diversity in enrollment. Id. at 14-17. Thus, the United States acknowledges, as amici urge here, that diversity is important, that universities can reject facially-neutral admissions criteria that do not produce diversity, and that admissions programs can be evaluated and defended based on the levels of racial and ethnic diversity they produce. Finally, in terms of the ultimate importance of diversity in admissions, the actions of the United States also speak loudly: each of our national service academies explicitly considers race in the admissions process. See Adam Clymer, Service Academies Defend Use of Race in Their Admissions Policies, N.Y. TIMES, Jan. 28, 2003, at A18.

Amici are not in a position to evaluate the propriety or efficacy of any particular admissions program. Amici recognize that any admissions program that considers race and ethnicity must be narrowly tailored to serve the compelling state interest in the attainment of a diverse student body. What is critical to amici is that the leading colleges, universities and graduate schools from which they recruit and hire their employees be diverse, and consist of the most qualified and talented diverse students as is possible. Universities historically have been responsive to the needs of business and other professions, developing an extraordinary talent pool upon which amici and others may draw. The interest in diversity in higher education is compelling, and it must accommodate reasonable, narrowly tailored measures that allow the admission of the most [-10-] qualified, diverse student body. Cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) ("[W]e wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’") (internal citation omitted); Missouri v. Jenkins, 515 U.S. 70, 112 (1995) (O’Connor, J., concurring) (same).

The experiences of amici in the 25 years since Bakke was decided confirm Justice Powell’s holding that the pursuit of diversity in higher education is a compelling state interest. The reasons given by Justice Powell are just as valid today, if not more so. Institutions of higher learning must be allowed to prepare students to thrive in an increasingly diverse environment. The best way to do this is to ensure that students learn in an environment of diversity, including racial and cultural diversity. Students from diverse backgrounds bring to school "experiences, outlooks, and ideas that enrich the training of the student body and better equip its graduates to render with understanding their vital service to humanity." Bakke, 438 U.S. at 314 (opinion of Powell, J.). Accordingly, institutions of higher learning should be able to use "competitive consideration of race and ethnic origin" in pursuit of a diverse student body. Id. at 320 (opinion of Powell, J., joined by Brennan, White, Marshall, and Blackmun, JJ.). Such consideration is vital to the interests of American business, and it is necessary to ensure that members of all segments of our society receive the education and training they need to become the leaders of tomorrow.


1. All parties have consented to the filing of this amicus curiae brief. No portion of the brief was authored by counsel for a party. No person or entity other than the amici signing this brief or their counsel made a monetary contribution to the preparation or submission of the brief. [return to text]

2. See Population Estimates Program, Population Division, U.S. Census Bureau, U.S. Population Estimates by Age, Sex, Race, and Hispanic Origin: 1980 to 1999 (rel. April 11, 2000), available at http://www.census.gov/ population/estimates/nation/natdoc.txt [return to text]

3. See Population Estimates Program, Population Div., U.S. Census Bureau, Population Estimates for States by Race and Hispanic Origin: July 1, 1999 (rel. Aug. 30, 2000), available at http://www.census.gov/ population/estimates/state/srh/srh99.txt [return to text]

4. Jon Meacham, The New Face of Race, NEWSWEEK, Sept. 18, 2000, at 40. [return to text]

5. See also, e.g., Diversity: An Imperative For Business Success, THE CONFERENCE BOARD (1999); Trevor Wilson, Diversity At Work: The Business Case for Equity (1996); Diversity Helps to Deliver Better Business Benefits, PERSONNEL TODAY, June 18, 2002 ("Four out of five organizations believe there is a direct link between diversity and improved business performance, according to independent research."); Research Makes a Business Case for Diversity, FED. HUM. RESOURCES WEEK, Sept. 24, 2001 ("[r]esearch by the National Academy of Public Administration shows that diverse workforces are more productive"); Robert L. Lattimer, The Case for Diversity in Global Business, and the Impact of Diversity on Team Performance, COMPETITIVENESS REV., Vol. 8, No. 2, at 3-17 (1998). [return to text]