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The United States Supreme Court
The University of Michigan Admissions Lawsuits

Grutter v. Bollinger
THE BRIEFS

Supporting Grutter, the United States as amicus curiae (pp 13-27): Public universities have ample race-neutral alternatives available to ensure that their services are open to all Americans. Examples of such alternatives are the plans inaugurated in Texas, Florida and California, whereby minority enrollment has been maintained despite the end of race-based admissions. Such alternatives render the Michigan Law School's race-based admissions policy both unnecessary and unconstitutional. (The complete brief is online here.)

Comments by Curtis Crawford,* indented in italics.

ARGUMENT

RESPONDENTS' USE OF RACE-BASED ADMISSIONS CRITERIA
IS NOT JUSTIFIED IN LIGHT OF THE AMPLE RACE-NEUTRAL ALTERNATIVES

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV. Its central purpose is to guarantee "racial neutrality in governmental decision making." Miller v. Johnson, 515 U.S. 900, 904 (1995). Accord Washington v. Davis, 426 U.S. 229, 239 (1976). Thus, the Amendment seeks to "do away with all governmentally imposed discriminations based on race" and create "a nation of equal citizens * * * where race is irrelevant to personal opportunity and achievement." Wygant v. Jackson Bd. Of Educ., 476 U.S. 267, 277 (1986) quoting Palmore v. Sidoti, 466 U.S. 429, 432 (1984)); Croson, 488 U.S. at 505-506.

  Presumably, "racial neutrality in governmental decision making" implies racial neutrality in both the means and ends of government policy. Likewise, racial nondiscrimination by government means that people are not treated differently, based on their race, by governmental actions or purposes.

That is particularly true in the context of public educational institutions, which have a duty to "act in accordance with a 'core [-14-] purpose of the Fourteenth Amendment.'" Wygant, 476 U.S. at 277 (plurality opinion) (quoting Palmore, 466 U.S. at 432); see Brown v. Board of Educ., 347 U.S. 483 (1954); Sweatt v. Painter, 339 U.S. 629 (1950). In light of the critical role of education, public institutions must make educational opportunity "available to all on equal terms," Plyer v. Doe, 457 U.S. 202, 223 (1982).

Accordingly, it is now well settled that "[r]acial and ethnic distinctions of any sort are inherently suspect and * * * call for the most exacting judicial examination." Miller, 515 U.S. at 904; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 218 (1995); Wygant, 476 U.S. at 273 (plurality opinion) (quoting University of Cal. Regents v. Bakke, 438 U.S. 265, 291 (1978) (opinion of Powell, J.)). It is equally well established that the level of scrutiny does "not depend [] on the race of those burdened or benefitted," or whether the preference may be characterized as benign. Shaw v. Reno, 509 U.S. 630, 650-651 (1993) (quoting Croson, 488 U.S. at 494); see Adarand, 515 U.S. at 224; Bakke, 438 U.S. at 289-290 (opinion of Powell, J.). Rather, all racial classifications are subject to strict judicial scrutiny and are only constitutional if they are narrowly tailored to achieve a compelling interest.

The Law School contends that its interest in enrolling a "diverse" student body is sufficiently compelling to justify its [-15-] admitted use of racially discriminatory admissions standards. See Appellants C.A. Br. 30-31 (emphasizing that "racial and ethnic diversity in legal education is important both to a law school's mission in training effective lawyers, and to the perception that our legal system is able to administer equal justice"); id. at 31 (citing evidence that "students learn more effectively when they are educated in racially and ethnically diverse environments"); ibid. ("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"). The Law School's interest in "diversity," however, cannot, as a matter of law, justify racial discrimination in admissions in light of the ample race-neutral alternatives. 4

  These quotations from the Law School's brief indicate that its interest is not in "diversity" as such, but in "racial and ethnic diversity." The question is whether its "interest in enrolling" a more racially and ethnically diverse student body than it would otherwise obtain, "is sufficiently compelling to justify its admitted use of racially discriminatory admissions standards."

[-16-]

A. Public Universities Have Ample Means To Ensure
That Their Services Are Open And Available To All Americans

1.Ensuring 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. No segment of society should be denied an opportunity to obtain access to government services and public institutions. Nowhere is the importance of such openness more acute than in the context of higher education. A university degree opens the doors to the finest jobs and top professional schools, and a professional degree, in turn, makes it possible to practice law, medicine and other professions. If undergraduate and graduate institutions are not open to all individuals and broadly inclusive to our diverse national community, then the top jobs, graduate schools and the professions will be closed to some.

[-17-] Nothing in the Constitution requires public universities and governments to close their eyes to this reality or to tolerate artificial obstacles to educational opportunity. *Public universities have substantial latitude to tackle such problems and ensure that universities and other public institutions are open to all and that student bodies are experientially diverse and broadly representative of the public.* Schools may identify and discard facially neutral criteria that, in practice, tend to skew admissions in a manner that detracts from educational diversity. They may also adopt admissions policies that seek to promote **experiential, geographical, political or economic diversity** in the student body, which are entirely appropriate race-neutral governmental objectives. The adoption of such policies, moreover, has led to racially diverse student bodies in other States. And public universities can address the desire for broad representation directly by opening educational institutions to the best students from throughout the State or Nation and easing admissions requirements for all students.

 

* It makes no sense to speak of a selective educational institution as "open to all." The Michigan Law School can be open only to a small proportion of those who apply, who in turn are a fraction of those who would have applied had they been qualified. "Open to all" makes sense only as a conditional term. A selective school can be "open to all" only in the sense that it disregards certain factors (e.g., race, sex, religion) when admitting students.

** The various diversities proposed here would actually reduce the respects in which an institution would be "open to all." If it decided to give preferential admission on the basis of an applicant's residence, politics, or family income, it could no longer claim to be open to all, regardless of these factors.

2. For example, in Texas, which has operated without race-based admissions policies since they were invalidated by the Fifth Circuit in 1996, the undergraduate admissions program focuses on attracting the top graduating students from throughout the State, [-18-] including students from underrepresented areas. See Tex. Educ. Code Ann. Sect. 51.803 (West 2001). By attacking the problems of openness and educational opportunity directly, the Texas program has enhanced opportunity and promoted educational diversity by any measure. See David Montejano, "Access to the University of Texas at Austin and the Ten Percent Plan: A Three Year Assessment," Admissions Research at UT Austin (Mar. 26, 2001), at www.utexas.edu/student/research/reports/admissions/Montejanopaper.htm

Under this *race-neutral admissions policy,* "pre-Hopwood diversity levels were restored by 1998 or 1999 in the admitted and enrolled populations and have held steady." "Implementation and Results of the Texas Automatic Admissions Law (HB 588)" at the University of Texas at Austin, at 3 www.utexas.edu/student/research/reports/admissions/ HB588-Report5.pdf. Thus, in 1996, the last year race was used in University of Texas admissions decisions, **4% of enrolled freshmen were African Americans, 14% were Hispanic, and less than 1% were Native Americans. In 2002, 3% of enrolled freshmen were African American (this figure has fluctuated between 4% and 3% since 1997), 14% were Hispanic, and less than 1% were Native American.** Id. at 3-4.

 

* Taken as a whole, the Texas plan is not race-neutral. Its standards are neutral, since race is excluded as a basis for admission or refusal. But its creation was not race-neutral. It was a reaction to the Hopwood decision, which had barred racial preference in government-supported Texas universities. It changed the rules of admission, in order to return the number of Latinos and blacks enrolled to pre-Hopwood levels. It did this by guaranteeing acceptance to the top 10% of every Texas high school senior class, a great many of which are predominantly Latino or black. The plan was devised and adopted as a way of producing racial results without discriminating at the gate.

Suppose that the rules had been changed, doubling the weight given to SAT scores, in order to increase the proportion of whites. Though not racial on its face, the revision would assure a racial result. Would anyone call the new policy race-neutral?

** To prove the worth of the Texas plan, figures are cited that show its success in raising the proportion of Latino and black enrollees to the levels that had existed under simple racial preference. Thus, rules were devised that could produce a desired racial result. Then they were adopted in order to produce that result. Now they are judged by how well they produced that result. To call such a plan racially neutral is absurd.

Similar race-neutral programs are now in place in California [-19-] and Florida and have had similar results. Florida adopted its "One Florida Initiative" in 2000, as part of a broad array of educational reforms. Under this initiative, all of Florida's public universities are precluded from considering race in undergraduate and graduate admissions decisions. The undergraduate rule was effective for Fall 2000 admissions, and the graduate and professional rule was implemented for Fall 2001 admissions. In addition, Florida adopted the Talented Twenty program, which guarantees admission to the state university system to the top 20% of students at Florida high schools. Florida also has in place the 2+2 program, which guarantees a student who successfully completes a two year degree at a community college entrance into the State University System, allowing students initially denied university admission a second chance. See R. 6C-6.002(7), Fla. Admin. Code Ann. (2002).

Since adopting its race-neutral admissions policy, Florida has maintained or increased the number of minority students enrolled in its public universities. See One Florida Accountability Commission, at Chart 3, www.myflorida.com/myflorida/government/otherinfo/ppts/enrollment2.ppt (June 17, 2002). In the last year before the effective date of its new race-neutral policy (1999-2000), the percentage of entering minority students enrolled [-20-] in Florida's undergraduate institutions was 36.6%. Two years later that percentage is 36.68%. Ibid. At Florida State University, African-American student enrollment rose from 11.01% in 1999-2000 to 11.85% in 2001-2002. One Florida Accountability Commission, at Chart 7, www.myflorida.com/myflorida/ government/otherinfo/documents/enrollment3xls (June 17, 2002). Hispanic student enrollment also increased, rising from 8.74% to 12.85% following the adoption of the race-neutral admissions policy. Ibid. At the University of Florida, African-American and Hispanic student enrollment has declined slightly during this same period, from 9.95% to 7.15% and from 11.38% to 11.13%, respectively. Ibid. Even with this decline, however, the University of Florida has maintained a significant minority representation under its race-neutral admissions policy.5 Florida's graduate, medical, and business schools are also enrolling approximately the same or greater numbers of minority students after adoption of the race- neutral admissions policy. See One Florida Accountability [-21-] Commission, at Chart 4, www.myflorida.com/myflorida/government/otherinfo/ppts/enrollment3.ppt (June 17, 2002). System-wide minority enrollment in graduate programs has increased from 21.6% in 2000-2001 to 24.95% in 2001-2002. Ibid.

California has experienced similar results since adopting a race-neutral admissions policy that guarantees admission to California students graduating in the top 4% of their high school class. In 1997, the last year that race was considered in admissions, African American, Hispanic, and Native American students comprised 3.7%, 14.3%, and 0.8% of admitted freshmen students, respectively. In 2002, under the race-neutral policy, those figures were 3.3%, 15.1%, and 0.6%, respectively. Accordingly, *the subtotal of the admitted freshmen students that were "underrepresented minorities" in 1997, the last year race was considered in admissions, was 18.8%, whereas in 2002, under the race-neutral policy, that figure is 19.1%.* See University of California Freshman Admits From California Fall 1997 to 2002, www.ucop.edu/news/factsheets/2002/admissions_ethnicity.pdf.

  * The University of California's 4% plan took effect in 2001. According to the table of Freshman Admits cited immediately above, the proportion of "underrepresented minority" admits in 1998, the first year after the end of overt racial preference, was 16.7%. The proportion in 2000, one year before the 4% plan, was 17.6%.

*As the experience in Texas, Florida, and California demonstrates, public universities have ample race-neutral means available to achieve objectives such as educational diversity, [-22-] openness and broad participation.* ** The Constitution intrudes on the university admissions process only by preventing public universities from making admission decisions based on race, except as a narrowly tailored response to a compelling interest.** ***Absent such impermissible race-based admissions decisions, university officials may pursue whatever mix of goals they deem appropriate.*** They are free to pursue goals, such as experiential diversity, that have had the effect of ensuring minority access to institutions of higher learning. But they cannot follow Michigan's model of adopting race-based admissions policies when ample race-neutral alternatives remain available to respondents, and have proven to enhance educational opportunity in other States.

 

* It is true that "ample race-neutral means" are available to achieve "educational diversity, openness and broad participation," as long as these goals are defined in a race-neutral way. An excellent means would be to exclude no one based on race. But the "experience in Texas, Florida, and California" cannot demonstrate the availability of race-neutral means, since their plans are not race neutral.

** Agreed.

*** This statement focuses our points of disagreement. The government brief confines the meaning of "admissions decisions" to the decisions made concerning individual applicants. If these decisions are not "race-based," the brief maintains, "university officials may pursue whatever mix of goals they deem appropriate." I contend, on the contrary, that decisions concerning the criteria for admission are "admissions decisions," and that when these criteria are designed to secure a racial goal, they are "impermissible race-based admissions decisions."


B. These Ample Race-Neutral Alternatives Render
 Respondents' Race-Based Policy Both Unnecessary and Unconstitutional

The Equal Protection Clause provides that race-based measures are permissible only to the extent to which the asserted interest may not be achieved "without classifying individuals on the basis of race." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 510 (1989) (plurality opinion). The Court has repeatedly emphasized that the failure to consider available race-neutral means and employ them if efficacious is a critical factor that causes a program to fail the strict scrutiny test. See, e.g., Adarand, 515 [-23-] U.S. at 237-238 (directing the lower court on remand to "address the question of narrow tailoring in terms of our strict scrutiny cases, by asking, for example, whether there was 'any consideration of the use of race-neutral means to increase minority business participation' in government contracting") (citation omitted); Croson, 488 U.S. at 507 (noting "there does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting"); accord Metro Broad., Inc. v. FCC, 497 U.S. 622 (1990) (O'Connor J., dissenting) ("the FCC's programs cannot survive even intermediate scrutiny because race-neutral and untried means of directly accomplishing the governmental interest are readily available"); accord John H. Ely, "The Constitutionality of Reverse Racial Discrimination," 41 U. Chi. L. Rev. 723, 727 n.26 (1974).

In Wygant, for example, the plurality observed that the "term 'narrowly tailored' * * * require[s] consideration of whether lawful alternative and less restrictive means could have been used." 476 U.S. at 280 n.6. In conducting that inquiry, courts "should give particularly intense scrutiny to whether a nonracial approach or a more narrowly-tailored racial classification could promote the substantial interest about as well and at tolerable administrative expense." Id. (citations omitted). Likewise, in [-24-] Croson, the plurality emphasized that "the city ha[d] at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races." 488 U.S. at 509.

Although respondents have not been clear about what they mean by diversity, we assume that they are not pursuing racial diversity for its own sake. See Bakke, 438 U.S. at 307 (Powell, J., concurring) ("[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake"). In any event, respondents' race-based policy is not necessary to ensure that minorities have access to and are represented in institutions of higher learning. *The ability of race-neutral alternatives, such as those adopted in Texas, Florida and California,* to achieve diversity by any measure and however defined make clear that respondents' policy fails this fundamental tenet of the Court's narrow tailoring decisions.

  * To call these alternatives "race-neutral" is not only logically incoherent; it is morally corrosive. Our society, multi-racial and multi-ethnic, desperately needs to honor the moral principle of racial and ethnic nondiscrimination, especially as a rule of governmental action. This principle conflicts with strong human impulses; personal and group interests lead many people to evade or disregard it. The law should clarify and enforce it. The doctrine advanced in this brief, that favoring individual applicants based on their race is wrongful discrimination, while favoring racial groups by changing the admissions criteria is racial neutrality, obfuscates the principle and weakens its hold on the nation.

In addition, to the extent the Law School seeks candidates with diverse backgrounds and experiences and viewpoints or "achievements in light of the barriers [an applicant has] had to overcome," DeFunis v. Odegaard, 416 U.S. 312, 331 (1974) (Douglas, J., dissenting), it can focus on numerous race-neutral factors including a history of overcoming disadvantage, geographic origin, [-25-] socioeconomic status, challenging living or family situations, reputation and location of high school, volunteer and work experiences, exceptional personal talents, leadership potential, communication skills, commitment and dedication to particular causes, extracurricular activities, extraordinary expertise in a particular area, and individual outlook as reflected by essays. See Metro Broad., 497 U.S. at 623 (O'Connor, J., dissenting). Such a system of seeking experiential diversity directly would lead to the admission of a more diverse student body than the Law School's current race-based admissions policy. Such programs have produced school systems to which minorities have meaningful access and are represented in significant numbers, as the experience in Texas, Florida and California demonstrates. Such a system would also avoid running afoul of the principle this Court has stressed in a wide variety of contexts that the Equal Protection Clause does not allow governmental decision-makers to presume that individuals, because of their race, gender, or ethnicity think alike or have common life experiences.6

[-26-] Indeed, such a race-neutral policy would be superior to race-based policies in numerous ways. It would treat all applicants as individuals. It would also focus on "a far broader array of qualifications and characteristics." Bakke, 438 U.S. at 315 (opinion of Powell, J.). It would apply to minorities beyond those belonging to the currently preferred groups who have extraordinary life experiences, unusual motivation, or the ability to succeed in the face of significant obstacles. See Adarand, 515 U.S. at 238 (explaining that race and ethnic based presumptions are simultaneously both over and under inclusive); Metro Broad., 497 U.S. at 617-622 (O'Connor, J., dissenting) (same); Croson, 488 U.S. at 515 (Stevens, J., concurring) (suggesting the inappropriateness of racial classification that benefits all minorities without regard to individual experience); DeFunis, 416 U.S. at 331-332 [-27-] (Douglas, J., dissenting).

The Law School, however, has not sought to implement its goals through race-neutral means. Instead, respondents have adopted a system that both applies substantial race-based preferences and ensures that a "critical mass" of particular minority groups are admitted. This failure to consider and implement efficacious race- neutral alternatives is sufficient to render the program unconstitutional. The use of race in the face of such alternatives demonstrates that respondents have not employed race in a narrowly tailored manner.7

Notes
 4. The courts of appeals disagree as to whether any of the opinions in Bakke represents binding precedent under Marks v United States, 430 U.S. 188 (1977). Compare, e.g. Grutter Pet. App. 12a-19a (construing Bakke to hold that diversity constitutes a compelling interest), and Smith v. University of Wash. Law Sch., 233 F.3d 1188, 1198-2000 (9th Cir. 2000) (same), cert. denied, 532 U.S. 1051 (2001), with Eisenberg. v. Montgomery County Pub. Sch., 197 F3d 123, 131 (4th Cir. 1999) (citing Bakke to indicate that Supreme Court has not decided whether diversity is a compelling interest), cert. denied, 529 U.S. 1019 (2000). Hopwood v. Texas, 78 F.3d 932, 941-944 (5th Cir.) (concluding that only Justice Powell in Bakke endorsed the view that diversity is a compelling interest), cert. denied, 518 U.S. 1033 (1996), Johnson v. Board of Regents, 263 F.3d 1234, 1245-1248 (11th Cir. 2001) (same), and Brewer v. West Irondequoit Cent. Sch. Dist., 212 F 3d 738, 752 (2d Cir. 2000) (noting "the absence of a Supreme Court decision [in Bakke] dealing with permissible race-based justifications in the educational context"). The Court need not undertake the Marks analysis in this case, and should instead directly resolve the constitutionality of race-based admissions standards by focusing on the availability of race-neutral alternatives. Cf. Nichols v. United States, 511 U.S. 738, 746 (1994) ("We think it not useful to pursue the Marks inquiry to the utmost logical possibility when [our prior decision] has so obviously . . . divided the lower courts that have considered it."). See also Johnson, 263 F.3d at 1248 n.12 (noting in the specific context of Bakke that "the Supreme Court has recognized that thre will be situations where no binding 'rule' may be taken from a fractured decision, and the Marks inquiry is ultimately 'not useful.'") (citations omitted). [return to text]

5. Preliminary admissions data shows that the African American enrollment in 2002-2003 is up 43.26% from the previous year while Hispanic enrollment has risen by 13.13%. System-wide minority enrollment will remain steady at approximately 36%. See Lt. Governor's Press Release, Sept. 6, 2002, www.oneflorida. org/myflorida/government/governorinitiatives/one+florida/enrollment-9-6-02.html [return to text]

6. See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996) ("[s]upposed 'inherent differences' are no longer accepted as a ground for race or national origin classifications"); Miller, 515 U.S. at 914 (explaining that the Equal Protection Clause forbids the belief that "individuals of the same race share a single political interest [since] [t]he view that they do is 'based on the demeaning notion that members of the defined racial groups ascribe to certain 'minority views' that must be different from those of other citizens'") (quoting Metro Broad., 497 U.S. at 636 (Kennedy, J., dissenting)); Shaw, 509 U.S. at 647 (rejecting the perception "that members of the same racial group - regardless of their age, education, economic status, or the community in which they live - think alike, share the same * * * interests," or have a common viewpoint about significant issues); Wygant, 476 U.S. at 316 (Stevens, J., dissenting) (internal citation and quotation marks omitted) (noting that the "premise that differences in race, or in the color of a person's skin, reflect real differences * * * is utterly irrational and repugnant to the principles of a free and democratic society"). [return to text]

7.. If race-neutral alternatives were not efficacious - as they clearly are here - in ensuring that minorities have access to and are represented in institutions of higher learning (and if respondents had avoided the use of quotas, see infra), then the question whether race could ever be a consideration would arise. That question, in turn, would depend on whether the State had asserted a compelling interest (and whether its use of race were otherwise narrowly tailored). The Court need not reach that question in this case. [return to text]