Grutter v. Bollinger
The Initial Brief of Counsel for the Petitioner, Barbara Grutter (pp 2-10, 18-22, 29-36, 42-48): The University of Michigan Law School’s use of race and ethnicity to classify and prefer individuals one over another is a fundamental departure from the guarantee of governmental nondiscrimination in both constitutional and statutory law. It is not justified by any compelling governmental interest in "academic freedom" or in "diversity." (The complete brief is online here.)
Comments by Curtis Crawford,* indented in italics.
Barbara Grutter is a white resident of the state of Michigan who applied in December 1996 for admission into the fall 1997 first-year class of the University of Michigan Law School (hereinafter "Law School"). App. 30, 33.2 At the time of her application, Ms. Grutter was 43 years old and had graduated from college 18 years earlier. Record 95, Cir. App. 277.3 She applied with a 3.8 under-graduate grade point average and an LSAT score of 161, representing the 86th percentile nationally. Id. By letter dated April 18, 1997, the Law School notified Ms. Grutter that it had placed her application on a "waiting list for further consideration should space become available." App. 105. The Law School subsequently sent a letter dated June 25, 1997, informing Ms. Grutter that it was unable to offer her a position in the class. Id at 108. Ms. Grutter has not subsequently enrolled in law school elsewhere, and she still desires to attend respondents’ Law School.
II. The Law School’s Admissions Policies and Practices.
The Law School, which is a recipient of federal funds, admits that it uses race as a factor in making admissions [-3-] decisions. It justifies this use of race on one ground only: that it serves a "compelling interest in achieving diversity among its student body." Record 95, Cir. App. 305-06. As the district court found, after a 15-day bench trial, the Law School’s use of race has meant that it effectively reserves a portion of the class each year (an approximate minimum of 10% and a range of 11-17%) for members of specified racial or ethnic minorities. Pet. App. 225a, 248a. As the district court also found, race is an "enormously important" and "extremely strong factor" in the admis-sions process, id. at 227a, and the Law School has placed no time limits on its use, id. at 247a-48a.
A formal written admissions policy (hereinafter "Policy") was adopted by the Law School faculty in the spring of 1992. App. 109-23. It has remained in effect, unchanged since that date. Among other things, the Policy states that it was intended "as much to ratify what has been done and to reaffirm our goals as it is to announce new policies." Id. at 121. The consideration of race in admissions was one of the practices of the past that the Policy continued or "ratified." Prior to adoption of the Policy, the Law School had an explicitly named "special admissions program" to ensure adequate representation in the class from members of designated "underrepresented minority groups," namely African Americans, Mexican Americans, and Native Americans. Record 346, Cir. App. 4922-23.
Generally, grades and test scores are important factors in the Law School’s admissions process. Record 331, Cir. App. 7231. Applicants from the "underrepresented" minority groups have historically scored lower on average on those criteria than students from other racial and ethnic groups. Id. at Cir. App. 7206-07. Accordingly, the "special admissions program" was intended to permit the Law School to admit and enroll its desired level of "underrepresented" minority students by placing less emphasis on their LSAT scores and undergraduate grades relative to students from other racial and ethnic groups. Id. at Cir. App. 7201-11. Pursuant to resolutions adopted by the faculty, the Law School had, prior to 1992, a written [-4-] goal of enrolling at least 10-12% of its students from these minority racial groups. Record 346, Cir. App. 4866, 4869, 4872, 4877, 4881, 4884, 4895, 4898-4900, 4903; Record 331, Cir. App. 7207-08.
The 1992 Policy abandoned use of the term "special admissions program." It continued, however, the Law School’s reliance on the importance of grades and test scores (measured by a composite known as a "selection index") and the Law School’s explicit consideration of race in the admissions process. With respect to the consideration of race, the Policy states that the Law School has a "commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African Americans, Hispanics, and Native Americans, who without this commitment might not be represented in [its] student body in meaningful numbers." App. 120. Elsewhere on the same page, the Policy references the importance of enrolling a "critical mass" of minority students. Id. The Policy also identifies the Law School’s reason for its commitment to enrolling "meaningful numbers" of students from the designated groups: It believes that students from these racial and ethnic groups "are particularly likely to have experiences and perspectives of special importance to [the Law School’s] mission." Id.
According to the chairman of the committee that drafted the 1992 Policy, "critical mass" lies in the range of 11-17%. Pet. App. 212a, 225a. This range appeared in a draft of the Policy, but was omitted from the final version despite the suggestion of one committee member that it remain for the sake of "candor." Id. at 225a; Record 346, Tr.Exh. 34, Cir. App. 4802, 4818. The director of admissions at the time Ms. Grutter applied, respondent Shields, doubted that 5% would be "critical mass," but thought that 10% might suffice. Pet. App. 206a-07a; Record 334, 4 Tr. 209. The dean of the Law School, respondent Lehman, also doubted that 5% would constitute "critical mass," Pet. App. 211a, but testified that once the Law School reaches 10%, "critical mass" is beginning to be achieved. Record 335, 5 Tr. 187-88. Both Shields and Lehman acknowledged that [-5-] the actual numbers of enrolled students from these groups have been at least 11% in every entering class since 1992. Pet. App. 207a-08a, 211a. See also Record 346, Tr.Exh. 189, Cir. App. 6047.
The Policy references and appends ("Figure 1") a "grid" of admissions decisions plotted by different combi-nations of undergraduate grades and test scores. App. 123. It notes that the highest combinations of grades and test scores, as found in the upper right portion of the grid, characterize these credentials for the "overwhelming bulk of students admitted." Id. at 115. The Policy lists reasons, however, that the Law School had, and should continue, to admit students "despite index scores that place them relatively far from the upper right corner of the grid." Id. at 116 (emphasis added). One of these reasons is to "help achieve diversity" in the student body, including "one particular type of diversity" – racial and ethnic diversity. Id. at 118, 120.
Extensive evidence was introduced at trial concerning the manner and extent to which the Law School considers race in the admissions process. This included testimony from Law School faculty and administrators. It also included actual admissions data for a six year period – 1995-2000. The data are voluminous and were presented in a number of different forms. For example, plaintiff ’s statistical expert, Kinley Larntz, Professor Emeritus of Applied Statistics at the University of Minnesota, reported median LSAT scores and undergraduate grade point averages for different racial groups. Pet. App. 306a-311a. He also plotted on grids – in a manner similar to Figure 1 appended to the Policy – admissions decisions character-ized according to different combinations of LSAT scores and undergraduate grades of applicants, and also by racial group. The Law School had produced such a grid for the first-year class that enrolled in the fall of 1995. App. 127- 55. Using the Law School’s database, Professor Larntz [-6-] replicated the grid for 1995 and created similar grids for years 1996-2000.4 App. 156-203.
Excerpts from the grids constructed from the Law School’s database illustrate the way in which the Law School’s policy of considering race in the process is reflected in admissions outcomes (Applications ("Apps") versus Admissions ("Adm")). The following chart reproduces the data from the grids for 1995 for students whose undergraduate grade point averages and LSAT scores are at least 3.0 and 148, respectively. App. 149, 142, 145. The admissions outcomes can be easily compared among the following racial groups for which the Law School main-tains data: (1) Selected Minority Students (African Ameri-cans, Mexican Americans, and Native Americans); (2) Caucasian Americans; and (3) Asian/Pacific Island Americans: [-7-]
1995 - Final LSAT & GPA Admission Grid
[-8-] In addition to displaying the data in the same descriptive format used by the Law School, Professor Larntz used standard statistical methodologies to measure the size of the racial preference employed by the Law School. One such method assessed the probabilities of admission for various racial groups compared to Caucasian Americans based on selection index. For example, in 1995 a selection index value of 3.0 corresponds to a probability of acceptance for Caucasian Americans between 5% to 10%, while the same selection index corresponds to a probability of acceptance between 90% and 95% for African Americans. Pet. App. 313a; Record 332, 2 Tr. 100. In all years (1995-2000), the probability of acceptance versus selection index-graphs show large preferences for African Americans, Mexican Americans, Native Americans, and Puerto Ricans. Record 346, Tr.Exh. 137, 139, 141, Cir. App. 5172-203, 5377-84, 5453-60.
Professor Larntz also computed for the years 1995- 2000 the "relative odds" 5 of admission for different racial groups, controlling for undergraduate grades, LSAT scores and other factors. Record 346, Tr.Exh. 137, 139, 141, Cir. App. 5156-60, 5373, 5449. This is another standard statistical measure used in science, medicine, and discrimination cases. Record 332, 2 Tr. 66-69. It compares the odds of two events or outcomes, with the comparison, if there is a difference, 6 stated in terms of an odds ratio, or relative [-9-] odds. Professor Larntz again used the Law School’s own method of reporting racial and ethnic categories and LSAT and undergraduate grade point combinations. He held the odds of admission for Caucasian Americans constant at 1, as a baseline, and computed relative odds for other racial and ethnic categories, controlling for grades, test scores, and several other factors. These other factors, for which information was again available from the Law School’s database, included Michigan residency,7 waiver of the Law School application fee, and differences in grade point average and LSAT test scores within the cell combinations organized by the Law School. The reported relative odds and standard deviations8 for 1995 were as follows:
[-10-] As can be seen, the relative odds of admission for the students from the African American, Mexican American, Native American, and Puerto Rican racial or ethnic groups are very large. As one would expect, based on the explicit Policy preference granted for Michigan residents, those applicants have significantly increased odds of admission relative to non-residents. These odds, however, are dwarfed by the odds favoring students from the racial or ethnic minority groups identified above. A review of the data for all the years at issue (whether controlling for grades and test scores only, or in addition to the other factors) shows that although there are variations from year to year, the odds favoring students from African American, Mexican American, Native American, and Puerto Rican groups are always "enormously" large9 relative to Caucasian Americans, and other groups such as Asian Americans, other Hispanics, foreign students and students from unknown ethnicities. Record 332, 2 Tr. 71-72; Record 346, Tr.Exh. 137, 139, 141, Cir. App. 5157-59, 5373-74, 5449.
Fifty years after petitioners in another case addressed this Court with the foregoing argument, petitioner Barbara Grutter asks the Court to again vindicate the same principle. No value is more central to the principles of the Nation’s founding 13 than the one that was incorporated into the Constitution through the Equal Protection Clause of the Fourteenth Amendment, the "core purpose" of which is "to do away with all governmentally imposed discrimination based on race." Palmore v. Sidoti, 466 U.S. 429, 432 (1984). To be sure, the solemn promise of equality held out by the Fourteenth Amendment is one that has not always been honored. 14 But just as assuredly, there is today a [-19-] consensus that the Nation’s greatness can be measured in substantial part by the steps it has taken towards enforcing the promise of equality, while the most lamentable episodes and eras in our history are just so precisely because they mark denials of that promise.
The Law School’s use of race and ethnicity to classify and prefer individuals one over another based on those characteristics is a fundamental departure from the guarantee of governmental nondiscrimination. The justification put forth by the Law School for this unequal treatment is, moreover, not one based on ensuring equality through temporary measures taken to remedy past or present identified violations of the guarantee. Instead, the Law School stakes out as a reason to tolerate its racial preferences an expansive and indeterminate interest in student-body "diversity," for which the sine qua non is the consideration of race by itself as a reason for the different treatment of applicants in the admissions process. It is an interest with no temporal limits and with at least as many varied possibilities and standards of application as there are institutions to define it or racial and ethnic identities with which to achieve it. Its acceptance as a compelling interest would fundamentally and forever change the meaning of equality under the law in our Nation.
The Law School’s Use of Racial Preferences in Student Admissions
The Law School’s Racial Preferences
Because state-sponsored racial classifications are antithetical to the Fourteenth Amendment, all such classifications are "suspect" and must be subjected to [-20-] "strict scrutiny." That is, the racial classification must be motivated by a "compelling governmental interest," and the means employed must be "narrowly tailored" to achieve that interest. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498-511 (1989). The Law School has a "heavy burden" of justification for its racial preferences. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282 n.10 (1986) (plurality opinion). The Court has held that the prohibitions of Title VI, 42 U.S.C. § 2000d, are coextensive with those of the Equal Protection Clause, see, e.g., Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001), so the same strict-scrutiny analysis applies to those claims.
It is now firmly established that the standard of review under the Constitution does not vary based on the race of the group benefited by the classification or on a determination that the classification at issue is "benign." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) ("[A]ny person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny."); J.A. Croson Co., 488 U.S. at 494 ("We thus reaffirm the view expressed by the plurality in Wygant that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.") (opinion of O’Connor, J., joined by Rehnquist, C.J., White and Kennedy, JJ.); id. at 520 (opinion of Scalia, J., concurring in the judgment).
Accordingly, the Law School’s explicit use of race as a factor in making student admissions decisions is constitutionally suspect. For the reasons discussed below, the Law School’s racial preferences are neither supported by a compelling interest nor narrowly tailored to achieve such an interest and therefore violate the Fourteenth Amendment and Title VI.
The Law School’s Racial Preferences Cannot Be Justified
a. This Court has thus far endorsed only one sufficiently compelling justification for racial classifications: remedying the effects of past or present identified discrimination. J.A. Croson Co., 488 U.S. at 493 ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.") (opinion of O’Connor, J., joined by Rehnquist, C.J., and White, Kennedy, JJ.); id. at 526 ("Nothing prevents [City of Richmond] from according a contracting preference to identified victims of discrimination.") (opinion of Scalia, J., concurring in the judgment). The Court has made explicit that there must be a "strong basis in the evidence for [the government’s] conclusion that remedial action" is necessary. J.A. Croson Co., 488 U.S. at 510 (quoting Wygant , 476 U.S. at 277 (plurality opinion)). It has rejected as compelling asserted interests that are "too amorphous" and "ill-defined," and that are "essentially limitless in scope and duration," with "no logical stopping point." Id. at 497-98 (quoting Wygant , 476 U.S. at 275-76).
The Law School does not justify its use of race as a factor in admissions on the basis of any past or present identified discrimination. To the contrary, it claims a long history of nondiscrimination: "The School, which has never excluded students on the grounds of race, admitted its first African American student . . . in 1868. . . . By 1894, the Law School had enrolled its first Mexican American students." App. 89. Instead, its only stated objective for the consideration of race is the achievement of "diversity" in [-22-] the student body. It argues that such an interest is constitutionally legitimate based on the lone opinion of Justice Powell in Bakke, together with a separate opinion in that case authored by Justice Brennan, which was joined by Justices White, Marshall, and Blackmun. A review of the various opinions in Bakke reveals, however, that no Justice other than Justice Powell accepted diversity as a legitimate rationale for justifying racial classifications.
In no case before or since Bakke has the Court held diversity to be a compelling interest sufficient to justify racial preferences. For the same or similar reasons that the Court has rejected other purposes as compelling, the diversity interest relied upon by the Law School is inherently unsuited to be a compelling interest. An interest in diversity is simply too indeterminate, open-ended, and unbounded by ascertainable standards. Its acceptance as a compelling interest would mark a sharp and lamentable departure from this Court’s precedents by authorizing an interest that would – precisely because its attainment is not measured with respect to whether an identified "injury" has been "remedied" – become the Nation’s first permanent justification for government-sponsored racial classifications.
* * * * *
d. The Sixth Circuit’s majority opinion upheld diversity as a compelling interest solely based on its determination that it was "bound" by Justice Powell’s opinion with respect to that issue. Pet. App. 17a. *But because the opinions in Bakke leave unanswered the question of whether interests in academic freedom or diversity are compelling state interests justifying racial preferences in admissions, resolution of the issue must lie elsewhere.* The Court has not before or since Bakke directly addressed whether these interests are compelling. But the Court’s precedents have established a helpful framework within which to judge whether any interest is sufficiently compelling to support the use of racial classifications. These cases and the modes of analyses they develop demonstrate that the interests asserted by the Law School in support of its racial preferences are not compelling grounds for departing from the Constitution’s guarantee against governmental discrimination on the invidious basis of race and ethnicity.
Although Justice Powell derived his lone analysis for the compelling nature of diversity from First Amendment principles, the Court has never recognized academic freedom specifically, or First Amendment principles generally, as justifications for government-sponsored race discrimination. The Court has declined to find a "right" to practice race discrimination based in the First Amendment. In Runyon v. McCrary, 427 U.S. 160 (1976), a private school that promoted the desirability of racial segregation asserted parental First Amendment rights of freedom of association to justify the school’s racially discriminatory admissions practices. Holding that *the school had violated one of the same federal civil rights statutes at issue in this case, 42 U.S.C. § 1981*, the Court [-30-] rejected the argument that the school had a First Amendment right to discriminate. Runyon, 427 U.S. at 176 (noting that although "parents have a First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable, . . . it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle").
It would be a surprising and anomalous turn of events if practices of private parties which are not protected by the First Amendment are now to be permitted on First Amendment grounds to state actors, to which the Fourteenth Amendment’s powerful command of nondiscrimination is expressly directed. Such a distinction cannot plausibly be based on a difference in kind of First Amendment rights asserted. Whatever status "academic freedom" has under the First Amendment, neither the Court’s precedents nor history supports a conclusion that it is a right with greater or more paramount scope than other First Amendment rights.
Unhinged from any purported constitutional foundation, *the Law School’s assertion that diversity is a compelling state interest* falls away readily in light of the Court’s other precedents. This becomes apparent by comparing the Law School’s articulated diversity interest to the one interest that the Court has held to be compelling – remedying past or present identified statutory or constitutional violations of the guarantee of equality. The nature of the two interests is very different, and *these differences prove decisively the wisdom of rejecting diversity as a compelling interest.* A remedy for identified instances of discrimination is inextricably tethered to the purposes of the nondiscrimination guarantee; it seeks to repair the injury and restore the promise of equality broken by the effects of the violation. In its invocation and use, the "deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." J.A. Croson Co., 488 U.S. at 510. Precisely because such an interest is based on injury to the equality principle, identified with specificity, this kind of [-31-] remedial interest is one suited to withstanding "the detailed judicial inquiry" to which all racial classifications must be subjected. Adarand Constructors, Inc., 515 U.S. at 227. Such a clearly identified remedial goal permits guidance in determining the "precise scope of the injury" and the "extent of the remedy necessary to cure its effects." J.A. Croson Co., 488 U.S. at 498, 510. Absent these attributes, an interest could be used to "justify a preference of any size or duration." Id. at 505. Without adherence to these standards, moreover, there is a "danger" that racial classifications will be "merely the product of unthinking stereotypes or a form of racial politics." Id. at 510.
An interest could hardly be less suited to the standards laid down by the Court than the diversity interest articulated by the Law School. The concept of "diversity" is itself notoriously ill-defined,17 and the Law School’s defense in this case only illustrates the point. It defines the diversity that it seeks as enrollment of a "critical mass" of students from racial and ethnic groups that have been "historically discriminated against," including the groups specified in the Policy. App. 120. The "mass" reaches the stage of "critical" when it produces the educational benefits claimed by the Law School to flow from it. The point at which this "critical mass" is reached can best be described as a matter for mystical and metaphysical inquiry. On the one hand, the Law School vehemently denies that "critical mass" can be defined with reference to a number or range of numbers of enrolled students, while on the other hand it contends that "critical mass" means the same thing as "meaningful numbers" of enrolled students from the specified racial and ethnic minority groups. Id.; Pet. Opp. 3. A rare point of clarity, though, is that however defined, the Law [-32-] School claims for itself and other educational institutions the unique ability (and hence the right) to determine which particular racial and ethnic minorities are necessary for achievement of "critical mass," and at what point that "critical mass" is reached. The complete absence of objective, ascertainable standards means that "critical mass," i.e., "diversity," can mean as many different things as there are racial and ethnic groups and institutions of higher education in this country.
The Law School has chosen its preferred groups on the basis that they have been "historically discriminated against." App. 120. If recognized as a compelling interest, the diversity that another school pursues might well be based on some other reason for the racial or ethnic classifications, or on a different identification of "historically discriminated against" groups. To recognize such a basis as sufficient for justifying racial classifications would "open the door to competing claims" for "every disadvantaged group." J.A. Croson Co., 488 U.S. at 505; id. at 511 ("[O]ur history will adequately support a legislative preference for almost any ethnic, religious, or racial group with the political strength to negotiate ‘a piece of the action’ for its members.") (quoting Fullilove v. Klutznick, 448 U.S. 448, 539 (1980) (Stevens, J., dissenting)). The Law School’s commitment with "special reference," App. 120, to members from the "historically discriminated against" groups also shows how transparently the diversity interest can substitute for one based on remedying the effects of societal discrimination.
To hold that diversity constitutes a compelling interest justifying racial preferences would bring to pass something in the higher education community similar to what Justice Powell warned of generally with respect to preferences designed to remedy societal discrimination. It would "convert a remedy heretofore reserved for violations of legal rights into a privilege" that all educational institutions "throughout the Nation could grant at their pleasure to whatever groups are perceived" to contribute to the diversity of the student body. Bakke, 438 U.S. at 310 (opinion of Powell, J.). It will have "loosed a potentially [-33-] far-reaching principle disturbingly at odds with our traditional equal protection doctrine." Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 613 (1990) (O’Connor, J., dissenting). See also Pet. App. 128a-29a (Boggs, J., dissenting) ("There is no limiting principle preventing the Law School from employing ethnic or religious preferences to arrange its student body by critical mass. In short, the compelling state interest of developing a diverse student body would justify an infinite amount of engineering with respect to every racial, ethnic, and religious class.").
Accordingly, an interest in diversity is as "ill-defined" and "amorphous" as a goal of remedying societal discrimination or providing role models to minority children. J.A. Croson Co., 488 U.S. at 498; id. at 497 (opinion of O’Connor, J.) (quoting Wygant , 476 U.S. at 276 (plurality opinion)). Having "no relation to some basis for believing a constitutional or statutory violation ha[s] occurred," the diversity rationale could be used to justify race-based decisionmaking "essentially limitless in scope and duration." Id. Because the nature of the interest is one in which success in achieving it is measured not by remedying past identified injury, but instead by ensuring against "under-representation" going forward, it is an interest that could justify preferences "timeless in their ability to affect the future." Wygant , 476 U.S. at 276 (plurality opinion). Its adoption as a compelling interest would give the Nation its first permanent justification for racial preferences, and one that is indistinguishable from simple racial balancing.
e. Judge Clay’s concurring opinion cited to empirical evidence in support of its conclusion that *diversity* was a compelling interest. Pet. App. 54a-63a. As an initial matter, the district court did not try the issue of whether *diversity* was a compelling interest because it concluded that the issue was one of law (as the parties also contended). The principal evidence relied upon by the concurrence is the report of the Law School’s expert witness, Patricia Gurin, who did not testify at trial; her report was received by the Court only in the course of motions for summary judgment. There are many reasons why Gurin’s report and opinions are wholly deficient to support a [-34-] conclusion that *diversity* is a compelling interest. These reasons were argued to the district court, and a number of them are explained in Judge Boggs’ dissenting opinion. Pet. App. 146a-49a (Boggs, J., dissenting). Among other things, Gurin’s studies did not measure how much *diversity* is required to yield the claimed educational benefits, or what marginal benefits accrue from relative levels of diversity. Id. at 147a-49a. Astoundingly, Gurin did not even attempt to correlate the *racial and ethnic diversity* with the claimed educational benefits. Id. at 148a. The study is indeed one with "profound empirical and methodological defects." Id. at 147a.
Moreover, whether diversity actually produces educational benefits is a question entirely distinct from whether it is a compelling interest sufficient to support racial preferences in admissions. Few would gainsay that remedying the lingering effects of societal discrimination or providing role models to school children would produce positive benefits. Indeed, the role model theory in particular is designed to produce educational benefits for children. But as important and valuable as those interests are, they cannot be, for reasons explained by the Court, compelling interests justifying state-sponsored racial preferences. Because similar reasoning applies to the amorphous, boundless diversity rationale, it is a non sequitur for the Law School to argue that mere evidence of some educational benefit makes the interest a compelling one.
Moreover, if strict scrutiny is to have meaning, it should be incumbent on the Law School to demonstrate that it has a "strong basis in evidence," J.A. Croson Co., 488 U.S. at 510 (quoting Wygant , 476 U.S. at 277 (plurality opinion)), for concluding that racial preferences are necessary to achieve the interest considered compelling. At a minimum, this should mean that there is a firm basis for concluding that the "marginal benefits gained from employing the racial classification over the next efficacious race-neutral alternative are themselves compelling." Pet. App. 153a (Boggs, J., dissenting). It should also require a demonstration that the benefits produced substantially outweigh the harms that racial preferences necessarily [-35-] entail, including the fostering of stereotypes, stigma, and injury to the personal rights of innocent individuals displaced by the preferences. The Law School has not attempted, much less succeeded, in making such showings.
The Interests Proffered by the Intervenors
The intervenors have sought to justify the Law School’s racial preferences on the additional grounds that they are necessary to achieve "integration" in higher education and to "offset" what the intervenors perceive to be racial bias and discrimination in academic criteria, particularly grades and standardized test scores. Pet. Res. 23-30. Although the court of appeals’ majority found it unnecessary to address these arguments because of its holding with respect to the diversity rationale, they should be rejected for the reasons contained in the district court’s opinion. See Pet. App. 257a-92a.
A sufficient reason for dismissing the intervenors’ contentions is that the district court correctly found that the Law School indisputably was not motivated by the intervenors’ asserted interests in adopting the racial preferences. Id. at 292a. Accordingly, under settled precedents of this Court, the intervenors’ proposed interests cannot constitute compelling interests justifying racial preferences. See, e.g., Shaw v. Hunt, 517 U.S. 899, 908 n.4 (1996). Cf. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 730 & n.16 (1982) (gender discrimination); United States v. Virginia, 518 U.S. 515, 535-36 (1996) (gender discrimination).
On their merits, intervenors’ proposed justifications are at war with the Court’s precedents. They are thinly disguised (or undisguised) substitutes for rationales based on remedying the lingering effects of societal discrimination. Thus, the intervenors’ characterization of an interest in "integration" should not be confused with an interest in remedying the effects of identified, intentional discrimination, of which there is no evidence in this case. Intervenors [-36-] submitted no evidence that the Law School used grades or test scores, for example, because of their adverse effect on minorities or in any other way intentionally discriminated against minorities. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979) (rules or practices with disproportionate impact are unconstitutional only if they can be traced to an unconstitutional purpose).
It is such discrimination, and not the use of any criteria with a disparate impact, that constitutes past, identified discrimination, the lingering effects of which can be remedied in extreme cases with the judicious use of a racial preference. J.A. Croson Co., 488 U.S. at 509 (opinion of O’Connor, J.) ("In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion."); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 534 (7th Cir. 1997) (Posner, J.) (provision calling for certain percentage of hired teachers to be black or Hispanic could not be justified by statistical disparities or underrepresentation; "there is no finding that the school district has ever discriminated (by which we mean discriminated intentionally – the only kind of discrimination that violates the equal protection clause)"). In fact, intervenors’ goal is nothing more than the promotion of outright racial balancing, which the Court has not countenanced. See, e.g., Freeman v. Pitts, 503 U.S. 467, 494 (1992) ("Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation.") (emphasis added). See also J.A. Croson Co., 488 U.S. at 507 (rejecting a means tied to "outright racial balancing").
C. The Law School’s Preferences Are Not Narrowly Tailored.
* * * * *
2. The traditional factors cited by this Court for conducting a narrow-tailoring analysis yield the same conclusion that the Law School’s racial preferences cannot plausibly be considered to pass the test. See, e.g., United States v. Paradise, 480 U.S. 149, 183, 185 (1987). First, the preference regime is, as noted above, inherently a permanent one; the Law School has placed no durational limits on its use of the preferences. Pet. App. 247a-48a. This conflicts with the importance that the Court has placed on the temporary nature of such preferences. See, e.g., Adarand Constructors, Inc., 515 U.S. at 238; J.A. Croson Co., 488 U.S. at 510. Indeed, in the intervening years since Bakke was decided, it has become abundantly clear that a program of racial and ethnic preferences designed to achieve "diversity" certainly does not contain "the seed of its own termination." Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 595 (1990). The preferences, like the interest on which they are founded, are "permanent and ongoing" and live on "perpetually." Gratz v. Bollinger, 122 F. Supp. 2d 811, 823-24 (E.D. Mich. 2000), cert. granted, 123 U.S. 602 (2002).
Second, the relationship of means to ends is a poor one if the Law School’s genuine interest is either intellectual [-43-] or even racial and ethnic diversity. As the district court noted, "there is no logical basis" for the Law School’s choice of the "particular racial groups which receive special attention under the current admissions policy." Pet. App. 249a. Thus, the preferences extend to Puerto Ricans born on the United States mainland, but not those born in Puerto Rico. Id. at 249a-50a. The Law School’s bulletin singles out Mexican Americans rather than other Hispanics as receiving "special attention" in the admissions process, and the admissions data confirms the differences in treatment for those two groups. Id. Caucasian Americans and Asian Americans are treated as undifferentiated masses, receiving no preference for race or ethnicity, even though one could easily identify dozens of separate racial or ethnic groups contained in those broad categories. The Law School’s daily tracking of the race and ethnicity of its applicants entirely omits many racial and ethnic groups, including, for example, Arab Americans, who receive no preferential treatment. Pet. App. 250a; Record 346, Tr.Exhs. 10-12, Cir. App. 4605-46.
It is no answer to the haphazard manner of conferring preferences that the Law School has singled out groups that have been "historically discriminated against." App. 120. The preferences are both overinclusive and underinclusive, and hence there is no close "fit" of means to ends. J.A. Croson Co., 488 U.S. at 493 (opinion of O’Connor, J.). As discussed above, see supra at 37-38, the preferences to the specified groups are given without regard to whether a student is "rich" or "poor" or the victim of discrimination. Pet. Opp. 3. At the same time, students who have actually been subject to discrimination, but who belong to racial and ethnic groups not preferred by the Law School, receive no preference for their race or ethnicity. Pet. App. 250a. The preferences are also the product of impermissible stereotyping, since the Law School simply assumes (indeed, believes it to be "obvious," Pet. Opp. 3) that membership in a particular racial or ethnic group will make it likely that a student will bring with him or her the experiences that the Law School associates with that group and that it considers "essential to its mission." App. 120."The [-44-] chosen means, resting as they do on stereotyping and so indirectly furthering the asserted end, could not plausibly be deemed narrowly tailored." Metro Broadcasting, Inc., 497 U.S. at 617 (opinion of O’Connor, J., dissenting).
Third, the Law School’s quota, or "critical mass," is one that "cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing." J.A. Croson Co., 488 U.S. at 507; Pet. App. 151a (Boggs, J., dissenting) (noting that "some measure of rough proportionality inevitably creeps in as the measure of what is the ‘critical mass’ "). This follows from the arbitrariness both of the choice of minority groups for inclusion and the numerical range shown to represent what the Law School means by "meaningful numbers."
Finally, less restrictive means are surely available to achieve the kind of educational benefits that the Law School associates with racial and ethnic diversity, including race-neutral alternatives. If the outlooks and experiences of students from the designated minority groups are indeed what the Law School seeks to bring to the learning process, then the logical and narrowly-tailored means of achieving the end would be to actually look for such "academic" or "experiential" diversity in the admissions process, rather than using race and ethnicity as a proxy. Pet. App. 155a-56a (Boggs, J., dissenting) (noting that "it is more likely that the Law School’s preference for certain races is an interest in race itself ") (emphasis in original). Instead, as the district court correctly found, the Law School failed to consider race-neutral alternatives prior to implementing its racial preferences, and this failure "militates against a finding of narrow tailoring." Pet. App. 251a. See also J.A. Croson Co., 488 U.S. at 507.
D. The Law School’s Preferences Violate 42 U.S.C. § 1981.
Petitioner’s proof that the Law School has engaged in intentional discrimination also establishes a violation of 42 U.S.C. § 1981. See General Bldg. Contractors Ass’n v. General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 383-91 (1982). Although its [-45-] 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 Law School 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 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 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 29-30.
II. The Court of Appeals Should Have Reviewed and Affirmed
The Sixth Circuit reviewed all findings of fact of the lower court de novo. Pet. App. 9a. Federal Rule of Civil Procedure 52(a) provides, however, that "[f]indings of fact shall not be set aside unless clearly erroneous." Under this standard, the court of appeals’ review should be limited to [-46-] determining whether there were "two permissible views of the evidence," in which case "the factfinder’s choice between them cannot be clearly erroneous." Hernandez v. New York, 500 U.S. 352, 369 (1991) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)). It is extraordinary that the court of appeals disregarded this rule and substituted its fact findings for those of the district court. It did so with little explanation, simply citing to two of its own precedents for the proposition that the "appellate court should conduct an independent review of the record when constitutional facts are at issue." Pet. App. 9a (citing Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 192 (6th Cir. 1997), and Johnson v. Economic Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001)).
The Sixth Circuit’s proposition appears to be drawn from a line of First Amendment defamation cases, beginning with Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984). Those cases "turn on the Court’s determination that findings of voluntariness or actual malice involve legal, as well as factual, elements." Hernandez, 500 U.S. at 367. They have "no relevance" to a case such as this one, involving claims of discrimination. Id. (rejecting argument that Bose and its progeny should be applied to alter the clearly-erroneous standard of review for claims of equal protection violations). Indeed, the Court has consistently held that the clearly-erroneous standard applies to review of findings of discrimination. See, e.g., Anderson v. City of Bessemer, 470 U.S. 564, 578 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 286-291 (1982).
The important findings of the district court rejected by the court of appeals in the wake of its improper de novo review cannot be characterized as essentially legal. First, the district court found that the Law School "effectively reserved" approximately 10% of each class for students from the "underrepresented" minority groups. Pet. App. 249a. See also id. at 248a (finding Law School has an "unwritten policy" of having 10-12% of each class composed of students from the "under-represented" minority groups). The finding was amply supported by the record, [-47-] including the fact that the proportion of underrepresented minorities never dipped below 10% during the years in question, see Id. at 207a-08a, the testimony of Law School witnesses to the effect that 10% constituted a "critical mass" of the specified groups, see, e.g., id., and the undisputed existence of an earlier policy that specifically had a 10-12% goal, see id. at 225a. Given this evidence, it was surely within the province of the trier of fact to disbelieve the Law School witnesses who suggested that the quota had been abandoned with the implementation of the 1992 Policy.
Second, the question whether the Law School had considered race-neutral alternatives is also a factual inquiry. The district court found that it had failed to do so. Id. at 251a. Here, the district court relied upon the fact that the Law School failed to produce any witness involved with the promulgation of the 1992 Policy, or its subsequent administration, to describe the actual consideration of race-neutral alternatives. Id. It was certainly within the province of the trier of fact to determine that the insistence of the Law School’s witnesses at trial on the necessity of using race was not the same thing as actual consideration at the time of the Policy’s adoption, or during its implementation, of race-neutral alternatives.
Third, a determination of which racial or ethnic groups receive a preference is entirely a factual inquiry. The district court found that the Law School had provided a preference for Puerto Ricans raised on the United States mainland, but not those raised in Puerto Rico, and to Mexican Americans, but not other Hispanics, and that it had offered "[n]o satisfactory explanation" for these distinctions. Id. at 250a. The district court had extensive evidence from which to draw this conclusion, including (1) the Law School’s own Bulletins, see Pet. App. at 200a-202a, App. 74, 84, which specifically identify Mexican Americans and Puerto Ricans born on the United States mainland (but not other Hispanics) as groups "encouraged" to apply, (2) the Law School’s grids, see App. 127-55, which distinguished between "Mexican Americans" and "Other Hispanics," and (3) Professor Larntz’s testimony, [-48-] which generally confirmed a "giant" preference for the identified groups borne out by his statistical analysis. Tr.Exh. 332, 2 Tr. 71-72. Reviewing all fact findings de novo, the court of appeals, with no mention of the district court’s finding or the evidence, apparently concluded that the Law School made no such distinction (i.e., that it gave a preference for all Hispanics), and it concluded that it would grant "some degree of deference . . . to the educational judgment of the Law School in its determination of which groups to target." Pet. App. 37a. Thus, remarkably, the court of appeals gave considerable deference to the administrators who discriminated on the basis of race and ethnicity, and no deference at all to the trier of fact. The court below got it exactly backwards.
Important and divergent legal consequences follow from the opposing findings of the district court and the court of appeals. The identity of the racial and ethnic groups included in the preferences as found by the district court are even more arbitrary, haphazard, and random than those identified by the court of appeals’ findings. This is certainly not consistent with narrow tailoring. See, e.g., J.A. Croson Co., 488 U.S. at 506. The failure of the Law School to consider race-neutral alternatives is a glaring departure from narrow-tailoring requirements. Id. at 507. And the Law School’s reservation of a percentage of the class for members of designated racial and ethnic groups is forbidden by the case to which it looks to for cover, Bakke. Accordingly, under a correctly applied clearly-erroneous standard, the Law School’s racial and ethnic preferences could not survive even if they had been justified by a compelling interest.
2. "App." refers to the Joint Appendix filed with petitioner’s brief on the merits. [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. Professor Larntz used the racial and ethnic categories employed by the Law School for its 1995 grids. These groups are "African Americans," "Native Americans," "Mexican Americans," "Caucasian Americans," "Asian Pacific Island Americans," "Puerto Ricans" "Other Hispanic Americans," "Foreign Applicants," and "Unknown Ethnicity." In addition, the Law School plotted its 1995 grids with a category for "Selected Minorities," which combines "African Americans, Mexican Americans, and Native Americans." App. 149. [return to text]
5. Odds are derived by dividing the number of times an event occurs by the number of times that it does not. For example, if an event has a "fifty-fifty" chance of occurring, the odds are 50/50 or 1. Record 332, 2 Tr. 22. In the context of this case, if there are ten applications in one group, with one student admitted, the odds in favor of admission can be stated as 1/9. If another group consists of 10 applicants, of which 9 students are admitted, the odds in favor of admission are 9/1, or 9. The odds ratio (relative odds) favoring the second group is 81, which is derived by dividing 9/1 by 1/9. Record 332, 2 Tr. 61-62; Record 346, Tr.Exh.143, Cir. App. 8952. More than 95% of admit-tees come from these cells with comparative information. Pet. App. 228a. [return to text]
6. Relative odds cannot be computed where there are no differences between groups, such as where all students from two compared groups are admitted, or where all are denied admission. Record 342, 12 Tr. 25- 26. Across all six years for which Dr. Larntz analyzed data, the percentage of applicants whose grade point averages and test scores placed them in a cell with comparative information ranged between 84% to 88% of the total applicant pool. Record 342, 12 Tr. 32-33. [return to text]
7. The Law School Policy explicitly calls for some preference to be given to Michigan residents. App. 111. [return to text]
8. In statistics, 2 standard deviations generally correspond to an event that is described as "statistically significant," i.e., the event has less than a 5% probability of occurring by chance. Standard deviations greater than 2 indicate an even higher level of statistical significance. Record 332, 2 Tr. 27-28. [return to text]
9. In medical and scientific research, relative odds of 2 (representing a doubling of odds) are very large. Record 332, 2Tr. 69. Here, the odds favoring students from the specified racial and ethnic minority groups are many times greater, with the odds often dozens or even hundreds of times greater than for Caucasians and Asian Americans.[return to text]
12. Opening argument of Robert L. Carter, attorney for petitioners in Brown v. Board of Education, 347 U.S. 483 (1954) (December 9, 1952 oral argument), quoted in 49 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT 281 (Philip B. Kurland & Gerhard Casper eds. 1975). [return to text]
13. See THE DECLARATION OF INDEPENDENCE (U.S. 1776) ("We hold these Truths to be self-evident – that all Men are created equal . . . "). See also Abraham Lincoln, letter dated April 6, 1859, in III THE COLLECTED WORKS OF ABRAHAM LINCOLN [hereinafter "COLLECTED WORKS"] 376 (Rutgers Univ. 1953) (referring to the principle of equality in the Declaration of Independence as "an abstract truth, applicable to all men and all times . . . to-day, and in all coming days . . . a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression"). [return to text]
14. See Abraham Lincoln, letter dated April 6, 1859, in III COLLECTED WORKS 375 ("The principles of Jefferson are the definitions and axioms of free society. And yet they are denied, and evaded, with no small show of success."). Abraham Lincoln, Seventh "Lincoln-Douglas" Debate, October 15, 1858, in III COLLECTED WORKS 301 (signers of Declaration of Independence "meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for society, which should be familiar to all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and therefore constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere"). [return to text]
17. See, e.g., Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 356 (D.C. Cir. 1998) (noting "just how much burden the term ‘diversity’ has been asked to bear in the latter part of the 20th century in the United States"; "[i]t appears to have been coined both as a permanent justification for policies seeking racial proportionality in all walks of life (‘affirmative action’ has only a temporary remedial connotation) and as a synonym for proportional representation itself "). [return to text]