# Barbara Grutter v. Lee Bollinger, (01-1447), Kimberly James, Intervening (01-1516) > Court of Appeals for the Sixth Circuit · May 14, 2002 · 288 F.3d 732 URL: https://www.frixlaw.com/law-library/cases/9494958 ## Case - **Full name:** Barbara GRUTTER, Plaintiff-Appellee, v. Lee BOLLINGER, Et Al., Defendants-Appellants (01-1447), Kimberly James, Et Al., Intervening Defendants-Appellants (01-1516) - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** May 14, 2002 - **Citations:** 288 F.3d 732; 2002 U.S. App. LEXIS 9126; 2002 WL 976468 - **Precedential status:** Published - **Opinion:** Concurrence by Clay - **Judges:** Martin, Boggs, Siler, Batchelder, Daughtrey, Moore, Cole, Clay, Gilman - **Cited by:** 35 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494958 ## How later opinions describe it (automated extraction) - stating that a Marks holding “must necessarily produce results with which a majority of the Court from that case would agree.” (internal quotation marks omitted) - holding that “arising under” jurisdiction exists where one invokes a substantive right created by federal bankruptcy law ## Opinion text CLAY, Circuit Judge, concurring. I concur in Chief Judge Martin’s majority opinion, finding it correct and insightful in all respects. I write separately, however, for the purpose of speaking to the misrepresentations made by Judge Boggs in his dissenting opinion which unjustifiably distort and seek to cast doubt upon the majority opinion. 1 A. Justice Powell’s Opinion in Bakke remains “the Law of the Land” The dissent’s many fallacies begin with its attempt to undermine the majority’s holding that Justice Powell’s opinion in Bakke is controlling. Indeed, now Supreme Court Justice Scalia once described Justice Powell’s opinion as “the law of the land.” See Antonin Scalia, Commentary, The Disease as Cure: “In order to get beyond racism, we must first take account of race.”, 1979 Wash. U.L.Q. 147,148 (1979) (speaking then as Professor Scalia on Justice Powell’s opinion in Bakke). And significantly, since Bakke the Supreme Court has done nothing to render this description of Justice Powell’s opinion any different. See Agostini v. Felton, 521 U.S. 203, 237 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997) (reaffirming that “ ‘[i]f a precedent of this Court has direct application in a case, ... the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions’ ”) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989)); see also Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir.1998) (recognizing that absent a clear holding from the Supreme Court, the precedential value of Justice Powell’s opinion in Bakke, that diversity is a sufficiently compelling governmental interest to justify a race-based classification, should not be disturbed, especially where various individual justices have “from time to time ... written approvingly of ethnic diversity in comparable settings”); Mark R. Killenbeck, Pushing Things Up to Their First Principles: Reflections on the Values of Affirmative Ac *759 tion, 87 Cal. L. Rev. 1299 , 1352 (1999) (illustrating why Justice Powell’s opinion in Bakke is controlling, and why any other conclusion elevates form over substance inasmuch as Justice Brennan’s opinion cannot be distinguished from Justice Powell’s opinion on the basis of the level of scrutiny applied, or on any other basis) (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 , 106 S.Ct. 1842 , 90 L.Ed.2d 260 (1986) (O’Connor, J., concurring) (finding that “[although Justice Powell’s formulation may be viewed as more stringent than that suggested by Justices Brennan, White, Marshall, and Blackmun, the disparities between the two tests do not preclude a fair measure of consensus[,]” particularly where “the distinction between a ‘compelling’ and an ‘important’ governmental purpose may be a negligible one”); Bush v. Vera, 517 U.S. 952, 1010 , 116 S.Ct. 1941 , 135 L.Ed.2d 248 (1996) (Stevens, J., dissenting) (noting that “all equal protection jurisprudence might be described as a form of rational basis scrutiny; we apply ‘strict scrutiny 1 more to describe the likelihood of success than the character of the test to be applied”); United States v. Virginia, 518 U.S. 515, 567 , 116 S.Ct. 2264 , 135 L.Ed.2d 735 (1996) (Sealia, J., dissenting) (contending that “[tjhese tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case”)). One should therefore not be taken in by the dissent’s many contortions to convolute and undermine the majority’s holding that diversity in a student body is a recognized compelling governmental interest pursuant to Justice Powell’s controlling opinion in Bakke. 2 B. The Evidence Supports Diversity as a Compelling Governmental Interest Likewise, one should not be led astray by the dissent’s contention that, Justice Powell’s opinion aside, developing a diverse student body cannot serve as a compelling state interest. While criticizing the majority and implying that it is simply huddling behind Justice Powell’s opinion, the dissent claims that “the majority has given us no argument as to why the engineering of a diverse student body should be a compelling state interest sufficient to satisfy strict scrutiny.” In an apparent attempt to elevate itself over the majority opinion, the dissent goes on to claim that it, on the other hand, considers “the arguments on both sides of this question ... and concluded] that constructing a diverse educational environment is not a compelling state interest.” The dissent’s claim that it considers the arguments on both sides is suspect because conspicuously absent from its consideration of the benefits of a diverse student body is any meaningful recognition of the wealth of legal scholarship — including a study involving students at the University of Michigan— speaking of, as well as documenting through empirical data, the positive impact of diversity in education, not just for the student throughout the educational journey but for years after the educational process is completed. Although the dissent criticizes this study on various points, the fact remains that the study has been hailed on many fronts. Specifically, the major study conducted by University of Michigan Professor of Psychology and Women’s Studies Patricia Gurin, encompassed a wide scale analysis of the effects of a diverse learning environ *760 ment, particularly that at the University of Michigan, on a student’s overall development, and included data from the Michigan Student Study, the study of Intergroup Relations, Conflict, and Community Program at the University of Michigan, and the 4-year and 9-year data on a large national sample of institutions and students from the Cooperative Institutional Research Program. See Patricia Gurin, Reports submitted on behalf of the University of Michigan: The Compelling Need for Diversity in Higher Education, 5 Mich. J. Race & Law 363, 364 (1999); see also Steven A. Holmes, A New Turn in Defense of Affirmative Action, N.Y. Times, May 11, 1999, at A1 (citing Professor Gu-rin’s report and concluding that “the marshaling of statistical evidence of the benefits of racial diversity” distinguished the present case involving the University of Michigan from similar cases involving Universities in California and Texas inasmuch as these institutions defended their affirmative action policies with only “anecdotal evidence”). Professor Gurin’s studies, and resulting statistical data, led her to conclude as follows: A racially and ethnically diverse university student body has far-ranging and significant benefits for all students, non-minorities and minorities alike. Students learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting. In fact, patterns of racial segregation and separation historically rooted in our national life can be broken by diversity experiences in higher education. This Report describes the strong evidence supporting these conclusions derived from three parallel empirical analyses of university students, as well as from existing social science theory and research. Students come to universities at a critical stage of their development, a time during which they define themselves in relation to others and experiment with different social roles before making permanent commitments to occupations, social groups, and intimate personal relationships. In addition, for many students college is the first sustained exposure to an environment other than their communities. Higher education is especially influential when its social milieu is different from the community background from which the students come, and when it is diverse enough and complex enough to encourage intellectual experimentation.... Students learn more and think deeper, more complex ways in a diverse educational environment. Extensive research in social psychology demonstrates that active engagement in learning cannot be taken for granted.... Complex thinking occurs when people encounter a novel situation for which, by definition, they have no script, or when the environment demands more than their current scripts provide. Racial diversity in a college or university student body provides the very features that research has determined are central to producing the conscious mode of thought educators demand from their students. This is particularly true at the University of Michigan, because most of the University’s students come to Ann Arbor from segregated backgrounds. For most students, then, Michigan’s social diversity is new and unfamiliar, a source or multiple and different perspectives, and likely to produce contradictory expectations. Social diversity is especially likely to increase effortful, active thinking when institutions of *761 higher education capitalize on these conditions in the classroom and provide a climate in which students from diverse backgrounds frequently interact with each other. Gurin, supra at 364-65. Professor Gurin backed these conclusions with “one of the most broad and extensive series of empirical analyses conducted on college students in relation to diversity.” Id. at 365. For example, Professor Gurin examined “multi-institutional national data, the results of an extensive survey of students at the University of Michigan, and data drawn from a specific classroom program at the University of Michigan.” Id. All of these studies clearly indicated that interaction with peers from diverse racial backgrounds, both in the classroom and informally, positively led to what Professor Gurin referred to as “learning outcomes.” That is, “[s]tu-dents who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills.” Id. Professor Gurin’s study also indicated that the benefits of a racially diverse student body were seen in a second major area, that being preparing students for a meaningful role in a democratic society, or what Professor Gurin called positive “democracy outcomes.” Id. at 365-66. “Students educated in diverse Settings are more motivated and better able to participate in an increasingly heterogeneous and complex democracy.” Id. at 366. The results of Professor Gurin’s empirical analysis indicated that these diversity experiences during college “had impressive effects on the extent to which graduates in the national study were living racially and ethnically integrated lives in the post-college world. Students with the most diversity experiences during college had the most cross-racial interactions five years after leaving college.” Id. The analysis also indicated that “[t]he long-term pattern of racial separation noted by many social scientists can be broken by diversity experiences in higher education.” Id. Counsel for Plaintiffs in these underlying actions have been critical of Professor Gurin’s study and conclusions, claiming that .they do nothing to refute the contention that race plays a predominate role in the admissions process. As one legal commentator has replied to this criticism, [t]he critical question is not, however, whether or not race, or any other arguably ‘suspect’ group characteristic, plays a ‘predominate role’ in the admissions process. It is, rather, whether there is a compelling educational justification for allowing that characteristic to enter the decision-making mix, and it is in that specific context that the Gurin study makes a contribution. Killenbeck, supra at 1328. Professor Gurin possibly best illustrated the significance of her findings as to whether seeking a diverse student body may be considered a compelling state interest when she concluded that, [i]n the face of this research evidence, one can only remain unconvinced about the impact of diversity if one believes that students are “empty vessels” to be filled with specific content knowledge. Much to our chagrin as educators, we are compelled to understand that students’ hearts and minds may be impacted the most by what they learn from their peers. This is precisely why the diversity of the student body is essential to fulfilling higher education’s mission to enhance learning and encourage democratic outcomes and values. Gurin, supra at 422. In light of Gurin’s study and, perhaps more importantly, the *762 data and empirical evidence backing her findings on the value of a diverse student body, those who like the dissent are skeptical of characterizing diversity as a compelling governmental interest because “diversity” is not defined or because they believe it to be a nebulous concept based on anecdotal evidence, find themselves standing on ill footings. See John Friedl, Making a Compelling Case for Diversity in College Admissions, 61 U. Pitt. L. Rev. 1 , 29-32 (1999) (noting that “[t]o date, almost all of the evidence in support of diversity in higher education is anecdotal in nature[,]” while discussing the lack of concrete, empirical evidence substantiating the value of a diverse student body as a compelling state interest); see also Wess-mann, 160 F.3d at 797 (“[A]ny proponent of any notion of diversity could recite a ... litany of virtues. Hence, an inquiring court cannot content itself with abstractions.”). Professor Gurin’s empirical evidence supports what Justice Powell found to be true in Bakke regarding diversity’s place as a compelling state interest. That is, regardless of whether one agrees that Justice Powell’s opinion in Bakke is controlling, the fact remains that Justice Powell recognized that a diverse student body is a compelling interest because it promotes the atmosphere of higher education to which our nation is committed inasmuch as it allows the students to train in an environment embodied with ideas and mores “as diverse as this Nation of many peoples.” See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 312-313 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978) (Powell, J.) (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 603 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1967)). And, along the lines of Professor Gurin’s study, it was expressly noted by Justice Powell that it is the student learning from the other student that makes a diverse student body a compelling need. See id. at 313 n. 48, 98 S.Ct. 2733 . Specifically, Justice Powell noted and embraced the comments of the president of Princeton University as follows: “[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, ‘People do not learn very much when they are surrounded only the by the likes of themselves.’ ” “In the nature of things, it is hard to know how, and when, and even if, this informal ‘learning through diversity’ actually occurs. It does not occur for everyone. For many, however, the unplanned, casual encounters with roommates, fellow sufferers in an organic chemistry class, student workers in the library, teammates on a basketball squad, or other participants in class affairs or student government can be subtle and yet powerful sources of improved understanding and personal growth.” /¿(quoting William Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly 7, 9 (Sept. 26, 1977)). Justice Powell then expressly found that the benefits derived from a diverse student body apply with substantial force at the graduate level as well as the undergraduate level. See id. Relying on Sweatt v. Painter, 339 U.S. 629 , 70 S.Ct. 848 , 94 *763 L.Ed. 1114 (1950), he reiterated that the Court made a similar point with specific reference to legal education: “ ‘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 318-14 , 98 S.Ct. 2733 (quoting Sweatt, 339 U.S. at 634 , 70 S.Ct. 848 ). In addition to the proffered, and indeed statistically proven, benefits of a diverse student body in order to fulfill higher education’s mission to enhance learning and encourage democratic outcomes and values, other reasons for justifying state imposed diversity in the educational realm have also been proposed. For example, supporters of diversity in the university setting have argued that seeking a diverse student body is consistent with this country’s historical commitment to absolute equality in education. See Association of American Universities, On the Importance of Diversity in University Admissions, N.Y. Times, April 24, 1997, at A17; see also Brown v. Bd. of Educ., 347 U.S. 483, 494-95 , 74 S.Ct. 686, 98 . L.Ed. 873 (1954) (rejecting the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896), while recognizing and rejecting the past practices of making it illegal to educate African Americans, or educating them in inferior surroundings). The law school’s concern with the impact of racial isolation and stigmatization when only a few “token” minorities are allowed to attend echos this point. It has also been argued that designing a system that takes into account factors other than traditional notions of merit is nothing new, inasmuch as the very reason affirmative action arose was because for years some groups — particularly white males— were provided an advantage over others. See Killenbeck, supra at 1320. In fact, as indicated in a detailed study conducted by Professor Linda F. Wightman, who at the time of her research served as Vice President for Testing, Operations, and Research, Law School Admission Council, Inc., on the realities of affirmative action— “perhaps the most compelling finding to emerge is not the extent to which affirmative action has opened the doors of legal education to African Americans and other minorities. Instead, it is the extent to which white law school applicants routinely benefit from the exceptions to the merit principle.” See id. at 1321 (citing Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. Rev. 1 ,16 tbl.2 (1997)). Killenbeck explains that “[d]ata in [table 2 of Wightman’s study] indicate that 14.9% of accepted white applicants would not have been predicted as suitable for acceptance based on the combination of their undergraduate grade point average and LSAT score. That is, if the purportedly objective merit criteria embraced by opponents of affirmative action were in fact dispositive, nearly one in every six white applicants actually accepted were arguably not ‘qualified’ in the traditional sense.” See id. at 1321 n. 100. Accordingly, for these white applicants, something more than merit was considered in the admissions process, just as something more is considered in a program designed to promote diversity. See id.; see also Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Calif. L.Rev. 953, 968-80 (1996) (criticizing the use of standardized test scores as an indicator of candidates’ suitability for admission). In short, the legal scholarship has indicated that a diverse student body serves to promote our nation’s deep commitment to *764 educational equality, provides significant benefits to all students — minorities and non-minorities alike, and does so using a system which is not foreign to the admissions process, but which allows for the benefit of all and not just some. Thus, although the majority does base its holding that diversity is a compelling governmental interest on Justice Powell’s opinion in Bakke , it is clear that contrary to the dissent’s criticism, this holding is not without foundation even when standing alone. On the other hand, the dissent’s conclusion that diversity cannot serve as a compelling state interest for purposes of surviving constitutional muster under the Equal Protection Clause, is supported by neither legal scholarship nor empirical evidence. For example, the dissent questions why race is at all relevant to promoting a student body rich in diversity of experience. Statistics have shown, however, that using factors other than race such as socioeconomic status, failed to produce the highly qualified, ethnically diverse student body achieved when race was also factored into the admissions process. See Wightman, supra at 39-45. The dissent’s position simply misses that point advanced by Defendants in this case at oral argument; that is, that a comparably-situated white applicant is a “different person” from the black applicant. This is obvious when one considers the dissent’s criticism that the University would give diversity preference to a “conventionally liberal” black student who is the child of “lawyer parents living in Grosse Pointe” (typically thought of as one of Michigan’s more affluent suburbs). 3 Notwithstanding the fact that the black applicant may be similarly situated financially to the affluent white candidates, this black applicant may very well bring to the student body life experiences rich in the African-American traditions emulating the struggle the black race has endured in order for the black applicant even to have the opportunities and privileges to learn. See A. LeoN HigginbothaM, Jr, Shades Of Freedom, 195-96, 203 (Oxford University Press 1996) (formulating ten precepts of American slavery jurisprudence, with the seventh precept being the historical denial of any education to blacks and making it a crime to teach those who were slaves how to read and write); see also Frederick Douglass, What to the Slave is the Fourth of July? (1852) (addressing Rochester Ladies’ Anti-Slavery Society, and noting that “[i]t is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write”). It is insulting to African Americans, or to any race or ethnicity that has known oppression and discrimination the likes of which slavery embodies, to think that a generation enjoying the end product of a life of affluence has forgotten or cannot relate the enormous personal sacrifice made by their family members and ancestors not all that long ago in order to make the end possible. Indeed, we in this country are only a generation or so removed from the legally enforced segregation which was used to discriminatorily deny African Americans and other minorities access to education, as well as employment, housing, health care and even basic public facilities. In addition, it is naive to believe that because an African American lives in an affluent neighborhood, he or she *765 has not known or been the victim of discrimination such that he or she cannot relate the same life experiences as the impoverished black person. A well dressed black woman of wealthy means shopping at Neiman Marcus or in an affluent shopping center may very well be treated with the same suspect eye and bigotry as the poorly dressed black woman of limited means shopping at Target. See Elise O’Shaughnessy, Shopping While Black, Good Housekeeping, Nov. 2001, at 129 (recounting Oprah Winphrey’s experience of being turned away from an affluent store while she was shopping with a black female companion, even though white customers were allowed admittance, allegedly on the premise that the store employees were of the belief that Oprah and her friend were the black transsexuals who had previously tried to rob the store; also recounting the discrimination other successful black females such as Congresswoman Maxine Waters have experienced while shopping). Thus, the dissent’s arguments as to why diversity cannot serve as a compelling state interest constitute nothing more than myopic, baseless conclusions that ignore the daily affairs and interactions of society today which very well may be experienced by all. And the dissent’s offer to “stipulate” to the fact that race continues to play a negative role in the lives of minorities is nothing more than a mere expression of words made in an attempt to minimize the force of the many benefits of diversity as illustrated above. Anyone who has read the entire dissent quickly realizes that the dissent’s offer to stipulate that “race does matter,” constitutes a thinly-veiled offer of dubious sincerity, to say the least. This is evident by the dissent’s contention that the arguments made in favor of diversity merely address societal ills that should not be confused with individual rights. 4 The “societal ills” as characterized by the dissent are in fact borne out of the denial of individual rights such that the two cannot be separated. Indeed, history tells us that the Equal Protection Clause was enacted in an attempt to cure the “societal ills” that had denied African Americans the individual rights to which they were entitled, such as the right to an education. See Albert P. Blaustein & Clarence Clyde Ferguson, Jr., Desegregation And The Law — The Meaning And Effect Of The School Segregation Cases 59-67 (Rutgers University Press 1985) (1957). It has been recognized that “the evil to remedied by this clause” was the “gross injustice and hardship” faced by the “newly emancipated Negroes” as a class. See In re Slaughter-House Cases, 16 Wall. 36, 81 , 21 L.Ed. 394 (1873). And it has been further recognized that the justifications for the Fourteenth Amendment’s ratification “retain their validity in modern times, for 114 years after the close of the War Between the States, ... racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole.” See Vasquez v. Hillery, 474 U.S. 254, 264 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986). Accordingly, for the dissent to claim that “people like Barbara Grutter” are being denied equal *766 treatment under the law school’s admission policy such that the Equal Protection Clause is being “ignored,” particularly while irreverently invoking the name of Abraham Lincoln, is completely unfounded. The law school’s goal of creating a diverse student body, which has not existed previously and would not otherwise exist without its admissions policy, rests in the very heart of the Equal Protection Clause. Moreover, contrary to the dissent’s assertion, there is nothing to indicate that the law school’s admission’s policy has “taken” anything “from the Barbara Grat-ters of our society.” As one legal scholar has recently illustrated, the idea that an admissions policy which provides minority applicants with an advantage does so at the expense of white applicants is simply a myth. See Goodwin Liu, The Myth & Math of Affirmative Action, The Washington Post, April 14, 2002, at B01 (citing excerpts from his article “The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions” which is to be published in the upcoming edition of the Michigan Law Review). As Liu makes note, [f]or many Americans, the success of Bakke’s lawsuit has long highlighted what is unfair about affirmative action: Giving minority applicants a significant advantage causes deserving white applicants to lose out. But to draw such an inference in Bakke’s case — or in the case of the vast majority of rejected white applicants — is to indulge in ... “the causation fallacy.” There’s no doubt, based on test scores and grades, that Bakke was a highly qualified applicant. Justice Lewis Powell, who authored the decisive opinion in the case, observed that Bakke’s Medical College Admission Test (MCAT) scores placed him in the top tier of test-takers, whereas the average scores of the quota beneficiaries in 1974 placed them in the bottom third. Likewise, his science grade point average was 3.44 on a 4.0 scale, compared with at 2.42 average for the special admittees, and his overall GPA was similarly superior. Given these numbers, the only reason for Bakke’s rejection was the school’s need to make room for less qualified minority applicants, right? Wrong. Although Justice Powell pointed out that minority applicants were admitted with grades and test scores much lower than Bakke’s, he did not discuss what I found to be the most striking data that appeared in his opinion: Bakke’s grades and scores were significantly higher than the average for the regular admittees. In other words, his academic qualifications were better than those of the majority of applicants admitted outside the racial quota. So why didn’t he earn one of the 84 regular places? It is clear that the medical school admitted students not only on the basis of grades and test scores, but on other factors relevant to the study and practice of medicine, such as compassion, communication skills and commitment to research. Justice Powell’s opinion does not tell us exactly what qualities the regular admittees had that Bakke lacked. But it notes that the head of the admissions committee, who interviewed Bakke, found him “rather limited in approach” to medical problems and thought he had “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.” Whatever Bakke’s weaknesses were, there were several reasons, apart from affirmative action, that might have led the medical school to reject his applica *767 tion. Grades and test scores do not-tell us the whole story. Id. Liu went on to recognize that although affirmative action did lower Bakke’s chance of admission to the medical school, what was significant and most telling is “by how much?” Id. Setting forth the statistical data Liu then observed: One way to answer this question is to compare Bakke’s chance of admission had he competed for all 100 seats in the class with his chance of admission competing for the 84 seats outside of the racial quota. To simplify, let’s assume none of the special applicants would have been admitted ahead of any regular candidate. In 1974, Bakke was one of 3,109 regular applicants to the medical school. With the racial quota, the average likelihood of admission for regular applicants was 2.7 percent (84 divided by 3,109). With no racial quota, the average likelihood of admission would have been 3.2 percent (100 divided by 3,109). So the quota increased the average likelihood of rejection from 96.8 percent to 97.3 percent. To be sure, Bakke was not an average applicant. Only one-sixth of regular applicants (roughly 520) received an interview. But even among these highly qualified applicants, eliminating the racial quota would have increased the average rate of admission from 16 percent (84 divided by 520) to only 19 percent (100 divided by 520). Certainly a few more regular applicants would have been admitted were it not for affirmative action. But Bakke, upon receiving his rejection letter, had no reason to believe he would have been among the lucky few. In fact, Bakke applied in both 1973 and 1974 and, according to evidence in the lawsuit, he did not even make the waiting list in either year. The statistical pattern in Bakke’s case is not an anomaly. It occurs in any selection process in which the applicants who do not benefit from affirmative action greatly outnumber those who do. Recent research confirms this point. Using 1989 data from a representative sample of selective schools, former university presidents William Bowen and Derek Bok showed in their 1998 book, “The Shape of the River,” that eliminating racial preferences would have increased the likelihood of admission for white undergraduate applicants from 25 percent to only 26.5 percent. The Mellon Foundation, which sponsored the study, provided me with additional data to calculate admission rates by SAT score. If the schools in the Bowen/Bok sample had admitted applicants with similar SAT scores at the same rate regardless of race, the chance of admission for white applicants would have increased by one percentage point or less at scores 1300 and above, by three to four percentage points at scores from 1150 to 1299, and by four to seven percentage points at scores below 1150. It is true that black applicants were admitted at much higher rates than white applicants with similar grades and test scores. But that fact does not prove that affirmative action imposes a substantial disadvantage on white applicants. The extent of the disadvantage depends on the number of blacks and whites in the applicant pool. Because the number of black applicants to selective institutions is relatively small, admitting them a higher rates does not significantly lower the chance of admis *768 sion for the average individual in the relatively large sea of white applicants. Id. (emphasis added). Liu provided further statistical data to back this conclusion as follows: In the Bowen/Bok study, for example, 60 percent of black applicants scoring 1200-1249 on the SAT were admitted, compared with 19 percent of whites. In the 1250-1299 range, 74 percent of blacks were admitted, compared with 23 percent of whites. These data indicate — more so than proponents of affirmative action typically acknowledge— that racial preferences give minority applicants a substantial advantage. But eliminating affirmative action would have increased the admission rate for whites from 19 percent to only 21 percent in the 1200-1249 range, and from 23 percent to only 24 percent in the 1250-1299 range. These figures show that rejected white applicants have every reason not to blame their misfortune on affirmative action. In selective admissions, the competition is so intense that even without affirmative action, the overwhelming majority of rejected white applicants still wouldn’t get in. Id. (emphasis added). And so, contrary to the dissent’s assertion, “the Barbara Grat-ters of our society” have no reason to claim that anything has been “taken” from them by virtue of the law school’s admission policy. In purporting otherwise, the dissent is simply advancing “the causation fallacy” which Liu exposes for the myth that it is. The dissent also contends that one cannot consider the remedial qualities of correcting past — or for that matter present— discrimination as a way of supporting the law school’s admissions policy because past discrimination is not the basis upon which the school claims that its admissions policy is operating. Once again, the dissent’s narrow-mindedness misses the point. While it is true that the law school’s policy is based upon its desire to achieve a diverse student body, the very reason that the law school is in need of a program to create a diverse environment is because the discrimination faced by African Americans and other minorities throughout the educational process has not produced a diverse student body in the normal course of things. Diversity in education, at its base, is the desegregation of a historically segregated population and, as the interve-nors essentially argue, Bakke and Brown-must therefore be read together so as to allow a school to consider race or ethnicity in its admissions for many reasons, including to remedy past discrimination or present racial bias in the educational system. See Trevor W. Coleman, A well-deserved honor for a lifelong legal barrier breaker, The Detroit Free Press, April 26, 2002, at 10A (chronicling the life of the Honorable William McClain, the University of Michigan’s oldest living African-American law graduate, and describing how, as the only black law student in his class at the University, McClain was “fed humiliation nearly every day,” was forbidden from living in the law quad, and was “prevented from joining study groups which are essential to a legal education”). In summary, the dissent’s attempt to east the law school’s interest in achieving a diverse student body as anything but compelling simply cannot carry the day, and its claim that white applicants are being denied equal protection under the law as a result of the school’s attempt to achieve a diverse student body is fallacious. As next illustrated, the dissent’s arguments as to why the school’s admissions policy is not narrowly tailored to achieve this compelling interest are just as ill-conceived. *769 C. The Law School’s Policy is Narrowly Tailored The dissent quarters its argument as to why the law school’s admissions policy is not narrowly tailored to achieve the compelling interest of diversity. Each of the four subparts bear arguments that are unfounded and inflammatory. For example, in first discussing what the dissent characterizes as the true magnitude of the law school’s policy, the dissent focuses on LSAT and UGPA data. It then advances the outrageous contention that the law school’s policy allows for a minority applicant to put forth less effort than the otherwise similarly situated white applicant, and that somehow the minority will therefore use his race to compensate for his lack of effort. There is nothing whatsoever in the record to support the allegation that the law school’s admissions policy would be manipulated in this fashion by people of color or ethnicity. Similarly, the dissent’s assertion that the law schools treatment of numerical credentials (UGPA and LSAT scores) for purposes of admission is “shocking,” ignores the scholarly writings showing no correlation between these numerical credentials and success in law school or bar passage rates. See Wightman, supra at 1-2 (explaining that while a “numbers only” policy resulted in a sharp decline in the number of minority students who would have been admitted to law school, there were no significant differences in the graduation rates and bar passage rates between those minority students who would have been admitted and those who would not have been admitted, thus leading to the conclusion that a “numbers only” policy would deny a legal education to many minority students who were fully capable of the rigors of a legal education and of entering the legal profession); Sturm & Guilder, supra at 968-80 (explaining standardized test scores’ lack of predictive value with respect to students’ future performance). The law school’s effort to insure that its admissions process is inclusionary and is not substantively unfair should be viewed as an effort to advance the cause of both educational excellence and diversity, not as a counterpoint to a “merit” plan as suggested by the dissent. The case has not been convincingly made that conventional admissions plans which equate to higher socio-economic status persuasively correlate to consideration of “merit.” See id. at 992-96. The dissent barely conceals its disbelief in the truth of the law school’s assertion that its admissions officer reads every applicant’s file and makes an individualized determination regarding the applicant’s suitability for admission. Accepting the dissent’s argument requires, in part, rejecting the law school’s description of the manner in which its admissions program is administered without any adequate justifiable basis for doing so. The dissent goes so far as to claim the above-referenced criticisms of using standardized test scores such as the LSAT and numerical credentials as means to admission should be directed to the law school and not to the dissent inasmuch as the law school chooses to consider such credentials in its admission policy. However, the dissent’s claim in this regard misses the point, and is an example of the misrepresentations made by the dissent in an apparent attempt to reframe the issues. Criticism of the use of numerical credentials such as LSAT scores is made in this opinion to support the law school’s use of other criteria in its admission policy — one of which is race or ethnicity. And, contrary to the dissent’s inflammatory assertion, the law school relies upon many factors in addition to LSAT scores, UGPAs, and race in its admission process. Although this assertion undoubtedly bolsters the dissent’s position, it is *770 unfounded and flies in the face of the record before us. The dissent next calls into question the law school’s designation of a “critical mass” of minority students in its student body. Claiming that the term “critical mass” is simply a phrase used to disguise what is actually an impermissible quota system, the dissent relies heavily upon the fact that the numbers of minorities admitted over the years has varied only sightly. There may be any number of likely benign explanations for the numerical configurations, including a consistency in the quality of minority applications for a few successive years and/or the application of a uniformity of perspective in evaluating the applications resulting from having the same evaluators read all the applications for admissions. Even idiosyncratic explanations for a relatively narrow numerical range for a number of years would be constitutionally acceptable in the absence of a quota or other invidious motivation on the part of the law school. The point is that on the record of this case, there are at least as many reasons to presume that there is not a quota as there are to presume that there is one, and the balance certainly tips in favor of the law school’s representation that it does not employ a quota in the absence of any evidence to the contrary. 5 Typically, the purpose of the narrow tailoring inquiry involves an evaluation of the fit between the compelling interest and the policy adopted to advance that interest. See Recent Cases, 115 HaRV. L.Rev. 1239, 1244-45 (2002) (criticizing the Eleventh Circuit’s decision that found the University of Georgia’s race-conscious admissions policy unconstitutional, while noting that the court’s opinion “reveals both overt and covert hostility toward affirmative action policies” and that “[b]y introducing its own substantive agenda under the guise of a narrow tailoring analysis, the court strayed from the purpose of the narrow tailoring inquiry”). Here, the dissent claims that the link between the law school’s “critical mass” and the values of diversity is lacking. Oddly, the dissent cites the report from Professor Gurin, the same report that others have hailed as showing documented evidence for the benefits of a diverse student body, claiming that the results indicate just the opposite of how Professor Gurin reports them. This contention, regardless of its accuracy, appears to be in criticism of the concept of diversity itself, and not of the process to achieve that end. Next, the dissent criticizes the relationship between diversity and the means to promote this interest as being dependent upon the psychological makeup of the people involved. The dissent refers to historical black leaders such as Frederick Douglass and Dr. Martin Luther King, Jr., opining that these men would have said their piece without regard to whether others thought them to be “representative.” Apparently, by using these black leaders to make its point, the dissent is claiming that the process employed by the law school is not necessary because if an African American, or other minority group member, has the “psychological” make-up to be a leader, he will be so regardless of whether he is one among ten or one among one hundred. Such an allegation misses the point of the many beneficial aspects of diversity in education to minorities and non-minorities alike, is an affront to the sacrifices and contributions made by these black leaders, and does nothing to show why the law school’s policy is not narrowly tailored. In fact, *771 the dissent appears to be doing nothing more than “introducing its own substantive agenda under the guise of a narrow tailoring analysis” in making its arguments here. See Recent Cases, supra at 1239. Finally, the dissent claims that because race-neutral means are available to achieve academic diversity, the law school’s program does not pass constitutional muster. In reaching this conclusion, the dissent completely ignores the evidence provided by the law school and its efforts to formulate a viable race-neutral policy. The dissent strongly suggests that it simply does not believe the law school’s representation that it considered and rejected as unworkable or impractical other admissions policies and procedures, either because the available alternatives would not result in the sort of competitive student body pursued by the law school overall, or because the number of qualified minority students attracted to the law school would be inadequate. The law school’s premise, which the dissent fails to convincingly dispute, is that the number of minority law students admitted would be inconsequential in the absence of the school’s current admissions program. Indeed, one of the dissent’s proposals as a “race-neutral” means of admission, using a lottery for all students above certain threshold figures for their GPA and LSAT, is in no way “race-neutral” as reflected in the record. For example, the record indicates (through the testimony of Jay Ros-ner, Martin Shapiro, and David White among others) that performance on tests such as the LSAT and the SAT correlates with an applicant’s race and gender. In other words, the record indicates that LSAT scores are neither race-neutral or gender-neutral criteria for admissions decisions. Consequently, the dissent’s proposal of using a lottery based upon scores resulting from these tests in order to achieve a race-neutral means of admission is inherently flawed, and would in no way reflect race-neutral merit. Instead, such a proposal would reflect a combination of subtle preferences based on race, gender, and even class, see Sturm & Guinier, supra at 992-96; see also supra text accompanying Part B, and are of limited utility for predicting meaningful success across racial lines. At its core, in purporting to suggest race-neutral methodologies, the dissent simply engages in an impermissible exercise of substituting its judgment in this regard for that of the educators who are the custodians and guardians of the law school’s mission and academic standards. See Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 , 106 S.Ct. 507 , 88 L.Ed.2d 523 (1985); see generally Susan Stefan, Leaving Civil Rights to the “Experts”: From Deference to Abdication Under the Professional Judgment Standard, 102 Yale L.J. 639 (1992) (providing a summary of the general doctrine of the rule of deference and the situations to which it has been applied). Indeed, on the record before us, any purportedly race-neutral policy could result in a de facto segregated law school, the deleterious results of which have long been known by society and rejected by the Court. See, e.g., Sweatt, 339 U.S. at 634-36 , 70 S.Ct. 848 . D. Summary Chief Judge Martin’s majority opinion reversing the district court and finding the law school’s admissions policy constitutional under the Equal Protection Clause of the Fourteenth Amendment provides a clear understanding and resolution of the issues involved. The dissent’s attempt to turn the majority opinion on its head and to reframe the issues does nothing to ad- *772 vanee the jurisprudence on this very significant matter. E. Response to the Dissent’s “Procedural Appendix” Although the dissent’s substantive attack, which is grounded in neither fact nor law, is disturbing, the dissent’s procedural attack, as set forth in its “Procedural Appendix,” constitutes an embarrassing and incomprehensible attack on the integrity of the Chief Judge and this Court as a whole. Apparently, the dissent’s strategy in this regard is that if its substantive basis for disagreement with the majority opinion is not convincing, then questioning the procedural posture of this case will be enough to forever cast doubt upon the outcome reached here today. This unfortunate tactic has no place in scholarly jurisprudence and certainly does not deserve to be dignified with a response. However, because of the magnitude of the issues involved, and because of the baseless nature of the allegations, this procedural attack cannot go unanswered. The dissent questions the appropriateness of hearing this case en bane, the course by which this case came to be heard by the en banc court, and the composition of the en banc court itself. It should be noted at the outset that throughout the pendency of this appeal, the dissent remained silent on all of these questions until now, and its concerns should therefore be regarded as having been waived or forfeited. It was not until the various opinions had been circulated throughout the Court and the votes cast by the panel members that the dissent revised its opinion by tacking on these complaints and allegations. And the dissent’s new-found allegations of impropriety as to the course this matter followed in reaching the en banc court simply defy belief. It is ludicrous to think that with our circuit operating with only one-half of the active judges’ positions filled, and with over 4000 cases reaching our Court each year, the Chief Judge or any members of this Court would single out any one particular case and maneuver the system for a particular outcome. None of the decisions made by the Chief Judge in regard to the scheduling of this case or in relation to administering the Court’s docket, differ in any significant way from the decisions the Chief Judge and the Court’s staff routinely and frequently make with respect to pending matters. Given the voluminous nature of the Court’s docket and the shortage of judicial resources, the case management tasks performed by the Chief Judge are both necessary and appropriate, and were not in any sense improperly performed in relation to the instant case. Again, it is unfortunate that the dissent has chosen to stoop to such desperate and unfounded allegations which serve no useful purpose. The dissent’s claim that it is “legitimizing” the Court by revealing the procedural course of this matter is disingenuous, at best, when considering that the dissent (Judge Boggs) once scathingly attacked Judge Damon J. Keith for revealing the vote count in a case of major import wherein the denial for rehearing en banc was split seven-seven. See Memphis Planned Parenthood v. Sundquist, 184 F.3d 600, 605-07 (6th Cir.1999) (published order) (Boggs, J.). Judge Keith wrote in Memphis that he revealed the seven-seven vote tally because it supported his belief that the majority’s opinion was result driven, and to encourage the litigant to possibly seek further review. See id. at 601-02 (Keith, J.). Judge Keith emphasized that in making the vote tally known, he had “not violated any rule of internal policy ...; nor [had he] divulged any internal confidential communicationsf,]” and found “reprehensible” the “practices of secrecy and concealment advocated by Judge *773 Boggs.” Id. at 605 . In response, Judge Boggs noted “with regret, [Judge Keith’s alleged ] breach of the long-standing custom of this court that actions by a member of the court with respect to petitions for rehearing of en banc matters are matters of internal court procedure and are not made public by other judges.” Id. (Boggs, J.) (emphasis added). Judge Boggs went so far as to question the accuracy of Judge Keith’s conveyance of the vote tally by writing that “our court, of course, makes no warranties as to the accuracy of the assertions made in statements by judges (including, of course, this one).” Id. at 605 . Despite his one-time “regret” for a fellow jurist’s decision to make the vote tally known in an en banc case, Judge Boggs now characterizes his flagrant disregard for the Court’s procedural measures with respect to this case as a form of “legitimacy.” Judge Boggs has revealed internal procedural matters to the public, particularly when he speaks of Senior Judge Ralph Guy’s internal communication to Chief Judge Martin in footnote 46 of his dissent. Furthermore, the remaining members of this Court have no way of responding to any inaccuracies by Judge Boggs regarding Judge Guy’s communication — or Judge Boggs’ characterization thereof — without themselves resorting to discussing the Court’s internal communications. Like many of the assertions made in his dissent as a whole, Judge Boggs’ renouncement of secrecy and claim that his procedural appendix “legitimizes” the Court, are hollow, particularly in light of his position in Memphis. Indeed, it was “secrecy” for which Judge Boggs so vehemently argued in Memphis. If anything, the fact that this significant matter was heard initially by the en banc court is a course of action advocated by justices of the United States Supreme Court. For example, in her letter to the White Commission, and several times in addressing the Ninth Circuit Judicial Conference, Justice O’Connor, circuit justice to the Ninth Circuit, has suggested that the courts of appeals sit en banc in matters they think are likely to reach the Supreme Court. See Stephen L. Wasby, How do Courts of Appeals En Banc Decisions Fare in the U.S. Supreme Court?, Judicature, Jan. -Feb.2002, at 184 & n.6. Likewise, Justice Kennedy, himself a former member of the Ninth Circuit, suggested to the White Commission that “questions of exceptional importance” are not heard en banc nearly often enough. See id. at 184 & n. 7 (quoting Justice Anthony M. Kennedy, letter to Justice Bryon R. White, August 17,1998). Here, in this matter of exceptional importance which may likely reach the Supreme Court, we as an en banc court have properly and carefully considered the issues involved. Chief Judge Martin’s thorough majority opinion in every regard reflects that careful consideration, such that the outcome reached today is one based upon nothing other than sound and scholarly deliberation. Despite its unfortunate and desperate attempts to portray the majority opinion as anything less, the dissent’s substantive and procedural attacks remain unpersuasive. . Hereinafter, reference to "the dissent” shall he in regard to Judge Boggs’ dissent, while any reference to Judge Gilman's dissent shall be specifically addressed as such. Judge Bat-chelder’s dissent is not referenced in this opinion. . In this regard, Judge Gilman’s dissent which ‘‘assumes without deciding that educational diversity as defined by Justice Powell in Bakke is a compelling governmental interest” is misguided as well. . The dissent originally characterized the black student as being "conventionally liberal.” Then, in response to the criticism that this was in itself stereotypical, the dissent added the parenthetical "or conventionally conservative” to its opinion. This addition, however, does nothing to change the fact that the dissent is engaging in stereotyping by labeling any minority group as "conventionally” of certain views. . I bring to the fore the "societal ills” — as the dissent has couched it — of the past and present faced by minorities to illustrate that, contrary to the dissent’s assertion, a minority member of wealthy means may bring to the educational environment the same "life experiences” that a minority member of impoverished means may'bring because the "societal ills” experienced by both transcend economic status. Once again, the reader should not be led astray by the dissent’s attempt to ignore or reframe an issue. While it is true that the Supreme Court has found that a generalized claim of past discrimination cannot serve as the basis for a remedial plan, no such claim is being made in this case. . Inasmuch as Judge Gilman appears to rest his dissent on his belief that the law school's policy results in an impermissible quota system, his conclusion is fallacious as well. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494958. Public record. Not legal advice.