Amicus Curiae Brief — Grutter v. Bollinger

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PAG oo —

Nos. 02-241 & 02-516 ce

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IN THE - 4 =

Supreme Court of the United States

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BARBARA GRUTTER,

Petitioner,

—_—V—

LEE BOLLINGER, et ai.,

Respondents.

JENNIFER GRATZ and PATRICK HAMACHER,

Petitioners,

—_—V.—

LEE BOLLINGER, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICI CURIAE OF THE AMERICAN JEWISH COMMITTEE;

CENTRAL CONFERENCE OF AMERICAN RABBIS; HADASSAH;

NATIONAL CONFERENCE FOR COMMUNITY AND JUSTICE;

NATIONAL COUNCIL OF JEWISH WOMEN; PROGRESSIVE JEWISH

ALLIANCE; UNION OF AMERICAN HEBREW CONGREGATIONS;

AND WOMEN OF REFORM JUDAISM, THE FEDERATION OF

TEMPLE SISTERHOODS IN SUPPORT OF RESPONDENTS

ALAN S. JAFFE STEWART D. AARON

JEFFREY P. SINENSKY Counsel of Record

KARA H. STEIN MARISA A. HESSE

RICHARD T. FOLTIN THOMAS M. JANCIK

THE AMERICAN JEWISH COMMITTEE DORSEY & WHITNEY LLP

165 East 56th Street 250 Park Avenue

New York, New York 10022 — New York, New York 10177

(212) 751-4000 (212) 415-9200

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

CR Ce FET CD cite sntccsnicesticnscernnssnnssansesneenes ili

TE I SITE scbitarnesinnccccnininencicincinedinviqninaiannlens l

STATEMENT OF THE CASES. ......cccccssccscosessosessecsscsecssesee 6

BURERGARY GOP ARISUDEEING .cccsscsccccssssesscsssrcccssosesccssssosess 6

GE sicsccnicheristinntiiiaiieediiiassaciaiiitiiaaiiippuasainititinnibaipitins 8

I. HISTORIC JEWISH OPPOSITION TO

QUOTAS DOES NOT MANDATE

REJECTION OF NARROWLY TAILORED

ADMISSIONS PROGRAMS LIKE THOSE

IN PLACE AT THE UNIVERSITY OF

MICHIGAN AND ITS LAW SCHOOL .................. 8

A. The Jewish Experience With Quotas................ 9

B. Differences Between Quotas And Goals ....... 11

C. The Admissions Programs Of The

University Of Michigan And Its Law

School Do Not Establish Quotas And

Pe Cai cicsticcectccsttnitntasstesinienenineee 13

Il. CONSIDERATION OF RACE TO

ACHIEVE DIVERSITY IN PUBLIC

UNIVERSITY ADMISSIONS FURTHERS

A COMPELLING GOVERNMENTAL

ET nicicvinbinasitnicnieenastanesiinsccsipiaacsctintetiniitianee 15

A. The Value of Racial and Ethnic

Diversity in Higher Education .................... 15

B. This Court Has Recognized the

Compelling Nature of Racial and

Ethnic Diversity in Higher Education.......... 20

Ill. THE ADMISSIONS SYSTEMS AT THE

UNIVERSITY OF MICHIGAN AND ITS

LAW SCHOOL ARE NARROWLY

TAILORED TO MEET THE

COMPELLING GOVERNMENTAL

INTEREST OF ACHIEVING DIVERSITY

AND DO NOT VIOLATE THE EQUAL

PTE De CL ATI oi cccecessesesesessnssnsrvsceccceozocee 22

STITT abetiiaticctetamtnpineninnnstateetaiientnatsensnnestasieane 28

TABLE OF AUTHORITIES

Page

Cases

Adarand Constructors, Inc. v. Pena,

nS aE rctinicentnnninintentmnnennedinnmmeenematnmiees 21

Brown v. Board of Education,

ST ee ee rtttciterntnrtnticneemeinnimneteceninbans 1, 15-16

Gratz v. Bollinger,

122 F. Supp. 2d 811 (E.D. Mich. 2000).............. 6, 14, 21, 28

Grutter v. Bollinger,

re gt ee 6, 14-15, 28

Keyishian v. Board of Regents,

ee Ce nriiitiendetnnnnesuntininansieiepentinnnetinnmnnees 20

Local Union No. 35 of the Internat'l Brotherhood of

Electrical Workers v. Hartford,

a ee ee cccraesivetniesnccsnssennsnamesenniacees 9-10

Metro Broadcasting, Inc. v. FCC,

a ee ei iitiniciinittisirinneneniatinninmasniiimiagntites 21

Regents of the University of California v. Bakke,

AIT icrinnatsiecrinccnntinienninstatiacensitaniiiiinieiiies passim

Sweatt v. Painter,

es eC cccernntiitisaremmmneenmmenmemns 20

United States v. Brown University,

a ii ecesicsslinclinscsiishibaenn 18

Wygant v. Jackson Bd. of Educ.,

ns HE icinibdeteccnemiannpiimnenenmamenaniiningeniteneies 21

ill

Zelman v. Simmons-Harris,

536 U.S. 639, 122 S. Ct. 2460 (2002) .......cccccccceeseeeeeeeeeeees 15

Other Authorities

Babylonian Talmud, Tractate Sanhedrin...................--s-s0++0++ 5

Barnes, R., Politics and Passion: Theoretically a

Dangerous Liaison, 101 Yale L.J. 1631 (1992)..........000+0+ 20

The Blessings of Liberty and Education: An Address

Delivered in Manassas, Virginia, on 3 September

1894, in 5 The Frederick Douglass Papers 623 (J.

Blassingame & J. McKivigan eds. 1992)............:c0cssseeeees 15

Bowen, W. & Bok, D., The Shape of the River:

Long-Term Consequences of Considering Race in

College and University Admissions (Princeton

oo) 18, 24

CensusScope: Census 2000, (Social Science Data

Rearing TET TI cceaticecntststensimnsaninctesgrtonenenneens 19

Chilling Admissions: The Affirmative Action Crisis

and the Search for Alternatives (Gary Orfield &

Edward Miller, eds., Harvard Education Publishing

House Conference on Children and Youth, 1950)................ l

Emerson, R., “Culture,” The Conduct of Life (1860,

BD TIE ciesrentrscscentteeeriinienniesaratinnitinaniiinameemmabieis 17

Feingold, H., Lest Memory Cease: Finding Meaning

in the American Jewish Past (Syracuse University

Freedman, J., Liberal Education & The Public

Interest (University of Iowa Press 2003)................0000+. 16, 26

Goldman, A., Justice and Reverse Discrimination

(Princeton University Press 1979) .............cccccceecsceeereeeeeevees 12

Gottesman, M., Twelve Topics to Consider Before

Opting for Racial Quotas, 79 Geo. L.J. 1737 (1991) ......... 1]

Greenberg, J., Affirmative Action in Higher

Education: Confronting the Condition and Theory, 3

ee ee eek SE EE tcicncesetnsineaninniasttieeninmnmmniscenememtens 17

Gurin, P., Reports submitted on behalf of the —

University of Michigan: The Compelling Need for

Diversity in Higher Education, 5 Mich. J. Race &

ee 17

Harris, C., Critical Race Studies: An Introduction, 49

ER 24-25

Honan, W., Dartmouth Reveals Anti-Semitic Past,

ee rT 10

Hor, C. & Flores, S., Percent Plans in College

Admissions: A Comparative Analysis of Three

States’ Experiences (The Civil Rights Project,

Harvard University, Feb. 2003) ...............cccccscssseeseeseeneenenes 25

Investing in People: Developing All of America’s

Talent on Campus and in the Workplace (Business-

Higher Education Forum 2002) ...............ccccccsseesseeeeeeeee 17-19

King, M. L., Jr., Response to Award of American

Liberties Medallion at the American Jewish

Committee 58" Annual Meeting (May 20, 1965) .........

Meacham, J., The New Face of Race, NEWSWEEK

eS GRE TAIRA LEE

Nelson, W., The Changing Meaning of Equality in

Twentieth-Century Constitutional Law, 52 Wash. &

EO Ean BRIT. DG cencccncsnessennasnsnesnememenennessssnsemenes

Oren, D., Joining the Club: A History of Jews and

Yale (Yale University Press 1985)..............cssesseeereeeees

Raines, K., The Diversity and Remedial Interests in

University Admissions Programs, 91 Ky. L.J. 255

Synnott, M., The Half-Opened Door: Discrimination

at Harvard, Yale, and Princeton, 1900-1970

eee

United States Commission on Civil Rights, Beyond

Percentage Plans: The Challenge of Equal

Opportunity in Higher Education (2002) ............-0+++++++

Wightman, L., The Threat to Diversity in Legal

Education: An Empirical Analysis of the

Consequences of Abandoning Race as a Factor in

Law School Admissions Decisions, 72 N.Y .U. L.

INTERESTS OF AMICT'

The American Jewish Committee (“AJC”) is a

national, not-for-profit, human relations organization,

founded in 1906 for the purpose of protecting the civil and

religious rights of Jews. It maintains 33 regional offices in

major cities nationwide and has more than 150,000 members

and supporters. In furtherance of its goal to strengthen the

basic principles of pluralism around the world and at home as

the best defense against anti-Semitism and other forms of

bigotry, AJC has advocated for the removal of the historical

barriers faced by many in our society, particularly those of

color. For example, AJC sponsored the study demonstrating

the psychological impact of prejudice and discrimination

upon children cited by this Court in its landmark Brown v.

Board of Education decision.”

At the same time, AJC has recognized the harmful

effects of making inflexible predeterminations about the

correct composition of student bodies in the context of higher

education. For this reason, AJC has staunchly opposed, and

continues to oppose, the types of quotas used to restrict

Jewish admission to universities in the earlier part of the

Twentieth Century. Such quotas were born of bigotry and

precluded the assessment of applicants as individuals.

1 Blanket consent letters indicating the parties’ approval of the filing of

amicus briefs have been filed with the Clerk of the Court. No counsel for

any party authored this brief in whole or in part, and no person or entity

other than amici, their counsel, or their members made a monetary

contribution to the preparation or submission of this brief.

2 Brown v. Board of Education, 347 U.S. 483, 495 n.11 (1954) (citing

K.B. Clark, Effect of Prejudice and Discrimination on Personality

Development (Mid-century White House Conference on Children and

Youth, 1950)).

The two cases currently before the Court require the

synthesizing of these two principles, i.e., the importance of

removing historical barriers without making inflexible

nredeterminations. While recognizing that the removal of

historical barriers to advancement is critical to eradicating

our nation’s legacy of discrimination, there is another

compelling value at stake — diversity in higher education.

Diversity not only provides all studeuts with a richer

educational experience, but also prepares them for

participation in our pluralistic democracy. AJC believes the

compelling interest of diversity can best be served through

carefully tailored admissions programs, such as the programs

in place at the University of Michigan and its Law School.

The Central Conference of American Rabbis

(“CCAR”), founded in 1889, is the rabbinic arm of the

Reform Jewish Movement. It represents some 1,800 rabbis

across North America. Our nation’s history has been marred

by centuries of racial and ethnic prejudices and wrongdoings.

As Jews, who have often been the victims of such prejudices,

we value the importance of equality. It is noted in Genesis

that all of God’s children are “created in the image of God.”

History continues to teach the importance of equality and that

“all people benefit when the barriers to true equality are

removed.” (CCAR Resolution on Affirmative Action, 1978).

In that spirit, and in recognition of the value of a diverse

campus community, CCAR supports the carefully crafted

programs at issue here.

Hadassah, the Women’s Zionist Organization of

America, founded in 1912, is the largest women’s and

Jewish membership organization in the United States, with

over 300,000 members nationwide. In addition to

Hadassah’s mission of maintaining health care institutions in

Israel, Hadassah has a proud history of protecting the rights

of women and the Jewish community in the United States.

Hadassah supports affirmative action as an essential tool to

achieve a “level-playing field” of opportunity for historically

excluded Americans and to ensure diversity in education

from which all participants and society benefit. While

Hadassah rejects the use of quotas to achieve diversity,

Hadassah supports the use of goals and timetables. Hadassah -

believes that race is one factor that may be taken into

account, among many other factors, in making educational

admissions decisions.

The National Conference for Community and

Justice (“NCCJ”), founded in 1927 as The National

Conference of Christians and Jews by such leaders as U.S.

Supreme Court Justices Charles Evans Hughes and Benjamin

Cardozo, is a human relations organization dedicated to

fighting bias, bigotry, and racism. NCCJ promotes

understanding and respect among all races, religions and

cultures through advocacy, conflict resolution and education

through its national office and 58 regional offices. NCCJ

supports realistic goals and timetables in affirmative action

plans, and opposes the use of quotas except in rare instances

in court-ordered, short-term situations to remedy egregious

discrimination in education, healthcare, jobs and economic

opportunity.

Affirmative action policies must be maintained to

advance the creation of educational settings and workplaces

that promote diversity and inclusion and are free of bias,

bigotry, and racism. Largely because of affirmative action

programs, our nation has made significant strides toward

providing access and opportunity that have resulted in people

of color and women assuming new roles of leadership.

Affirmative action has created examples of success, inspired

the young and shown the benefits a diverse workforce brings

to corporate America. Yet, it is much too soon to declare

victory over racial and gender bias, as it is indisputable that a

majority of the U.S. population — people of color and women

~ are still facing discrimination in education, healthcare, jobs

and other economic opportunities. One of the most important

values of achieving higher education is that it is a gateway to

opportunity for the next generation of leaders and citizens.

As such, NCCJ supports the admissions programs currently

in place at the University of Michigan and its Law School.

The National Council of Jewish Women (“NCJW’’)

is a volunteer organization, inspired by Jewish values, that

works through a program of research, education, advocacy

and community service to improve the quality of life for

women, children and families and strives to ensure individual

rights and freedoms for all. Founded in 1893, NCJW has

90,000 members in over 500 communities nationwide. Given

NCJW’s National Principle, which states that “A democratic

society and its people must value diversity and foster mutual

understanding and respect for all,” as well as NCJW’s

National Resolution supporting “equal opportunity for all in

the public and private sectors through programs such as

affirmative action,” NCJW joins this brief.

The Progressive Jewish Alliance (“PJA”) is a

national membership organization dedicated to the Jewish

traditions of ensuring social and economic justice, promoting

equality and diversity and pursuing peace. Under the rubric

of “Tikkun Olam, Tikkun Ha Ir” (“Repair of the World,

Repair of the City”), PJA works in alliance with other

organizations and individuals similarly dedicated to

achieving these goals in Southern California and beyond.

The issues raised in this case are of profound concern

to PJA. The American Jewish community is acutely aware of

the need for all Americans to have access to excellent higher

education. Jewish tradition recognizes the importance of

higher education as a value in and of itself, and also as a

gateway to full participation in society. This is especially the

case with regard to law school. Jewish legal tradition

recognizes that every judge’s unique personal perception

_—-.

impacts his or her administration of the law. Babylonian

Talmud, Tractate Sanhedrin, 6b. Thus, the more varied the

pool of judges and attorneys produced by our legal education

system, the more robust and just our legal system will be.

PJA believes that carefully tailored admissions policies, such

as those in place at the University of Michigan and its Law

School, currently offer the best formula for achiewing diverse

and highly qualified student communities.

The Union of American Hebrew Congregations

(“UAHC’”) is the central body of the Reform Movement in

North America. UAHC is the largest Jewish movement in

North America, composed of 900 Reform congregations and

1.5 million Reform Jews. The Jewish tradition has always

been sensitive to the plight of the stranger. A long, dark

history of injustice and prejudice has made African

Americans, Latinos, women and other groups strangers in

society’s mainstream. As Jews deeply committed to the

prophetic imperatives of our tradition, the Reform Movement

“is dedicated to those deeds that will create justice for all

people.” (UAHC Resolution on Affirmative Action, 1977).

UAHC supports the programs at issue as important tools for

addressing the effects of discrimination and for fostering

diversity on campus.

Women of Reform Judaism, The Federation of

Temple Sisterhoods, comprised of -100,000 women in 600

local groups nationwide, deeply committed to the social

justice teachings of the prophets, is constitutionally mandated

to serve humanitarian causes. Its resolutions, adopted

through democratic processes, enable Women of Reform

Judaism to implement this mandated principle. Over the

years, Women of Reform Judaism has adopted numerous

resolutions calling for: quality public education to prepare all

students for effective participation in employment and

community; affirmative action and equity programs; and

greater understanding of America’s increasing diversity.

Women of Reform Judaism joins this brief in furtherance of

its resolutions.

STATEMENT OF THE CASES

Both cases before the Court involve the consideration

of race as a factor in the admission to public universities:

1. Pursuant to an admissions policy that was

drafted to comply with this Court’s decision in Regents of the

University of California v. Bakke, 438 U.S. 265 (1978), the

University of Michigan Law School considers race as one

factor among many that are weighed to determine which law

school applicants receive offers of admission. The policy

states that the Law School “seek[s] a mix of students with

varying backgrounds and experiences who will respect and

learn from each other.” Grutter v. Bollinger, 288 F.3d 732,

736 (6" Cir. 2002).

2. The admissions program for the College of

Literature, Science and Arts at the University of Michigan,

which also was implemented in response to this Court’s

decision in Bakke, is based upon a “selection index” points

system. Under that program, an applicant’s race is a factor

that is considered. Applicants are awarded points for a

variety of factors, including their membership in an “under-

represented” racial or ethnic minority group. Graiz v.

Bollinger, 122 F. Supp. 2d 811, 827-28 (E.D. Mich. 2000).

SUMMARY OF ARGUMENT

IL. The historic Jewish opposition to quotas does

not mandate rejection of carefully tailored goals. The Jewish

community knows first hand the harm imposed by the

utilization of quota systems in higher education because

quotas were used by premier American universities in the

early decades of the Twentieth Century to limit the number

of Jewish students. As a result, many in the Jewish

community welcomed this Court’s decision in Bakke, which

struck down a special admissions program at a state medical

school where 16 of 100 slots for entering students were set

aside for minority students and, as part of that program, a

separate admissions committee considered the applications of —

the minority students. However, flexible goals aimed at

increasing the numbers of minority students at a given

university are not the same as unconstitutional quotas.

The admissions programs utilized by the University

of Michigan, at both the Law School and the College of

Literature, Science and Arts, do not constitute quotas and are

constitutional. Under these admissions systems, race is only

one of many factors considered. There are no fixed numbers

or percentages of persons from a given race who will be

admitted. Rather, each student’s academic strengths,

personal achievements and life experiences are given

consideration, and the most overwhelming criteria used in

making admissions decisions are academic qualifications.

Il. Considering race as a factor in university

admissions furthers the compelling governmental interest of

achieving diversity in higher education in the United States.

Diversity is an important component of a well-rounded

education, especially in such a pluralistic country as our own.

Exposure in universities to those of diverse backgrounds and

experiences will better equip those graduates who go on to

become the leaders of our future. Only if diversity is

permitted to continue and flourish in our universities will our

children receive the rich and rewarding education that they

deserve.

Ill. The means used by the. University of

Michigan to meet the compelling interest in obtaining

diversity in higher education do not run afoul of the Equal

Protection Clause. Rather, they are narrowly tailored to meet

that interest. Disallowing the consideration of race as one

factor among many in university admissions would have the

effect of eliminating meaningful diversity on American

campuses. The University of Michigan should be free to

choose among properly crafted programs one that is best

suited for achieving a diverse student body.

ARGUMENT

I. HISTORIC JEWISH OPPOSITION TO

QUOTAS DOES NOT MANDATE REJECTION

OF NARROWLY TAILORED ADMISSIONS

PROGRAMS LIKE THOSE IN PLACE AT THE

UNIVERSITY OF MICHIGAN AND ITS LAW

SCHOOL.

Our country was founded upon certain bedrock

principles, chief among them being freedom and equality.

However, freedom and equality have not always been

available to all of our citizens. Many of them (notably

Native Americans, African Americans, other minority

populations and women) have historically been treated as

second-class citizens. For-many years, Jews were treated

similarly in many parts of this country. Legislation has been

passed, cases have been decided, and programs have been

implemented as societal values and mores have evolved in an

effort to achieve for all the freedom and equality to which our

country strives. The important issues that arise out of the two

cases before the Court are by-products of our past. This

Court by no means is writing on a clean slate.

Of course, the precedent most relevant to the issues

here is this Court’s decision in Bakke. In Bakke, the Medical

School of the University of California at Davis had

established a “special admissions” program under which 16

of the 100 positions in the class were set aside for

“disadvantaged” minority students. 438 U.S. at 272-75. In

addition, the “special admissions program operated with a

ecparte commmitien, & tnajecty of whieh wars members of

minority groups.” Jd. at 274.

This quota system was found to be unconstitutional.

“Tt tells applicants who are not Negro, Asian, or Chicano that

they are totally excluded from a specific percentage of the

seats in an entering class. No matter how strong their

qualifications, quantitative and extracurricular, including

their own potential for contribution to educational diversity,

they are never afforded the chance to compete with

applicants from the preferred groups for the special

admissions seats.” Jd. at 319 (Powell, J.). Accordingly, the

“two-track” program was found to be in violation of the

Equal Protection Clause. Jd. at 289-90. However, in striking

down the medical school’s admissions program, Justice

Powell distinguished between unconstitutional quota systems

and the constitutionally legitimate consideration of race as a

factor in university admissions. See id. at 320 and discussion

infra at pp. 13, 22-24. Particularly because of its unique

experience with exclusionary quotas, many in the Jewish

community vigorously opposed the admissions program

challenged in Bakke, and therefore applauded this Court’s

decision in that case.

A. The Jewish Experience With Quotas.

During the early decades of the Twentieth Century,

quotas were used to limit the number of Jews admitted to

colleges and universities? | Among the elite private

institutions, Harvard, Yale, Princeton, Columbia and

Dartmouth have well-documented histories of using quotas to

restrict the admission of Jewish candidates. In the 1920s,

Harvard, Yale and Princeton used various means to limit the

number of Jewish students, including “photographs attached

to admissions forms, specific questions regarding the

applicant’s race and religion, personal interviews, and

restriction of scholarship aid.” M. Synnott, The Half-Opened

Door: Discrimination at Harvard, Yale, and Princeton,

1900-1970, pp. 19-20 (Greenwood Press 1970). Harvard's

President, Abbott Lawrence Lowell, sought to justify

Harvard’s use of quotas limiting the number of Jews as

reducing anti-Semitism within the student body: “‘If their

number should become 40 percent of the student body,’ he

explained in a letter to Alfred Benesch, a prominent Jewish

alumnus from Cleveland, ‘the race feeling would become

intense. When on the other hand, the number of Jews was

small, the race antagonism was also small.”” H. Feingold,

Lest Memory Cease: Finding Meaning in the American

Jewish Past, p. 95 (Syracuse University Press 1997) (citation

omitted). °

In the summer of 1934, Dartmouth alumnus Ford H.

Whelden wrote to Robert C. Strong, the director of

admissions, stating. “{T]he campus seems more Jewish each

time I arrive in Hanover. And unfortunately many of them

... seem to be the ‘kike’ type.” W. Honan, Dartmouth

Reveals Anti-Semitic Past, N.Y. Times, Nov. 11, 1997, at

Al6. In response, Strong stated: “I am glad to have your

comments on the Jewish problem, and | shall appreciate your

help along this line in the future. If we go beyond the 5

percent or 6 percent in the Class of 1938, I shall be grieved

beyond words.” Jd.

and the number of Jewish dentists to a mere seven. Id, at 427. Similarly,

in 1887, Russia passed a law limiting the number of Jews in middle

higher schools to between two and fifteen percent. /d. at 426.

ee ee

In his 1944-45 annual report as the Chairman of the

Board of Admissions at Yale during the 1940s, Edward

Noyes wrote, “the Jewish problem . . . continues to call for

the utmost care and tact. . . [T]he proportion of Jews among

the candidates who are both scholastically qualified for

admission and young enough to matriculate has somewhat

increased and remains too large for comfort.” D. Oren,

Joining the Club: A History of Jews and Yale, p. 177 (Yale

University Press 1985) (emphasis supplied) (citation

omitted).

~ In the 1940s, “[e]veryone knew . . . that Columbia

like most other colleges and universities did discriminate,

especially against Jews ....". W. Nelson, The Changing

Meaning of Equality in Twentieth-Century Constitutional

Law, 52 Wash. & Lee L. Rev. 3, 35 (1995). Nicholas Murray

Butler, President of Columbia, “had earlier imposed quotas

that had the effect of reducing Jews from forty to twenty

percent of the student body.” /d. (citation omitted).

The quotas used against Jews arose out of blatant

anti-Semitism and were abhorrent. Jews were excluded from

educational opportunities strictly because they were Jews,

notwithstanding their qualifications. Although these types of

quotas no longer appear to exist, it is important that they be

kept firmly in mind in analyzing higher education admissions

programs, lest we forget the lessons of our past.

B. Differences Between Quotas And Goals.

There are constitutionally significant differences

between rigid, racial quotas and targeted goals. A quota is an

inflexible template that is often based upon population

percentages. Quotas mandate admissions based solely upon

group membership and there are often sanctions imposed if

they are not met. See M. Gottesman, Twelve Topics to

Consider Before Opting for Racial Quotas, 79 Geo. L.J.

1737, 1748-49 (1991). By contrast, goals are flexible and are

based on the relevant, available, qualified applicant pool.

They can be adjusted, as needed, and no sanctions are

imposed if they are not met. While quotas used to limit the

number of Jews in higher education were motivated by the

discriminatory intent to restrict a particular group, goals have

the intent of increasing the number of qualified minority

members at the institution. See A. Goldman, Justice and

Reverse Discrimination, p. 210 (Princeton University Press

1979) (quoting B. Sandler, 53 Commentary 14-16 (1972)).

The use of quotas in university admissions, like the

ones discussed in Section LA. above, is inappropriate and

unlawful. Accepting or rejecting students for admission to

public universities solely on the basis of their racial or ethnic

background to achieve a predetermined numerical quota is

harmful to both those students excluded and those admitted.

Quotas simply have no place in American society.

In contrast to quotas, goals in the context of

university admissions serve the compelling governmental

interest of diversity and are supported by amici. (See

discussion in Section Ii, infra.) These goals are not unlike

aspirational business plans established by for-profit

organizations. Sometimes the business plan targets are met,

and sometimes they are not, but the shareholders are

benefited because of the focus and the planning that is

directed towards an important interest of the organization.

For example, a company could set goals for profits that it

hopes to achieve. Alternatively, a company could set goals

as to the number of women and/or minorities that it would

like to employ. Both these scenarios are indistinguishable

from the University of Michigan’s efforts to strive for a

student body that reflects this nation’s pluralistic character at

its University and Law School.

———— — ee ES —

—

Cc. The Admissions Programs Of The

University Of Michigan And Its Law

School Do Not Establish Quotas And Are

Constitutional.

The admissions programs of the University of

Michigan and its Law School are not quota systems. Unlike

the admissions program in Bakke that was found

unconstitutional where there were 16 of 100 seats set aside,

there are no fixed numbers or percentages of persons from a

given race who will be admitted. Rather, the race of an

applicant merely is a factor that is considered during the

admissions process. This is precisely what was envisioned

by Justice Powell when he sanctioned the Harvard College

admissions program in Bakke. 438 U.S. at 317 (Powell, J.)

(“In such an admissions program, race or ethnic background

may be deemed a ‘plus’ in a particular applicant’s file, yet it

does not insulate the individual from comparison with all

other candidates for the available seats.”). (See discussion in

Section III, infra.)

Every application is reviewed individually, in the

context of the whole person. [Each student’s academic

strengths, personal achievements and life experiences are

given due consideration, among many other factors. The

most overwhelming criteria used in making admissions

decisions are academic qualifications (e.g., grades, test scores

and strength of curriculum). See JA 223-40. The University

only accepts students who are academically qualified to do

the work. See Pet. App. 11 1a.

These are not programs where students are admitted

solely on the basis of their race. Such programs would be in

violation of the Equal Protection Clause. The programs at

issue here are different. Under the admissions programs of

the University of Michigan and its Law School, there are

multiple factors that are considered in the admissions

process, both academic and non-academic. Although some

special consideration is given to the race of the candidate,

race is not a dispositive factor. See Gratz, 122 F. Supp. at

828 (in College of Literature, Science and Arts admissions

“points” system, twenty points awarded to under-represented

minority applicants and “six points awarded for geographic

factors, four points awarded for alumni relationship, three

points awarded for an outstanding essay, five points awarded

for leadership and service skills, twenty points awarded for

socioeconomic status, [and] twenty points awarded for

athletes”); Grutter, 288 F.3d at 747 (“the Law School’s

admissions policy states that ‘[t]here are many possible bases

for diversity admissions’ and that in evaluating ‘soft’

variables, it considers a range of factors such as leadership,

work experience, unique talents or interests and the

enthusiasm of an applicant’s letters of recommendation.”’).

Criticisms have been leveled against the Law School

admissions program because of its inclusion of a “critical

mass” component. While the Law School does not strive to

admit a particular percentage of under-represented minority

students, it does seek to enroll a meaningful number or

“critical mass” of such students, which it has defined as

“sufficient numbers to ensure under-represented minority

students do not feel isolated or like spokespersons for their

race, and do not feel uncomfortable discussing issues freely

based on their personal experiences.” Grutter, 288 F.3d at

737.

Amici believe that the “critical mass” component of

the Law School’s admissions program does not render the

admissions program unconstitutional. In contrast to quota

systems, the Law School program does not “have a portion of

the class that is set aside for a critical mass of under-

represented minority students.” Grutter, 288 F.3d at 737

(citing testimony of Dean Jeffrey Lehman). Of course, care

must be taken in the implementation of this component to

assure that it does not become a slippery slope to an

unacceptable quota system. But such care was taken by the

University of Michigan Law School. In fact, from 1987 to

1998, under-represented minority enrollment at the Law

School fluctuated between 12.3% and 20.1%. Jd. at 748.4

Looking at the Law School’s admissions program over time,

it becomes clear that a quota is not in place.

II. CONSIDERATION OF RACE TO ACHIEVE

DIVERSITY IN PUBLIC UNIVERSITY

ADMISSIONS FURTHERS A COMPELLING

GOVERNMENTAL INTEREST.

A. The Value of Racial and Ethnic Diversity in

Higher Education.

The value of a rich educational experience simply

cannot be overstated. “Education . . . means emancipation. It

means light and liberty. It means the uplifting of the soul of

man into the glorious light of truth, the light by which men

can only be made free.” The Blessings of Liberty and

Education: An Address Delivered in Manassas, Virginia, on

3 September 1894, in 5 The Frederick Douglass Papers 623

(J. Blassingame & J. McKivigan eds. 1992). What was

stated by this Court in 1954 remains true to this very day:

Today, education is perhaps the most

important function of state and _ local

governments. Compulsory school attendance

laws and the great expenditures for education

Judge Boggs’ dissent in Grutter, in disapproving of the “critical

” component of the Law School’s admissions program, focused on

to 1998 time period to conclude that “the Law School really

to enroll a critical number of minority students,” i.¢., 13.5% to

288 F.3d at 801. However, it is important to look at the Law

*s admissions program over a period of time to obtain an accurate

of how it works. As this Court recently instructed, a “snapshot”

program may not be sufficient for purposes of

analysis. See Zelman v. Simmons-Harris, 536 U.S. 639,

. Ct. 2460, 2471 (2002).

Se EN EE AES ALS I ES ee ae ee ee

both demonstrate our recognition of the

importance of education to our democratic

society. It is required in the performance of

our most basic public responsibilities, even

service in the armed forces. It is the very

foundation of good citizenship. Today it is a

principal instrument in awakening the child to

cultural values, in preparing him for later

professional training, and in helping him to

adjust normally to his environment. In these

days, it is doubtful that any child may

reasonably be expected to succeed in life if he

is denied the opportunity of an education.

Such an opportunity, where the state has

undertaken to provide it, is a mght which must

be made available to all on equal terms.

Brown v. Board of Education, 347 U.S. 483, 493 (1954).

Education is a vital interest not only for those in

public elementary, middle and high schools, but also for

those in our states’ colleges and universities. College

education prepares our citizens for fulfilling lives and

rewarding careers. In addition to its “redemptive potential to

heighten the glories and exhilarations of life” for the

individual, J. Freedman, Liberal Education & The Public

Interest, p. 70 (University of lowa Press 2003), education

provides important benefits to our society. “Liberal

education urges upon us a reflectiveness, a tentativeness, a

humility, a hospitality to other points of view, a carefulness

to be open to correction and new insight, that can mitigate

[social] tendencies toward polarity, rigidity, and intolerance.”

Id. at 57.

It is widely recognized that diversity plays a crucial

role in enhancing the quality of higher education. “Diversity

improves education. The study of history, art, literature,

sociology, psychology, politics, philosophy, law, medicine,

and many other subjects thrives on discussion, in and out of

class. Without schoolmates of diverse experience and

viewpoir.ts, including African-Americans, students would

miss an essential part of their education. For that reason,

‘[v]irtually all selective colleges and professional schools

have continued to consider race in admitting students.’”> J.

Greenberg, Affirmative Action in Higher Education:

Confronting the Condition and Theory, 43 B.C. L. REV. 521,

572 (2002) (citation omitted); see also P. Gurin, Reports

submitted on behalf of the University of Michigan: The

Compelling Need for Diversity in Higher Education, 5 Mich.

J. Race & L., 363, 364 (1999) (“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.”); K. Raines, The

Diversity and Remedial Interests in University Admissions

Programs, 91 Ky. L.J. 255, 284 (2002) (“A diverse student

body . . . allow[s] students to experience aifferent cultures

through firsthand interactions with other students.”).

Moreover, students who receive higher education in a diverse

setting will be better suited to compete in the global economy

due to an improved ability “to understand issues from

different points of view” and “to collaborate harmoniously

with co-workers from a wide range of cultural backgrounds.”

Investing in People: Developing All of America’s Talent on

Campus and in the Workplace, p. 32 (Business-Higher

Education Forum 2002) <http://www.acenet.edu/bookstore

/pdf/investing in_people.pdf> (last visited Feb. 12, 2003)

(hereinafter, “/nvesting in People’’).®

In addition to the educational benefit to individual

students, diversity in higher education serves important

communal interests. See United States v. Brown University,

5 F.3d 658, 683 (3% Cir. 1993) (“As the district court

conceded, the nation profits in immeasurable ways ‘when our

many great institutions of higher education open their doors

to those who for too long were denied the privilege of

attending college.”’’). See also Chilling Admissions: The

Affirmative Action Crisis and the Search for Alternatives, p.

13 (Gary Orfield & Edward Miller, eds., Harvard Education

Publishing Group 1998) (hereinafter, “Chilling Admissions’)

(“Universities must foster the creation of knowledge and the

training of leadership for the community and its professions.

Because of these critical functions of universities, admissions

processes reflect considerations important to the fulfillment

of community as well as individual goals. This is precisely

what the Supreme Court recognized in the Bakke case.”).

Diversity’s importance in the context of higher

education is a function of our nation’s pluralistic character.

Not only has racial and ethnic diversity been “a

6 Because of the recognized educational benefits of diversity, it is not

Surprising that the American public, including university graduates,

believes it to be of legitimate concern to university admissions decisions.

In a recent study, 88% of those surveyed believed that having students of

different races, cultures and backgrounds in higher education is

important. And more than three quarters of them agreed that the

universities “should be allowed to take action to ensure diversity in their

student bodies.” /nvesting in People, p. 32. See also W. Bowen & D.

Bok, The Shape of the River: Long-Term Consequences of Considering

Race in College and University Admissions, p. 255 (Princeton University

Press 1998) (hereinafter, “The Shape of the River”) (“Of the many

thousands of former matriculants who responded to our survey, the vast

majority believe that going to college with a diverse body of fellow

students made a valuable contribution to their education and personal

development.”).

nnn nnnnnmnssenenenennenaeapeamaene NN

ee. te

distinguishing characteristic of the United States since it

became a nation,” Jnvesting in People, p. 29, but evidence

shows that our society is becoming more diverse in

population everyday. In 2000, African Americans, Native

Americans, Asian Americans and Hispanics made up twenty-

nine percent of the population of the United States. See

CensusScope: Census 2000 (Social Science Data Analysis

Network 2000)<http://www.censusscope.org/us/chart_race.

html> (last visited Feb. 12, 2003). According to one

estimate, these groups will constitute forty-seven percent of

the United States’ population by the year 2050. J. Meacham,

The New Face of Race, Newsweek, p. 40 (Sep. 18, 2000).

Against this background, it would indeed be ironic if,

with all the factors that universities take into account to

assure diversity or otherwise serve the university's

pedagogical and institutional interests — including geography,

sports capability, socioeconomic or legacy status — that the

only factors that may not be taken into account are those

associated with populations that have been historically

underrepresented on our campuses. Moreover, taken to its

logical conclusion, the principle of absolute color-blindness

might arguably lead to the conclusion that, under traditional

civil rights analysis, even the types of preferences noted

above are unconstitutional because of their adverse, disparate

impact on minority groups. The preference for legacies, for

instance, unquestionably favors white applicants at most

universities. But the Constitution should not be read to

compel reliance on numbers-driven, grades-based admissions

standards alone, neither in those cases nor in the cases now

before the Court.’

7 As Justice Blackmun noted in his concurring opinion in Bakke: “It is

somewhat ironic to have us so deeply disturbed over a program where

race is an element of consciousness, and yet to be aware of the fact, as we

are, that institutions of higher learning, albeit more on the undergraduate

than the graduate level, have given conceded preferences up to a point to

The University of Michigan Law School’s goal of

maintaining a diverse student body is particularly compelling

because “the proving ground for legal learning and practice

cannot be effective in isolation from the individuals and

institutions with which the law interacts. Few students and

no one who has practiced law would choose to study in an

academic vacuum, removed from the interplay of ideas and

exchange of views with which the law is concerned.” Sweatt

v. Painter, 339 U.S. 629, 634 (1950). The admission of a

diverse student body into our nation’s law _ schools

ineluctably has led — and will continue to lead — to the

invaluable diversity that exists in our state and federal courts.

“(I]t is not too much to say that the ‘nation’s future depends

upon leaders trained through wide exposure’ to the ideas and

mores of students as diverse as this Nation of many peoples.”

Bakke, 438 U.S. at 313 (opinion of Powell, J.) (quoting

Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967));

see also R. Barnes, Politics and Passion: Theoretically a

Dangerous Liaison, 101 Yale L.J. 1631, 1652 (1992) (The

“diversity movement” “urges that the previously excluded be

brought into positions of power not simply to remedy

discrimination, but also to provide those institutions the

benefit of the participation of all segments of society.”’).

B. This Court Has Recognized the Compelling

Nature of Racial and Ethnic Diversity in

Higher Education.

Considering race as a factor in order to achieve

diversity in public umiversity admissions furthers a

compelling governmental interest. As was found by Justice

Powell in Bakke, “the attainment of a diverse student body

those possessed of athletic skills, to the children of alumni, to the affluent

who may bestow their largesse on the institutions, and to those having

connections with celebrities, the famous, and the powerful.” Bakke, 438

U.S. at 404 (Blackmun, J., concurring).

ae OO

. Clearly is a constitutionally permissible goal for an

institution of higher education.” 438 U.S. at 311-12.8

Significantly, decisions by this Court after Bakke

have never disavowed Justice Powell’s discussion of

diversity in higher education as a compelling governmental

interest. Indeed, members of this Court have reaffirmed

Bakke 's continuing validity in that regard. In her concurring

opinion in Wygant v. Jackson Bd. of Educ., 476 U.S. 267

(1986), Justice O’Connor stated: “[A]lthough its precise

contours are uncertain, a state interest in the promotion of

racial diversity has been found sufficiently ‘compelling,’ at

least in the context of higher education, to support the use of

racial considerations in furthering that interest.” Jd. at 286

(citation omitted). In Metro Broadcasting, Inc. v. FCC, 497

U.S. 547 (1990), overruled on other grounds by Adarand

Constructors, Inc. v. Pena, 515 U.S. 200 (1995), Justice

Brennan, in an opinion joined by Justices White, Blackmun,

Marshall and Stevens, quoted Bakke for the proposition that

“a ‘diverse student body’ contributing to a ‘robust exchange

of ideas’ is a ‘constitutionally permissible goal’ on which a

race-conscious university admissions program may be

predicated.” Metro Broadcasting, 497 U.S. at 568 (quoting

Bakke, 438 U.S. at 311-13 (Powell, J.)).

For the last quarter of a century, colleges and

universities across the country, including the University of

Michigan, have relied upon this Court’s pronouncements

8 Petitioners in Gratz v. Bollinger argue in their Brief (at page 47) that

“there is no workable way to employ Justice Powell’s framework for the

consideration of race and ethnicity in educational admissions,” and that it

results in “subjective interpretations” of what is permissible. What

Petitioners ignore, however, is the fact that admissions decisions include

elements that are inherently subjective, and often are based on subtle

judgments. The critical component of Justice Powell’s sound framework

is that race may be considered as part of an analysis that includes these

subjective elements.

post-Bakke. In doing so, they have established admissions

programs that not only are aimed at, but in fact have achieved

significant progress in diversifying their student bodies. To

accept petitioners’ arguments and end this noble endeavor

would result in a major retrenchment by institutions of higher

learning from their efforts to offer their students meaningful

Opportunities to interact with and lear from others of

differing background and experience.

Ill. THE ADMISSIONS SYSTEMS AT THE

UNIVERSITY OF MICHIGAN AND ITS LAW

SCHOOL ARE NARROWLY TAILORED TO

MEET THE COMPELLING GOVERNMENTAL

INTEREST OF ACHIEVING DIVERSITY AND

DO NOT VIOLATE THE EQUAL

PROTECTION CLAUSE.

Admissions systems at institutions of higher

education that are narrowly tailored to achieve diversity of

their student bodies, like those at the University of Michigan,

pass constitutional muster. Five Justices in Bakke joined in

the Court’s holding that a public university could, where

appropriate, constitutionally consider race under a “properly

devised admissions program” involving “competitive

consideration of race and ethnic ongin.” 438 U.S. at 320

(Powell, J.); id. at 379 (Brennan, White, Marshall, Blackmun,

JJ.). Justice Powell cited with approval to the Harvard

College admissions program, “which take{s] race into

account in achieving the educational diversity valued by the

First Amendment.” Jd. at 316. Justice Powell described the

Harvard program as follows:

In such an admissions program, race or ethnic

background may be deemed a “plus” in a

particular applicant's file, yet it does not

insulate the individual from comparison with

all other candidates for the available seats.

The file of a particular black applicant may be

examined for his potential contribution to

diversity without the factor of race being

decisive when compared, for example, with

that of an applicant identified as an Italian-

American if the latter is thought to exhibit

qualities more likely to promote beneficial

educational pluralism. Such qualities could

include exceptional personal talents, unique

work or service experience, leadership

potential, maturity, demonstrated compassion,

a history of overcoming disadvantage, ability

to communicate with the poor, or other

qualifications deemed important. In short, an

admissions program operated in this way is

flexible enough to consider all pertinent

elements of diversity in light of the particular

qualifications of each applicant, and to place

them on the same footing for consideration,

although not necessarily according them the

same weight. Indeed, the weight attributed to a

particular quality may vary from year to year

depending upon the “mix” both of the student

body and the applicants for the incoming

class.

This kind of program treats each applicant as

an individual in the admissions process. The

applicant who loses out on the last available

seat to another candidate receiving a “plus” on

the basis of ethnic background will not have

been foreclosed from all consideration for that

seat simply because he was not the right color

or had the wrong surname. It would mean only

that his combined qualifications, which may

have included similar nonobjective factors,

did not outweigh those of the other applicant.

His qualifications would have been weighed

fairly and competitively, and he would have

no basis to complain of unequal treatment

under the Fourteenth Amendment.

Id. at 317-18 (footnotes omitted). In concurring with Justice

Powell that race could be considered as a factor in university

admissions, Justices Brennan, White, Marshall and Blackmun

found that a state educational institution should be permitted

to adopt a race-conscious program, like the Harvard plan,

even without a finding on its part of past discrimination. See

id. at 369.

In the cases before the Court, the University of

Michigan and its Law School have carefully crafted their

admissions programs to comply with the Court’s decision in

Bakke. Indeed, they have many of the same attributes of the

Harvard plan that is discussed with approval in Bakke. Most

significantly, all candidates in the admissions programms at the

University of Michigan and its Law Schooi are considered as

individuals and are on equal footing in con.peting against one

another. These programs are different from the admissions

program at issue in Bakke, where disadvantaged minority

students were assessed through a special admissions program

and did not compete against the other applicants.

Importantly, disallowing the consideration of race as

one factor among many in university admissions would have

the effect of eliminating meaningful diversity on American

campuses. William Bowen, the former President of

Princeton University, and Derek Bok, the former President of

Harvard University, estimated that, if a race-neutral

admissions policy had been utilized at a sample of five

selective colleges and universities, the number of African

American students matriculating in 1989 would have fallen

from 7.1% to 2.1%. The Shape of the River, p. 34. Similar

results have been found in connection with law school

admissions. See C. Harris, Critical Race Studies: An

Introduction, 49 UCLA L. Rev. 1215, 1223-24 (2002)

-..—

(enactment of Proposition 209 (barring preferential treatment

on the basis of race) and “heavy reliance” on LSAT scores

resulted in serious declines in minority enrollments at UCLA

Law School: “Compared to the averages between 1990-1996,

the class of 2000 (admitted in 1997) represented a 73 percent

decline in African American enrollment, a 27 percent decline

in Latina/o enrollment, and an 80 percent decrease in

American Indian enrollment.”); L. Wightman, The Threat to

Diversity in Legal Education: An Empirical Analysis of the

Consequences of Abandoning Race as a Factor in Law

School Admissions Decisions, 72 N.Y.U. L. Rev. 1, 28

(1997) (without race-conscious admissions decisions, number

of African American students accepted at accredited law

schools annually would drop from 6.8% to 1.6%).

Much has been written about so-called “percentage

plans” in place in Texas, California and Florida? These

plans are deficient because they largely deprive universities

of the ability to assess applicants as individuals. In addition,

these plans have “failed to significantly increase enrollment

for all minority groups, particularly at the most prestigious

state institutions.” USCCR Report, Chap. 4. See also C.

Horn & S. Flores, Percent Plans in College Admissions: A

Comparative Analysis of Three States Experiences, p. 58

(The Civil Rights Project, Harvard University, Feb. 2003)

9 Texas instituted an admissions “percentage plan” in 1998 that

“guarantees high school graduates in the top 10 percent of their classes

admission to a Texas public college or university of their choice.” United

States Commission on Civil Rights, Beyond Percentage Plans’ The

Challenge of Equal Opportunity in Higher Education, Executive

Summary (2002) <http://www.usccr.gov/pubs/percent2 htm> (last visited

Feb. 12, 2003) (hereinafter, “USCCR Report’). Under a state-imposed

“Master Plan,” the University of California must admit the top 12.5

percent of high school graduates. /d. In 1999, Florida “instituted the

Talented 20 Program (T20 Program), which guarantees admussion to one

of Florida’s 11 public institutions for students graduating in the top 20

percent of their high school class and completing a prescribed 19-unit

academic high school curnculum.” /d.

<http://www.civilnghtsproject.harvard.edu/research/affirmati

veaction/tristate.pdf> (last visited Feb. 12, 2003) (“the

percent plans seem to have the least impact on the most

competitive campuses, which have persisting losses in spite

of many levels of efforts to make up for affirmative action’’).

Moreover, the viability of these plans depends upon the

continued segregation of the nation’s public schools, which

amici find repugnant.

It is important to note that diversity cannot be

achieved strictly by considering the socioeconomic status of

applicants. “Most poor people in the United States are

neither black nor Latino, and many of the minority students

admitted to college through race-conscious affirmative action

are not poor. A ranking of students below the poverty line by

their test scores would result in a pool of favored applicants

that was mostly Asian and white —- many of them from

temporarily poor families who managed to send their

children to competitive schools that prepared them for

college entrance exams.” Chilling Admissions, p. 9.

Public universities, like the University of Michigan,

are to be commended for reaching out to disparate groups in

our society for inclusion in their student bodies. They are to

be commended for carefully crafting admissions programs in

order to comply with this Court’s decision in Bakke and to

achieve the diversity that they have found to be essential to

higher education. “Indeed, except for the military and

professional athletics, universities have done more than any

other institution to bring minorities into full membership in

American life .... These efforts have served to unite our

shared destinies and burnish the legitimacy of democratic

ideals.” J. Freedman, Liberal Education & The Public

Interest, p. 50 (University of lowa Press 2003). Amici urge

that the State of Michigan be permitted to choose which

admissions programs to employ, so long as the programs

used — like the ones at issue in the cases before the Court —

are narrowly tailored to achieve the compelling ‘interest of

achieving diversity.

The Rev. Martin Luther King, Jr., who was presented

with the prestigious Amencan Liberties Medallion in

recognition of his “exceptional advancement of the pnnciples

of human liberty” at the American Jewish Committee’s 58”

Annual Meeting in 1965, closed his acceptance speech as

follows: “So I close by quoting the words of an old Negro

preacher who did not quite have his grammar nght but who

uttered the words of great symbolic profundity, in the form of

a prayer: ‘Lord, we ain’t what we want to be; we ain’t what

we ought to be; we ain’t what we gonna be, but, thank God,

we ain’t what we was."” Martin Luther King, Jr., Response

to Award of American Liberties Medallion at the American

Jewish Committee 58" Annual Meeting (May 20, 1965)

<http://www.ajc.org/InTheMedia/Publications.asp?did=403&

pid=930> (last visited Feb. 12, 2003). This country should

strive for the day when we are what we ought to be — diverse

and equal. Until that time, race really does matter, and public

universities should be permitted to consider race as one of a

number of factors taken into account in their admissions

programs in order to achieve the compelling state interest of

diversity in higher education.

CONCLUSION

The decision of the Sixth Circuit in Grutter v.

Bollinger should be affirmed and the judgment of the U.S.

District Court for the Eastern District of Michigan in Gratz v.

Bollinger holding that the undergraduate admissions program

is constitutional should be affirmed.

Respectfully submitted,