# Amicus Curiae Brief — Grutter v. Bollinger

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0591%3A053

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 306

## Text

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PAG oo —

Nos. 02-241 & 02-516 ce

«
_— eo

IN THE - 4 =
Supreme Court of the United States
; oo
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

iv

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.

10

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

ll

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.

12

———— — 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

13

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

14

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

be

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).

ie

15

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,

16

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) (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) (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

19

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).

20

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.

21

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

22

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

23

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)

24

me

-..—

(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) (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.

25

(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)
(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.

27

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,
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, NY 10022 New York, NY 10177
(212) 751-4000 (212) 415-9200

Attorneys for Amici Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0591%3A053. Public record. Not legal advice.