Amicus Curiae Brief — Grutter v. Bollinger

FEB 1 87005

Nos 02-24] & 02-516

‘=

Jn the Supreme Court of the United States

BARBARA GRUTTER.

Pe Lili wer

\

LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS. AND THI

BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN. ET AI

Respondents

AND

JENNIFER GRATZ AND PATRICK HAMACHER.

Petitioners

\

LEE BOLLINGER, JAMES J. DUDERSTADT, THE BOARD OF REGENTS

OF THE UNIVERSITY OF MICHIGAN, ET AL..

Ri .) onde AIS

i

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE BLACK WOMEN

LAWYERS ASSOCIATION OF GREATER CHICAGO,

INC., INSUPPORT OF RESPONDENTS

SHARON E. JONES

( HTPISE f Ri L ra

Black Women Lawyers Association

of Greater Chicago, Inc

321] South Plymouth Court

Sixth Floor

Chicago, Illinois 60604

(2) 554 70)NN

| Additional counsel listed on inside cover}

CALLIE BAIRD

MONIQUE M. MEDLEY

NOGZ! OKORAFOR-JOHNS

SHARON E. STRICKLAND

RHONDA A. SCOTT

MopbvuPt A. SOBO

DENISE MERCHERSON

Black Women Lawyers Association

of Greater Chicago, Inc.

321 South Plymouth Court

Sixth Floor

Chicago. Illinois 60604

(312) 554-2088

.

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .................. l

SUMMARY OF ARGUMENT ...................... 2

i tench cece seececeeceeceveces 4

I. Historical Analysis of Institutionalized

I, <cccccccccescceccccesocs 4

Il. Statistical Evidence of the Pervasiveness

eek ie ecccecccceseseces 8

Ill. The Experience of Black Women Lawyers

in the 20" and 21" Centuries—A

Difference in Kind and Not Just Degree. ......... 13

IV. Remedying Past Racial Discrimination In

Higher Education Is a _—— State

SE PPT TTT TTT TT Tee 18

A. The University of Michigan’s

Discriminatory History. .................. 19

B. The School Desegregation Cases

Establish the Constitutionality of Race-

Conscious Remedial Measures. ............ 21

V. Race-Neutral Plaris Are Inherently Race-

Conscious and Disadvantage African-

PE Ci beeeeebeeeercees sececacecceces 22

TABLE OF CONTENTS-Continued

Page

VI. Beneficiaries of Affirmative Action Are Not

EEE, ce ccccccceveccenecesseceedsecesi 27

ED cos vcedeenaneetuestasdetbncueies 30

ill

TABLE OF AUTHORITIES

Cases: Page

Adarand Constructors, Inc. v. Pena, No. 93-1841

SD +640 ckbduedevaneonseaqdGadsesescctiesees 7

The Antelope, 23 U.S. (10 Wheat.) 66 (1825) ........... 5

Brown v. Board of Educ., 347 U.S. 483 (1954) .. 6, 16, 18, 27

Dred Scott v. Sandford, 60 U.S. (19 How.) 393

Ain oigei es oe ee, ~ Oia ge 3,5

Green v. County School Board, 391 U.S. 430

ICE 2 dieseeeetee thet eetedlesaed ue 21, 22

Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841) ....... 5

McDaniel v. Barresi, 402 U.S. 39 (1971) ........ 8, 21, 22

Nixon v. Herndon, 273 U.S. 536 (1927) ...........005. 6

North Carolina Bd. of Educ. v. Swann, 402 U.S. 43

Dt drat cuilicinddenéuidukeddbanean ede oe 22

Plessy v. Ferguson, 163 U.S. 537 (1896) .............. 3

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) ...... 5

Railway Mail Ass'n v. Corsi, 326 U.S. 88 (1945) ........ 6

Regents of the Univ. of California v. Bakke,

Se ivndndendkddatusdesetbhes passim

The Slaughter House Cases, 83 U.S. 36 (1873) ....... 5,6

iv

TABLE OF AUTHORITIES-Continued

Page

Swann v. Charlotte-Mecklenburg Board of Educ.,

GER UEE. BERRGED cccccccccccscccoccccssoeccese 21

Sweatt v. Painter, 339 U.S. 629 (1950) ..... 2.2.6.6 eee 7

United States v. Paradise, 480 U.S. 149 (1987) ......... 8

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ... 21

Miscellaneous:

Michelle Adams, Isn't Jt Ironic? The Central Paradox at

the Heart of “Percentage Plans”, 2001 Ohio State

DIRSEEEED ca cdddeéevcesccenehdsceeesse be 24

Association of Community Organizations for Reform

Memarta” CRIED) oo cc cccccccccccccccccccccess 11

Mary Frances Berry, How Percentage Plans Keep

Minority Students Out of College, The Journal of

Higher Education (Aug. 4, 2000) .............-. 24

William G. Bowen & Derek Bok, The Shape of the River:

Long Term Consequences of Considering Race in

College and University Admissions (1998) ......... 27

tee a mmm a

Vv

TABLE OF AUTHORITIES-Continued

Jomills Henry Braddock & James M. McPartland, How

Minorities Continue to be Excluded from Equal

Employment Opportunities: Research on Labor

Market and Institutional Barriers, 43 J. of Soc. Issues

PE 26 PudeuGncbeendcedconctccensescacets

Elizabeth Chambliss, Miles to Go 2000, Progress of

Minorities in the Legal Profession, American Bar

Association, Commission of Racial and Ethnic

Diversity in the Profession (2000) ................

Theodore Cross, Why the Hopwood Ruling Would Remove

Most African-Americans from the Nation's Most

Selective Universities, Journal of Blacks in Higher

Educ. 68 (Spring 1996) ..... 2... 0.0 ..c000e ee 25, 26

Theodore Cross & Robert Bruce Slater, How Bans on Race

Sensitive Admissions Severely Cut Black Enrollments

at Flagship State Universities, Journal of Blacks in

Higher Education (Feb. 6, 2003) ..............0-.

John Hope Franklin, From Slavery to Freedom (4" ed.

PE Sere. PPeyy Tree eee T PITT TT Te

Harold Freeman & Eric C. Schneider, Racial Disparities

in the Quality of Care for Enrollees in Medicare

Managed Care, Journal of the American Medical

Association 1288 (March 14, 2002) .............

Diana B. Henriques, Nissan's Loan Cost, Racial Tie

Revealed, N.Y. Times, July 4,2001 .............

vi

TABLE OF AUTHORITIES-Continued

Page

The History of the Black Student Alliance at Duke

University, http://www.duke.edu/web/

PS Perrrerrini Tritt 7

Ratna Indah, untitled story, January 19, 1999,

www3.baylor.edu/Lariat/Archives/1999/1999011 —

Wi2 Clack dtmd 0... ccc ccc cccvcsccccccccees 7

Kenneth T. Jackson, Crabgrass Frontier: The

Suburbanization of the United States (1985) ....... 6

William C. Kidder, Affirmative Action in Higher

Education: Recent Developments in Litigation,

Admissions and Diversity Research, 12 Berkeley La

Rese.L.J. 173 C2GO1) 0. wc ceccccccscvccceves 24, 25

Richard Kluger, Simple Justice (1975) ..........-+++++ 5

Lawyers for One America, Bar None: Report to

the President of the United State: on the Status

of People of Color, www.\foa.org/barnone_

collaboration.html. ............600eeeeeeeeeeee 29

Richard O. Lempert, ef al., “From the Trenches to the

Towers”: Law School Affirmative Action: ”

Empirical Study of Michigan's Graduates

Practice: The River Runs Through Law School, 25

Law & Soc. Inquiry 395 (2000) ............06+- 28

Jennifer Lin, Civil Rights Commission Denounces

Percentage Programs, In Motion Magazine, 7 (June

2 FED oc cccoscvevddsocdccccsctevecedosoes 25

Vil

TABLE OF AUTHORITIES-Continued

Lydia Lum, Black Students’ Struggles to Integrate

Cause Doubts of Acceptance, Houston Chronicle,

August 24, 1997, http://www.chron.com/cgi-bin/

auth/story/content/chronicle/metropolitan/hopwood/

IE bos voBanccecdéaeneccececesés 7

Joseph Lupton & Frank Stafford, Household Financial

Wealth, (Thousands of 1999 Dollars), Institute for

Social Research (Jan. 2000) ................ 10, 11

Douglas S. Massey & Nancy A. Denton, American

Apartheid: Segregation and the Making of the

ET es 8,9

Douglas S. Massey, Residential Segregation and

Neighborhood Conditions in U.S. Metropolitan

Areas, in | America Becoming 399 (Neil J. Smelser

a SRE ES FR 9

Gary Orfield, Federal Policy, Local Power and

Metropolitan Segregation, 89 Pol. Sci. Q. 784

Ds cUetbinibctascndcdsbbeoccesvesbccece 6

Gary Orfield, Segregated Housing and School

Resegregation in Dismantling Desegregation

it awh eseddihanethsecéeedesseceectcees 7

Stephen Power, Black Graduate Tells Story of Racism,

Hatred Factored For Students in the 1950s,

Cavalier Daily, http://www.mcps.org/ss/Sthgrade/

EET RS ee 7

Vill

TABLE OF AUTHORITIES-Continued

Page

Resolution to Award an Honorary Doctorate

Degree to Mr. Harold Franklin, http://

www.auburn.edu/administration/governance/

CUTE 6 kak cdc cagedeerccdccedscees

Daria Roithmayr, Barriers to Entry: A Market Lock-In

Model of Discrimination, 86 Va. L. Rev. 727 (2000) . . .

Kevin A. Schulman, The Effect of Race and Sex on

Physicians: Recommendations for Cardiac

Catheterization, New England Journal of Medicine

GOB GURNEY Za TOGOD cc ccccssdeccccecedeee:

Janny Scott, Rethinking Segregation Beyond Black and

White, N.Y. Times, July 29, 2001, § 4, at] ........

Tambra Stevenson, First Black Student Honored by OSU,

The Daily O’Collegian, April 15, 2002,

http://www.ocolly.com/issues/2002_Spring/04150

TRIRO o. oo cc cba viesesvesgcasccdsesss

Susan Sturm & Lani Guinier, The Future of Affirmative

Action: Reclaiming The Innovative Ideal,, 84 Cal.

eR | Rr Tiere

T. Shawn Taylor, What’s In A Name? Bias, Sometimes,

Chi. Tribune, Dec. 29, 2002 ............520 ees

U.S. Commission on Civil Rights, The Fair Housing

Amendments of 1988: The Enforcement Report

CODED od ca dnc ccccvccccutedcaspabhtee Geadeet

~nsas—= — —- ——___-_ -.

ix

TABLE OF AUTHORITIES-Continued

Page

University of Rhode Island, Office of Affirmative Action,

Equal Opportunity, and Diversity, www.uri.edu. ... 18

Carol S. Weisse, et al., Do Gender and Race Affect

Decisions About Pain Management, Journal of

General Internal Medicine 211 (April 2001) ...... 12

Bridgett Williams, Edith Hubbard: Survivor in the Era of

Integration, CNN.com February 15, 2001,

www.cnn.com/fyi/interactive/specials/bhm/story/

SE nv enduudevndebes dues beeue 7

INTEREST OF AMICUS CURIAE

The Black Women Lawyers Association of Greater Chicago,

Inc. (“BWLA”) is an association of African-American female

lawyers, judges, law professors and law students whose mission

is to provide professional support for the continued presence

and participation of African-American women in the legal

profession. As such, BWLA’s interest in these cases is

substantial. BWLA is in a unique position to provide a

perspective on issues which may not be adequately covered by

the parties in their briefs or by the other Amici before this

Court. Specifically, BWLA’s perspective is unique because

many of its members have been beneficiaries of college,

university and law school admissions programs designed to

create diverse applicant pools and student bodies. Additionally,

as an organization whose membership includes attorneys, law

professors and judges, BWLA is in a unique position to

describe the experience of practicing law as an African-

American lawyer during the twenty-five years since this

Court’s decision in the Bakke case.

A ruling proscribing the consideration of race as one factor,

among many, in admissions decisions would dramatically

reduce the number of black students admitted to our nation’s

institutions of higher learning, and thereby curtail professional

and other employment opportunities reserved for those with

college and graduate levels of education. As African-American

attorneys and judges, our presence in the legal system is critical

to the public’s perception that our system of justice is fair, open

and inclusive. Our opportunity for full participation in the legal

system will be determined by the outcome of this case. Finally,

a ruling proscribing the consideration of race as a positive

factor in admissions would have a devastating impact on efforts

to remedy past and present discrimination against African-

2

Americans and, correspondingly, to eliminate the possibility of

ever achieving a day when race no longer matters in America.’

SUMMARY OF ARGUMENT

Race still plays a part in the lives of every American.

History, statistical evidence, case law, and the personal

experiences of our members demonstrate the important role that

race plays in America. Race must remain a factor in the higher

education admissions process as long as race remains a factor

in America.

The focus of this case is on a state university’s decision to

use race as one factor, among several others, to include

underrepresented minorities in its student body. With that focus

in mind, we must consider that the educational institution that

is seeking to uphold its admissions process which uses race as

a factor is the same institution that had barriers to entry for

African-Americans and perpetuated a racially hostile

environment on its campus for years. Closing the door of

opportunity on higher education for African-Americans will

have an effect as dismal and lasting as slavery and the

segregation laws have had on this country. The University of

Michigan’s inclusionary admissions processes are narrowly

tailored solutions to an American dilemma that has spanned

hundreds of years. Although the University itself does not argue

that its own history of discrimination serves as a remedial

justification for its admissions policies, the Intervenors have

made a compelling case, and thus the Court should consider

this justification.

' Letters of consent by the parties to the filing of this brief have been lodged

with the Clerk of this Court. Pursuant to rule 37.6, amicus curiae affirm that

no counsel for any party in this case authored this brief in whole or in part.

No person or entity, outside of amicus curiae, has made a monetary

contribution to the preparation or submission of this brief.

3

In light of substantial evidence of the University of

Michigan’s specific discriminatory history, and American

history itself, no other evidence should be required to justify a

race-conscious admissions program designed to include the

descendants of slaves in achieving equality of opportunity in

this country. One need look no further than an American

history book to identify acts of racial discrimination sanctioned

under our nation’s Constitution in order to justify a remedial

admissions policy. Slavery, de jure and de facto segregation,

and Jim Crow laws are undisputed chapters of American

history that require no legislative, judicial or administrative

determination to prove that they indeed occurred.

Moreover, the Supreme Court itself has had a major role in

framing the issues and shaping the impact of race in this

country through its decisions in Dred Scott v. Sandford, 60 U.S.

(19 How.) 393 (1856), and Plessy v. Ferguson, 163 U.S. 537

(1896), among others. As those cases demonstrate, noteven this

Court was immune from discriminating against African-

Americans in this country. Therefore, it comes as no surprise

that no segment of American society has been immune from the

legacy of discrimination that began with the institution of

slavery and continues today in other forms. Proof of racial

discrimination in this country is readily available and its

continuing effects are sufficient to justify a remedial program

designed to alleviate the effects of past discrimination against

African-Americans. ;

_ As Justice Marshall stated in Regents of the Univ. of

California v. Bakke, 438 U.S. 265 (1978):

I agree with the judgment of the Court insofar as it

permits a university to consider the race of an applicant in

making admissions decisions. I do not agree that

petitioner’s admissions program violates the Constitution.

For it must be remembered that, during most of the past

200 years, the Constitution, as interpreted by this Court,

did not prohibit the most ingenious and pervasive forms

4

of discrimination against the Negro. Now when a State

acts to remedy the effects of that legacy of discrimination,

I cannot believe that this same Constitution stands as a

barrier.

438 U.S. at 387 (1978) (Marshall, J., dissenting). The

University of Michigan’s admissions processes are not only

justified by the need to remedy past and present discrimination;

they are also narrowly tailored to do so.’ The proffered “race-

neutral” means have racially discriminatory effects on African-

Americans because they act and have acted to exclude A frican-

Americans. Additionally, African-Americans are not

stigmatized by programs that include rather than exclude them.

Accordingly, the University’s admissions programs should be

upheld.

ARGUMENT

I. Historical Analysis of Institutionalized Racial

Discrimination.

The United States of America is a country that was founded

on racial differences—from your birth certificate to your death

certificate, race matters. This Court cannot reach a resolution of

these cases without considering the historical perspective of

race in America and the Court’s role in establishing a legal

basis for the use of race in America.

Nearly four centuries ago, blacks were kidnaped and forcibly

brought to this country to be sold into slavery. For two and a

half centuries, African-Americans were held in slavery and

deprived of the most basic human rights. Slaves were denied

any form of education and, in many states, were legally

2 The BWLA recognizes that the University of Michigan contends that it has

a compelling state interest in a diverse student body for a number f reasons.

We support the University’s actions in seeking a diverse student body and

we join with other amici in support of the University’s position. However,

we will not address the diversity arguments in this brief.

‘

5

forbidden to learn how to read. They had no right to vote, to

participate in any political activities, to marry or to contract out

their services. As property, they could be bought, sold, leased

and seized on the whim of their owner. See generally, John

Hope Franklin, From Slavery to Freedom (4" ed. 1974);

Richard Kluger, Simple Justice 27 (1975).

The Constitution treated a slave as three-fifths of a person

for purposes of apportioning Congressional representatives and

taxes among the States. U.S. Const. art. I, § 2. The Constitution

also contained a clause ensuring that the migration and

importation of slaves would not end before 1808. U.S. Const.

art. I, § 9. Congress later passed laws that strengthened the

institution of slavery. In 1793 and 1850, Congress enacted

fugitive slave laws that empowered the federal government to

apprehend fugitives and offered no protection against

enslavement of northern blacks who had been born free.

This Court facilitated the legal institutionalization of slavery

through a succession of cases in the early nineteenth century

that continued to confirm the status of blacks as mere property,

and thus inherently inferior to whites. See, e.g., Groves v.

Slaughter, 40 U.S. (15 Pet) 449 (1841); The Antelope, 23 U.S.

(10 Wheat.) 66 (1825); Prigg v. Pennsylvania, 41 U.S. (16 Pet.)

539, 540 (1842). Perhaps one of the most notorious cases was

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). In Dred

Scott, this Court concluded that blacks were not intended to be

included as citizens but were “regarded as beings of an inferior

order. ..altogether unfit to associate with the white race, either

in social or political relations; and so far inferior, that they had

no rights which the white man was bound to respect...” /d. at

407. In 1868, Congress ratified the Fourteenth Amendment. In

The Slaughter House Cases, 83 U.S. 36, 71-72 (1873), this

Court recognized that the “pervading spirit” and purpose of the

Fourteenth Amendment was to remedy the evil of slavery.

Similarly, early decisions of this Court recognized that the “one

pervading purpose” of the Reconstruction Amendments was

6

“the freedom of the slave race, the security and firm

esta>/ishment of that freedom and the protection of the newly-

made freeman and citizen from the oppressions of those who

had formerly exercised unlimited dominion over him.” The

Slaughter House Cases, 83 U.S. at 71; see also Bakke, 438 U.S.

at 398 (Marshall, J. dissenting); Railway Mail Ass'n v. Corsi,

326 U.S. 88, 94 (1945). ./ixon v. Herndon, 273 U.S. 536,

541(1927).

Vunatet conteny genes pelenen, Se Sees ane

after Brown v. Board of Educ., 347 U.S. 483 (1954), have

perpetuated the legacy of slavery and state sanctioned

segregation and discrimination by erecting barriers that

depressed black economic advancement and substantially

eliminated opportunities for generations of blacks to amass

personal and familial assets. Even with the end of de jure

segregation in public schools, blacks continued to suffer de

facto segregation in public schools and the effects of federal

policies designed to ensure their status as inferior third-class

citizens. For example, for decades, beginning in the 1930's, the

Federal Housing Administration (“FHA”) actively fostered

residential segregation. See, e.g, Kenneth T. Jackson,

Crabgrass Frontier: The Suburbanization of the United States

196-218 (1985); Gary Orfield, Federal Policy, Local Power

and Metropolitan Segregation, 89 Pol. Sci. Q. 784-90 (1974-

75). FHA Deputy Commissioner Philip Maloney reported in

1 On he eS ee ee wong by

minority family housing has provided through

Orfield, supra at 789 (citing Cong. Rec. $15456 (1967)). The

FHA also institutionalized overtly discriminatory lending

practices that denied black families the opportunities to buy

homes and accumulate equity. See Kenneth T. Jackson, supra,

at 213-14 & n.41. This pattern and practice of discrimination in

housing continued well into the 20° Century. For example,

despite the passage of the Fair Housing Act in 1968 and an

amended version in 1988, enforcement of housing anti-

discrimination laws continues to be inadequate. See U.S.

7

Commission on Civil Rights, The Fair Housing Amendments of

1988: The Enforcement Report 5 (1988); Gary Orfield,

Segregated Housing and School Resegregation in Dismantling

Desegregation 299 (Orfield et. al. eds. 1996).

The University of Texas at Austin did not formally

desegregate until 1950 when it admitted a black law student

pursuant to this Court’s opinion in Sweatt v. Painter, 339 U.S.

629 (1950). The first African-American to enroll at Oklahoma

State University was admitted as a graduate student in 1949 and

received her master’s degree in 1952. The University of

Virginia admitted its first black undergraduate student in 1955.

The University of North Carolina at Chapel Hill admitted black

males to its undergraduate school in 1955. Duke University

admitted its first black undergraduates in the Class of 1963.

Harold A. Franklin became the first African-American student

at Auburn University in 1964. Robert Gilbert was Baylor

University's first black graduate in 1967. Until the mid-1940s,

the University of South Carolina was the only state-supported

law school in the South that had ever admitted African-

Americans.‘

* See also Brief of NAACP Legal Defense Fund, Inc., as amicus curiae in

Adarand Constructors, Inc. v. Pena, No. 93-1841 (1995).

* Lydia Lum, Black Students’ Struggles to Integrate Cause Doubts of

Acceptance, Houston Chronicle, August 24, 1997, http://www chron.com/

cgi-bin/auth/story/content/chronicle/metropolitan/hopwood/desegregation.

html; Tambra Stevenson, First Black Student Honored by OSU, The Daily

O’Collegian, April 15, 2002, http://www.ocolly.com/issues/2002_Spring/

04 1 502/stories/davis.html; Stephen Power, Black Graduate Tells Story of

Racism, Hatred Factored For Students in the 1950s, Cavalier Daily,

http://www _.mcps.org/ss/Sthgrade/desegUV A pdf, Bridgett Williams, Edith

Hubbard: Survivor in the Era of Integration, CNN.com February 15, 2001,

www.cnn.com/fyi/interactive/specials/bhm/story/edith.hubbard.htm!;

http://www.duke.edu/web/bsa/about. htm;

http://www .auburn.edu/administration/governance/senate/franklin.htm|,

Ratna Indah, untitled story, January 19, 1999,

www 3_.baylor.edu/Lariat/Archives/1999/19990119/12 black html; Daria

This historic pattern and practice of racial discrimination

1970’s—contrary to this Court’s holding in Brown that

“separate educational facilities are inherently unequal.” See,

e.g. McDaniel v. Barresi, 402 U.S. 39 (1971) (upholding Clark

County, Georgia’s mandatory integration plan to remedy past

discrimination after a challenge by parents claiming it violated

the Equal Protection Clause). Moreover, as recently as 1987, -

this Court acknowledged that the Alabama Department of

Safety’s “pervasive, systematic and obstinate discriminatory

conduct” justified a narrowly tailored race-conscious remedy.

United States v. Paradise, 480 U.S. 149, 167 (1987) (plurality

opinion). Simply put, the effects of four hundred years of

federal- and state-imposed racial discrimination have continued

to the present. These effects did not disappear with the legal

elimination of de jure discrimination.

Il. Statistical Evidence of the Pervasiveness of Racial

Discrimination.

Countless studies support our position that race continues to

matter in America and that the experience of African-

Americans differs fundamentally from the experience of whites.

Not only is it fundamentally different, it is one in which our

historical status as “beings of an inferior order” still acts as a

disadvantage. This is true in housing, education, healthcare,

employment, and in every aspect of society. Statistical evidence

proves that racial discrimination continues to the present.

For example, this country remains residentially segregated

on the basis of race. Black/white segregation in housing

remains the most extreme of all residential segregation.

Douglas S. Massey & Nancy A. Denton, American Apartheid:

Segregation and the Making of the Underclass 235 (1993);

Janny Scott, Rethinking Segregation Beyond Black and White,

Roithmayr, Barriers to Entry. A Market Lock-In Model of Discrimination,

86 Va. L. Rev. 727, 755 (2000).

9

N.Y. Times, July 29, 2001, § 4, at 1, 6. Housing is the market

that determines one’s schooling, peer groups, safety, jobs,

insurance costs, public services, home equity, and, ultimately,

wealth. No other ethnic or racial group in the history of the

United States has ever, even briefly, experienced the high levels

of residential segregation that African-Americans face.

Douglas S. Massey, Residential Segregation and Neighborhood

Conditions in U.S. Metropolitan Areas,in 1 AmericaBecoming ~-

399, 401 (Neil J. Smelser et al. eds., 2001). Moreover, unlike

the experience of other ethnic groups, class does not explain the

segregation of African-Americans. No matter how

socioeconomic status is measured, black residential segregation

remains universally high. Massey and Denton, supra at 88 n. 87

(1993).

Discrimination also persists in employment. African-

Americans continue to face the exclusionary barriers created by

segregated social networks, information bias, and

discrimination.’ Discrimination in hiring underpins a continued

lack of access to employment. Indeed, two economics

professors at the University of Chicago Graduate School of

Business and Massachusetts Institute of Technology recently

conducted a study, which found that resumes randomly

assigned white-sounding names elicited 50% more callbacks

than resumes assigned stereotypically “African-American-

sounding names”. The study’s authors sent out 5,000 resumes

in response to 1,300 job postings in The Boston Globe and

Chicago Tribune. The stereotypically African-American and

white sounding names were evenly divided so that the only

* See Jomills Henry Braddock I] & James M. McPartland, How Minorities

Continue to be Excluded from Equal Employment Opportunities: Research

on Labor Market and Institutional Barriers, 43 J. of Soc. Issues 28 (1987)

(“Minorities face special difficulties in the employment process not only

because they are victims of past discrimination in educational and

occupational opportunities, but also because of the specific barriers that

qualified individuals often encounter at present because of their membership

in a race or ethnic minority group.”).

10

differing factor was the name. T. Shawn Taylor, What's In A

Name? Bias, Sometimes, Chicago Tribune, December 29, 2002,

at page 5. Additionally, for applicants perceived as white, with

resumes containing impressive skills, experience, academic

degrees and honors received 30% more callbacks than those

with low-quality resumes. Unfortunately, similar impressive

credentials did not elicit more callbacks for African-Americans.

According to the study’s authors, a possible interpretation for

such a finding is “when employers see a certain honor or skill,

they don’t put as much weight on it for African-Americans as

they do for whites.” The study concluded that racial

discrimination is an important reason why African-Americans

do poorly in the labor market. /d.

The current unemployment rate for African-Americans is

10%, for whites it is 5%. Id. In 2000, white men and African-

American men were employed in managerial and professional

(white-collar) occupations at 32 % and 18%, respectively. U.S.

Census Bureau, Population Profile of the United States (2000).

For women, the percentages were 35% for white women and

25% for African-American women. There are differential

earnings for college educated African-Americans and whites.

The median income for whites with a bachelor’s degree or more

was $41,700 in 2000. For African-Americans with a bachelor’s

degree or more, the median income was $36,600. U.S. Census

Bureau, Population Profile of the United States (2000).

Unsurprisingly, there are significant disparities in household

income resulting from a legacy of past and present racial

discrimination in housing and employment. A frican- Americans

earn less than whites in virtually every occupational group.

Joseph Lupton & Frank Stafford, Household Financial Wealth,

(Thousands of 1999 Dollars), Institute for Social Research (Jan.

2000). The median household income for whites was $44,366

in 1999, compared with $27,910 for African-Americans. /d. For

every dollar of wealth the median white household held in

1999, the median black household held 9 cents. Jd. Net worth

for the median biack household declined between 1994 and

1999 while net worth for white households increased 20%. /d

Income disparities are further compounded when A frican-

Americans pay more for financial services than their white

counterparts. African-Americans paid on average more than

double the discretionary finance charges than white automobile

buyers with comparable credit ratings. See Diana B. Henriques,

Nissan's Loan Cost, Racial Tie Revealed, The N.Y. Times, July

4, 2001. A statistical study conducted by Professor Mark Cohen

of Vanderbilt University of 300,000 car loans arranged through

Nissan dealers from March 1993 to September of 2000, shows

that black customers in 33 states consistently paid more than

white customers, regardless of their credit histories. Jd More

specifically, African-American customers with the best credit

rating paid on average $660 for discretionary finance charges

on auto loans, while white customers spent $299 according to

the study. African-American customers with the worst credit

risks paid $1,100, while similar white customers paid $800. /d.

In African-American neighborhoods, sub-prime lenders now

account for more than half of all refinanced loans, compared to

just 9 % in predominantly white neighborhoods. From 1995 to

2000, the number of sub-prime purchase loans to African-

American home buyers rose 714 %, while the number of prime

conventional purchase loans fell 2.5 percent. Association of

Community Organizations for Reform Now (ACORN)

“Separate But Equal: Predatory Lending in America” (2002).

As shown above, every major indicator demonstrates that.

African-Americans, regardless of socioeconomic status,

continue to experience the effects of racial discrimination. This

is true even in the healthcare field. A report in the Journal of the

American Medical Association found that blacks enrolled in

Medicare managed-care plans received a poorer quality of care

than white enrollees. More specifically, African-Americans

over age 65 are 10% less likely to receive medications called

beta-blockers to prevent repeat heart attacks. Blacks enrolled in

12

Medicare managed-care plans are 21 percent less likely than

whites to receive follow-up help after hospitalizations for

mental illnesses. Blacks are also 7% less likely to receive eye

exams to prevent blindness from glaucoma resulting from

diabetes. Several factors are generally associated with inferior

medical care, including lower socioeconomic status. But the

researchers found that after correcting for these factors,

significant racial disparities persisted. Harold Freeman and Eric

C. Schneider, Racial Disparities in the Quality of Care for

Enrollees in Medicare Managed Care, Journal of the American

Medical Association 1288 (March 14, 2002). Moreover, the

New England Journal of Medicine reported in a study involving

African-American and white actors playing patients, physicians

were significantly less likely to recommend cardiac

catheterization for African-American females than for white

females, white males and African-American males exhibiting

the same symptoms. Kevin A. Schulman, The Effect of Race

and Sex on Physicians: Recommendations for Cardiac

Catheterization, The New England Journal of Medicine 618

(February 25, 1999). Even pain medications are prescribed at

differing rates for white and black patients. Carol S. Weisse, ef

al., Do Gender and Race Affect Decisions About Pain

Management, Journal of General Internal Medicine 211 (April

2001) (study found that male physicians prescribed twice the

level of pain medication for white patients than black patients. ).

The above statistics provide ample evidence establishing the

overwhelming present-day discrimination faced by African-

Americans in all facets of our lives. The one factor that has

served to narrow the professional, housing, and economic gaps

is access to higher education. As the statistics set forth above

establish, without race as a criteria in admissions, the doors to

economic opportunity through higher education will be closed.

13

III. The Experience of Black Women Lawyers in the 20"

and 21“ Centuries—A Difference in Kind and Not Just

Degree.

Petitioners and certain amici argue that race should not be

used as a factor to deal with “societal discrimination.” Use of

the term “societal discrimination” diminishes the pervasive

nature of the discrimination faced by African-American

lawyers and fails to accurately describe our experiences and the

depth with which racial discrimination continues to affect us.

Justice Marshall wrote in Bakke that “[t]he experience of

Negroes in America has been different in kind, not just in

degree from that of other ethnic groups.” 438 U.S. at 400

(Marshall, J., dissenting). The collective experience of our

members corroborates Justice Marshall’s observation. Below,

we provide a representative sample of some of the experiences

of a few of our members to demonstrate to this Court that

despite the acquisition of both undergraduate and graduate

degrees, race acts as a significant disadvantage for African-

American lawyers.

One of our members describes growing up in Chicago during

the late 1970’s and early 1980’s and attending college after

Bakke as follows: :

In approximately the eighth grade, I moved to a very

segregated neighborhood on the south side of Chicago.

The neighborhood was predominantly white. My family

was the first black family on our block. I was one of only

8 black students in my eighth grade class. I was called

“Nigger” and “little black girl” and shunned by all but the

other black students in the class. Within one year of my

family moving to our block, every white family on the

block moved out and was replaced by black families. Not

only my block changed over racially, but the entire

neighborhood changed from white to black. During the

first year however, the police were at our house

constantly due to the racial harassment my family faced.

14

On several occasions, we were awakened to crosses

burning in the yard. One night, someone set our garage on

fire, which caused the gas lawnmower inside to catch fire.

In the late 1970’s, when I graduated from high school,

I went to the largest public university in our state. I was

the only black person in my field of study. I was the only

black person in classes in my major. Once, in a standing

room only lecture hall, white students chose to stand as

opposed to sitting down in the empty seats next to me on

either side or behind or in front of me.

aa

1S

I have rarely been in a meeting in a business setting

where another black person was present. These

experiences made me feel very isolated and alone. For

most of the white people with whom I have worked, their

experience with me is their first meaningful experience

with a black lawyer and, as a result, I often have to spend

time and energy trying to dispel the stereotypical

assumptions they have about black women lawyers or

black people, in general. I attribute all I have

accomplished in my legal career to my hard work and the

opportunity to attend Harvard College and Harvard Law

School.

Another of our members described her experience growing

up in Chicago and attending college and law school and

practicing law since Bakke as follows:

Another of our members describes her experience of

attending law school in the South during the 1970’s and her

I grew up on the South side of Chicago in an all-black experience in the practice of law:

segregated neighborhood and attended public elementary

and high schools in Chicago. In order to attend a better

high school, my mother sent me to an integrated school

outside my neighborhood. I finished near the top of my

~ high school class and graduated from Harvard College

with honors in 1977. Before I applied to college, I did not

know anyone who had gone to Harvard or to college in

the Boston area. I also graduated from Harvard Law

School in 1982. I am a beneficiary of race-conscious

admissions and I do not feel stigmatized by that fact. No

one in my family attended Harvard. I am the first lawyer

in my family.

Since law school, I have worked in the legal

departments of two Fortune 200 companies, two large law

firms, one small law firm and a government legal

department. In most of my jobs since law school, I have

been the only black lawyer or one of less than a handful

of lawyers. On a few occasions, I was the first black

lawyer or first black female attorney to work at that

company or firm. During my 21 years of practicing law,

In 1973, I happened to catch a glimpse of a TV

interview of a black Congresswoman who commented

that she was a lawyer. I thought, “she looks like me.

Maybe I could be a lawyer too.” I did not know one black

woman lawyer. I had no role models. I had a husband and

two small children. But I applied to law school anyway

and was wait-listed. Full of self-doubt, I was scared to

death that I would not get in and even more scared that I

would. I got in and for the first time in my life I had

black classmates and I honestly believe that I would not

have made it through that first year without their

encouragement and support. I did well. After my second

year of law school, we moved to the South. I had to

transfer. I made an appointment with the dean of the

state’s flagship law school who told me there was

absolutely no place for me there. I persevered and found

my way to the school’s affirmative action committee. I

got in. For two years, I was ignored by virtually all of my

white classmates and only tolerated by most of my

professors. Fortunately, I received support from the other

16

black students and I learned to function and even thrive in

an atmosphere of cold southern racism.

For the past 23 years, I have practiced law in a

government agency. In our office, there are

approximately 40 lawyers, including three black women.

It has primarily been an atmosphere of benign neglect.

However, I have found my way and have had a rewarding

career investigating and litigating fairly complicated

cases. One of my daughters graduated with honors from

a well-known law school. She practices public interest

law.

This member describes her experience with desegregation in

the South and her experience in the practice of law:

In 1966, twelve years after Brown, a decree entered by

the Court of Appeals for the Fifth Circuit finally brought

integration to the schools in my southern home town. I,

together, with two other young children, each day left my

segregated community to attend a school on the other side

of town. Although the schools were integrated, movie

theaters, doctor’s offices and the dressing rooms of many

retail establishments remained segregated. I was ridiculed

and taunted by white children who were opposed to my

presence in the school. During most of my fourth grade

year, my teacher referred to me as a “negress”. In 1971,

we moved to Chicago. After graduating from high school

in the top 2 % of my class, I attended the largest state

university in Illinois. I was the only African-American

student in the entire department in my field of

concentration. Students ignored my presence and very

_ few would offer me any assistance. I later attended law

school and graduated in 1983.1 joined the law department

of a local public agency, where I was one of four African-

American attorneys in an office of over 150 attorneys. I

presently work in a government law office of

approximately 140 attorneys as a supervisor. There are

17

only 4 other African-American attorneys in the office. My

years of practice have been marked by negative events

arising solely from my race. My competence has been

challenged repeatedly. I have been mistaken for the court

clerk, judge’s secretary and an office secretary. I have

learned to live with a sense of isolation in the practice.

Another of our members describes her experience growing

up in the 1980’s and practicing as a lawyer in Chicago:

I grew up in the south suburbs of Chicago as one of four

children. As medical doctors, my parents afforded us the

best possible. educational, athletic and community-

oriented opportunities that they could. We grew up ina

predominantly white affluent suburb. We received racial

threats by telephone and mail while we were in high

school and elementary school. My experiences in college,

graduate school and law school only broadened my

exposure to racism. Despite a presence of a diverse group

of students, disparate treatment from the white students

was the norm.

My experience in the law practice is similar. When

appearing before judges or other attorneys, I am regularly

mistaken for a non-lawyer. My experience at my law firm

is similar. I have come to accept that my work will be

more closely scrutinized than white lawyers at the firm

and I am constantly attempting to overcome the

assumption of incompetence that many African-American

attorneys face. If it were not for my husband, who is also

an African-American attorney, it would be largely

impossible to endure the sense of isolation that I often

feel. .

These experiences are provided as anecdotal evidence of the

experience of black women lawyers. There are as many

different stories as there are members of our organization, but

one thing is clear. The experience of African-Americans is

18

“different in kind, not just degree” from that of other

Americans. Twenty-five years after Bakke and almost fifty

years after Brown, in every day, in every way, our members

experience instances of racial discrimination too numerous to

recount. The perv ive nature of the discrimination makes it

institutional in . At a minimum, it is structural and

continuing. To eliminate it, we need more African-Americans

educated and able to fully participate in all aspects of society.

Race-conscious admissions serves as a way to ensure that

African-Americans continue to have the access to higher

education.

IV. Remedying Past Racial Discrimination In Higher

Education Is a Compelling State Interest.

Race-conscious admissions in higher education give

meaning to this Court’s holding in Brown that “separate

educational facilities are inherently unequal.” Brown v. Board

of Educ., 347 U.S. 483, 495 (1954). There is a long history of

racially segregated (both de facto and de jure) institutions of

higher education in America. Many of the historically black

colleges and universities developed because blacks were

excluded from the private and state institutions of higher _

education. Use of race as one factor, among many, in the

admissions process, has helped to reduce the level of de facto

segregation in predominantly white institutions of higher

education. Therefore, we urge this Court to uphold the use of

race as a factor to remedy this history of racial discrimination

against blacks by state actors.

In 1955, only 4.9 % of college students ages 18-24 were

black. This figure rose to 6.5 percent during the next five years,

but by 1965 had slumped back to 4.9 %. Only in the wake of

affirmative action measures in the late 1960s and early 1970s

did the percentage of black college students begin to climb

steadily (in 1970, 7.8 percent of college students were black; in

1980, 9.1 % and in 1990, 11.3%). University of Rhode Island,

Office of Affirmative Action, Equal Opportunity, and Diversity,

19

www.uri.edu. Even these bleak percentages of black enrollment

between 1955 and 1965 only came about because of the change

from governmentally sanctioned racial discrimination to

governmentally imposed desegregation.

A. The University of Michigan's Discriminatory History.

The University of Michigan was founded in 1817 and

admitted its first African-American students in 1868. Joint

Appendix, Gratz v. Bollinger, Nos. 01-1416, 01-1418, 01-1438

(6" Cir.) (hereinafter “6" Cir. J.A.”), at 2265. However, the

University supported segregation in campus housing and

allowed the exclusion of students of color from fraternities,

sororities and University organizations into the 1960’s. 6th Cir.

J.A. at 3757. A program designed to recruit and admit

disadvantaged students to the University had the effect of

increasing minority enrollment; however, minority students

were still excluded from campus activities and social traditions.

6th Cir. J.A. at 2274-76, 3768.

From 1949 to 1952, the Michigan Civil Rights Congress and

other groups called for an end to discriminatory clauses in the

constitutions and by-laws of all campus organizations. 6th Cir.

J.A. at 2266. However, University President Harlan Hatcher

flatly rejected the proposal, and effectively allowed all

University organizations to continue their discriminatory

practices. In 1966, the Department of Defense investigated the

University’s compliance with Title VI of the 1964 Civil Rights

Act. 6th Cir. J.A. at 2270-71. The Department urged campus

administrators to increase recruitment of black students, faculty

and staff. Jd. In 1970, intense dissatisfaction with the

University’s failure to address campus racism and the

University’s failure to increase minority enrollment culminated

in a series of student strikes. The students urged the University

to increase its African-American enrollment and increase

financial aid to minorities. 6th Cir. J.A. at 2278-80. The

proposal was supported by Governor William Milliken, while

the University administrators rejected it. After a strike by

20

students, the African-American presence at the University

increased to 6.8% in 1972. 6th Cir. J.A. at 2287.

In 1975, requests by minority students to increase the

support services on campus and to address the negative racial

climate on campus were rejected by President Robben Fleming.

6th Cir. J.A. at 2298-99. With no minority recruitment and

admissions effort in place, well-publicized discrimination on

campus and no corresponding University redress, enrollment

and retention rates of minorities declined between 1976 and

1985. 6th Cir. J.A. at 3885. During that time period, the

University’s African-American student population dropped by

34 percent. /d.

During the 1980’s, the “Michigan Mandate” was announced

as a plan aimed at addressing racial discontent at the University

and to increase the number of students and faculty of color. 6th

Cir. J.A. at 1378-79. The Mandate acknowledged the

“prejudice, bigotry, discrimination and even racism” on the

Michigan campus. 6th Cir. J.A. at 1390.

The University of Michigan’s history of egregious

discriminatory practices towards minorities is well-

documented. Intervenors in both cases below submitted

evidence of the University’s policies of racial discrimination

and segregation that must be considered in the Court’s

determination of whether a race-conscious admissions policy is

a compelling state interest in these cases. The University’s

admissions policies permit the “limited use” of race as one

factor, among many others to include African-Americans. This

“limited use” of race as a factor in a university’s admissions

program is one way to remedy the effects of racial

discrimination, and thereby, reduce the economic disparity that

exists between black and white citizens in this country. It also

serves as a mechanism to increase the numbers of African-

Americans that are given an opportunity to attend universities

whose ancestors were traditionally excluded and/or

21

According to this Court, “a public employer. . . must ensure

that, before it embarks on an affirmative-action program, it has

convincing evidence that remedial action is warranted. That is,

it must have sufficient evidence to justify the conclusion that

there has been prior discrimination. Evidentiary support for the

conclusion that remedial action is warranted becomes crucial

when the remedial program is challenged in court by

nonminority employees.” Wygant v. Jackson Bd. of Educ., 476

U.S. 267, 277 (1986). The University of Michigan’s prior

discrimination satisfies this standard and should provide

sufficient evidentiary support for a race-conscious affirmative

action program that has the effect of remedying past

B. The School Desegregation Cases Establish the

Constitutionality of Race-Conscious Remedial Measures.

The constitutionality of race-conscious remedial measures is

well established. Several school desegregation cases have

recognized that, even absent a judicial or legislative finding or

a constitutional violation, a school board constitutionally could

consider the race of students in making school assignment

decisions. See, e.g., Swann v. Charlotte-Mecklenburg Board of

Educ., 402 U.S. 1, 16 (1971); McDaniel v. Barresi, 402 U.S.

39, 41(1971); Bakke, 438 U.S. at 399. But the Court has gone

further, stating that:

[A] flat prohibition against assignment of students for the

purpose of creating a racial balance must inevitably

conflict with the duty of school authorities to disestablish

dual school systems. As we have held in Swann [v.

Charlotte-Mecklenburg], the Constitution does not

compel any particular degree of racial balance or mixing,

but when past and continuing constitutional violations are

found, some ratios are likely to be useful as starting

points in shaping a remedy. An absolute prohibition

against use of such a device-even as a starting point—

contravenes the implicit command of Green v. County

22

School Board, 391 U.S. 430 (1968), that all reasonable

methods be available to formulate an effective remedy.

North Carolina Bd. of Educ. v. Swann, 402 U.S. 43, 46 (1971).

This Court asserted in McDaniel that “[s]chool boards that

operated dual school systems are ‘clearly charged with the

affirmative duty to take whatever steps might be necessary to

convert to a unitary system in which racial discrimination

would be eliminated root and branch.”’” 402 U.S. at 41, quoting

Green v. County School Board, 391 U.S. 430, 437-38 (1968).

“In this remedial process, steps will almost invariably require

that students be assigned ‘differently because of their race.”’”

McDaniel, 402 U.S. at 41. “Any other approach would freeze

the status quo that is the very target of all desegregation

processes.” /d.

The University of Michigan’s race-conscious admissions

policy is merely an effort to integrate or desegregate an

institution of higher learning that allowed state-sanctioned

discrimination against A frican-Americans in its recent past. As

a result, this Court should support the continued desegregation

of the University by allowing race to be utilized as one factor,

among many others, in its admissions process.

V. Race-Neutral Plans Are Inherently Race-Conscious

and Disadvantage African-Americans.

The beginnings of black presence in higher education in any

significant numbers can be traced to Executive Order 1146

issued by President Lyndon Johnson in 1965. That Order

forbade discrimination on any basis that included race by those

contracting with the federal government. By 1990, 11% of

college students were black, a figure which largely mirrored the

percentage of blacks in this country. Our continued presence in

higher education in meaningful numbers is threatened by

potential elimination of race-conscious admissions plans

approved by the Court in Bakke.

23

Almost 25 years ago the Court in Bakke, 438 U.S. at 320,

held that “the State has a substantial interest that legitimately

may be served by a properly devised admissions program

involving the competitive consideration of race and ethnic

origin.” In Bakke, this Court approved the use of race as a

“plus” factor in admissions if the plan was narrowly tailored to

further that interest. 438 U.S. at 315-20. The Court determined

that the attainment of a diverse student body is a

constitutionally permissible goal protected under the First

Amen?ment to the Constitution. 438 U.S. at 311-12. The

University of Michigan has defended its admissions policies by

producing evidence which establishes clear compliance with

the requirements of Bakke.

The Petitioner and other amici argue that the University’s -

policies fail to pass the required strict scrutiny test because they

are not narrowly tailored given the existence of purportedly

race-neutral alternatives. As examples of “race-neutral”

alternatives, the United States directs the Court to the

of state universities in Texas, Florida and

California.® In these states, race conscious admissions policies

were eliminated and replaced with purportedly race neutral

plans that focus on the admission of a certain top percentage of

high school students from every high school in the state. The

viability of a purported diversity initiative whose success

depends on residential segregation to produce meaningful

results is troubling. The Florida, California and Texas plans are

no more “race-neutral” in effect than any “race-neutral” plan

would be in a country with a history of racial segregation.

“Percentage plans function effectively to diversify higher

education only if secondary education remains firmly racially

segregated. Percentage plans are a reflection of current day

educational apartheid, highlighting the fact that much of our

secondary education system is both racially segregated and

* See, e.g, Brief of the United States in Gratz at § C!; Brief of the State of

Florida and Governor Jeb Bush at 6-10.

24

profoundly unequal.” Michelle Adams, Jsn’t Jt Ironic? The

Central Paradox at the Heart of “Percentage Plans”, 2001

Ohio State Law Journal 1.

Under the Texas plan, high school students in the top 10 %

of their class are entitled to attend the University of Texas or

Texas A & M--the state’s two flagship campuses--or any other

state university. While the number of minority students

applying to public universities in Texas increased, the

percentage of those admitted declined. Mary Frances Berry,

How Percentage Plans Keep Minority Students Out of College,

The Journal of Higher Education (August 4, 2000). With regard

to black enrollment at the University of Texas Law School,

after 1997, black enrollment in the first year class fell from an

average of 34 to an average of 10. Black Law Student

Enrollments: A Virtual Eviction in Texas and California,

Journal of Blacks in Higher Education, at page 8 (Summer

1997). In Florida, many minority students attend substandard

public schools that do not offer the courses needed for entry to

the state’s university system. Furthermore, the Florida plan

dees-net-require the state’s flagship schools to admit the top

twenty per cent from every high school, potentially creating a

two-tier system of “separate but equal educational facilities.”

In fact, the State of Florida admits in its brief as amicus curiae

that the percentage of African-Americans enrolled at the

University of Florida, one of its flagship institutions, decreased

after the implementation of its “race-neutral” plan. See Brief of

the State of Florida and Governor Jeb Bush at 9. Enrollment of

African-Americans in the 1999-2000 academic year, the last

year before the plan was implemented, was 9.95%. It fell to

7.15% in 2001-02 after the plan was implemented. /d.

The statistics regarding minority enrollment in California are

not much better. In 1995, after the California board of regents

voted to end all affirmative action programs in its admissions,

at the University of California-LosAngeles (“UCLA”),

enrollment dropped from 470 to 265. William C. Kidder,

25

Affirmative Action in Higher Education: Recent Developments

in Litigation, Admissions and Diversity Research, 12 Berkeley

La Raza L.J. 173, 210 (2001). The last time there were so few

African-American students at UCLA was 1968. /d. at 209. In

1997, law school admissions at University of California law

schools dropped 76.6%. Theodore Cross and Robert Bruce

Slater, How Bans on Race-Sensitive Admissions Severely Cut

Black Enrollments at Flagship State Universities, The Journal

of Blacks in Higher Education (February 6, 2003). For

example, in fall 1999, there were only two black students and

one Native American student enrolled in the UCLA Law

School. Jennifer Lin, Civil Rights Commission Denounces

Percentage Programs, In Motion Magazine, at 7 (June 2,

2000). In fall 2002, 13 black students enrolled at the law

school at UCLA; this is less than one third the total black first

year enrollments in 1994. Today, first-year enrollments at the

Boalt Hall Law School University of California at Berkeley, are

still less than one half the level of black enrollments that

existed less than a decade ago when race conscious admissions

were in place at the University. Cross and Bruce, supra, at 7.

In 2000, a federal district court ruled that the University of

Georgia’s admissions program was unconstitutional. The

Eleventh Circuit Court of Appeals upheld this decision and, as

a result, in 2001 the University of Georgia was forced to utilize

a strict “race-neutral” admissions policy. In the first year under

the plan, the number of black freshmen at the University of

Georgia represented a 20% decline from the number of black

freshmen who enrolled at the university in the fall of 2000. See

Cross and Bruce, supra.

Similarly, if institutions rely solely on standardized tests

such as the SAT or LSAT, these scores do not have a “race

neutral” effect. The College Board’s data demonstrate that

these tests continue to display differences based on race.

Theodore Cross, Why the Hopwood Ruling Would Remove Most

African-Americans from the Nation's Most Selective

26

Universities, Journal of Blacks in Higher Educ. (Spring 1996),

at 68. Minorities on average score lower than whites on the

LSAT and on other standardized tests. /d. Thus, in practice

standardized tests do not have a race neutral effect. See id. at

67; Elizabeth Chambliss, Miles to Go 2000, Progress of

Minorities in the Legal Profession, American Bar Association,

Commission of Racial and Ethnic Diversity in the Profession

(2000). Moreover, researchers have established that scores on

standardized tests are no predictor of law school or professional

success. Susan Sturm & Lani Guinier, The Future of

Affirmative Action: Reclaiming The Innovative Ideal, , 84 Cal.

L. Rev. 953 (1996) (“[{Standardized tests] do not reliably

identify who will succeed in college or later in life, nor do they

consistently predict those who are most likely to perform well

in the jobs they occupy”). In practice, standardized tests are

more a predictor of race and wealth rather than academic

competence. Indeed, data collected indicate in that “many test

[scores] correlate quite closely with parental income”. /d. at

988.

Reliance on “legacy” admissions as a purported “race-

neutral” admissions factor is also misplaced. With the

exception of historically black colleges, blacks were

systematically discriminated against and refused admissions to

colleges and universities throughout the fifty states. Hence,

most colleges and universities can identify the date the first

African-American was admitted. Those dates generally are

within the 20" century, and certainly only within the last 25

years have A frican-Americans been admitted in any meaningful

numbers. With that historical context, it is easy to see that

reliance on the legacy of a parent or a grandparent or a great-

grandparent being an alumnus for purposes of admission is

simply a race-based policy by another name. Virtually all

alumni of predominantly white state institutions were white

until the last 25 years or so, therefore, only white students will

benefit from this classification. Legacy admissions are simply

another proxy for race—the white race—which continues the

27

discrimination of the past and disadvantages blacks with no

compelling state interest. Simply put, it is not “race neutral.”

As set forth above, reliance on “race-neutral plans” which

largely depend on the existence of residential segregation to

ensure success is a poor substitute for an admissions plan which

allows educators to conduct an individualized assessment of an

applicant. It is estimated that imposing purportedly race neutral

standards in admissions would decrease the number of blacks

in colleges to 2%. William G. Bowen & Derek Bok, The Shape

of the River: Long Term Consequences of Considering Race in

College and University Admissions, at 280 (1998). This would

be lower than levels seen at the time of this Court’s decision in

Brown when black enrollment in largely segregated colleges

was approximately 5%.

VI. Beneficiaries of Affirmative Action Are Not

Stigmatized.

Ward Connerly as amicus curiae, at 13-14, argues that there

is a stigma of inferiority placed on African-Americans when

race is one of the factors, among others, used in the higher

educations admissions process. He argues that this Court should

be mindful of this stigma on African-Americans when it is

weighing the constitutionality of an admissions process which

considers race as a factor in including historically

underrepresented groups. We acknowledge that the stigma of

inferiority is something that African-Americans must bear in

this country. However, we disagree that the source of the

stigma is a policy designed to provide opportunities to A frican-

Americans who have been historically disadvantaged.

We attribute the source of the stigma of inferiority with

which African-Americans often suffer to this nation’s history

of slavery and the Constitution’s treatment of former slaves as

property and otherwise inferior human beings. Additionally,

we attribute the source of the stigma to the legal system’s codes

and case law that branded blacks as inferior. As Justice

28

Marshall stated in Bakke, the inferiority suffered by blacks was

created by a legal system which denied opportunity to blacks.

438 U.S. at 400 (Marshall, J., dissenting) (“It is not merely the

history of slavery alone but also that a whole people were

marked as inferior by the law. And that mark has endured.”’).

As black women lawyers, we have not been stigmatized by

having the opportunity to attend predominantly white colleges,

universities and law schools.

We note that Petitioners and amici that support them do not

assert that the black students admitted are unable or unqualified

successfully to complete the academic curriculum and graduate.

Similarly, we note that the Petitioners and amici do not assert

that black lawyers are less competent or less accomplished than

their white peers. That being said, it appears the stigma

argument is a distraction to divert this Court’s attention from

the highly qualified nature of the black students who are

admitted and the accomplishments of black lawyers who

graduated from these institutions. For examples, statistically

African-American lawyers have significantly higher levels of

participation in civic activities and leadership than their white

counterparts, thereby making their survival important in

cultivating leadership for our community. Richard O. Lempert,

et al., “From the Trenches to the Towers”: Law School

Affirmative Action: An Empirical Study of Michigan’s

Graduates in Practice: The River Runs Through Law School,

25 Law & Soc. Inquiry 395, 455-56 (2000).

Unfortunately, in recent years, our presence in the legal

profession has declined. In 1999, the total number of minority

law graduates dropped for the first time since 1985. Minority

representation in the legal profession is about 10%; the only

profession lower is dentists-4.8%. Combined African-

American and Hispanic attorneys make up only 7% of the

29

profession.’ There are fewer African-American federal

appellate court judges today than there were under President

Jimmy Carter. Three quarters of the federal circuit courts have

either no African-American or no Hispanic jurist. Jd. Less than

3% of partners in large law firms are racial minorities. The

attrition rates of African-American associates and partners from

large law firms is staggering. Accordingly, while we do not

perceive or suffer any stigma of inferiority from having the

opportunity to attend certain predominantly white institutions

of higher education, we do feel a sense of urgency that we not

retreat from efforts made to increase our presence in the legal

profession.

The University of Michigan’s use of race was narrowly

tailored, as is constitutionally required, because no race-neutral

means yet exist to serve the compelling interest in diversity of

the student body in institutions of higher education. Certain

amici have raised the question, when will this use of race to

achieve diversity end? They suggest that there is no logical

ending. However, they are wrong. The logical ending is when

race no longer matters in America. We will know that we have

reached that point when a child born black has the same

opportunity in America as a child born white in America. We

will have reached that day when research reflects that there is

no economic disparity in America based upon race for

individuals similarly situated. We will have reached that day

when a black person with a stereotypically African-American

name and an identical resume to that of a white person with a

stereotypically white name as an equal opportunity to get a job

interview in America. Until the research reflects that the

historic legacy of slavery and its continued discriminatory

effect has disappeared, we must use race conscious means to

” Lawyers for One America, Bar None: Report to the President of the United

States on the Status of People of Color, www.|foa.org/barnone_collaboration

-html.

30

keep the doors of opportunity open to African-Americans in

America.

CONCLUSION

For the foregoing reasons, the judgment of the Court of

Appeals for the Sixth Circuit in Grutter should be affirmed and

the district court’s judgment in Gratz should be reversed.

Respectfully submitted.

SHARON E. JONES

Counsel of Record

CALLIE BAIRD

MONIQUE M. MEDLEY

NOGZI OKORAFOR-JOHNS

SHARON E. STRICKLAND

RHONDA A. SCOTT

MopuPEt A. SOBO

DENISE MERCHERSON

Black Women Lawyers Association

of Greater Chicago, Inc.

321 South Plymouth Court

Sixth Floor

Chicago, Illinois 60604

(312) 554-2088