Amicus Curiae Brief — Grutter v. Bollinger

No. 02-241 [/

Supreme Court of the Wnited States

ti tie

BARBARA GRUTTER,

Petitioner,

LEE BOLLINGER, et al..

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NEW YORK STATE BLACK

AND PUERTO RICAN LEGISLATIVE CAUCUS

David M. White Victor Goode

Of Counsel Counsel of Record

TESTING FOR THE PUBLIC CUNY LAW SCHOOL

1308 Peralta 65-21 Main Street

Berkeley, California 94702 Flushing, New York 11367

(510) 526-3435 (718) 340-4310

Counsel for Amicus Curiae

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ...........::czscsosscsssscsssccssessssoss Il

INTEREST OF AMICUS CURIAE .....::.s:sssesssesessessseessees 1

SUMMARY OF ARGUMENT .......:-sessssssssessseeesseesseessees 2

ARGUMENT ;

J

The Court must reject Petitioner’s Argument that the only

Constitutionally permissible means to admit students from

different Racial or Ethnic backgrounds is through rigid

adherence to an Odds Ratio formula that Permanently

Disadvantages already Underrepresented Minority

1. Petitioner asserts a Novel Claim that Reverse

Discrimination can occur among Equally Credentialed

CME IIIS onccccccccceccccccccettrscrevecesessncscnnsnsnsannnssosoocooooooose‘ss 3

2. Petitioner offers an Unusual Statistical Proof that

capitalizes on Majoritarian Privilege to produce seemingly

“enormous” racial preferences ..............ssseseeeeeseereserenenees 4

3. The Highest Odds Ratios occur among Candidates with

the Highest Credentials ................sscssssssesenensensesnensneees 11

Il

The University of Michigan Law School Did Not Violate the

Rights Of White Applicants When They Accepted Members

Of Minority Groups Who Had Slightly Lower LSAT Scores

Than Other Applicants In The Same Cell...................006+. 15

1. The University of Michigan Law School Was Justified In

Accepting Minority Applicants with Equal College Grades

from the Same College That Have Perennially Experienced

Unexplained, Significant Score Gaps Compared To White

2. Differential Test Scores and Grades Between Highly

Qualified Minority and Majority Applicants Have Been

Found To Reflect Minority Students’ Unconscious Response

to the Lingering Racial Stereotype That Members of

Minority Groups Are Less Intellectually Gifted............... 19

3. The Affirmative Action Admission Policies At the

University of Michigan Law School Do Not Impose Any

Stigma On The Students Admitted Under

BD ASSBEBGD ...ccceccasceccesesessennscnsessneisiaiaine 24

TABLE OF AUTHORITIES

Defunis v. Odegaard, 416 U.S. 312 (1974) ..ccccecscscsee-see00e 4

Fullillove v. Klutznick, 448 U.S. 448 (1980) .........c.s00-0- 24

Grutter v. Bollinger, 137 F.Supp.2d 821, 841 (E.D. Mich.

ee §.,8., 15., 16., 17., 18., 19., 2., 23

Grutter v. Bollinger, 288 F.3d 732, 791 (6th Cir. 2002)

i 5., 9, 13

Regents of the Univ. of Cal. v. Bakke,

"(A 4.,9, 24

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ...ccccccccccccsscccvecssccsuecsscssssesesesssececesen 24

James Blascovich, Spencer, S., Quinn, D., Steele, C.M.

African Americans and high blood pressure: The role of

stereotype threat,

12 Psychological Sciences 225 (2001)...........cccceeeeesees 23

Clark D. Cunningham et al., Passing Strict Scrutiny: Using

Social Science to Design Affirmative Action Programs, 90

TTT 23

Joseph Gannon, College Grades and LSAT Scores: An

Opportunity to Examine the “Real Differences” in Minority-

Nonminority Performance, in TOWARDS A DIVERSIFIED

LEGAL PROFESSION 272

EE 18

Gonzales, P.M., Blanton, H., Williams, K.J. The effects of

stereotype threat and double-minority status on the test

performance of Latino women, 28 Personality and Social

Psychology Bulletin 659 (2002) .........cccccsssccsessssseesessveee 23

Lyndon B. Johnson, Commencement Address at Howard

University: To Fulfill These Rights, 2 Pub. Papers 1965 635,

Fe TUT cnenssnenenterinnnnttntaiennnininnnininigiattiiaeiesesaiataiaaiiiis 16

William C. Kidder, Does the LSAT Mirror or Magnify Racial

and Ethnic Differences in Educational Attainment?: A Study

of Equally Achieving “Elite” College Students, 89

SG, CR ccrnncencicsnniiuiatensnentinnastiiaileaeintin 18, 23

Goodwin Liu, The /:fst+ and Math of Affirmative Action,

Wash. Post B1 (April 14, 2002)................ccccccsssscseeeeeesees 13

Charles Murray and Richard J. Hernstein “Race Genes and

1Q-An Apologia” The New Republic,

IE ee, Uae nceniennnicindieimaibtiaatneneniinmntmnenitntneaid 20

Journal of Blacks in Higher Education, Autumn 2002, No.

37, “African American College Graduation Rates:

Intolerably Low, and Not Catching Up to Whites.” ........ 21

Claude M. Steele, Race And The Schooling Of Black

Americans. The Atlantic Monthly 68-77

Ree tcnesnsiinncitintdenentimatiansiiiasttiniiiliiaiaiiinniallnesniciaties 23

Claude M. Steele,. A Threat in the Air; How Stereotypes

Shape Intellectual Identity and Performance. 52 American

Psychologist 613 (1997) ..ccccc...ccccccesssssvsusssesesssseseessuereeese 22

Claude M. Steele, reprinted in 5 Mich.J.Race&L. 439 (1999)

CCEA ied AON INE 21

Claude M. Steele, & Joshua Aronson, Stereotype threat and

the intellectual test performance of African Americans, 69

J.Personality & Social Psychology, 797 (1995).......... 22

iv

Claude M. Steele, & Joshua Aronson, Stereotype threat and

the test performance of academically successful African

Americans. in Christopher Jencks & Meredith Phillips, THE

BLACK-WHITE TEST SCORE GAP 401 (1998)...... 22

United States Commission on Civil Rights “Toward An

Understanding of Bakke” Clearinghouse Publication 58,

May 1978, Statement by the United States Commission on

Civil Rights on Affirmative Action”

[Issued July 1, 1977]) (at 173)............-ceeeeeeeeeeeeeeees 16

David. M. White, The Requirement of Race-Conscious

Evaluations of LSAT Scores for Equitable Law School

Admissions, 12 La Raza L.J. 399 (2001)......... 17, 18., 19

Linda F. Wightman, Are Other Things Essentially Equal? An

Empirical Investigation of the Consequences of Including

Race as a Factor in Law School Admissions,

y) UR, 17

INTEREST OF AMICUS CURIAE

The Black and Puerto Rican Legislative Caucus is an

unincorporated association of elected officials who serve in

either the New York State Assembly or the New York State

Senate. The legislative districts that these officials represent

consist predominately of people of color, including A frican-

American and Afro-Caribbean residents, as well as many

people described by United States census data, as "Hispanic"

even though the largest group within that designation are

members of the Puerto Rican community. The interest of the

Caucus in this case is based on the fact that historically

members of their districts have been excluded from equal

opportunity for higher education.

The Caucus is committed to the principle that

continued access to higher education for people of color,

including access as a result of affirmative action programs, is

a critical vehicle for alleviating poverty, strengthening the

economies of their communities and for civic empowerment.

The Caucus believes that the current mechanisms for

affirmative action in higher education, including flexible use

of standardized tests must be maintained to preserve equal

educational opportunity.

' The written consent from both parties to the filing of this brief is on file

with the Court and therefore is not attached. Counsel for the Black and

Puerto Rican Legislative Caucus participated in the authoring of this. No

person or entity other than the amicus curiae its members or its counsel

made any monetary contribution to the preparation and submission of

SUMMARY OF ARGUMENT

Petitioner asserts a novel claim that the white

majority can be deprived of its Constitutional protections

when a small number of equally credentialed minority

candidates are accepted in a law school publicly committed

to including qualified members of previously excluded and

currently underrepresented racial and ethnic groups.

Statistical results embodying a preference for the majority

are offered as proof of the majority’s harm. Acceptance of

the statistical criteria would result in a permanent under-

representation or exclusion of minority applicants.

It is likely that candidates from these minority groups

who apply with credentials that are equal to white majority

applicants are actually better candidates. The Law School

Admission Test (LSAT) and Undergraduate Grades (UGA)

used to identify equally credentialed applicants incorporate

persistent biases against members of underrepresented

minority groups. The LSAT has a persistent gap among

applicants with equal grades from the same colleges that

remains unexplained by the testing experts. Test scores can

also be adversely affected by candidates’ unconscious

reaction to widespread stereotypes disparaging the

intellectual abilities of minority group members.

It is important for this Court to affirm the propriety of

a state law school policy to actively seek, identify, recruit

and enroll members of previously excluded and currently

underrepresented racial and ethnic groups. Admissions

officials should be free to exercise their experience and

ee ee ae aon ee

relevant information. admission of equally qualified

members of racial and ethnic groups should contain no

stigma of inferiority.

ARGUMENT

1

The Court Must Reject Petitioner’s Argument That the

Only Constitutionally Permissible Means to Admit

Students From Different Racial or Ethnic Backgrounds is

Through Rigid Adherence To an Odds Ratio Formula

That Permanently Disadvantages Already

UnderrepResented Minority Groups.

1. Petitioner Asserts a Novel Claim that Reverse

Discrimination Can Occur Among Equally Credentialed

Candidates.

Prior cases involving race conscious admissions have

been conducted on the unexamined premise that less

qualified minority applicants were the beneficiaries of the

program, and that there could be no racial preference were

minority applicants shown to be equally qualified with white

applicants. Defunis v. Odegaard, 416 U.S. 312, 335

(1974)(Douglas, J., dissenting)(“My reaction is that the

presence of an LSAT is sufficient warrant for a school to put

racial minorities into a separate class in order to better probe

their capacities and potentials.”); Regents of the Univ. of Cal.

v. Bakke, 438 U.S. 265, 306 n. 43 (1978)(Opinion of Powell,

J.) (“Racial classifications in admissions conceivably could

serve a fifth purpose, one which petitioner does not

articulate: fair appraisal of each individual’s academic

promise in the light of some cultural bias in grading or

testing procedures. To the extent that race and ethnic

background were considered only to the extent of curing

blished i ion te ended temic perf

it might be argued that there is no ‘preference’ at all.”)

Yet this case involves an appeal of a district court

rejection of race conscious admissions based on a finding

that “Native American, African-American, Mexican

American and Puerto Rican applicants have been admitted in

significantly greater proportions than Caucasian applicants

with the same or similar undergraduate GPAs and LSAT

scores.” Grutter v. Bollinger, 137 F.Supp.2d 821, 841 (E.D.

Mich. 2001). “The issue in this case is whether similarly

situated applicants are treated differently because of their

race, and this question can be answered by examining cells in

which some applicants are accepted and others rejected so

that the differences in the admissions rates can be

calculated.” Jd.

This brief addresses what it means to treat similarly

situated applicants of different races in a constitutionally

equitable way. It examines the nature of proof offered by

Petitioner and concludes that it fails to prove racial

discrimination against rejected white applicants but rather is

designed to and has the effect of stigmatizing

underrepresented groups as intellectually inferior. Part of its

vehicle for analysis is the composite applicant developed by

the dissent in the Sixth Circuit Court of Appeals. “An

African-American applicant who comes to the Law School

by way of Choate and Harvard” Grutter v. Bollinger, 288

F.3d 732, 791 (6th Cir. 2002)(Boggs, dissenting). “[A]

conventionally liberal (or conventionally conservative) black

student who is the child of lawyer parents living in Grosse

Pointe, just like the previous ten white admittees,”/d. at 790-

1. “Next-door neighbors in Grosse Pointe, separated only by

30 yards and the color of their skin,” Jd. at 807. “When it

comes to a choice... the black student will be given a

diversity preference.” Jd. at 791.

2. Petitioner Offers an Unusual Statistical Proof That

Capitalizes on Majoritarian Privilege to Produce

Seemingly “enormous” Racial Preferences.

The statistical method offered by Petitioner is the Odds

Ratio” Counsel for petitioner describes it as “another

standard statistical measure used in science, medicine, and

discrimination cases.” Brief for Petitioner p. 8. The three

pages of trial testimony provide references to science and

medicine’ but not discrimination cases. The brief provides no

such references.

Petitioner’s statistical expert “calculated the odds of

admission for Caucasian applicants and compared them with

the odds of admission for applicants of other races in order to

calculate the "relative odds of acceptance" for each racial

group.” 137 F.Supp.2d at 836-7. In 1995-2000, the relative

odds of acceptance for African-Americans were 257.93,

313.59, 53.49, 132.16, 206.45 and 443.26. Jd. n. 20. The

District Court noted “For perspective, attaining a relative

? Petitioner's statistician is quick to distinguish the odds ratio from percentages. 2

Tr. 75. He considered a hypothetical example with two groups, one with an

acceptance rate of 99 percent, the other with an an acceptance rate of 90 percent.

The first group enjoys an odds ratio advantage of 11. “The probability of

acceptance is close, and the probability of denial is quite different. ...[{I]f you

look at the chances of denial, it’s one percent versus ten percent which is quite

discrepant.” 2 Tr. 124-5. Yet a group with an an acceptance rate of 99.9 percent

enjoys an odds ratio of 111 over the group with the 90 percent acceptance rate. 2

Tr. 152. While the different chances for acceptance in a group accepted 99

percent of the time or in a group accepted 99.9 percent of the time have no

practical significance, this situation produces a much larger odds ratio because of

the much larger group of rejected applicants. 2 Tr. 154. This problem is most

likely to occur when the size of the two groups are wildly different.

> «(E}stimated relative odds” were mentioned in relation to “Sammy Sosa’s

batting average, ...a clinical study... comparing the new drug or new device to a

standard therapy or a drug. ... We would use our individual cells, in this case

would be hospitals....Dick Cheney’s angioplasty, using a stint. ... [Tjhe relative

odds of heart disease versus no heart disease for someone, say, receiving Aspirin

is about 1.3, 1.4 So relative odds that might be small numbers greater than one

are common. ...1 can think of a medical example ... historical data of people

who were at very low blood pressure, very low cholesterol, and their chance of a

heart attack, or heart disease, showing itself...” 2 Tr. 66-9

a medical study. That is, a drug that doubled or tripled the

odds of cure would be of great value. Double and triple digit

~ relative odds are simply enormous!” /d. 837. “At trial Dr.

Larntz characterized his relative odds figures as ‘enormous’

and as showing that a ‘tremendous advantage’ was given to

applicants from these minority groups in each of the years in

question. Jd.‘ As presented to this Court, African American

applicants in 1995 enjoyed an overall preference expressed

as an odds ratio of 513.29. compared to white applicants

controlling for grades, test scores, and several other factors.”

Brief for Petitioner 9.

The difference between petitioner’s claim and

previous conceptions of equitable race conscious admissions

can be clarified by two tables displaying admission and

rejection data for students with equal college grades and

LSAT scores, grouped into White/Majority and

Black/Minority categories. Previous challenges have

implicitly assumed that selection of Black/Minority

applicants with credentials equal to white applicants would

pose no Constitutional problem. Yet petitioner explicitly

claims that race conscious decisions among equally qualified

applicants is at the heart of the Constitutional violation. The

claim accepts the disproportionate White /Majority

advantage in total applications to the law school and presses

the numerical advantage to unprecedented lengths by

insisting on a standard of fairness embodied in the odds ratio

statistic.

“ The basis for these overall odds of acceptance of each year were “admissions

data provided by the law school. This data consists of the ‘admissions grids’ for

each of the years in question (1995-2000). ... These grids show the number of

applicants and the number of admittees for all combinations of undergraduate

GPA and LSAT score. ... The law school compiled one admissions grid for all

applicants, as well as separate grids for various racial groups.” 137 F.Supp.2d at

836.

The operation of the odds ratio on admissions data is

exemplified in Tables 1 and 2.

Table 1

EQUAL ADMISSION TOTALS

White/Maj. _Black/Mi

Accepted 1 l Odds Ratio: 54 *

Accepted l l Odds Ratio: 39

Accepted 2 2 Odds Ratio: 21

Accepted 3 3 Odds Ratio: 13

EQUAL ODDS RATIOS

White/Maj, _Black/Mi

Accepted 2 2 Odds Ratio: 21

1996 3.00-3.24

159-160

Accepted 2 3 Odds Ratio: 21

1996 3.75-4.00

156-158

Accepted 3 2 Odds Ratio: 13

1998 3.50-3.74

* To make this comparison... calculate the odds of admission for Caucasian

applicants and compare them with the odds of admission for applicants of other

races in order to calculate the “relative odds of acceptance” for each racial group.

Caucasians were the “comparison group” — that is, each group’s odds of

acceptance were calculated relative to those of Caucasians. Relative odds, or an

“odds ratio,” greater than 1.0 would indicate that a member of the racial group in

question has a greater chance of admission than does a Caucasian applicant.

Relative odds less than 1.0 would indicate the opposite. “For perspective,

attaining a relative odds of 2 or 3 for cure of a disease is often the goal of a

medical study. That is, a drug that doubled or tripled the odds of cure would be of

great value. Double and triple digit relative odds are simply enormous!” 137

F.Supp.2d at 836-7.

151-153

Accepted l 2

151-153

Odds Ratio: 13

1997 3.50-3.74

Table 1 includes cells containing candidates with

comparable LSATs and GPAs. An equal number of

White/Majority and Black/Minority candidates are admitted

in the four top cells. For comparison, two other cells have the

same Odds Ratio.

These situations approximate the analogy that has

driven the judiciary’s evaluation of race conscious

admissions. Justice Powell quoted the Harvard plan with

approval that acknowledges “the race of an applicant may tip

the balance in his favor” Regents of the Univ. of Cal. v.

Bakke, 438 U.S. 265 at 316 (1978)(Opinion of Powell, J.).

Judge Boggs notes that “A seesaw with roughly equivalent

children on either end can be ‘tipped’ from one side to the

other with a small weight.” 288 F.3d at 799 (Boggs,

dissenting). Judge Gilman observes “For example, in

differentiating between two applicants with essentially equal

LSAT scores and GPAs, where one is Caucasian and the

other African-American, I have little doubt that favoring the _

under-represented African-American applicant would pass

constitutional muster if educational diversity is recognized as

a compelling government interest. This would clearly fall

within the scope of what I believe Justice Powell had in mind

when discussing the appropriate use of a ‘plus’ for diversity

in Bakke.” 288 F.3d at 817-8 (Gilman, dissenting).

Table 2 documents the basis the for claim of the

Center for Individual Rights that the Constitution has been

violated. The odds ratio reminds us that there is never a cell

in which there are an equal number of Majority/White and

Minority/Black applicants.’ For example, in the first cell of

Table 1 and 2, one Majority/White and one Minority/Black is

accepted in 1995, but since 54 equally credentialed

Majority/White candidates were rejected, the only

Minority/Black accepted would have to be matched by 54

equally qualified Minority/Black candidates who were

rejected in order to secure enrollment under an equal odds

scenario. In comparison, the second cell-with the same

credentials as 1996-also has accepted one candidate from

each group, but since only 39 White /Majority applicants

were rejected, the Black/Minority applicant need only find

39 equally credentialed rejected Black/Minority candidates to

be in compliance with an equal odds regime.

Petitioner measures the extent of the preference for

accepted Black/Minority candidates by the number of

equally credentialed rejected White/Majority candidates.

Tipping the scale that Petitioner has constructed is much

harder than anything Justice Powell may have imagined.

‘ Table 2

EQUAL TOTAL ADMISSIONS

, Hypothetical

- Actual Decisions Equal Odds Ratio

Accepted l l l l

Rejected 54 l 54 54

Odds Ratio: 54

Accepted l ] l |

Rejected 39 l 39 39

‘Counsel for petitioner explain the odds ratio to this Court with an example of 10

students from one group and 10 from another. Pet. Br. 8 fn. 5. Yet such an evenly

balanced cell does not exist in the data. For example, in 1995, 10 African

American applied with GPAs between 3.25 and 3.49 and LSATs between 156

and 158. However 51 white applicants had comparable grades and test scores.

Exhibit 137.

Odds Ratio: 39

Accepted 2 2 2 2

Rejected 21 l 21 21

Odds Ratio: 21

Accepted 3 3 3 3

Rejected 26 2 26 26

Odds Ratio: 13

EQUAL ODDS RATIOS

Hypothetical

Actual Decisions Equal Odds Ratio

W/Maj._B/Min. W/Maj.__B/Min.

Accepted 2 2 2 2

Rejected 21 l 21 21

Odds Ratio: 21

Accepted 2 3 2 3

Rejected 14 | 14 21

Odds Ratio: 21

Accepted 3 3 3 3

Rejected 26 2 26 26

Odds Ratio: 13

Accepted -] 2 l 2

Rejected 26 a 26 52

Odds Ratio: 13

Given counsel’s current claim that African Americans

enjoyed an odds ratio of 513.39 to one, this means that 513

African-Americans must be rejected for even one African-

American to the accepted.’ As only 404 African-Americans

applied to the University of Michigan in 1995, not a single

one would have been admitted without resulting in an odds

ratio in favor of African Americans. In 1997, the odds ratio

"As explained by petitioner’s statistician, “a relative odds of 81, ... What does

that correspond to? How many M & M’s do I have to dump in to ... make that

the relative odds of 81? Well, I’ve already got one in here, right. So in order to

get a relative odds of 81, what I have to do is ... dump in 80 more.” 2 Tr. 78-9.

10

in favor of African Americans is reported as 53.49. Thus, the

320 African-American applicants would be allowed a

maximum of 6 acceptances before an odds ratio in favor of

African-Americans occurred. Exhibit 137.'

3. The Highest Odds Ratios Occur Among Candidates

With the Highest Credentials.

In 1995, 114 white applicants with the highest

combination of college GPA and LSAT scores were accepted

and 7 were rejected. The lone black applicant in this cell was

also accepted, Exhibit 137. While the University of Michigan

Law School accepted these students as a first step in

enrolling a racially integrated law school class, Petitioner’s

statistician saw an infinite odds ratio in favor of the lone

black applicant.’ All 7 rejected white applicants are invited to

claim that their place in the law school class was taken by

this one black student. Compare, 288 F.3d at 809 fn.

40(Boggs, dissenting) “[T]en people are each deprived of a

one-tenth chance of admission because of race.” Eliminating

the odds ratio of infinity requires that the lone black student

be rejected. 3 Tr. 23-4. When one of the white students is

accepted in place of the black student, the other 6 white

students have the satisfaction of knowing that, although they

did not earn admission to the law school class, at least

another white student did.

‘Similarly, when 41 of 98 Mexican American applicants were accepted, Petitioner

attributes a 183.81 odds ratio in their favor. The 14 out of 45 Native Americans

admitted apparently enjoyed an odds ratio of 116.98 in their favor, as did the 5 of

20 Puerto Ricans admitted with an odds ratio of 73.26. Brief for Petitioner, p. 9.

* The odds ratio is calculated by dividing the number of accepted candidates by

the number of rejected applicants for each group and then dividing the resulting

ratios for each group. When one group has no rejected members, dividing by the

zero rejected applicants results in an infinite odds of acceptance for that group,

compared to a group with some accepted and rejected applicants. 2 Tr. 52.

1]

Similarly, in 1995, when the one black student in the

highest GPA group of 3.75 and above, with an LSAT of 156-

158 is accepted, but 43 of the 47 white applicants in the cell

are rejected, that black applicant enjoys an infinite odds of

acceptance compared to the white applicant group, even

though only one black was admitted and four whites were

admitted. Exhibit 137. This occurred in cell after cell, as the

only one, two or three black applicants in a cell were

accepted, while some white applicants were accepted and

other rejected. 3 Tr. 138. In 1995, 1996, 1997 the most

common infinity odds ratio occurred when one African

American applied and one was admitted. In any year, only

two or three cells contained more than four African

American applicants in an “infinity” estimate. Exhibit 137."

While the Law School is concentrating on who is

accepted into the law school, Petitioner focuses on the

rejected white applicants. The more rejected white applicants

there are, the greater the cry of unfairness that a single black

student took a space in the law school that could have been

filled by an equally qualified white. Whether it is in the ceil

with the highest combination of UGPA and LSAT, or in a

cell with more modest grades and test scores, the odds ratio

confers a permanent preference for white applicants when

compared to blacks with the same credentials, not because

they are more qualified, but because they are more

numerous.

"Detailed i ion of the admission grids does not disclose individual

cells with odds ratios comparable to the numbers cited above. In fact, in

one year’s comparison in which Michigan residency is also compared,

the 240 cells yielded only 12 cells that had odds ratios with numerical

values. In contrast, 52 cells had odds ratios of infinity. 2 Tr. 142-3.

12

The dissent also focuses on the harm done to rejected

white applicants, “in any selection process in which the

applicants who do not benefit from affirmative action greatly

outnumber those who do,” 288 F.3d at 809 fn. 40 (Boggs,

dissenting)., quoting Goodwin Liu, 7he Myth and Math of

Affirmative Action, Wash. Post B1 (April 14, 2002).citing

288 F.3d at 767 (emphasis added in dissent). Yet the dissent

fails to acknowledge that Grutter’s entire claim of harm is

itself based on mathematics that incorporate a special

attention to the rejected applicant from the white majority

group. The dissent invites the white students in Grosse Pointe

to look over the fence at the one black student who was

admitted when a large number of equally credentialed white

students were rejected. Jd. Petitioner’s statistics and the

dissent’s jurisprudence combine to ensure that such a

scenario could never reoccur. To avoid an infinite odds ratio

and to ensure that no rejected white student has any harm

whatsoever, the lone black applicant will be rejected.

By focusing on admissions, rather than matriculation,

petitioner asserts a majority privilege that individual white

students applying to several law schools can enjoy at each

law school. Such students need not even collect their reward

of admission for the African-American to suffer the certain

harm of being rejected simply because the applicant belongs

to a minority group. In 1995, 668 whites were accepted, of

whom 216 enrolled at the University of Michigan Law

School, including 53 of the 270 whites accepted with LSAT

scores above 170. As only 106 African-Americans were

accepted that year, the 217 accepted whites with LSATs

above 170 who did not matriculate would more than double

the entire cohort of accepted African-Americans without ever

appearing in Ann Arbor. Exhibit 137.

The problem does not lie simply in the size of the

odds ratios, but rather in the concept of equality incorporated

13

Pointe, or the lone African-American in the top cell of GPA

and LSAT will face automatic rejection if any white

applicants in the cell are rejected, for to do otherwise would

to confer an infinite odds ratio in favor of the African-

American who is accepted. Each lone African-American in

other cells will face the same tyranny of the majority. In fact,

for all practical purposes, petitioner implicitly assumes that

an equally qualified African-American should never be

admitted when there is a white applicant with similar

numerical credentials that is rejected.

According to the University’s statistical expert, the

acceptance rate for all minority students could be expected to

drop from the actual rates of 26 to 31 percent per year to an

estimated 4 to 10 percent per year in a purely probabilistic

model, assuming that all the minority applicants that actually

applied between 1995 and 200 would continue to do so in the

absence of announced affirmative action policies and

programs. 137 F.Supp.2d at 842.

Prior opinions consider tipping a scale for race

conscious admissions, but do not consider the situation of

vastly different numerical groups. When the black applicant

with the top grades and test scores is admitted, does that

student have to tip the balance against each of the seven

rejected white applicants? In the 1995 cell with 10 African

American applicants, but 51 white applicants, does each

black applicant have to tip the balance against all 51 white

applicants? Exhibit 137. Once one African American has

accomplished this feat, are all 51 white applicants then

immune from being tipped by yet another equally

credentialed black applicant? If all 10 black applicants

manage to tip the balance, does their collective success

render each of their admissions suspect?

The odds ratio takes us from the parlor game of two

equally qualified candidates for a single spot to the reality of

14

—*

an admissions office with between 3,429 and 4,147

applications annually between 1995-98. All candidates are

never directly compared with all other candidates, as the end-

of-year grid allows. Admission officials may be on the

lookout for a highly qualified applicant from an

underrepresented group. Once one is found, the search does

not stop. If all such applicants prove to be attractive

candidates after the complete file is reviewed, their initial

flagging does not render the admission an impermissible

racial preference.

The University of Michigan Law School Did Not Violate

the Rights Of White Applicants When They Accepted

Members Of Minority Groups Who Had Slightly Lower

LSAT Scores Than Other Applicants In The Same Cell

The purpose of affirmative action programs has

always been to change the composition of American

institutions from a status of racial exclusion, to one of

integration and inclusion. (See “Toward An Understanding

of Bakke” Clearinghouse Publication 58, May 1978,

Statement by the United States Commission on Civil Rights

on Affirmative Action” [Issued July 1, 1977] at 173). While

the prohibitions against discrimination insure that the nation

will not revert back to the days legal segregation, it was and

still remains the goal of affirmative action to produce results

that mere neutrality may not achieve. President Johnson, an

early supporter of affirmative action described the goal as

“ .. the more profound stage of the battle for civil nghts. We

seek not just freedom but opportunity. We seek not just legal

equity but human ability, not just equality as a right and a

theory but equality as a fact and equality as a result.”

(emphasis added) Lyndon B. Johnson, Commencement

Address at Howard University: To Fulfill These Rights, 2

Pub. Papers 1965 635, 636 (1966).

15

This brief may be rare in its focus on equally

qualified candidates. Affirmative action has been confused

with a preference for the less qualified. In this case, the

average grades and test scores of various groups have been

displayed. 137 F.Supp.2d at 864, 288 F.3d. at 796-7 The

district court found that “members of underrepresented

minorities would not be admitted in significant numbers

unless race is explicitly considered. This is due to the fact

that members of these groups, on average, have lower LSAT

scores and lower undergraduate GPAs as compared to other

-applicants (i.e., Caucasians and Asians), so that

comparatively few would be admitted in a system where

admissions decisions were based on "the numbers.” 137

F.Supp.2d at 840.

Yet the proof offered was that minority students were

given a preference compared to students with equal

credentials, as there were so many more such applicants from

the white group. Such a preference among equally

credentialed applicants need not lead to a difference in the

average credentials of the two groups."

'' Compare “[rjeports that black students were admitted with test scores

that were a full standard deviation lower than the white students in the

Class. ...prove to be quite misleading when used to postulate the

consequences of race as a factor in the admissions decisions.” Linda F.

Wightman, Are Other Things Essentially Equal? An Empirical

Investigation of the Consequences of Including Race as a Factor in Law

School Admissions, 28 Sw.U.L.Rev. 1, 42 (1998). So to, differences in

average college grades occur even though “Among African-Americans,

417 of the 418 admitted students in these years [1995-98] had GPAs that

were comparable to the GPAs of admitted Caucasian students....From

the available data, it is possible that the applicant with the highest GPA in

each of the four years was an African-American or Mexican American,

whereas the lowest GPA in three of four years may belong to a

Caucasian.” David. M. White, The Requirement of Race-Conscious

Evaluations of LSAT Scores for Equitable Law School Admissions, 12 La

16

1. The University of Michigan Law School Was

Justified In Accepting Minority Applicants with

Equal College Grades from the Same College That

Have Perennially Experienced Unexplained,

Significant Score Gaps Compared To White

Applicants

The District Court has made note of seemingly large

gaps in LSAT scores. “In the 1995 entering class, white

students had a median LSAT score of 167,... while the

corresponding figures were 155 ... for African American

students, and 159 ... for Mexican American students. 137

F.Supp.2d at 833 “Averaging the figures over the six years,

one sees that the point gap between the Caucasian LSAT

score was 6.8 for Native Americans, 9.6 for African

Americans, 7 for Mexican Americans, and 7.6 for Puerto

Ricans. 137 F.Supp.2d at 864 n. 56.

Yet these gaps are almost identical to gaps found

when applicants are matched according to undergraduate

grades and undergraduate institution. “Even among

applicants who attend the same undergraduate institution and

have the same undergraduate GPA, the LSAT gap as

compared to white applicants is 4.0 points for Native

Americans, 6.8 points for Hispanics, and 9.2 points for

African Americans. See Exhibit 223.” 137 F.Supp.2d at 862.

11 Tr. 147- Expert report of David White, reprinted as D.

White, The Requirement of Race-Conscious Evaluations of

LSAT Scores for Equitable Law School Admissions, 12 La

Raza L.J... 399, 406 (2001). Kidder, Does the LSAT Mirror

or Magnify Racial and Ethnic Differences in Educational

Attainment?: A Study of Equally Achieving “Elite” College

Students, 89 Cal.L.Rev... 1055, 1068-76 (2001). This gap

Raza L.J. 399 at 403.

17

remains even when students are further matched by

undergraduate major. 11 Tr. 150-1 Exhibit 224. Kidder, Id. at

1076-9."

This gap has remained for “[a]t least 25 years.” 11 Tr.

133. Kidder, Id. at 1082-85 reviewing J. Gannon, College

Grades and LSAT Scores: An Opportunity to Examine the

“Real Differences” in Minority-Non-minority Performance,

in Towards a Diversified Legal Profession 272 (David M.

White ed., 1981). It “shows no signs of abating.” White, Id.

at 406. “The general notion that the LSAT discriminates

against highly qualified minority students with excellent

GPAs [is] well understood among admission officials who

spend long hours poring over files. While the precise

dimensions of the gap presented in the study were not

common knowledge, the pervasiveness of the LSAT gap

affecting minority students with high GPAs was not news to

admissions officials.” White, Id., at 417. “[O]ver the last 20

to 25 years admissions officers have recognised that there is

this independent gap, and it’s part of the folklore of

admissions, so that people recognize that this gap is part of

the evaluation process.” 11 Tr. 159.

The members of the judiciary who are first learning

about this persistent gap may find it “enormous” 137 ;

F.Supp.2d at 837, 841, but to substitute this first impression

for the experience and judgement of admission officials is

completely inappropriate. To label minority students as less

qualified on the basis of this widely known persistent gap is

judicially originated stigmatisation. Instead, the Court should

recognize “that the Law Schoo! Admission Council had no

explanation for the gap.” 11 Tr. 159.

"College grades may themselves reflect discriminatory grading practices.

9 Tr. 67-8, 139, 141, 10 Tr. 77, 96-9,

18

The District Court entertains the notion that a

“solution may be to relax, or even eliminate, reliance on the

LSAT,” 137 F.Supp.2d at 870. Yet the suggestion does not

make prior admissions decisions constitutionally suspect.

Nor should minority students who are the longstanding

victims of the unexplained gap be required to wait the

restructuring of the entire admissions system before being

admitted to law schools in large numbers. “While the ABA

does require law schools to ‘require all applicants to take an

acceptable test,’ such as the LSAT, it does not require that

law schools give the test results any particular weight.” 137

F.Supp.2d at 871. Such a nuanced and perfectly justifiable

use of the LSAT appears to have occurred at the University

of Michigan Law School in this case. “[T]o argue otherwise

is really to argue that you ought to take the predicted first-

year GPA and just use it as an absolute cut, that is,

everybody above some level gets in, everybody below it

doesn't get in. But that's never been true. I mean, nobody

ever was foolish enough to use that way.” 8 Tr. 55. Limiting

the law schools ability to use the LSAT in a varied and

proper manner in the admissions process will only force an

increased reliance on the test far beyond its design and

advised use. The persistence of lawsuits claiming “reverse

discrimination” on the basis of test scores has actually

increased reliance on the tests. “[R] recently there has been

this concerted attack on affirmative action which has the

effect of if it succeeds of requiring people to make

admissions decisions based purely on numbers.” 8 Tr. 69.

2. Differential Test Scores and Grades Between Highly

Qualified Minority and Majority Applicants Have Been

Found To Reflect Minority Students’ Unconscious

Response to the Lingering Racial Stereotype That

Members of Minority Groups Are Less Intellectually

Gifted.

19

The University of Michigan Law Schools admissions

program did not operate to prefer the less qualified in pursuit

of its goal of race conscious inclusion. In selecting among

many highly qualified applicants the admissions office was

justified in it flexible approach in the use of the LSAT.

Scientific studies, including those offered at trial argue that

the average difference in LSAT scores between White and

minority test takers may be based in part on stereotype threat

experienced by minority test takers. This term describes the

psychological reaction of minority test takers, who in

addition to trying to perform well on the test instrument also

find themselves trying to perform well enough to overcome

the societal stereotype of Black intellectual inferiority.

Despite real progress in racial attitudes in the country,

nineteenth century theories of limited Black intelligence have

had resurgence and are well known in our popular culture.

(See Charles Murray and Richard J. Hernstein “Race Genes

and IQ-An Apologia” New Republic, October 31, 1994)

Evidence in the record indicates that this stereotype

has infected the very measures used to label applicants as

equally qualified or less qualified. Both undergraduate grades

and norm referenced multiple choice tests can reflect an

artificially depressed performance by students who belong to

a group that is subject to such a negative stereotype. Such

reduced performance does not indicate a lower ability, but

reflects psychological, and physiological, responses to the

threatening situation that result in reduced performance

measures. Even most fairly constructed tests cannot be

interpreted without knowledge of the identity of the test

taker.

Stanford psychology professor Claude Steele

explained “based on long-standing research, including work

done in my own laboratory over the past 10 years, showing

that experiences tied to one's racial and ethnic identity can

20

artificially depress standardized test performance.

Importantly, these effects go beyond any effects of

socioeconomic disadvantage, affecting even the best

prepared, most invested students from these groups who

often come from middle-class backgrounds. ” expert report

of Claude M. Steele, 1 reprinted in 5 Mich.J.Race&L. 439

(1999). “My research, and that of my colleagues, has isolated

...a factor we call stereotype threat. This refers to the

experience of being in a situation where one recognizes that a

negative stereotype about one's group is applicable to

oneself. When this happens, one knows that one could be

judged or treated in terms of that stereotype, or that one

could inadvertently do something that would confirm it. In

situations where one cares very much about one's

performance or related outcomes — as in the case of serious

students taking the SAT — this threat of being negatively

stereotyped can be upsetting and distracting. Our research

confirms that when this threat occ»rs in the midst of taking a

high stakes standardized test, it directly interferes with

performance.” 137 F.Supp.2d at 867 citing Steele Report, p.

7. Compare Steele, C.M., Aronson, J. Stereotype threat and

the intellectual test performance of African Americans, 69 J.

Personality & Social Psychology, 797(1995), 9 Tr. 45.

“Stereotype threat follows its targets onto campus, affecting

behaviors of theirs that are as varied as participating in class,

9 Tr. 25, 31 seeking help from faculty, 9 Tr. 26, 105, 139-

141, 10 Tr. 83-4, 96-97, contact with students in other

groups, 9 Tr. 138, 185, 10 Tr. 98, and so on. And as it

becomes a chronic feature of one's school environment, 9 Tr.

37, 88, 140, 153, 156-6; 10 Tr. 75 it can cause what we have

called "disidentification"; the realignment of one's self-

concept and values so that one's self-regard no longer

depends on how well one does in that environment.

Disidentification relieves the pain of stereotype threat by

breaking identification with the part of life where the pain

occurs, which necessarily includes a loss of motivation to

succeed in that part of life.” Steele, p. 5. Steele, C.M. A

21

Threat in the Air; How Stereotypes Shape Intellectual

Identity and Performance. 52 American Psychologist

613(1997). 9 Tr. 100, 145.

“(The detrimental effect of stereotype threat on test

performance is greatest for those students who are the most

invested in doing well on the test....Across our research,

stereotype threat most impaired students who were the most

identified with achievement, those who were also the most

skilled, motivated, and confident--the academic vanguard of

the group (emphasis added) more than the academic

rearguard. ’Steele, p. 5. Steele, C.M., Aronson, J., Stereotype

threat and the test performance of academically successful

African Americans. in C. Jencks & M. Phillips, The Black-

White Test Score Gap 401-427(1998). “The characteristics

that expose this vanguard to the pressure of stereotype threat

is not weaker academic identity and skills, but stronger

academic identity and skills. They have long seen themselves

as good students, better than most other people. But led into

the domain by their strengths, they pay an extra tax on their

investment there, a "pioneer tax," if you will, of worry and

vigilance that their futures will be compromised by the ways

society perceives and treats their group.” Steele, p. 6. Steele,

C.M. Race And The Schoolings Of Black Americans. The

Atlantic Monthly 68-77(April, 1992). “Recent research from

our laboratory shows that this tax has a physiological cost.

Black students performing a cognitive task under stereotype

threat had elevated blood pressure. ” Steele, p. 7. James

Blascovich, Spencer, S., Quinn, D., Steele, C.M. African-

Americans and high blood pressure: The role of stereotype

threat, 12 Psychological Sciences 225(2001), 9 Tr. 18, 23,

25, 70

“Being a minority student from the middle-class is no

escape from stereotype threat and its effect on standardized

test performance or performance in higher education more

22

generally. ...It is investment in the domain of schooling--

often aided by the best resources and wishes of middle-class

parents--that can make one, at the point of reaching the

difficult items on the SAT, experience the distracting alarm

of stereotype threat. ” Steele, p. 6. “A similar scenario could

be described for many Hispanic groups in this society and for

American Indians (especially those living on reservations). ”

Steele, p. 6 Gonzales, P.M., Blanton, H., Williams, K.J. The

effects of stereotype threat and double-minority status on the

test performance of Latino women, 28 Personality and Social

Psychology Bulletin 659(2002).

The District Court dismissed Dr. Steele’s report

because “he does not indicate when the experiment was

done, how many students participated, whether the results

were tested for statistical significance, or whether the results

were published and subjected to peer review. ” 137

F.Supp.2d at 867, although Steele, (1997) and Steele &

Aronson, (1995) were two peer reviewed articles included in

the References consulted, as well as Jencks & Phillips

(1998). In contrast, Clark D. Cunningham et al., Passing

Strict Scrutiny: Using Social Science to Design Affirmative

Action Programs, 90 Geo.L.J. 835 (2002) summarized

stereotype threat research and concluded “[S]stereotype

threat theory is now widely accepted within the field of

psychology. Id. at 839.

The University of Michigan Law School was

perfectly justified in admitting minority applicants who may

have been affected by stereotype threat, but whose records

demonstrated ample evidence of high qualifications for

admissions to the law school. There is no evidence in the

record showing that their failure to apply this same

differentiation to all applicants was in error.

23

3. The Affirmative Action Admission Policies At the

University of Michigan Law School Do Not Impose Any

Stigma On The Students Admitted Under Its Auspices

Members of this Court have expressed reservations

about affirmative action on the supposition that the programs

somehow intensify a stigma on persons of color.

“(P]referential programs may only reinforce common

stereotypes holding that certain groups are unable to achieve

success without special protection based on a factor having

no relationship to individual worth.” Regents of University

of California v. Bakke, 438 U.S. 265, at 298 (1978)(Powell,

J). “Classifications based on race carry a danger of stigmatic

harm. Unless they are strictly reserved for remedial settings,

they may in fact promote notions of racial inferiority and

lead to a politics of racial hostility.” City of Richmond v.

J.A. Croson Co., 488 U.S. 469, at 493 (1989)(O’Connor,

J.).“‘[A] statute of this kind inevitable is perceived by many

as resting on an assumption that those who are granted this

special preference are less qualified in some respect that is

identified purely by their race.’” Id. at 517 (Stevens, )

J.)(quoting Fullillove v. Klutznick, 448 U.S. 448 (1980).

Compare 9 Tr. 43, 10 Tr. 95-6, 98.

The record proves that affirmative action programs

need not result in a negative experience for the beneficiaries

of that program. Part of a successful affirmative action

program involves the message it sends. “[A nother one of the

resources of Harvard, the assumptions that they make, and

just this whole philosophy that we don't make mistakes, if we

bring you in here, you're good enough to graduate and you

will excel, and that's a different institutional orientation than

at some places where the notion is one of, well, to be truly

prestigious academically we have to have a high body count,

that is, our prestige is predicated upon the number of students

we flunk out, and not the number that we graduate. ” 9 Tr.

24

163-4. The effects of this approach have contributed to

schools like Harvard almost eliminating disparities in the

graduation rate between Black and White students. (See

Journal of Blacks in Higher Education, “Closing the Gap”

Fall, 2002)

Conclusion

This case should be decided as it was pled and

proved. The Court should reaffirm the presumption of

inclusion reflected in the Thirteenth, Fourteenth and

Fifteenth Amendments to the Constitution and the various

policies and rules enacted to guide the development of

affirmative action programs. Qualified members of groups

previously enslaved or conquered by the United States

continue to deserve the protections afforded by those

Amendments and policies. Some statistical anomalies may

occur when these highly qualified applicants are admitted,

but they do not rise to the level of a constitutional infirmity.

Evidence in the record indicates that adoption of the

equal odds ratio standard for non-discrimination will

permanently exclude the vast majority of minority applicants

to law schools and leave those few admitted students as

perennial pioneers amid white majority privilege.

Affirmative action to ensure inclusion of these previously

excluded and presently under-represented groups is still

necessary. Both statistics and everyday experience indicate

that the day has not yet come when the social conditions that

gave rise to affirmative action as national policy have been

ameliorated. Even those individual members of these groups

who have attained the highest economic, political, and legal

standing cannot escape their identity or the negative

stereotypes that continue to be imposed on their identity. In

particular, the stigma that entire racial and ethnic groups are

intellectually inferior has preceded current affirmative action

25

programs and has been proven to continue and even intensify

when such programs are eliminated.

Respectfully submitted,

Victor M. Goode

Counsel

Associate Professor of Law

City University School of Law

65-21 Main Street

Flushing, New York 11367

(718) 340-4310