# Amicus Curiae Brief — Grutter v. Bollinger

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0591%3A100

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0591%3A100. Public record. Not legal advice.