Amicus Curiae Brief — Gratz v. Bollinger

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Marae rau i

Nos. 02-241 & 02-516

IN THE | FEB L4 2693

Supreme Court of the United States...

BARBARA GRUTTER, ;

Petitioner,

LEE BOLLINGER, ef al.,

Respondents.

JENNIFER GRATZ, ef al..,

Petitioners,

LEE BOLLINGER, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the SixthCircuit

BRIEF OF AMICUS CURIAE STATE OF

NEW JERSEY IN SUPPORT OF RESPONDENTS

DAVID SAMSON

Attorney General of New Jersey

R.J. Hughes Justice Complex

P.O. Box 112

Trenton, New Jersey 08625

(609) 292-4925

JEFFREY BURSTEIN

Assistant Attorney General

Counsel of Record and on the Brief

DONNA ARONS

ANNE MARIE KELLY

Deputy Attorneys General

On the Brief

ARGUMENT

L BASED ON THE PRINCIPLES OF

STARE DECISIS, THIS COURT

SHOULD UPHOLD THE DECISION

IN BAKKE AND REAFFIRM THAT -

STATES HAVE A COMPELLING

- STATE INTEREST IN ACHIEVING

STUDENT DIVERSITY THAT CAN

BE ACHIEVED BY A CAREFULLY

TAILORED RACE-CONSCIOUS

ts) ee 5

A. The Principles of Bakke are

Embedded in the Operation of

Institutions of Higher Education in

New Jersey and Other States. ........ 5

B. Under the Methodology Set Forth

in Marks v. United States, Justice

Powell’s Opinion In Bakke Is the

Controlling Opinion. ............... 7

C. Bakke Is Entitled to Stare Decisis Effect . 8

Il. RACE AND ETHNICITY CAN BE

CONSIDERED, ALONG WITH OTHER

FACTORS, BY STATE UNIVERSITIES

IN ADMISSIONS TO ACHIEVE THE

EDUCATIONAL BENEFIT OF

STUDENT DIVERSITY WHICH

CONSTITUTES A COMPELLING

STATE INTEREST. ......------+eeee08 13

A. Student Diversity In Higher

Education Is a Compelling State

Paterest. on ccc ccc ccccccccccccses

B. First Amendment Protections

Attached to University Academic

Determinations Further Support the

Conclusion that the Educational

Value of Student Diversity is a

Compelling State Interest........---

I. UNIVERSITY ADMISSIONS SYSTEMS

WHICH CONSIDER RACE AMONG

OTHER FACTORS IN ORDER TO

OBTAIN THE EDUCATIONAL

BENEFITS OF STUDENT DIVERSITY

AND WHICH OPERATE IN AMANNER

SIMILAR TO THE HARVARD PLAN

ENDORSED IN BAKKE ARE

NARROWLY TAILORED FOR

PURPOSES OF EQUAL PROTECTION

CLAUSE ANALYSIS. ....... 6-55 s05e5>

CONCLUSION ...... 6c e eee e ener ee ee eeeees

TABLE OF AUTHORITIES

CASES CITED

I oso ccnccccéccceccees 10, 11, 19

Alden v. Maine, 527 U.S. 706 (1999) ................ 24

Alexander v. Sandoval, 532 U.S. 275 (2001) .......... 14

CC 18

Bd. of Educ. of the Borough of Englewood Cliffs v.

Sk 22

I i l

Brown v. Board of Education, 347 U.S. 483 (1954) ...... 6

Bush v. Vera, 517 U.S. 952 (1996) .................. 23

i ee a 10

Davis v. Halpern, 768 F.Supp. 968 (E.D.N.Y. 1991) .... 12

Dickerson v. United States, 530 U.S. 428 (2000) ........ 6

Englewood Bd. of Educ., 788 A.2d 729 (N.J. 2002) . 22

Gratz v, Bollinger, 122 24811

(E.D.Mich. 7000), cent en

Saw dbectcececcccecs 3, 16, 19, 25

Griswold v. Connecticut, 381 US. 479 (1965) ......--- 17

288 F.3d 732 (6th Cir. 2002),

cert. granted, 123 S.Ct. 617 (2002) .......-.- 3, 7, 19, 25

F.Supp.2d 358 (WD. Ky. 2000) ....-...--++. 12

78 F.3d 932

(Sth Cir. 1996), cert. den. 518

ULS, 1033 (1996) 7... .--- ee cere ee eeeee eee eeees 12

279 A.2d 619 (N.J. 1971) ...---- eee eee eee 22, 23

263 F.3d 1234 (11th Cir. 2001) ........---0e+eee0e: 12

Keyishian v. Bd. of Regents, 385 U.S. 589 (1967) ..-.-- 17

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) 24

Marks v. United States, 430 U.S. 188 (1977) ...-------- 7

598 P.2d 707 (Wash.

1979) cert. den. 445 1979) U.S. 962 (1980) .....-. 12

505 U.S, 833 (1992) ..... 022 -eeeee eee eeeeeees 5,8

474 U.S. 214 (1985) .... 022s e eee ee ee eee eeees 18

411 US. 1 (1973) ....------- LOD Teme 24

517 ULS, 44 (1996) .....-- eee cree e errr eeeeeees 24

233 F.3d 1188 (9th Cir. 2000),

cemt. dem. S32 US. 1050 (2001) .....:............ 8

ERE A 18

Sweatt v. Painter, 339 U.S. 629 (1950) ............... 16

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ....... 17

195 FE. 3d 698 (4th Cir. 1999),

cert. dism. 529 U.S. 1050 (2000) ................ 12

a a 24

Se Setbc ccd enc eceakenteos passim

eee i ed aebieli tg 10

CONSTITUTIONAL PROVISIONS CITED

ee MD Ds cccoccccccesecocecces 17, 18

US. Const., Amendment XIV .................. passim

STATUTES CITED

Title VI of the Civil Rights Act of 1964,

Se i NI, occccceccccccesececess 14

Michelle Adams, Isn’t It Ironic?

Association of American Universities,

— : ‘ssions (Sept. 14,

1997) at http://www.aau.edu/issues/diversity ieeees

Darlene Goring, Affirmati ive Action and the First

Autonomy, 47 ee L Rev SST1999)

John F. Kain and Daniel O’Brien,

vii

Akhil Amar Reed and Neal Katyal, Bakke’s Fate,

43 UCLA. L. Rev. 1745 (1996) .............. 6, 11

Richard Stockton College, Mission Statement, at

http://www2.stockton.edu/stockton.html ........... 2

Rutgers School of Law-Newark, i

at www.newark.rutgers.edu/law/main.html..... ... 16

Rutgers, The State University of New Jersey,

Fact Book 2002-2003, Our Vision, statement at

http://oirap.rutgers.edu/instchar/factbook02. html .... 1

Rutgers, The State University of New Jersey,

Office of the Vice President for Student Affairs,

at http://studentaffairs.rutgers.edu/ctaocp.html ...... 9

Dr. James E. Sulton, Jr., Mid-Year Report to the

he . ion, D ber 17,

1999) at http://www.state.nj.us/highereducation/

Se pe PR a eae 13

U.S. Comm’n on Civil Rights, Toward an Understanding of

Substitutes for Affirmative Action? (April 2000)

at http//www.usecr.gov/percent/stmnt.htm. ..... 21,22

Victor V. Wright, Note, Hopwood v, Texas: The

. . *4¢

Interest Analysis in Striking Down an Affirmative -——

Review 871 (1997) ......--c cece cece cree eeeeees 9

— <<< —S

INTEREST OF THE AMICUS

Over 37 years ago, in a decision grounded in provisions of

the New Jersey Constitution, the Supreme Court of New Jersey

squarely held in Booker v. Bd. of Educ., 212 A.2d 1 (NJ.

1965), that ensuring diversity of students in public educational

institutions is a State interest of the highest order. The New

Jersey Supreme Court found that “leading educators stress the

democratic and educational advantages of heterogeneous

student populations and point to the disadvantages of

homogeneous student populations,” and stated that students

“must learn to respect and live with one another in multi-racial

and multi-cultural communities and the earlier they do so the

better” so that “firm foundations may be laid for good

citizenship and broad participation in the mainstream of

Admissions practices of New Jersey institutions of higher

education -- including Rutgers University (by far the largest

State university, with over 50,000 students), the University of

Medicine and Dentistry, The College of New Jersey and

Richard Stockton College -- vary depending on each school’s

educational mission. What is common to these State schools,

however, is the recognition of the educational value of

providing education in a diverse environment. See Rutgers,

The State University of New Jersey, :

0 Visi

Statement, available at

http://oirap.rutgers.edu/instchar/factbook02.html., The College

of New Jersey, Vision Statement, at

http//www.tcnj.edu/about/history/vision.html., and Richard

Stockton College, Mission Statement, at

http://www2.stockton.edu/stockton.html. (discussing the value

to these schools resulting from student diversity). To ensure

the educational benefits which result from a “multi-racial and

multi-cultural” student body, race is one factor--among many

other factors--considered as part of the admissions processes.

Thus, for example, Rutgers University School of Law-

Newark, apart from grades and LSAT scores, considers race or

ethnicity as an admissions factor, as part of a flexible,

individualized review which also utilizes a myriad of non-racial

factors such as extraordinary family and socio-economic

circumstances, educational factors other than grades,

extracurricular activities, community and volunteer services,

employment history, and special achievements, for the purpose

of selecting a diverse and vibrant student body. For its various

undergraduate colleges, Rutgers--apart from high school

grades, class rank, strength of the high school’s academic

program, SAT scores and the student’s admission essay--

considers race and ethnicity of applicants as part of a flexible

review which also considers — yt age

eographic location of applicants, participation in

s colationd cxokeanie peogunes, and sshiavensant into tose of

educational and economic disadvantage to foster a diverse

student population. Similarly, The College of New Jersey and

Richard Stockton College -- apart from SAT scores, high

school grades and application essays--look at factors to foster

a heterogeneous student body including race and ethnicity, but

also including community activities, special talents and other

factors apart from race by which students bring unique cultural

perspectives. At the University of Medicine and Dentistry --

apart from test scores and college grades—race is a

consideration in admissions among multiple other factors such

as the applicant’s interview, work history, community service

and overall life experiences, for the goal of admitting a diverse

student body. -

EE,

The utilization of race as a consideration, among a myriad

of other factors, in the admissions systems of these New Jersey

universities fully comports with Justice Powell’s controlling

opinion in University of California v. Bakke, 438 U.S. 265

(1978): no racial quotas whatsoever are utilized and there are

no race-based separate admissions tracks. Nor is any specific

weight or number given to applicants based on race or

ethnicity.

New Jersey, thus, has a critical interest in preventing the

outcome sought by Petitioners in both Grutter v. Bollinger, 288

F.3d 732 (6" Cir. 2002), cert. granted, 123 S.Ct. 617 (2002),

and Gratz v. Bollinger, 122 F.Supp. 2d 811 (E.D. Mich. 2000),

cert. granted, 123 $.Ct. 617 (2002): to overturn Justice Powell’s

controlling opinion in Bakke, which permits state universities

to consider race in their admissions processes to promote the

significant educational benefits which result from a

heterogeneous student population. In the 24 years since Bakke,

New Jersey universities, in their admissions systems, outreach

efforts and otherwise, have carefully complied with the

contours of Bakke, including its limitations on the use of race

in admissions. Profound benefits resulting from student

diversity--achieved without use of anything akin to racial

quotas--have flowed to students of all races and ethnicities who

have attended these New Jersey universities. Indeed, the State

of New Jersey, with a population richly abundant in ethnic,

racial and cultural diversity, has benefitted from these policies

as well, as graduates of these schools have been well-prepared

to make positive contributions in New Jersey’s increasingly

heterogeneous environment. The departure from the principles

of Bakke which Petitioners seek would have a major, disruptive

impact on New Jersey institutions of higher education, to the

detriment of New Jersey students, the institutions themselves,

and the State as a whole. It will promote a narrow-mindedness

in students — a fear of difference — that is borne not necessarily

of malice, but of ignorance of other perspectives and cultures.

states have aco lling interest in achieving the profound

naa benefits farfiow from racially and ethnically diverse

student populations at institutions of higher education. Bakke

established a framework for the constitutionally permissible,

limited consideration of race, as one factor among many, in

institut in New J and elsewhere to attain richly

aaanions poser meen Maren that benefit the —,

the institutions, and the states themselves, the principles .

Bakke are now embedded in the practices of universities ©

New Jersey and of other states and have been te arma a

t by lower courts. Given Bakke s continued vi aw

this Court should reject Petitioners’ invitation to depart from

this landmark case, and, under principles of stare decisis,

should apply Bakke to these matters.

Apart from its stare decisis effect, Bakke’s holding -~

student diversity is a compelling state interest remains so

Numerous studies, and the experience of New Jersey _—

institutions, have demonstrated the educational benefits

therefrom. Moreover, the long-recognized First Amendmen

right of state and private universities to academic sa

further supports the conclusion that pursuit of a y

by public universities to advance educational g

compelling state interest.

seitetions lans such as those at issue here, which

operate in a manner similar to the “Harvard plan endorsed in

Bakke by not utilizing quotas or separate race-based admissions

tracks and by considering race as only one among ibl

admissions factors, represent a constitutionally permussi e,

narrowly tailored means of achieving this compelling state

interest. The claim by Petitioners and their supporting aiiuc)

that “percentage plans” are a more narrowly tailored alternative

for achieving student diversity ignore that they are

ET ee re

appropriate for every jurisdiction because they depend on the

existence of, and could serve to promote, a racially segregated

school system, not a viable option in New Jersey and other

States committed to desegregating their public schools. Each

State must be given leeway, within constitutional bounds, to

respond to local law and conditions in devising a narrowly

tailored means of achieving student diversity. The admissions

plans at issue in Grutter and Gratz, while not identical to New

Jersey’s, present a narrowly tailored approach for achieving the

compelling state interest in student diversity. Therefore, the

decisions below should be affirmed.

ARGUMENT

I. BASED ON THE PRINCIPLES OF

STARE DECISIS, THIS COURT

SHOULD UPHOLD THE DECISION

IN BAKKE AND REAFFIRM THAT

STATES HAVE A COMPELLING

STATE INTEREST IN ACHIEVING

STUDENT DIVERSITY THAT CAN

BE ACHIEVED BY A CAREFULLY

TAILORED RACE-CONSCIOUS

ADMISSIONS POLICY.

A. The Principles of Bakke are Embedded in the

Operation of Institutions of Higher Education in

New Jersey and Other States.

As this Court has recognized, “the very concept of the rule

of law underlying our own Constitution requires such

continuity over time that a respect for precedent is, by

definition, indispensable.” Planned Parenthood v. Casey

U.S. 833, 854 (1992). Adherence to the principles of stare

decisis is of particular importance where the Court’s decision

“calls the contending sides of a national controversy to end

their national division by accepting a common mandate rooted

Vv , 505

in the Constitution.” Id. at 867. Bakke was decided in the

context of a national debate concerning the propriety of race-

conscious admissions at institutions of higher

education. Like this Court’s decision in Brown v. Board of

Education, 347 U.S. 483 (1954), Bakke has had enormous

impact on educational policies and practices in New Jersey and

nationwide. Given the historical significance of Justice

Powell’s opinion in Bakke, and the fact that the standards

enunciated in that case have become “embedded in

routine...practice,” Dickerson v. United States, 530 U.S. 428,

443 (2000), this Court should reject Petitioners’ invitation to

overturn the controlling principles of that decision.

When Bakke was decided 24 years ago, it provided a

blueprint for development of constitutionally permissible

admissions policies aimed at realizing the academic benefits

resulting from student diversity at institutions of higher

education. Justice Powell’s decision was rightly viewed and

reasonably relied upon as a guiding principle for educators

striving to achieve the benefits of diversity at their institutions

without infringing upon the constitutional rights of any

applicants. In the ensuing years, many of the educational

institutions of New Jersey crafted admissions policies modeled

upon the “Harvard plan” approved by five Justices in Bakke.’

These New Jersey admissions programs, in which race and

ethnicity are taken into account along with a myriad of other

factors, have been successful in achieving richly diverse student

communities without the use of quotas or two-track race-based

admissions programs condemned by Justice Powell. Now,

nearly a quarter of a century after Bakke, its principles and

standards have become embedded in these New Jersey

institutions, and the resulting heterogeneity of their academic

'As observed in Akhil Amar Reed and Neal Katyal, Bakke’s Fate,

43 UCLA. L. Rev. 1745, 1769 (1996), “[a}n entire generation of

Americans has been schooled under Bakke-style affirmative action, with the

explicit blessing of - indeed, following a how-to-do-it manual from -- U.S.

Reports.”

communities have become part of the identifying characteristi

» ng — Retreat from the principles of Bakke at this

metas d seriously disrupt the operations of New Jersey’s

— ons of higher education that have come to rely upon and

t from the contributions of students from a wide variety

of backgrounds and experiences.

B. Under the Methodology Set Forth in

Justice

Powell’s Opinion In Bakke

Controlling Opinion. sala

Court’s ultimate decision in Bakke, there

the methodology announced in co 430

188 (1977), i j

an! ( 77), it must be treated as the holding of the Bakke

Grutter vy. Bollinger, supra, 288 F.3d at 739-742.

The crucial issue in Bakke was the

could be taken into account in academic that

a the two opinions (Justice Powell’s and Justice Brennan’s)

it upheld the use of race to some degree, Justice Powell’s

rationale was clearly narrower. He applied a more stringent

body. Id. at 310-312 Significantly, both Justice Brennan

7 , ustice B

Justice Powell endorsed use of admissions programs akin te the

“Harvard plan” appended to Justice Powell’s opinion, id. at

321, which has become a benchmark for educators seeking to

develop constitutionally permissible policies. Therefore, as the

Ninth Circuit explained in concluding that Justice Powell’s

opinion constituted the holding of Bakke, despite the “mix” of

opinions, the “result was still clear enough to permit educators

to rely upon the opinion that gave the decision its life and

meaning — the opinion that avoided both polar possibilities.”

iversi , 233 F.3d

1188, 1200 (9" Cir. 2000), cert. den. 532 ULS. 1051 (2001).

Cc. Bakke Is Entitled to Stare Decisis Effect.

None of the limited circumstances permitting departure

from such controlling precedent apply here. In Casey, 505 US.

at 854-855, this Court enunciated four factors to be considered

when it reexamines a prior holding: 1) whether the prior rule

has proven to be unworkable in practice; 2) whether the rule

could be overturned “without serious inequity to those who

have relied upon it or significant damage to the stability of the

society governed by it,” id. at 855; 3) whether development of

the law in succeeding years has rendered the rule a “doctrinal

anachronism discounted by society” ibid.; and 4) whether

underlying factual premises have so changed as to render the

rule obsolete or irrelevant. Application of these factors leads

ineluctably to the conclusion that Bakke should be reaffirmed

under the principles of stare decisis.

First, as New Jersey’s experience demonstrates, the

standards governing permissible race-conscious admissions

programs enunciated in Bakke work. Guided by the “Harvard

plan” endorsed by a majority of Justices in Bakke, the New

Jersey institutions of higher education noted above have

developed flexible admissions policies that consider all aspects

of the individual applicant, including race, but also including

characteristics such as special achievements, geographic

factors, and extraordinary family and socio-economic

circumstances. By crafting admissions policies that carefully

comport with the standards set forth in Bakke, New Jersey’

colleges and universities have achieved immeasurable Soaaliee

from richly diverse student communities without the use of

racial quotas or separate race-based admissions tracks.

Next, educators in New Jersey and elsewhere have widely

viewed Justice Powell’s opinion in Bakke as the governing

law’, and have relied upon the principles this Court set forth in

tum, by diversifying the student populations, have transformed

the institutions. Thus, these schools of higher learning in New

Jersey have come to depend upon and identify themselves with

the educational benefits that inure frocn a heterogeneous student

population. For example, Rutgers University promotes its

“Committee to Advance Our Common Purposes,” which is

comprised of a “diverse representation of faculty, staff, students

and community members” from three campuses. Goals of the

committee include “foster{ing] inter-cultural dialogue and

relations across diverse people, campuses and communities:

promot{ing] the reduction of prejudice, hate and bias crimes:

celebrat[ing] the distinctness of cultures and vast richness of

diversity throughout Rutgers University; and enhanc[ing) the

ties that bind ‘our common purposes’ between Rutgers

University and community.” The Committee sponsors a

number of programs and administers grants designed to achieve

these ends. See Rutgers, The State University of New Jersey

Office of the Vice President for Student Affairs, Committee to

http:// edu/ imilarly Leoael

to the mission of The College of New Jersey are the stated

beliefs that “(t]he College’s cultural, social, and intellectual life

Down an Affirmative Action Admissions Program.

Review 871, 891 (1997)(noting that “(flew would dispute that, before

Pid Cicul's decison n Hopwood, Dunice Powell's divershy eines ~

was widely accepted as the law of the land,” and citations noted therein. )

are enriched and enlivened by diversity;” “[tJhe College

prepares its students to be successful, ethical and visionary

leaders in a multi-cultural, highly technological, and

increasingly global world;” and “[t]he College believes that an

educated individual possesses an understanding of his or her

own culture, an appreciation of other cultures, and the capacity

to facilitate genuine cross-cultural interaction.” The College of

New Jersey, Core Beliefs, at

http://www. tcnj.edu/about/history/beliefs.html. Plainly, having

a heterogeneous student body is critical to the academic

missions of many of New Jersey’s higher educational

institutions. If schools were no longer permitted to pursue

diversity in the academic community through flexible

factors, this change would affect not only admissions policies

per s¢, but also the quality of the educational experience offered

and the very nature and character of the institutions themselves.

Therefore, retreat from the principles of Bakke would be

disruptive to New Jersey and other states which have similarly

followed Bakke in structuring higher education admissions

programs.

With respect to the legal vitality of the Bakke decision,

this Court has never repudiated its essential holding that the

pursuit of a diverse student body is a compelling state interest

in the higher education context. As Justice O’Connor noted in

her concurring opinion in Wygant v. Jackson Bd. of Educ., 476

US. 267, 286 (1986), “a state interest in the promotion of racial

diversity has been found sufficiently ‘compelling,’ at least in

the context of higher education, to support the use of racial

considerations in furthering that interest.” (O’Connor, J.,

concurring in part). Subsequent decisions of this Court focused

on remedial affirmative action programs, City of Richmond v,

LA. Croson Co., 488 US. 469 (1989), Adarand Constructors,

Inc. v. Pena, 515 U.S. 200 (1995), and, while confirming

Justice Powell’s opinion in Bakke that strict scrutiny applies to

all race-based classifications, they did not address the types of

interests, apart from remediation, that could qualify as

—— ee ee es

governmental action (Grutter Pet. bf. at 21, Gratz Pet. bf. at 40)

is simply erroneous.

. Further, as detailed in Part II B infra, the compelli state

interest in student diversity firmly rents on 0 cnastintset

foundation not present in Croson and Adarand, the First

Amendment right to academic freedom. See Bakke, 438 U.S.

at 785-787. Thus, the contracting set-aside setting of Croson

and Adarand is fundamentally distinct from the setting of

just benefit minorities--it advantages all students in a

distinctive way, by bringing rich and poor, black and

white, urban and rural, together to teach and learn

from each other as democratic equals.

Moreover, numerous lower courts have relied on Bakke in

the context of the matters before this Court (unlike Croson and

Adarand), analyzing challenges to programs at a variety of

School Bd., 195 F. 3d 698 (4* Cir. 1999) cert. dism. 529 U.S.

ene pene ta eng tr i Ay

a ing state interest); Hampton v. Jefferson County Bd.

a ag E.Supp.2d 358 (W.D. Ky. 2000)secondary

school’s interest in educational diversity could qualify as a

compelling state interest); Davis v. Halper, 768 F.Supp. 968

(E.D.N.Y. 1991\applying Bakke’s guidelines to challenge to

law school’s admissions policies); McDonald v. Hogness, 598

to follow Bakke, see Hopwood v. Texas,

1996), cert. den., 518 ULS, 1033 (1996), or questioned its

precedential value, see Johnson v. Board of Regents, 263 F.3d

1234 (11™ Cir. 2001), these decisions are in the minority. After

24 years, Justice Powell’s decision in Bakke continues to have

vitality as a defining legal principle and a guiding force for

educators.

Finally, applying the last factor enunciated in Casey, it is

clear that the factual assumptions underpinning Bakke remain

unchanged today. As more fully developed in Part Il, infra,

educators continue to recognize that a heterogeneous student

population is essential to a vibrant and successful academic

experience. As the former Executive Director to the New

ee ———— <—_

ee ee eee

Jersey Commission on Higher Education explained, “A

growing body of research demonstrates that a diverse campus

community benefits all students - minority and non-minority

alike. Students have a richer learning experience and leave

college better prepared to live and work in racially and

ethnically integrated communities.” Dr. James E. Sulton, Jr.,

Executive Director, Mid-Year Report to the Commission on

Higher Education, (December 17, 1999), at

http://www.state.nj.us/highereducation/ed1299 html.

Therefore, the principles articulated in Bakke continue to

shape educational policies today. As New Jersey’s experience

shows, carefully developed programs that consider race as a

plus among numerous other factors are used successfully to

produce a diverse student population that enhances the

educational experience for all students. New Jersey’s

the influence of a heterogeneous academic community, and

thus have come to rely upon the admissions policies that make

such diversity possible. Because Bakke has been such a

itive force in the development of these academic

institutions, and because its doctrinal underpinnings remain

firm, this Court should not hesitate to continue to give vitality

to this landmark case in deciding the matters presently before

the Court.

Il. RACE AND ETHNICITY CAN BE

CONSIDERED, ALONG WITH OTHER

FACTORS, BY STATE UNIVERSITIES

IN ADMISSIONS TO ACHIEVE THE

EDUCATIONAL BENEFIT OF

STUDENT DIVERSITY WHICH

CONSTITUTES A COMPELLING

STATE INTEREST.

A. Student Diversity In Higher Education Is a

Compelling State Interest.

Apart from Bakke’s stare decisis effect, the evidence

ted by te University of Michigan in Gratz and Gratis.

l line of published studies, experience 0

Universities themselves (including those in New Jersey)

demonstrate that the educational value resulting from student

diversity is a compelling state interest sufficient to satisfy the

strict scrutiny standard.

In Bakke, Justice Powell's conclusion that student

diversity promotes the “essential” atmosphere in higher

education of “speculation, experiment and creation, Bakke,

438 US. at 312, relied on a 1977 essay by the President of one

of New Jersey’s leading private universities, Princeton.

Princeton President William Bowen wrote that “a great deal of

learning occurs...through interactions among” students 0

“different races, religions and backgrounds...who are able

to...learn from their differences and to stimulate one another to

reexamine even their most deeply held assumptions about

themselves and their world.” Bakke, 438 U.S. at 312, n. 48,

uoting Bowen, issi ‘

Princeton Alumni Weekly, 7, 9 (September 26, 1977). In the

25 years since his essay, scholars have confirmed President

Bowen’s findings that the most effective way to educate is with

a heterogeneous student body - which includes racial and

*Notably, while the focus ot the matters before this Court pertain

to state universities subject to the Equal Protection Clause, Petitioners also

have raised claims under Title VI of the Civil Rights Act of 1964, 42

U.S.C. §2000d ¢ seq. Many private universities in New Jersey receive

federal financial assistance and thus are subject to Title VI. As this Court

generally has construed Title V1 co-extensively with the Equal Protection

Clause, Alexander vy. Sandoval, 532 U.S. 275, 281 (2001), acceptance mm

these matters of Petitioners’ claim that race-conscious admissions practices

are unconstitutional (except to remedy past discrimination by the particular

institution) potentially could detrimentally affect private universities in

New Jersey which consider race among other factors in admissions to

achieve a diverse student body.

ethnic diversity - whose mix of experiences brings multiple

viewpoints.

For example, a 1993 study by Dr. Alexander W. Astin, a

leading scholar and researcher in the area of higher education,

involved a survey of 25,000 students in 217 four-year colleges

and universities over four years. Dr. Alexander Astin,

University and Multiculturalism on the Campus: How are

Students Affected, 25 Change 44, 45 (Mar/Apr. 1993). Dr.

Astin analyzed the manner in which students were affected by

their institution's relative diversity, including racial diversity,

comparing data on students from such differing schools when

they entered college in 1985, with follow-up data from 1989.

The research showed that students who interacted more with

those of different backgrounds tended to be more successful in

college. Student experiences with diversity, including

socializing with members of other racial and ethnic groups and

participating in activities designed to promote cultural

awareness, were positively associated with many measures of

academic development. The data presented a clear pattern:

emphasizing diversity as a matter of institutional policy, as well

as providing students with curricular and extracurricular

Opportunities to confront racial and multicultural issues, have

beneficial effects on a student’s cognitive and affective

development. Jd. at 48. See also Association of American

Universities, Dj

wine onayy | ns — (Sept. 14, 1997) at

http//www.aau.edu/issues/Diversity (“Our students benefit

significantly from education that takes place in a diverse

setting...[learning] from others who have background

characteristics very different from their own”).

Similar findings were made by the District Court in Gratz.

The University of Michigan's expert, Professor Patricia Gurin,

analyzed three sources of data: multi-institutional national data,

the results of an extensive survey of students at the University

of Michigan, and data drawn from a specific classroom

program. She concluded that “[s}tudents who experienced the

most racial and ethnic diversity in classroom settings and in

informal interactions with peers showed the greatest

engagement in active thinking processes, growth in intellectual

engagement and motivation, and growth in intellectual skills.

Such students were also “better able to understand and consider

multiple perspectives, deal with the conflicts that different

perspectives sometimes create and appreciate the common

values and integrative forces that harness differences in pursuit

of common ground.” Gratz, 122 F.Supp. 2d at 822 (citations

omitted).

With reference to law schools, the setting of Grutter, the

beneficial impact on legal education. See Darlene Goring,

Institutional Autonomy, 47 U. Kan. L. Rev. 591, poser

d articles and studies cited therein. Indeed, over

aan Sweatt v. Painter, 339 U.S. 629 (1950), in striking

down de jure racial segregation at the University of Texas Law |

School, this Court observed:

The law school, the proving ground for legal learning

and practice, cannot be effective in isolation from the

individuals and institutions with which the law

interacts. Few students and no one who has practiced

law would choose to study in an academic vacuum,

removed from the interplay of ideas and the exchange

of views with which the law is concerned. [Id. at 634)

This passage in Sweatt has particular relevance in New Jersey,

where Rutgers School of Law-Newark places great emphasis on

its provision of legal education in clinical programs. See

Rutgers School of Law-Newark, Public Service, at

www.newark.rutgers.edu/law/main.html. For example, for a

white student raised in a homogeneous environment, exposure

to and interaction with fellow law students of different races

and ethnicities would better enable such student to effectively

participate in this important component of Rutgers Law

School’s educational program, as such clinics serve the

population of Newark, New Jersey, a city in which African-

Americans and Hispanics constitute well over half the

population. istricti

Data.

Therefore, a state university’s ability to consider race and

ethnicity in admissions to insure a diverse student population

clearly promotes significant educational benefits, and

constitutes a compelling state interest.

B. First Amendment Protections

Attached to University Academic

Determinations Further Support the

Conclusion that the Educational Value

of Student Diversity is a Compelling

State Interest.

While Petitioners assert that the only constitutional

provision relevant to the matters before the Court is the

Fourteenth Amendment (see Gratz Pet. bf. at 33-37), the First

Amendment right to academic freedom is directly implicated as

well. In Sweezy v. New Hampshire, 354 U.S. 234 (1957), this

Court squarely held that the First Amendment protects a

university’s right to academic freedom, a principle further

discussed in Justice Frankfurter’s concurrence, which stated

that “...who may be admitted to study” is an essential university

freedom. Id., 354 U.S. at 263 (Frankfurter, J.,

concurring)(citation omitted). See also Griswold v.

Connecticut, 381 U.S. 479, 482 (1965)(the First Amendment

encompasses “freedom of inquiry, freedom of thought, and

freedom to teach...indeed the freedom of the entire university”);

ishi 385 US. 589, 603 (1967)(“The

Nation’s future depends upon leaders trained through wide

exposure to that which discovers truth ‘out of a multitude of

tongues...’”). Thus, Justice Powell’s holding in Bakke that the

First Amendment allows “a university to make its own

judgments as to education includ[ing] the selection of its

student body,” Bakke, 438 U.S. at 312, and that a university has

the First Amendment “right to select those students who will

contribute most to the ‘robust exchange of ideas,”” id. at 313,

was grounded in a long tradition of American jurisprudence.

Bakke’s authorization of race being utilized as a factor in

admissions to insure student diversity, but its prohibition

against racial quotas and separate race-based university

admissions tracks, thus constitutes an appropriate and necessary

balancing of the two constitutional provisions implicated in the

setting of the matters before this Court.

And more recent decisions of this Court have expanded on

these First Amendment principles to emphasize the deference

which should be given to academic j ts of universities.

In Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214

(1985), this Court held that “great respect for the faculty’s

professional judgment” should be given by courts in reviewing

academic decision-making, id. at 225; and that federal courts

are ill-suited “to evaluate the substance of the multitude of

academic decisions that are made daily by faculty members of

public educational institutions-decisions that require ‘an

expert evaluation of cumulative information and [are] not

readily adapted to the procedural tools of judicial...decision-

making” Jd. at 226, quoting Bd. of Curators, Univ. of Mo. v.

Horowitz, 435 U.S. 78, 89-90 (1978). Under the principles of

Ewing and Horowitz, the determination by university officials

(including those in New Jersey) that a diverse student body

produces significant educational benefits is clearly entitled to

deference. See also

Ed., 402 US. 1, 16 (1971) (“{s]chool authorities are

traditionally charged with broad power to formulate and

implement educational policy,” and could devise integration

non-minority applicants are not, violated by their being

“foreclosed from all consideration” due to their race as a

—— —_—_—

of quotas or separate race-based admissions Bakke,

a tracks, 4

US. at 3 ] 8, the “good faith” of state universities which, in Pec

academic Judgment, use race as one admissions factor among

many to achieve diversity should “be presumed.” Id. at 319.

Ill. UNIVERSITY ADMISSION

SYSTEMS WHICH CONSIDER

RACE AMONG OTHER FACTORS

IN ORDER TO OBTAIN THE

EDUCATIONAL BENEFITS OF

STUDENT DIVERSITY AND

WHICH OPERATE IN A MANNER

SIMILAR TO THE HARVARD

PLAN ENDORSED IN BAKKE ARE

NARROWLY TAILORED FOR

hep pied OF EQUAL

CTION CL

ANALYSIS. ett

In order to satisfy the strict scrutin standard,

a State interest in student diversity » Me be ites

by narrowly tailored means. Adarand, 515 U.S. at 227; Bakke

38 U.S. at 315. Plans which closely resemble the “Harvard

= expressly endorsed by Justice Powell in Bakke (and by

Sauce Brennan in his partial dissent) ~ such as those used by

ew Jersey institutions of higher education and those, as found

by the Sixth Circuit in Grutter and the District Court in Gratz

below, used by the University of Michigan Law School and the

Michigan College of Literature, Science and the Arts (“LSA”)

-- meet the “narrowly tailored” test.

_ As a threshold matter, as proven by the Universi

Michigan Law School, Grutter, 288 F.3d at 750, the eA,

Gratz, 122 E.Supp. 2d at 830, and as demonstrated by

numerous studies and articles, purely race-neutral criteria will

not achieve student diversity at selective universities. For

example, reliance on test scores is an ineffective means to

achieve heterogeneity because “there are significant disparities

in the test scores of different racial and ethnic groups, a fact

that may be linked to differences in educational opportunities,

overrepresentation in low-performing schools, and in some

cases the difficulties presented for students whose primary

language is not English.” U.S. Comm’n on Civil Rights,

ion, Ch.3, “Admissions Standards and Success

Predictors”(Nov.2002)at http://www.usccr.

gov/pubs/percent2.htm.

licitly recognizing this problem and also

uma the academic benefits of student diversity, the

amicus briefs of the United States and the State of Florida in

support of Petitioners proffer “percentage plans” as an allegedly

race-neutral alternative for achieving student diversity, which

purportedly demonstrate why the Michigan systems at issue are

not “narrowly tailored.” These plans, in use in California,

Florida and Texas, guarantee admission to state institutions to

students graduating within a certain top percentage of their high

school classes. Specifically, Texas’s Top 10 Percent Law,

enacted in response to the decision, guarantees

students graduating in the top 10 percent of their high school

class admission to a Texas public college or university. The

Florida plan guarantees admission to one of Florida’s 11 public

institutions for students graduating in the top 20 percent of their

high school classes, and the California law admits students with

high school rankings in the top 4 percent to its state institutions.

Experi has shown that percentage plans are not a

cums, tana. First, such plans have no applicability

whatsoever in the context of selective graduate school

admissions, the setting of Grutter. As arule, graduate schools

do not consider high school class standing in admission

decisions, and, in any event, they draw from a national pool of

undergraduate institutions, so they simply could not guarantee

nthe | , coogi “ae een te

school graduates. Consequently, in states

admissions plans have been replaced by percentage plans, there

has been a “devastating” decrease in minority enrollment in the

States’ graduate schools. U.S. Comm’n on Civil Rights,

Action? (Apri 1 2000) at

http://www.usecr.gov/percent/stmnt.htm.

Moreover, there is strong evidence that rather than

promoting diversity, percentage plans have had a negative

effect on the admissions of certain minority groups to selective

undergraduate institutions. In Florida, “black and Hispanic

students remain underrepresented in two of Florida’s most

selective universities compared with their proportions among

high school graduates.” Beyond Percentage Plans, supra, Ch.6,

“The Road to Diversity: Percentage Plans Plus.” Similarly, in

Texas, four years after implementation of the percentage plan,

enrollment of black and Hispanic students at the University of

Texas-Austin decreased, most notably among black students,

with similarly disappointing results at the State’s selective law

and medical schools. Ibid. As the Commission on Civil Rights

concluded, “Analysis of admissions in these states reveals that

no significant improvement has been made in the rates of

minority enrollment at undergraduate or graduate/professional

levels, and in many cases, rates have declined.” Ibid. See also

Eugene Garcia, iminati lon:

de 12

Journal 373 (Fall 2001); John F. Kain and Daniel M. O’Brien,

(Nov. 2001) at

http://www .utdallas.edu/research/greenctr; Marta Tiendaetal,

Bey as Ey See Se oe he ae =

http://www .texastop 1 0.princeton.edu/publications/tienda012

103.pdf.

Even if percentage plans were successful in achieving

diversity at state colleges and universities, these plans, which,

as explained below, are premised upon a feeder school system

that is segregated, simply will not work in every locality. For

example, because New Jersey has been steadfast in its efforts

to eliminate segregation in its public schools, percentage plans

would not be appropriate here. Therefore, each state must have

the flexibility, within constitutionally permissible parameters,

to develop approaches for achieving diversity in higher

education that are suited to the unique character of the state.

It is widely recognized that the efficacy, if any, of

percentage plans depends on the existence of racially

segregated school systems. As the United States Commission

on Civil Rights noted with respect to the “One Florida Plan,”

“(t]he Plan is an unprovoked stealth acknowledgment — and

acceptance — that the existing school and housing segregation

will never change and that longstanding efforts to remedy race

discrimination that was legal in Florida have been abandoned.”

U.S. Comm’n on Civil Rights, Toward an Understanding of

Percentage Plans, supra. See also, Michelle Adams, Isn't It

#\ atte OA at Ul FACait v

Use of a plan that is inextricably dependent upon the

existence of a segregated public school system would be an

anathema to New Jersey, which has labored intensely for the

past century to desegregate its primary and secondary schools.

As the New Jersey Supreme Court declared, “[tJhe history and

vigor of our State’s policy in favor of a thorough and efficient

public school system are matched in its policy against racial

discrimination and segregation in the public schools.” Jenkins

y. Twp. of Morris School District, 279 A.2d 619, 626 (N.J.

1971). New Jersey’s courts have emphasized the State’s strong

public interest in eradicating school segregation. See, ¢.g.,

“ff Bd of’ :

A.2d 729, 744, (N.J. 2002) reaffirming responsibility of

Commissioner and State Board of Education to take

——

appropriate action to remedy racial imbalance at high school);

Jenkins, supra, 279 A.2d at 629 (same). Thus, percentage plans

premised on racial imbalance at the secondary schools are not

a feasible or desirable option for New Jersey. Nor, contrary to

the arguments of Petitioners and the above-noted amici, should

they be the only constitutionally permissible method for the

University of Michigan Law School and the LSA to achieve the

compelling state interest in student diversity.

While sharing the essential characteristics of taking race

and ethnicity into account in admissions but not utilizing quotas

Or separate race-based admissions tracks, the admissions

systems of the New Jersey schools described in this brief also

are not identical to those used by LSA or by Michigan Law

School. Most notably, the identified New Jersey schools,

unlike the LSA, do not assign any “points” or any other

specified weight based on an applicant being a member of an

fepresented minority group (though they have the

essential similarity of using race and ethnicity as but one of a

ee ee ae epee emotend

But the critical point of noting the differences between

New Jersey’s admissions systems and those of the States of

Florida, Texas and California on the one hand, and the

University of Michigan on the other, is not that New Jersey’s

systems are inherently superior. Rather, in matters as crucial to

a state as the functioning of its higher educational institutions,

a state must have leeway to shape such systems in response to

local conditions and to state law. Although some states have

experimented with percentage plans, they are not the only

constitutionally permissible alternative to a quota-like race-

based admissions program. Narrow tailoring does not mean

one size fits all.” See Bush v. Vera, 517 U.S. 952, 977

quintessential area for according states “a limited degree of

leeway” is evident from this Court’s decision in San Antonio

Dist. v. Rodriguez, 411 U.S. 1 (1973), which, in rejecting an

Equal Protection Clause challenge to Texas’ school funding

system, recognized the need for state and local latitude in

decision-making, holding that “[n]Jo area of social

concern stands to profit more from a multiplicity of viewpoints

and from a diversity of approaches than does public education.”

Id. at 50. In the higher education context, what would be a

narrowly tailored means of achieving the compelling interest in

diversity may not necessarily be identical for each state, as the

analysis must take into account such localized factors as the

nature of the applicant pool, the selectivity of the institution,

and the school’s goals and priorities.

Moreover, granting the states latitude in devising narrowly

tailored means of achieving the compelling state interest in

student diversity is further warranted under the long line of this

Court’s recent federalism cases, which emphasize that

embedded in the Constitution is the “presupposition . . . that

each State is a sovereign entity in our federal system.” Alden

v. Maine, 527 U.S, 706, 729 (1999), quoting Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 54 (1996). See also U.S. v.

Lopez, 514 U.S. 549, 581 (1995)(Kennedy, J.,

concurring(under “our federalism,” in the area of such

“traditional concern” to a state as education, a state must have

the flexibility to devise its own “solutions where the best

solution is far from clear”); Kimel v. Florida Bd. of Regents,

§28 U.S. 62 (2000). Such “sovereign entities” should have the

ability -- within the parameters of the Equal Protection Clause,

as balanced by the First Amendment rights of universities to

academic freedom -- to devise narrowly tailored admissions

plans that are appropriate to the individual circumstances

present in each state.

In Bakke, Justice Powell held that the University of

California’s two-track admissions system was not narrowly

tailored, but that a system such as the “Harvard plan” would be

deemed to be narrowly tailored. Bakke.

. 438 US. at 317.

detailed on pp. 6 gnn Gochiieaame ne nn

resembled the type of plan endorsed by Justice Powell, Gratz

_ESupp.2d at 827-831. Such admissions plans, which

avoid separate admissions tracking and quotas and which

- CONCLUSION

For the foregoing reasons, the judgment of the Sixth

Circuit Court of Appeals in Grutter_v. Bollinger and the

pine ea

Dated: February 13, 2003

Respectfully submitted,