Amicus Curiae Brief — Gratz v. Bollinger

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No. 02-241 and 02-516

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IN THE | FEB 14 203

Supreme Court of the Anited States

BARBARA GRUTTER,

Petitioner,

Vv.

LEE BOLLINGER, ef al,

Respondents,

and

JENNIFER GRATZ AND PATRICK HAMACHER

Petitioners.

v.

LEE BOLLINGER, er al.

Respondents

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE

MICHIGAN GOVERNOR JENNIFER M. GRANHOLM

KELLY G. KEENAN, JOHN D. PIRICH

Legal Counsel Counsel of Record

TERESA CAINE BINGMAN, MARK A. GOLDSMITH

Deputy Legal Counsel HONIGMAN MILLER SCHWARTZ

R. JOHN WERNET, JR., AND COHN LLP

222 N. Washington Sq.

. nm a Yam Suite 400

ont ice of the Governor Lansing, MI 48933

egal Division (S517) 377-0172

P.O. Box 30013

Lansing, MI 48909

(517) 335-6847

Counsel for Amicus Curiae

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

= en

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ..............cccccseseeeees ii

IDENTITY AND INTEREST OF AMICUS

MICHIGAN GOVERNOR’ JENNIFER M.

ee ecccccassnscrscscicsmerecvestemecesorumeutnedenenitecnnneeee l

SUMMARY OF ARGUMENT..............::ccccssssessesesseeeseees 3

PETITE cxsvenicctsnncsreemsnsestreemsceeesnccmninennens 5

THE UNIVERSITY OF MICHIGAN’S DETER-

MINATION THAT IT HAS A COMPELLING

INTEREST IN ACHIEVING A_ DIVERSE

STUDENT BODY IN ORDER TO ADVANCE ITS

EDUCATIONAL MISSION FALLS WITHIN THE

INSTITUTIONAL AUTONOMY AFFORDED TO

UNIVERSITIES BY THE FIRST AMENDMENT

AND BY ART. VIII, § 5 OF THE MICHIGAN

CONSTITUTION AND SHOULD, THEREFORE,

BE AFFORDED DEFERENCE BY THIS COURT. . 5

SEAS PEAS RAR he 17

(i)

ii

TABLE OF CITED AUTHORITIES

CASES Page

Adarand Contractors, Inc. v. Pena, 515 U.S. 200

endian iia terteriasnaaiimnapemngntnnanetnemnanests 12

Ambach v. Norwick, 441 U.S. 68 (1979) ....cccecesesee 5

Board of Control of Eastern Michigan University

v. Labor Mediation Board, 384 Mich. 561, 184

Pee ae OO COE OD venpncessccsenccccepsecsncesecccccensenssseene 15

Board of Curators of the University of Missouri v.

Horowitz, 435 U.S. 78 (1978)......cccssseseeerseeeeees 9

Board of Regents of the University of Michigan v.

Auditor General, 167 Mich. 444, 132 N.W.

|, | | Sn eeer eee 15

Branum v. Board of Regents of the University of

Michigan, 5 Mich. App. 134, 145 N.W.2d 860

(CU sditecienenveicnaseenavetantenineninigmanteqsnseeneevenesaseseese 16

Brown v. Board of Education, 347 U.S. 483

Ne dhistecnesesepinnenesentenqscenncgpinsestanesessteeecetnensnenass 5,8

City of Richmond v. J.A. Croson Co., 488 U. S. 469

IPI ccsicoepusnncencsnnennsnvisuinernserastonstnesenssacessnnesnesscens 12

Doherty v. Southern College of Optometry, 862

F.2d 570 (6th Cir. 1988) .........scsessessseseeesseerenseees 10

Federated Publications, Inc. v. Michigan State

University Board of Trustees, 460 Mich. 75, 594

PEW aS SOE (BIO) cecssnccsnccsneccceseressvececsccesccsessseces 14, 15

Foley v. Connelie, 435 U.S. 291 (1978) sapenemenensenes 5

Griswold v. Connecticut, 381 U.S. 479 (1965) ....... 7,12

Hopwood v. State of Texas, 78 F.3d 932 (Sth Cir.

1996), cert. denied, 518 U.S. 1033 (1996).......... 11,12

Keyishian v. Board of Regents, 385 U.S. 589

CR Piisevssccncsscscintcrcscssscccnsccseneceseseeqanecocscnseente 7-8, 9, 12

Lovelace v. Southeastern Massachusetts

University, 793 F.2d 419 (Ast Cir. 1986)........00+ 10

Martin v. Helstad, 578 F. Supp. 1473 (W.D. Wis.

PED citnincsecsinntetabecssmmenituevedtinetienes masceqenen 11

iii

TABLE OF CITED AUTHORITIES—Continued

RULES

Page

North Carolina State Board of Education vy.

Swann, 402 U.S. 43 (1971)......cccccccersssessereeseeseeees 8

Regents of the University of California v. Bakke,

438 U.S. 265 (1978)........cccccccereeerenes 3-4, 8,9, 11, 12, 13

Regents of the University of Michigan vy.

Employment Relations Comm., 389 Mich. 96,

Ke 16

Regents of the University of Michigan v. Ewing,

Sr es Bi ee icrtncecciccncsatigtsenstencsensecnamantite 9,12

State Board of Agriculture v. Auditor General, 226

Mich. 417, 197 N.W. 160 (1924) .0......cccccesseseerees 15

Sterling v. Regents of the University of Michigan,

110 Mich. 369, 68 N.W. 253 (1896) ...........ccc000 14, 15

Sweezy v. New Hampshire, 354 U.S. 234

ET 6,9, 11, 12

Wieman v. Updegraff, 344 U.S. 183 (1952)..........+. 5

Wygant v. Jackson Board of Education, 476 U.S. ’

Be ieee enscsisucsesnsnenscetetntnesecensanssesnisesneenepmanemens 12

Mich. Const. 1835, art. X, § 5..........ccccsseseseerereneeseee 14

Mich. Const. 1850, art. XTT, § 8............ccccceceeseseeees 13

Mich. Const. 1963, art. V, § 1 o......ccccscescessereeseeneenees 2

Mich. Const. 1963, art. V, § 8...........cccccsseseseseeeneees 2

Mich. Const. 1963, art. VIIT, § 5...........cceccccerseees 2, 3, 13, 17

Rule 37(3)(a), Rules of the Supreme Court of the

PE IEUIET CII cactenancennensiecnenianterentennseepansnesssnaynennsats l

Rule 37(6), Rules of the Supreme Court of the

ey a thtniscrrcensceraiessenvenessateccnnmnerpeanenmantens 2

iv

TABLE OF CITED AUTHORITIES—Continued

OTHER AUTHORITIES

J. Peter Byrne, Academic Freedom: A “Special

Concern of the First Amendment”, 99 Yale

Page

LJ. 25.1 (19B9)........ccccccocscrcrorereccsescsecssensseseres 10, 13, 14

Darlene C. Goring, Affirmative Action and the

First Amendment: The Attainment of a

Diverse Student Body is a _ Permissible

Exercise of Institutional Autonomy, 47 U. Kan.

L. Rev. 491 (1999) ...ccccccccsccsccsssccsocccessscessossseses

Catherine L. Horn and Stella M. Flores, Percent

Plans in College Admission: A Comparative

Analysis of Three States’ Experiences, The

Civil Rights Project, Harvard University

(February 2003) (http://www.civilrights

project. harvard.edu/research/affirmativeaction/

IN THE

Supreme Court of the United States

No. 02-241 and 02-516

BARBARA GRUTTER,

Petitioner,

Vv.

LEE BOLLINGER, et al,

Respondents,

and

JENNIFER GRATZ AND PATRICK HAMACHER

Petitioners,

Vv.

LEE BOLLINGER, et al.

Respondents

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE

MICHIGAN GOVERNOR JENNIFER M. GRANHOLM

IDENTITY AND INTEREST OF AMICUS

MICHIGAN GOVERNOR JENNIFER M. GRANHOLM

This amicus curiae brief is filed on behalf of Jennifer M.

Granholm, Governor of the State of Michigan.’ Pursuant to

' All parties have consented, pursuant to Rule 37(3)(a) of the Rules of

the Supreme Court of the United States, to the filing of amicus briefs in

2

Mich. Const. 1963, art. V, § 1, Governor Granholm serves as

the Chief Executive Officer of the State of Michigan. As

Governor, she exercises general supervisory authority over all

principal departments of state government. Mich. Const.

1963, art. V, § 8. The authority vested in the Governor under

the latter provision includes the right to “initiate court

proceedings in the name of the state to enforce compliance

with any constitutional or legislative mandate, or to restrain

violations of any constitutional or legislative power, duty or

right by any officer, department or agency of the state or any

of its political subdivisions.”

The principal issue to be decided in these appeals is

whether the admissions policies of the University of

Michigan’s Law School and its College of Literature,

Science, and the Arts—policies that include consideration of

race and ethnic origin as one of a broad array of factors used

in making admission decisions—are constitutional. These

policies seek to effectuate the University’s well-considered

judgment that having a racially and ethnically diverse student

body is essential to the fulfillment of its educational mission.

The University of Michi:-an is a political subdivision of the

State of Michigan, established as an autonomous entity

pursuant to Mich. Const. 1963, art. VIII, § 5. Because

Michigan’s Constitution and laws jealously guard against any

interference with the educational autonomy specially

conferred on Michigan’s universities, this case is

unquestionably of interest to the people of the State of

support of either party. In accordance with Rule 37(6), Amicus certifies

that this brief is a modified and expanded version of a similar brief filed

below by then-Attorney General Granholm and her staff; the present

version of the brief was authored entirely by Counsel of Record and the

Governor’s own Legal Counsel and his staff, all of whom are identified on

the cover of the brief; and, finaily, that no party other than amicus curiae

has made any monetary contribution to the preparation or submission of

3

Michigan and warrants participation by Michigan’s Governor

as amicus curiae.

Moreover, it cannot seriously be disputed that providing an

education to their citizens is one of the most important

functions performed by the states and their political

subdivisions. An additional vital interest of the people of the

State of Michigan is the critical importance of protecting state

control over education from encroachment by the federal

judiciary where that control would disrupt a constitutionally

justifiable policy choice. It is this educational autonomy,

conferred by both the First Amendment of the United States

Constitution and art. VIII, § 5 of Michigan’s own

Constitution, that the Governor seeks to uphold by filing this

amicus brief.

SUMMARY OF ARGUMENT

In the seminal case of Regents of the University of

California v. Bakke, 438 U.S. 265—(1978), this Court

concluded that a properly devised university admissions

program involving the competitive consideration of race and

ethnic origin would not violate the Equal Protection Clause of

the Fourteenth Amendment. /d. at 320, 328 (opinion of

Powell, J., joined by Brennan, White, Marshall, and

Blackmun, JJ.) Justice Powell’s controlling opinion in Bakke

examined each of the goals asserted by the university in

defense of its use of race in its admissions process and

concluded that only one—obtaining the educational benefits

that flow from a diverse student body—was constitutionally

permissible. /d. at 311-312.” In so ruling, Justice Powell

? Justice Powell's opinion is controlling with regard to its statements

that rely on the First Amendment's protection of academic freedom

because it garnered the support of four justices of the Brennan plurality.

They noted that California law had vested plenary legislative and

administrative power in the University of California's Board of Regents

and that nothing in the Equal Protection Clause justified limiting the scope

4

relied on the Court’s long-honored doctrine of “academic

freedom,” grounded in the First Amendment, and recognized

the right of educational institutions to engage in academic

decision-making with limited judicial interference based on

the unique and vital role they play in a democratic society.

Id, at 312-313.

In the case now before this Court, the University of

Michigan has devised admissions policies that take race and

ethnic origin into account as one among many factors it

reviews in making admissions decisions. The University has

done so based on its considered and eminently reasonable

judgment that enrolling a racially diverse student body is

essential to its mission of providing a quality education to its

students, a judgment that has produced a diverse student

body, with an outstanding record of academic achievement, to

the great benefit of the people of this state. The Governor is

aware that Respondents, as well as a number of distinguished

amici curiae, will ably address the critical issue of whether,

under the Equal Protection Clause, the enrollment of a diverse

student body is a “compelling interest” that institutions of

higher education may seek to promote by means of an

admissions program that considers race as one factor to

achieve that result. She further anticipates that Respondents

and her fellow amici will likewise address extensively the

reasons why the University’s admissions policies are in fact

“narrowly tailored” to meet this compelling interest.

Accordingly, the Governor will not repeat those arguments in

this brief but rather recommends and supports the able

briefing of Respondents and her fellow amici to this Court.

This amicus brief instead focuses on the federal and state

constitutional authority of the University to make such

of the Regents’ power to make academic choices. Bakke, 438 U.S. at 366,

n. 42 (opinion of Brennan, J.)

5

academic decisions and urges the Court to pay appropriate

deference to those choices. Amicus asserts that such

deference is warranted both under well-established federal

constitutional principles and under the provisions of

Michigan's own Constitution.

ARGUMENT

THE UNIVERSITY OF MICHIGAN’S

DETERMINATION THAT IT HAS A

COMPELLING INTEREST IN ACHIEVING A

DIVERSE STUDENT BODY IN ORDER TO

ADVANCE ITS EDUCATIONAL MISSION FALLS

WITHIN THE INSTITUTIONAL AUTONOMY

AFFORDED TO UNIVERSITIES BY THE FIRST

AMENDMENT AND BY ART. VIII, §5 OF THE

MICHIGAN CONSTITUTION AND SHOULD,

THEREFORE, BE AFFORDED DEFERENCE BY

THIS COURT.

“The process of education has naturally enough been the

basis of hope for the perdurance of our democracy on the part

of all our great leaders, from Thomas Jefferson onwards.”

Wieman v. Updegraff, 344 U.S. 183, 196 (1952) (concurring

opinion of Frankfurter, J.) The Supreme Court has

consistently sounded the theme that education is of crucial

importance to our political system and “fulfills a most

fundamental obligation of government to its constituency.”

Ambach v. Norwick, 441 U.S. 68, 76 (1979) (quoting Foley v.

Connelie, 435 U.S. 291, 297 (1978)). One of the primary

purposes of education is to prepare “individuals for

participation as citizens.” /d. (citing Brown v. Board of

Education, 347 U.S. 483, 493 (1954)). Indeed, of all the

functions served by state and local governments, “education

is perhaps the most important.” Brown, 347 U.S. at 493.

From this profound appreciation and respect for education

in our democratic system has flowed a natural corollary of

6

judicial deference to educational decision-making

crystallizing in the doctrine of “academic freedom.”” The

foundation for this doctrine was eloquently described by

Justice Frankfurter in his concurring opinion in Sweezy v.

New Hampshire, 354 U.S. 234, 263 (1957), where he first

enumerated the often-quoted “four essential freedoms” of a

university:

It is the business of a university to provide that

atmosphere which is most conducive to speculation,

experiment and creation. It is an atmosphere in which

there prevail “the four essential freedoms” of

a university—to determine for itself on academic

grounds who may teach, what may be taught, how it

shall be taught, and who may be admitted to study.

[emphasis added]

In Sweezy, the Court was called upon to decide whether the —

State violated the due process rights of Paul Sweezy, a

lecturer at the university, when it jailed him for contempt

based upon his refusal, on First Amendment grounds, to

cooperate with the State’s investigation into subversive

~ activities. Chief Justice Warren, writing for the Court, found

that the State had unconstitutionally violated Sweezy’s

liberties; he specifically cautioned that the areas of political

expression and academic freedom are areas in which

“government should be extremely reticent to tread.” /d. at

250. The Chief Justice went on to explain that “[t}he

essentiality of freedom in the community of American

universities is almost self-evident. No one should

underestimate the vital role in a democracy that is played by

those who guide and train our youth.” /d. In his concurring

> For a thorough discussion on academic «feedom, institutional

autonomy, and the attainment of a diverse student body, see Darlene C.

Goring, Affirmative Action and the First Amendment: The Attainment of a

Diverse Student Body is a Permissible Exercise of Institutional Autonomy,

47 U. Kan. L. Rev. 491 (1999).

7

opinion, Justice Frankfurter emphasized that a free society

depends on free universities, and that this requires “the

exclusion of governmental intervention in the intellectual life

of a university.” /d. at 262.

This same point was made by Justice Douglas a few years

later in Griswold v. Connecticut, 381 U.S. 479, 482-483

(1965), where he explicitly premised protection for academic

freedom on the First Amendment:

In other words, the State may not, consistently with the

spirit of the First Amendment, contract the spectrum of

available knowledge. The right of freedom of speech

and press includes not only the right to utter or to print,

but the right to distribute, the right to receive, the right to

read . . . and freedom of inquiry, freedom of thought, and

freedom to teach . . . indeed, the freedom of the entire

university community . . . . Without those peripheral

rights the specific rights would be less secure. [citations

omitted; emphasis added]

The doctrine of academic freedom became even more

clearly grounded in the First Amendment in Keyishian v.

Board of Regents, 385 U.S. 589 (1967). In Keyishian, the

Court struck down a state statute that required faculty

members fo sign certificates stating that they were not

Communists. In balancing the State’s interest in assuring its

teachers were not “subversives” against the faculty’s right to

academic freedom, the Court recognized that some areas of

society should be free of excessive interference so as to

assure they function effectively:

Our Nation is deeply committed to safeguarding

academic freedom, which is of transcendent value to all

of us and not merely to the teachers concerned. That

freedom is therefore a special concern of the First

Amendment, which does not tolerate laws that cast a pall

of orthodoxy over the classroom. “The vigilant

protection of constitutional freedoms is nowhere more

vital than in the community of American schools.” The

8

classroom is peculiarly the “marketplace of ideas.” The

Nation’s future depends upon leaders trained through

wide exposure to that robust exchange of ideas which

discovers truth “out of a multitude of tongues, (rather)

than through any kind of authoritative selection.”

385 U.S. at 603 (citations omitted).

Four years later, in North Carolina State Board of

Education v. Swann, 402 U.S. 43 (1971), the Court explicitly

recognized that the broad power of educational authorities to

formulate educational policy extends even to a determination

to achieve a degree of racial balance. Although the particular

controversy before the Court concerned a_ school

desegregation controversy and involved primary and

secondary schools rather than colleges and universities, Chief

Justice Burger, writing for the Court, spoke broadly

concerning the authority and discretion of educational

authorities. While recognizing that this -authority is, of

course, subject to constitutional guarantees, the Chief Justice

stated that “school authorities have wide discretion in

formulating school policy, and . . . as a matter of educational

policy school authorities may well conclude that some kind of

racial balance in the schools is desirable quite apart from any

constitutional requirements.” /d. at 45.

Against this backdrop, Justice Powell’s opinion in Bakke is

a natural and principled application of the recurring

constitutional thread that had been woven since Brown v.

Board of Education. In ruling that the University of

California’s goal of attaining a racially diverse student body

was constitutionally permissible, Justice Powell carved out a

narrow justification for consideration of race in admissions

decisions: to ensure a diverse student body. He relied in part

on the academic freedom doctrine, noting that this doctrine

“long has been viewed as a special concern of the First

Amendment.” Bakke, 438 U.S. at 312 (opinion of Powell, J.)

He further relied specifically on the “four essential freedoms”

9

of a university previously articulated by Sweezy, including the

freedom “to determine for itself on academic grounds .. .

who may be admitted to study” and concluded that “the

freedom of a university to make its own judgments as to

education includes the selection of its student body.” /d.

In Regents of the University of Michigan v. Ewing, 474

U.S. 214 (1985), the Court made clear that academic freedom

is a doctrine that applies not only to individuals but to

educational institutions as well—and to the University of

Michigan in particular. The plaintiff in Ewing had been

dismissed from the University’s accelerated medical school

program based on a negative evaluation of his academic

credentials; he claimed he had a protected property interest in

continued enrollment that was violated by his dismissal.

Citing Bakke, Keyishian, and Sweezy, the Court declared that,

even assuming the existence of the asserted property interest,

the Court was reluctant “to trench on the prerogatives of state

and local educational institutions” and acknowledged a

“responsibility to safeguard their academic freedom” as a

special concern of the First Amendment. /d. at 226. The

Court stressed that “[a]cademic freedom thrives not only on

the independent and uninhibited exchange of ideas among

teachers and students but also . . . on autonomous decision-

making by the academy itself.” Jd. at 226 n. 12 (citation

omitted).* Justice Powell’s concurring opinion was even

*The Court in Ewing cited Board of Curators of the University of

Missouri v. Horowitz, 435 U.S. 78 (1978), a case in which the Court

upheld the university's dismissal of a medical student based on an

evaluation showing poor performance. Writing for the Court in Horowitz,

Justice Rehnquist acknowledged that academic decisions requiring an

expert evaluation of cumulative information are “not readily adapted to

the procedural tools of judicial or administrative decision-making.” /d. at

90. Explaining a possible underpinning of the Court's deference to

10

more explicit. He agreed fully with the Court’s emphasis on

the “respect and deference that courts should accord academic

decisions made by the appropriate university authorities” and

admonished that judicial review of academic decisions,

including admission decisions, “is rarely appropriate.” /d. at

230 (opinion of Powell, J.)

The doctrine of institutional academic freedom, or

“institutional autonomy,” embodied in these decisions has

been followed in numerous cases decided by the lower

federal courts. See, e.g., Lovelace v. Southeastern

Massachusetts University, 793 F.2d 419, 426 (ist Cir. 1986)

(upholding a university's decision not to renew faculty

member’s contract for his alleged failure to inflate grades and

to lower academic standards and emphasizing that a

university has a recognized right to govern its institution

according to the “four essential freedoms” that supersedes an

individual faculty member’s right to academic freedom);

Doherty v. Southern College of Optometry, 862 F.2d 570, 576

(6th Cir. 1988) (affirming the dismissal of a breach of

academic freedom may have its roots in common law academic

abstention:

The constitutional right of institutional academic freedom appears to

be a collateral descendent of the common law notion of academic

abstention. This heritage is made explicit in [Ewing], where the

Court . . . suggests that these views recommend themselves as

protection for academic freedom. And the “four freedoms” of

Sweezy reflect the kinds of university decisions courts have refused

to review under common law principles. Institutional academic

freedom can be viewed as academic abstention raised to

J. Peter Byrne, Academic Freedom: A “Special Concern of the First

Amendment”, 99 Yale L. J. 251, 326-27 (1989) (footnotes omitted).

Byrne goes on to characterize cases like Horowitz as counseling courts to

appreciate “that universities proceed on assumptions different from

society as a whole and that an insistence by courts on conforming to legal

standards or procedures will likely destroy something uniquely valuable in

higher education.” /d. at 326.

11

contract claim in a disability discrimination case because it

arose “in an academic context where judicial intervention in

any form should be undertaken only with great reluctance”’);

Martin v. Helstad, 578 F. Supp, 1473, 1482 (W.D. Wis. 1983)

(“[a]cademic institutions are accorded great deference in their

freedom to determine who may be admitted to study at the

institution’’).

Hopwood v. State of Texas, 78 F.3d 932 (Sth Cir. 1996),

cert. denied, 518 U.S. 1033 (1996), does not undermine the

force of these decisions. In Hopwood, the Fifth Circuit ruled

that the University of Texas Law School could not use race as

a factor in its law school admissions to further its goal of

achieving diversity in its student body. The Fifth Circuit

explicitly rejected the university’s reliance on Justice

Powell’s opinion in Bakke, stating “[it] is not binding

precedent on this issue.” /d. at 944. Hopwood’s reasoning,

however, is flawed and internally inconsistent; this Court

should not rely on it for several reasons.

First, and perhaps most significantly, Judge Smith’s

opinion ° in Hopwood offers so little considered analysis of

the university’s First Amendment institutional autonomy

defense as to have virtually ignored it. In a short footnote, the

panel acknowledged that the university's First Amendment

right to assemble the student body of its choice was

“somewhat troubling.” However, the panel simply dismissed

that claim, making no attempt to refute it on any legal basis

except to ditinguish Sweezy as involving individual, rather

* Judges Smith and DeMoss joined in the lead opinion; Judge Wiener

filed a special concurring opinion in which he disagreed with the panel's

conclusion that diversity can never be a compelling governmental interest

in a public graduate school. 78 F.3d 932, 962 (opinion of Wiener, J.,

concurring). He would have assumed without deciding that diversity is a

compelling state interest and would have proceeded to then address the

issue of whether implementation of the university's policy was narrowly

tailored to meet its diversity interest.

12

than institutional, academic rights. 78 F.3d at 943, n. 25.

Moreover, in doing so, the panel made no mention of Ewing

and its explicit statement regarding institutional rights.

Second, the panel inexplicably began its analysis with a

statement that, subsequent to Bakke, “Supreme Court

decisions regarding education state that non-remedial state

interests will never justify racial classifications.” Yet

nowhere in its opinion are any such cases identified or

analyzed. Indeed, only cases such as Adarand Contractors,

Inc. v. Pena, 515 U.S. 200 (1995) and City of Richmond v.

JA. Croson Co., 488 U.S. 469 (1989) are discussed. The

panel characterizes these cases as having implicitly

“overruled” Bakke, despite the panel’s own quotation of

Justice O’Connor’s concurrence in Wygant v. Jackson Board

of Education, 476 U.S. 267, 286 (1986), in which she noted

that 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.” 78 F.3d at 945, n. 27 (emphasis

added). Cases such as Croson and Adarand, which deal with

highway construction and government contracting, clearly do

not implicate the kind of First <omerone | eae oe

protections appropriate in the educati context®

accordingly, are of little value to this Court in resolving the

issues before it.

In cases such as Sweezy, Griswold, Keyishian, Bakke, and

Ewing, this Court has charted a clear and consistent course of

according deference to the academic freedom and autonomy

* Judge Wiener's concurring opinion in Hopwood identifies this very

flaw in the panel's opinion, concluding that “[t}his unique context

[constructing an entering class at a public graduate or professional

school], first identified by Justice Powell, differs from the employment

context, differs from the minority business set aside context, and differs

from the redistricting context; it comprises only the public higher

education context... .” 78 F.3d at 965, n. 21.

13

of universities. In these and other decisions, the Court has

consistently respected and deferred to the specialized

judgments made by our educational institutions including

judgments concerning the composition of their student

bodies. It has repeatedly expressed its view that universities,

not courts, are best entrusted with the crucial job of assuring

that our Nation’s “marketplace of ideas” continues to thrive.

The Court should continue to follow that clear course in

evaluating the University of Michigan’s admissions policy in

the instant case. The “essentiality of freedom” in American

universities is as self-evident, and as critical, today as it was

in 1957 when Sweezy was decided. The First Amendment

protects the University of Michigan’s admissions decision-

making process against undue judicial interference and,

accordingly, this Court should grant considerable deference to

the University’s determination that, in fulfilling its

educational mission, it has a compelling interest in achieving

a diverse student body.

These notions of academic freedom and _ institutional

autonomy are of particular importance in Michigan. Like

California,’ Michigan has ~ devised its system of higher

education based on the firm principle that university

autonomy best serves the goal of educating its citizens. To

that end, Michigan’s Constitution confers a unique

autonomous status on its public universities and their

governing boards. Specifically, art. VIII, § 5 of Michigan’s

” See, e.g., Bakke, 438 U.S. at 366, n. 42 (opinion of Brennan, J.)

"In fact, in 1850 Michigan became the first state to enact a

constitutional provision mandating the separate governance of its state

university, the University of Michigan. Mich. Const. 1850, art. XIII, § 8.

See Byrne, supra note 4, at 327-328.

14

Constitution vests plenary authority over educational metters

in the University of Michigan’s Board of Regents, providing

that:

The regents of the University of Michigan and their

successors in office shall constitute a body corporate

known as the Regents of the University of Michigan

.. « . [The] board shall have general supervision of its

institution and the control and direction of all

expenditures from the institution’s funds . . . .

This constitutional mandate of institutional autonomy was

no mere accident; to the contrary, it was grounded in

experience. Under Michigan’s 1835 Constitution, the

Legislature controlled and managed the University of

Michigan, our State’s first public university. See Mich.

Const. 1935, art. X, § 5. This approach failed, however, and

prompted extensive debate about the future of the University

during the Constitutional Convention of 1850. See Federated

Publications, Inc. v. Michigan State University Board of

Trustees, 460 Mich. 75, 85, 594 N.W.2d 491, 496 (1999)

(citing Sterling v. Regents of the University of Michigan, 110

Mich. 369, 374-8, 68 N.W. 253, 255-6 (1896)). What

emerged from this debate was a consensus that the

Legislature should be divested of its power and that control of

the university should instead be placed in an autonomous

elected board. ° Michigan’s Supreme Court has described the

* As explained by Professor Byrne:

When Michigan constitutionalized institutional autonomy in 1850, it

did so against a history of frustrating failures to establish

respectable state universities in America . . . . The legislature was

perceived to manage the university for practical, political ends,

rather than for long-term scholarly and educational objectives. The

solution adopted—the election for eight year terms of officials

responsible only for university governance—was an ingenious

innovation, accommodating conflicting values and fostering a

university known and admired throughout the world. —

Byrne, supra note 4, at 328-329.

15

status of the University’s governing board under this new

system as “the highest form of juristic person known to the

law, a constitutional corporation of independent authority,

which, within the scope of its functions, is co-ordinate with

and equal to that of the legislature.” Board of Regents of the

University of Michigan v. Auditor General, 167 Mich. 444,

450, 132 N.W. 1037, 1040 (1911). Under this new system,

led by its independent board of regents, the University

thrived. Sterling, 110 Mich. at 377, 68 N.W. at 255. The

regent system has been in place ever since and the University

of Michigan has continued to maintain its position as One of

our country’s finest educational institutions.

Just recently, in Federated Publications, the Michigan

Supreme Court forcefully reaffirmed the principle that

Michigan’s Constitution guarantees the University full

autonomy over educational matters. There, the Court held

that Michigan’s Legislature lacked the power to require the

University to comply with Michigan’s Open Meetings Act

when conducting a search for a new University President

finding that such a requirement would infringe upon the

University’s constitutional autonomy in managing its own

affairs. Federated Publications, 460 Mich. at 78, 594

N.W.2d at 493. In so ruling, the Court reiterated that

“[ljegislative regulation that clearly infringes on the

university's educational or financial autonomy must . . . yield

to the university’s constitutional power.” Jd. at 87, 594

N.W.2d at 497. The Court observed that Michigan’s

Constitution “grants the [university] governing boards

authority over the absolute management of the University”

and that the Court has “‘jealously guarded’ these powers from

legislative interference.” /d. at 87, 594 N.W.2d at 497 (citing

State Board of Agriculture v. Auditor General, 226 Mich.

417, 424, 197 N.W. 160, 161 (1924) and Board of Control of

Eastern Michigan University v. Labor Mediation Board, 384

Mich. 561, 565, 184 N.W.2d 921, 922 (1971)). Although

universities may be subject to certain general state laws such

16

as the public employees relations act, even those laws “cannot

extend into the university's sphere of educational authority

....” Id. at 87-88, 594 N.W.2d at 497. The constitutional

constraints on legislative authority over the University, the

Court noted, extend even to the appropriations process:

“although the Legislature may attach conditions to an

appropriation, the conditions cannot invade university

autonomy.” /d. at 88, 594 N.W.2d at 497. In short, “[wJithin

the confines of the operation . . . of the University, it is

supreme.” /d. at 87, 594 N.W.2d at 497 (quoting Regents of

the Univ. of Michigan v. Employment Relations Comm., 389

Mich. 96, 108, 204 N.W.2d 218, 224 (1973) and Branum v.

Bd. of Regents of the Univ. of Michigan, 5 Mich. App. 134,

138-9, 145 N.W.2d 860, 862 (1966)).

The unique autonomy of the University under Michigan's

Constitution is also a compelling reason why the so-called

“percent plans,” advocated by some as an alternative

mechanism for achieving diversity in university admissions

programs, are not viable in Michigan. These plans, variations

of which have been attempted in Texas, Florida, and

California, generally involve a guarantee that a fixed

percentage of the graduating class of each high school in the

state will be admitted to the state’s university system. Critics

of such plans have raised numerous concerns. See, ¢.g.,

Catherine L. Horn and Stella M. Flores, Percent Plans in

College Admission: A Comparative Analysis of Three States’

Experiences, The Civil Rights Project, Harvard University

(February 2003).'° While such criticisms are largely beyond

the scope of this brief, there is at least one that is of particular

concern in Michigan.

The full text of this study is available via the internet at:

http://www .civilrightsproject.harvard.edu/research/affirmati veaction/trista

te.pdf

17

Percent plans typically rely to a significant extent on a

statewide university system in order to assure that, if there is

not sufficient space in a particular institution for all of the

eligible “percent” applicants, the applicant will be able to

enroll in another institution in the same statewide system.

The constitutional autonomy of the University of Michigan

precludes this approach. The University of Michigan, under

our Constitution, is independent and does not function as a

part of an integrated statewide system. Thus, if the number of

guaranteed “percent” applicants exceed the available spaces,

there is nowhere else the University is able to guarantee

admission. Changing this situation would require a

substantial alteration of the State’s existing and

constitutionally mandated higher education structure. For this

reason, the “percent plan” approach simply does not represent

a viable mechanism for assuring diversity in admissions at the

University of Michigan.

CONCLUSION

Both the First Amendment of the United States

Constitution and art. VIII, § 5 of Michigan’s Constitution

confer upon the University of Michigan the right, as a

separate autonomous entity, to make academic choices with

only limited judicial scrutiny. Decisions regarding the

composition of a umiversity’s student body are

quintessentially within the sphere of that constitutionally

protected autonomy. The importance of preserving that

essential freedom cannot be overstated. Because the

University’s determination that it has a compelling interest in

achieving a diverse student body in order to provide the best

educational experience for its students falls squarely within

the protection afforded by the doctrine of institutional

autonomy under both the First Amendment and the Michigan

Constitution, this determination should be afforded deference

by this Court. For these reasons, Governor Granholm urges

this Court to uphold the constitutionality of the University of

Michigan’s admissions policies designed to achieve a diverse

student body.

Respectfully submitted,

KELLY G. KEENAN, JOHN D. PIRICH

Legal Counsel Counsel of Record

TERESA CAINE BINGMAN, MARK A. GOLDSMITH

Deputy Legal Counsel HONIGMAN MILLER SCHWARTZ

R. JOHN WERNET, JR., AND COHN LLP

Special Legal Counsel 222 N. Washington Sq.

Executive Office of the Suite 400

Governor Lansing, MI 48933

Legal Division (517) 377-0172

P.O. Box 30013

Lansing, MI 48909

(517) 335-6847

Counsel for Amicus Curiae

February 14, 2003