Amicus Curiae Brief — Gratz v. Bollinger
Supreme Court brief2003
Ask Donna
What actually matters in this document.
Text
'H
, "0 TD, oat hive 2
Nos. 02-241 & 02-516 wi cfDe |
j
!
In The | FEB 18 2003
Supreme Court of the Gnited States
. pcinapieenses
BARBARA GRUTTER,
Petitioner,
V.
LEE BOLLINGER, et al.,
Respondents.
° a
JENNIFER GRATZ and PATRICK HAMACHER,
Petitioners,
V.
LEE BOLLINGER, et al.,
Respondents.
¢
On Writs Of Certiorari To The United States
Court Of Appeals For The Sixth Circuit
+
BRIEF OF JOHN CONYERS, JR., MEMBER OF CONGRESS;
JOHN D. DINGELL, MEMBER OF CONGRESS; CHARLES
B. RANGEL, MEMBER OF CONGRESS; FORTNEY PETE
STARK, MEMBER OF CONGRESS; EDWARD J. MARKEY,
MEMBER OF CONGRESS; GEORGE MILLER, MEMBER OF
CONGRESS; DALE E. KILDEE, MEMBER OF CONGRESS;
MARTIN FROST, MEMBER OF CONGRESS; ROBERT T.
MATSUI, MEMBER OF CONGRESS; MARTIN OLAV SABO,
MEMBER OF CONGRESS; BARNEY FRANK, MEMBER OF
CONGRESS; STENY H. HOYER, MEMBER OF CONGRESS;
ET AL., AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
+
PAUL J. LAWRENCE
ANTHONY R. MILES*
DANIEL H. ROYALTY
| PRESTON GATES & ELLIS LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
(206) 623-7580
Attorneys for Amici Curiae
*Counsel of Record
pocremstenne Amici on Reverse ae ES
Additional Amici Curiae
LANE EVANS, MEMBER OF CONGRESS; MARCY KAPTUR,
MEMBER OF CONGRESS; GERALD D. KLECZKA,
MEMBER OF CONGRESS; SOLOMON P. ORTIZ, MEMBER OF
CONGRESS; MAJOR R. OWENS, MEMBER OF CONGRESS; JOHN M.
SPRATT, JR., MEMBER OF CONGRESS; EDOLPHUS TOWNS,
MEMBER OF CONGRESS; PETER J. VISCLOSKY, MEMBER OF
CONGRESS; JOHN LEWIS, MEMBER OF CONGRESS; FRANK
PALLONE, JR., M&MBER OF CONGRESS; NANCY PELOSI, MEMBER
OF CONGRESS; LOUISE MCINTOSH SLAUGHTER, MEMBER OF
CONGRESS; ROBERT E. ANDREWS, MEMBER OF CONGRESS; NITA
M. LOWEY, MEMBER OF CONGRESS; JIM MCDERMOTT, MEMBER
OF CONGRESS; DONALD PAYNE, MEMBER OF CONGRESS; JOSE E.
SERRANO, MEMBER OF CONGRESS; NEIL ABERCROMBIE, MEMBER
OF CONGRESS; DAVID E. PRICE, MEMBER OF CONGRESS; ROSA L.
DELAURO, MEMBER OF CONGRESS; WILLIAM JEFFERSON,
MEMBER OF CONGRESS; JOHN W. OLVER, MEMBER OF
CONGRESS; ED PASTOR, MEMBER OF CONGRESS; BERNARD
SANDERS, MEMBER OF CONGRESS; MAXINE WATERS,
MEMBER OF CONGRESS; XAVIER BECERRA, MEMBER OF
CONGRESS; SANFORD D. BISHOP, JR., MEMBER OF CONGRESS;
CORRINE BROWN, MEMBER OF CONGRESS; SHERROD BROWN,
MEMBER OF CONGRESS; JAMES E. CLYBURN, MEMBER OF
CONGRESS; SAM FARR, MEMBER OF CONGRESS; BOB
FILNER, MEMBER OF CONGRESS; LUIS V. GUTIERREZ,
MEMBER OF CONGRESS; ALCEE L. HASTINGS, MEMBER OF
CONGRESS; MAURICE D. HINCHEY, MEMBER OF CONGRESS;
EDDIE BERNICE JOHNSON, MEMBER OF CONGRESS; ROBERT
MENENDEZ, MEMBER OF CONGRESS; LUCILLE ROYBAL-
ALLARD, MEMBER OF CONGRESS; BOBBY L. RUSH, MEMBER
OF CONGRESS; ROBERT C. SCOTT, MEMBER OF CONGRESS;
BENNIE G. THOMPSON, MEMBER OF CONGRESS; NypiA M.
VELAZQUEZ, MEMBER OF CONGRESS; MELVIN L. WATT,
MEMBER OF CONGRESS; LYNN WOOLSEY, MEMBER OF
CONGRESS; ALBERT R. WYNN, MEMBER OF CONGRESS;
~ ELIJAH CUMMINGS, MEMBER OF CONGRESS; MICHAEL
F. DoYLE, MEMBER OF CONGRESS; SHEILA JACKSON LEE,
MEMBER OF CONGRESS; JESSE JACKSON, JR., MEMBER OF
CONGRESS; CHAKA FATTAH, MEMBER OF CONGRESS; ZOE
LOFGREN, MEMBER OF CONGRESS; JUANITA MILLENDER-
McDONALD, MEMBER OF CONGRESS; JULIA M. CARSON,
MEMBER OF CONGRESS; DANNY K. DAVIS, MEMBER OF
CONGRESS; WILLIAM D. DELAHUNT, MEMBER OF CONGRESS;
- HAROLD E. FORD, JR., MEMBER OF CONGRESS; RUBEN
HINOJOSA, MEMBER OF CONGRESS; CAROLYN C. KILPATRICK,
MEMBER OF CONGRESS; DENNIS KUCINICH, MEMBER OF
CONGRESS; BARBARA LEE, MEMBER OF CONGRESS; JAMES P.
MCGOVERN, MEMBER OF CONGRESS; GREGORY W. MEEKS,
MEMBER OF CONGRESS; SILVESTRE REYES, MEMBER OF
CONGRESS; CIRO D. RODRIGUEZ, MEMBER OF CONGRESS;
LORETTA SANCHEZ, MEMBER OF CONGRESS; ADAM SMITH,
MEMBER OF CONGRESS; JOHN F. TIERNEY, MEMBER OF
CONGRESS; ROBERT WEXLER, MEMBER OF CONGRESS; JOE
BACA, MEMBER OF CONGRESS; TAMMY BALDWIN, MEMBER OF
CONGRESS; MICHAEL E. CAPUANO, MEMBER OF CONGRESS;
JOSEPH CROWLEY, MEMBER OF CONGRESS; CHARLES A.
GONZALEZ, MEMBER OF CONGRESS; BARON HILL, MEMBER OF
CONGRESS; STEPHANIE TUBBS JONES, MEMBER OF
CONGRESS; GRACE NAPOLITANO, MEMBER OF CONGRESS;
JANICE D. SCHAKOWSKY, MEMBER OF CONGRESS;
TOM UDALL, MEMBER OF CONGRESS; ANTHONY WEINER,
MEMBER OF CONGRESS; DAVID WU, MEMBER OF
CONGRESS; WILLIAM LAcy CLAY, MEMBER OF CONGRESS;
MIKE HONDA, MEMBER OF CONGRESS; BETTY MCCOLLUM,
MEMBER OF CONGRESS; ADAM SCHIFF, MEMBER OF
CONGRESS; HILDA SOLIS, MEMBER OF CONGRESS; DIANE
WATSON, MEMBER OF CONGRESS; RAUL M. GRIJALVA,
MEMBER OF CONGRESS; LINDA T. SANCHEZ, MEMBER OF
CONGRESS; FRANK W. BALLANCE, JR., MEMBER OF
CONGRESS; KENDRICK B. MEEK, MEMBER OF CONGRESS;
JIM COOPER, MEMBER OF CONGRESS; CHRIS VAN HOLLEN,
MEMBER OF CONGRESS; EDWARD CASE, MEMBER
OF CONGRESS; ARTUR DAVIS, MEMBER OF CONGRESS;
DENISE L. MAJETTE, MEMBER OF CONGRESS; MADELEINE Z.
BORDALLO, DELEGATE; JIM ENI FALEOMAVAEGA, DELEGATE;
ELEANOR HOLMES NORTON, DELEGATE; DONNA M.
CHRISTENSEN, DELEGATE; AN{BAL ACEVEDO-VILA,
RESIDENT COMMISIONER; KWAME M. KILPATRICK,
MAYOR OF THE CITY OF DETROIT, MICHIGAN.
TABLZ OF CONTENTS
Page
INTEREST OF AMICI CURIAE ..........::c0s0s0s0s000000000000 1
SUMMARY OF ARGUMENT .............ccccseseseseseseseeeeeesees 2
. Ea ae wee ee er 4
I. RACIAL DIVERSITY IN HIGHER EDUCA-
Il.
TION FURTHERS COMPELLING GOVERN-
MENTAL INTERESTS THAT STRENGTHEN
AMERICAN DEMOCRACY ...........ccccccsssssseeeeeesees
A. Considering Race As One Factor In Ad-
missions Is Constitutional...........................
B. Non-Remedial Justifications Can Support
Race-Conscious Governmental Action ........
C. Eliminating Educational Diversity As A
Compelling State Interest Will Have Nega-
tive Consequences For The Ideal Of The
SE TIE cccnintrennniensneannsenteinnannaimnninnnseneens
THIS COURTS FRAMEWORK FOR DISTIN-
GUISHING LEGITIMATE RACE-CONSCIOUS
DECISIONS FROM UNLAWFUL QUOTAS
PRESERVES THE EFFICACY OF OUR FED-
A. Race May Be Considered as One of Many
Factors in Governmental Decision Making
B. Sustaining Limited Race-Conscious Deci-
sion Making Preserves Necessary Flexibil-
ity for Governmental Actors....................00+
15
15
ii
TABLE OF CONTENTS - Continued
Page
C. Congress and The Executive Branch Have
Continuously Endorsed Race-Conscious
Decision Making as a Constitutional
Means Of Promoting Full and Complete
Political and Economic Participation For
ATR AmmOTIOORG ...00000.cccccecccececccescccccscscosscccse0es 24
CONCLUSION ...........ccessseesseeeseeeeeseeeneseseeerennnensensnnes 29
TABLE OF AUTHORITIES
Page
CASES
Adarand Constructors, Inc. v. Pena, 515 U.S. 200
Sepa racascnnsnsentanntennsssnnpensensueisneniensnnmaniemennnainenetl passim
Ambach v. Norwich, 441 U.S. 68 (1979) .............cccccceeeeeeeees 5
Ayers v. Fordice, 505 U.S. 717 (1992) ...........ccccceceeeeeees 28, 29
Brown v. Board of Educ., 347 U.S. 483 (1954)................. 25
Bush v. Vera, 517 U.S. 952 (1996).....................cc0eeeee 8, 16, 26
City of Richmond v. J.A. Croson Co., 488 U.S. 469
II htnctsitesbsentibiieniditeenniameriniiiimadadaeusiindeindbimepeitiiieastsiatagesell 8,17
Dickerson v. United States, 530 U.S. 428 (2000)......... 10, 14
Easley v. Cromartie, 532 8 18
Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002)....... 21, 22
Hampton v. Jefferson County Bd. of Educ., 102
F. Supp. 2d 358 (W.D. Ky. 2000)...................cccceeeeeseeeeeees 11
Lutheran Church-Missouri Synod v. FCC, 141 F.3d
TUITE CITED IIIT nstiniiienineiinsicnntcennitpininernmerpniinmreinn 11
Martin v. Sch. Dist. of Phila., 1995 WL 564344
eee Se SI Sait GNI cnticenninietinmnntuesnteennescennesnisnonesenees ll
Miller v. Johnson, 515 U.S. 900 (1995)...............:000 passim
Planned Parenthood of Southeastern Penn. v. Casey, —
I On 10, 11, 12, 14, 15
Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214
STI hciicnstahibinalionechsintibiainbaedaipineitaritinneaeiiadaianiaiaiaiaesidgneeuiescienel 19
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265
ei tcseniecnssnsesensssetnestenseusnnnensmssantatenmanpensessmeenes passim
iv
TABLE OF AUTHORITIES -— Continued
Page
Romer v. Evans, 517 U.S. 620 (1996) ...........cccccceeeeeeeeees 4,13
Shaw v. Reno, 509 U.S. 630 (1993)..........ccccceeeeeeeeeeeeeerenes 15
Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188
LS nn 11
Sweezy v. New Hampshire, 354 U.S. 234 (1957)......... 13, 18
United States v. Paradise, 480 U.S. 149 (1987)............000 8
Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996)..............00008 1l
STATUTES AND REGULATIONS
Small Business Act, 15 U.S.C. § 637(a)...........:ccceseeeeeeeenees 19
lL) 27
i Te | 27
No Child Left Behind Act of 2001, 20 U.S.C.
BE COOL Ob BOG. ...cccscccsesseecsorcsroccscsesessoccoseosoocvsssesseseeessests 20
43 U.S.C. § 1BGBrr-1(ENB) ......ccrcvrcrrrercrccrceccsccccccssevsveeeeseeeees 26
Civi! Rights Act of 1964, 42 U.S.C. § 2000 et seq.............. 25
Clean Air Act Amendments of 1990, 42 U.S.C.
) ae een 20
Energy Policy Act of 1992, 42 U.S.C. § 13556 .............00 20
18 C.F.R. $ 1264.108-.106, .1002..........ccccccrccscorscssssssseeseeeeees 19
84 C.B.R. § 100. SDM EME) .....cccrsesvccsvcccsscceccccccccccccssssessvesees 25
Vv
TABLE OF AUTHORITIES -— Continued
Page
OTHER AUTHORITIES
WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF
THE RIVER: THE LONG-TERM CONSEQUENCES OF
CONSIDERING RACE IN COLLEGE AND UNIVERSITY
LET TELE AS eT EE 6, 12
Cathy Cockrell, UC Regents Rescind SP-1, SP-2,
SIs SHRINE 0h, IIIT cecesonccccccecccnnsncccsnccececcncsseseseces 23
Brief of Amicus Curiae the State of Florida, at 8-10......... 22
ERIC FONER, RECONSTRUCTION: AMERICA’S UNFIN-
ISHED REVOLUTION, 1863-1877 (1988)............cccccccceeeeeeee 25
ERIC FONER, THE STORY OF AMERICAN FREEDOM
ER ER Re Ae enc dD oe Rn Oe eee a Sn ae 24
Patricia Gurin, Expert Reports: Reports Submitted
on Behalf of the University of Michigan: The
Compelling Need for Diversity in Higher Educa-
tion, 5 MICH. J. RACE & L. 363 (1999) ...........ccccccceeeeeeeees 6
Catherine L. Horn & Stella M. Flores, Percent
Plans in College Admissions: A Comparative
Analysis of Three States’ Experiences (Feb. 7,
peat accaneetacunensnnssensenindsesasusentanneseushtteduinmnduandtetsiatseenes 22, 23
Civil Rights Act of 1997, H.R. 1909, 105th Cong.
Ee csersdindeieerrtecncaniactiaideteinteiseginsdtiiidadeicianineiinitenteimsnsdsusnentusniael 27
English Language Fluency Act, H.R. 3892, 105th
I crteteaditiainehecitieiadietiidaeirnatiniatieatianitiaatasmaalinsnel 27
H.R. REP. NO. 102-1086 (1992)...........0..0ssssssssssssssesseeereees 26
H.R. Rep. No. 106-645 (2000)................ islietinsenemeaiatiadacaieiaiail 26
Bete BE. BU. BOP CO ED ccccccccccccsoccsscsccccoscccsecesssosnes 26
vi
TABLE OF AUTHORITIES — Continued
Kenneth L. Karst & Harold W. Horowitz, The
Bakke Opinions and Equal Protection Doctrine,
14 Harv. C.R.-C.L. L. REV. 7 (1979)............cccceceseeeees
Patricia Marin & Edgar K. Lee, Appearance and
Reality in the Sunshine State: The Talented 20
Program in Florida (Feb. 7, 2003).........:sssseseeeeees
Meet the Press (NBC television broadcast, Jan. 19,
2003) (comments of Condoleezza Rice)..............+++++
Eric Schnapper, Affirmative Action and the Legisla-
tive History of the Fourteenth Amendment, 71 VA.
L. REV. 753 (1985) ...........sccccceseeeeeeeeeeeseeseseeeesnesennenees
Brief of Amicus Curiae the United States in Sup-
port of Petitioner in Gratz v. Bollinger ................++++
Brief of Amicus Curiae the United States in Sup-
port of Petitioner in Grutter v. Bollinger ............-.-+-
1
INTEREST OF AMICI CURIAE'
Amici are Members, Delegates and a Resident Com-
missioner of the United States House of Representatives,
and the Mayor of the City of Detroit, Michigan.’ As elected
representatives, amici are keenly aware that the promise
of participation is one of the central tenets of our democ-
racy. As legislators and policymakers, amici have worked
to enhance political, economic and educational participa-
tion by members of racial minority groups. Encouraging
such participation is in the public interest, and will be .
preserved by permitting the race-conscious decision
making necessary to ensure that important public institu-
tions are being made available to all. Under the standard
announced in Adarand Constructors, Inc. v. Pena, 515 U.S.
200 (1995), the Court’s decision in this case will apply with
equal force to public officials at federal, state and local
levels, and will affect the legislative and policy options
available to amici to address the needs and concerns of
their constituents.
' This brief is filed with the written consent of all parties. Consent
letters are on file with the Clerk of Court. No counsel for a party
authored this brief in whole or in part, nor did any person or entity,
other than amici or their counsel, make a monetary contribution to the
preparation or submission of this brief.
* Amici submit this brief in their individual and private capacities
and not on behalf of any local, state or federal legislature or executive
agency.
2
SUMMARY OF ARGUMENT
The race-conscious admissions policies of the Univer-
sity of Michigan (the “University”) and the University of
Michigan Law School (the “Law School”) represent a
constitutionally appropriate exercise of the authority and
flexibility accorded to university admissions officials.
‘Justice Powell’s opinion in Regents of the University of
California v. Bakke, 438 U.S. 265 (1978) established the
constitutionality of using race as one factor in higher
education admissions. In Justice Powell’s view, a state
university's constitutional authority to consider race was
not limited to instances of remedying identified discrimi-
nation. Rather, he located one source of that authority in
the universitys academic freedom under the First
Amendment, and the substantial contributions that a
diverse class of students makes to the educational mission
of institutions of higher education and the political par-
ticipation and representation that lie at the foundation of
American society and governmental institutions. Under
Bakke, the educational and political benefits that result
from a diverse student body are sufficiently compelling
interests to justify race-conscious governmental action.
The reasoning underlying Justice Powell’s decision in
Bakke has become part of the fabric of the Court’s subse-
quent equal protection jurisprudence. Relying on the
Court’s jurisprudence, government officials, including
those in Congress and the executive branch, have estab-
lished numerous programs that require decision makers to
take race into account to address matters ranging from
research to road construction to entrepreneurship to
manageinent of federal educational assistance. Sustaining
the view that the Equal Protection Clause permits limited
race-conscious decision making will preserve the flexibility
age
3
that governmental decision makers need to address
problems defined by their impact on particular racial
groups, while limiting the range of constitutionally accept-
able solutions to those that do not involve using race as
the predominant factor in the decision making. See Miller
v. Johnson, 515 U.S. 900, 915 (1995). By contrast, elimi-
nating race-conscious decision making as a tool in state
higher education admissions would create a constitutional
conflict with a state university’s academic freedom under
the First Amendment, threaten broad access to govern-
ment resources and services, and put at risk the full and
complete political and economic participation for citizens
of all racial backgrounds.
To preserve the significant political, social and eco-
nomic gains for all Americans that result from the current
role of race in higher education admissions, the Court
should (1) hold that the educational and political benefits
that flow from achieving diversity in the context of higher
education constitute a sufficiently compelling governmen-
tal interest te-support race-conscious state decision mak-
ing under the Equal Protection Clause; (2) uphold the
consideration of race as one factor in governmental deci-
sion making so long as race is not the predominant crite-
rion or goal; and (3) reaffirm that the role of race in
governmental decision making is not limited to remedying
specific instances of identified discrimination.
¢
4
ARGUMENT
I. RACIAL DIVERSITY IN HIGHER EDUCATION
FURTHERS COMPELLING GOVERNMENTAL
INTERESTS THAT STRENGTHEN AMERICAN
DEMOCRACY
Contrary to what Petitioners and their amici imply,
“race is a factor in our society.”* It is a life-defining experi-
ence for most in the same way as whether one is male or
female, grows up rich or poor, is raised in an urban,
suburban or rural setting or hails from Montana or Geor-
gia. The issue before the Court is whether the Equal
Protection Clause permits state educators to consider race,
together with these other factors, in higher education
admissions. For the past twenty-five years, the Court’s
equal protection jurisprudence regarding consideration of
race has been guided by Justice Powell’s opinion in Re-
gents of the University of California v. Bakke, 438 U.S. 265
(1978). There is no question that Justice Powell’s opinion
in Bakke squarely permits colleges and law schools,
including those at the University of Michigan, to consider
race as one of several factors in its admissions process to
obtain the benefits of educational diversity. These benefits
include the enhanced economic, social and political par-
ticipation of racial minorities.
In a democratic system, a group of citizens must be
able to obtain their government’s assistance in preserving
access to the “transactions and endeavors that constitute
life in a free society.” Cf. Romer v. Evans, 517 U.S. 620,
* Meet the Press (NBC television broadcast, Jan. 19, 2003) (com-
ments of Condoleezza Rice).
ee
: 5
633 (1996) (striking down ban on protections against
discrimination for persons of gay, lesbian or bisexual
orientation on grounds that the ban infringed those
persons’ fundamental right to participate in the political
process). Thus, core democratic values are enhanced by
the exposure and interactions that flow from a class
containing a critical mass of students from diverse back-
grounds, which strengthens the fabric of American democ-
racy.
The Court’s equal protection jurisprudence permits
government officials to take race into account as one of
many factors to promote universal access to government
programs and services, so long as it does not dominate the
process or control the outcome. See Miller v. Johnson, 515
U.S. 900, 913 (1995). The flexibility that the Court has
allowed government decision makers preserves the core
democratic values of full and fair political participation
and responsive government for minority citizens. The need
for flexibility and the exercise of discretion is especially
compelling in the educational context. State educational
institutions are among the most impertant tools available
to the states to aid in the creation of model citizens.
Moreover, educational decisions are accorded First
— protection as an exercise of academic free-
om.
A. Considering Race As One Factor In Admis-
sions Is Constitutional
This Court has acknowledged that education is critical
to “the preparation of individuals for participation as
citizens, and in the preservation of the values on which
our society rests.” Ambach v. Norwich, 441 U.S. 68, 76
6
(1979). Research has shown that for racial minorities,
education at highly selective schools is associated with
higher levels of civic and political participation. See
WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE
RIVER: THE LONG-TERM CONSEQUENCES OF CONSIDERING
RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 119-54, 173-
74 (1998) (describing higher political participation and
civic involvement, of African Americans who attended
selective schools compared with those who have not
attended such schools). Including a critical mass of stu-
dents who are members of racial minority groups as part
of a diverse class of university or law school students both
fosters levels of participation necessary to sustain an
effective democracy and improves the quality of political
representation.
Higher education provides a singular opportunity for
citizens to meet, live with, learn about, and learn from
people of other backgrounds. Exposing all students to a
broad range of ideas, practices and experiences, and the
interactions among the students that occur as a result,
eventually permits the state to draw on enhanced political
participation and representation. Amici’s experience
accords with studies showing that heightened exposure to
and engagement with peoples of different races and
cultures foster an increased sense of commonality across
racial and cultural lines and an elevated ability to under-
stand the perspectives of others. See Patricia Gurin,
Expert Reports: Reports Submitted on Behalf of the Uni-
versity of Michigan: The Compelling Need for Diversity in
Higher Education, 5 MicH. J. RACE & L. 363, 399-401
(1999). A sense of commonality and receptivity is neces-
sary for representatives such as amici to build support in
political institutions for initiatives critical to protect the
7
interests of their constituents. As Justice Powell noted in
Bakke, the “nation’s future depends upon leaders trained
through wide exposure to the ideas and mores of students
as diverse as this nation of many peoples.” 438 U.S. at 313
(Opinion of Powell, J.) (internal quotation marks omitted).
Justice Powell's conclusion reflects the role race often
plays as a defining experience that shapes people’s ideas
and mores. Consequently, Justice Powell and four other
justices agreed that a state institution of higher education
could consider race as “one element ... in the selection
process” for creating such a class, so long as that process
was not shown to be the functional equivalent of a quota
system. Jd. at 318-20 (Opinion of Powell, J.).
Relying on Justice Powell’s opinion in Bakke, Michi-
gan educators, along with many others throughout the
United States, have adopted race-conscious admissions
programs that seek to include racial minorities while
preserving the role of many other important factors. The
diversity created through these efforts redounds educa-
tional and political benefits to society. It is these educa-
tional and political benefits that flow from diversity among
students in higher education, rather than the fact of the
diversity itself, that amici ask the Court to affirm as state
interests sufficiently compelling to justify considering race
as a factor in the admissions process. See Bakke, 438 U.S.
at 307, 315 (Opinion of Powell, J.).
B. Non-Remedial Justifications Can Support
Race-Conscious Governmental Action
For the past quarter century, Justice Powell’s opinion
in Bakke has been the cornerstone of this Court’s frame-
work for evaluating challenges to governmental uses of
8
race. In City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989), the Court adopted the view, expressed by Justice
Powell in Bakke, that strict scrutiny should apply to
facially race-based governmental classifications regardless
of whether those classifications benefited members of a
group that historically had been the subject of discrimina-
tion. Croson, 488 U.S. at 493-94 (citing Bakke, 438 U.S. at
289-90 (Opinion of Powell, J.)). Under strict scrutiny,
governmental uses of race must be narrowly tailored to
accomplish a compelling state interest. Croson, 488 U.S. at
506. States have a compelling state interest in remedying
identified past or present discrimination. Adarand Con-
structors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (citing
United States v. Paradise, 480 U.S. 149, 167 (1987) (Opin-
ion of Brennan, J.); id. at 190 (Stevens, J., concurring); id.
at 196 (O’Connor, J., dissenting)). Accord Bakke, 438 U.S.
at 307 (Opinion of Powell, J.).
Remedial measures, however, comprise just one part
of the permissible universe of compelling state interests
that may justify governmental use of race in decision
making. For example, in recent redistricting decisions, a
majority of justices have recognized that states have a
sufficiently compelling interest in avoiding violations of
federal anti-discrimination law to permit the use of race as
a factor in redistricting. See Bush v. Vera, 517 U.S. 952,
977-78 (1996); id. at 994 (O’Connor, J., concurring); id. at
1034-35 (Stevens, J., dissenting); id. at 1065 (Souter, J.,
dissenting). The Court’s recognition of a state legislature's
compelling interest in avoiding liability under federal anti-
discrimination law when engaged in redistricting reso-
nates with the decisions of all nine justices who partici-
pated in the Bakke decision.
9
The issue here is whether the benefits that flow from
educational diversity are sufficiently compelling non-
remedial justifications to justify Michigan’s race-conscious
admission policies. The educational and political benefits
that result from a diverse student body were among the
non-remedial compelling state interests that Justice
Powell envisioned supporting appropriate race-conscious
programs and policies implemented through the democ-
ratic process that would pass strict scrutiny. Bakke, 438
U.S. at 299, 311-12 (Opinion of Powell, J.). Affirming that
these political and educational benefits provide a compel-
ling governmental interest to support a race-conscious
admissions plan would accord with this Court’s recent
equal protection decisions.
C. Eliminating Educational Diversity As A
Compelling State Interest Will Have Nega-
tive Consequences For The Ideal Of The
Rule Of Law
This Court has relied on Justice Powell’s opinion in
Bakke as a foundation for developing an adjudicative
framework for evaluating challenges to governmental uses
of race. This case presents this Court’s first opportunity
since Bakke to revisit the application of the Equal Protec-
tion Clause to consideration of race as a factor in the
context of higher education admissions. To repudiate
Justice Powell’s recognition of educational diversity as a
compelling state interest in the very context in which so
many of the Court’s other equal protection principles were
first articulated would seriously undermine the integrity
of the juridical approach this Court has adopted for inter-
preting governmental uses of race under the Equal Protec-
tion Clause, and tear at the fabric of the law.
10
The doctrine of stare decisis informs the Court's
judgment when reconsidering prior constitutional deci-
sions. “[E]ven in constitutional cases, the doctrine carries
such persuasive force that [the Court] ha[s] always re-
quired a departure from precedent to be supported by
some ‘special justification.” Dickerson v. United States,
530 U.S. 428, 443 (2000). Whether or not the current
membership expresses doubts about the correctness of an
earlier decision, the Court considers the costs of repudiat-
ing that decision to the rule of law. Id. In Planned Parent-
hood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992), the Court described four considerations “designed
to test the consistency of overruling a prior decision with
ideal of the rule of law, and to gauge the respective costs of
reaffirming and overruling a prior case.” Jd. at 854-55. In
the context of affirmative action in higher education, these
considerations show that this case does not present the
“special justification” required for overturning Bakke. In
the broader context of the Court’s equal protection juris-
prudence, the stare decisis analysis illuminates the foun-
dational position Bakke has assumed in the Court’s equal
protection jurisprudence and that of the lower courts, and
the damage that would be done to that jurisprudence
should Bakke be overturned.
Although the Court has further clarified the require-
ments of the Equal Protection Clause since Bakke, the
Court’s jurisprudence has not “developed so as to have left
the old rule no more than a remnant of an abandoned
doctrine.” Casey, 505 U.S. at 855. Rather, the coherence of
the current state of the Court’s equal protection jurispru-
dence, which relies heavily on Bakke, is reflected in the
11
lower court’s capable administration of the principles
announced in Bakke and its progeny. See Casey, 505 U.S.
at 854 (“[W]e may ask whether the rule has proven to be
intolerable simply in defying practical workability.”).
Consistent with this jurisprudence, lower courts weigh
whether proffered non-remedial justifications for race-
conscious decision making rise to the level of a compelling
interest. Compare Wittmer v. Peters, 87 F.3d 916, 919-20
(7th Cir. 1996) (permitting juvenile boot camp guards to be
selected partially on basis of race) and Martin v. Sch. Dist.
of Phila., 1995 WL 564344, *2 (E.D. Pa. Sept. 21, 1995)
(“(Tyhere can be little doubt that the state’s interest in
ensuring equal educational opportunities across race lines
is a compelling one.”) with Lutheran Church-Missouri
Synod v. FCC, 141 F.3d 344, 354-56 (D.C. Cir. 1998)
(holding that ensuring racially diverse radio programming
is not a compelling interest). Lower courts that accept
Bakke as controlling on questions of affirmative action in
public education strike down those admissions programs
which use racial quotas, e.g., Hampton v. Jefferson County
Bd. of Educ., 102 F. Supp. 2d 358, 378 (W.D. Ky. 2000), and
uphold those programs in which race is used as one of
many diversity factors. E.g., Smith v. Univ. of Wash. Law
Sch., 233 F.3d 1188, 1201 (9th Cir. 2000). These decisions
indicate that the lower courts are capably following the
rules announced in Bakke and that the required determi-
nations “fall within judicial competence.” Casey, 505 U.S.
at 855.
The factual circumstances underlying Justice Powell's
opinion in Bakke remain the same, and are viewed the
same, today. The state of public higher education today
does not present the situation where “facts have so
changed, or come to be seen so differently, as to have
12
robbed the old rule of significant application or justifica-
tion.” Casey, 505 U.S. at 855. Justice Powell explained
that admitting a diverse student body is necessary to
universities’ missions to enhance the marketplace of ideas
and is within the universities’ First Amendment academic
freedom. Bakke, 438 U.S. at 311-14 (Opinion of Powell, J.).
Neither the Court’s nor the country’s views on the impor-
tance of universities’ academic freedom has changed since
1978. And as Professor Patricia Gurin’s large scale longi-
tudinal study shows, educational benefits flowing from
diverse student bodies continue to benefit al! students.
Gurin at 364-65. Our view that diversity is an integral
part of the “robust exchange of ideas” remains the same
today as Justice Powell’s view in Bakke.
Finally, the Court should consider the cost of repudiat-
ing Bakke “as it would fall on those who have relied
reasonably on the rule’s continued application.” Casey, 505
U.S. at 854-56, 864-69. Repudiation of Bakke would fall
heavily upon public educators. Nearly every public institu-
tion of higher education in the country has adopted a race-
conscious admissions program crafted on Bakke. BOWEN &
BoK at 7. Overturning Bakke would result in a national
upheaval of admissions policies and confusion for those
admissions officers at public universities and professional
schools. More importantly, it would weaken the ability of
public universities to assemble diverse student bodies
necessary to ensure the “robust exchange of ideas.”
Briefing of certain amici suggest that Bakke can be
affirmed consistent with holding the University and Law
School admissions practices unconstitutional. That result
cannot with ‘intellectual honesty be sustained. Bakke
stands expressly for the right of educators to exercise
discretion in exactly the way Michigan educators have.
13
Moreover, denying educators the tools Michigan employs
would substantially undermine the ability to achieve the
benefits Bakke sought to advance. Public educators in
those states that prohibit race-conscious admissions
policies have struggled with how best to ensure a diverse
exchange of viewpoints, and have been forced to substitute
imprecise proxies for diversity. See infra Part II.B. Their
struggles have often been unsuccessful, especially in the
most elite public institutions. Jd. Moreover, their struggles
often result in abandoning or reducing the importance of
other important factors in the admissions process. Forcing
selective state schools to employ admissions methodologies
that limit their ability to craft a class of individuals with a
broad range of characteristics would infringe upon public
universities’ First Amendment freedom “to provide that
atmosphere which is most conducive to speculation,
experiment and creation.” Sweezy v. New Hampshire, 354
U.S. 234, 263 (1957) (Frankfurter, J., concurring).
The cost of overturning Bakke would also weigh upon
state and federal legislators. Lawmakers need clear
guidance form the Court to square potential legislation
with the Equal Protection Clause. Cf. Romer, 517 U.S. at
632 (“The search for the link between classification and
objective gives substance to the Equal Protection Clause; it
provides guidance to the legislature, which is entitled to
know what sorts of laws it can pass; and it marks the
limits of our own authority.”) That guidance is now pro-
vided by Bakke, the Court’s subsequent equal protection
decisions building on Bakke, and rulings from the lower
courts. Permitting race-conscious decision making in the
context of a multi-factor process provides guidance and
discipline to elected officials regarding the types of policies
14
and legislation they can implement to address the con-
cerns of their constituents. This in turn maintains the
ability of identifiable groups of constituents to obtain the
assistance of government to address their problems.
Overturning Bakke would destabilize equal protection law
and muddy the waters for legislators — a result counter to
the purpose of stare decisis.
Bakke resolved “an intensely divisive controversy,”
Casey, 505 U.S. at 866, and has “become part of the
national culture.” Dickerson, 530 U.S. at 443. In these
circumstances, overruling the earlier precedent could
undermine public confidence in the judiciary and weaken
the rule of law. Casey, 505 U.S. at 866-69. Bakke settled
the national controversy about affirmative action in 1978,
a debate that is no less divisive today.‘ Cf. Casey, 505 U.S.
at 869 (noting that public pressure to overrule Roe v.
Wade, 410 U.S. 113 (1973) was more intense then than
shortly after Roe was decided). After Bakke, public schools
around the country maintained their race-conscious
admissions programs, modeling the programs after Justice
Powell’s opinion. See Kenneth L. Karst & Harold W.
Horowitz, The Bakke Opinions and Equal Protection
Doctrine, 14 Harv. C.R.-C.L. L. REv. 7, 7 (1979) (noting
that Bakke provides a “how-to-do-it manual for the admis-
sion of minority applicants to professional schools”).
Vacillating on the meaning of the Equal Protection Clause
* A January 2003 Westlaw search of the journals and law reviews
database (“JLR”) resulted in 2,458 pieces published in 2000 or after
including both “affirmative action” and words beginning with “constitu-
tion”. By comparison, replacing “affirmative action” with “abortion”
yielded 635 hits. A January 2003 Google search for “affirmative action”
and “constitution” yielded approximately 121,000 hits; “abortion” and
“constitution” yielded approximately 174,000 hits.
—
15
in the context of higher education could cause the harms
to the Court and the country emphasized in Casey.
II. THIS COURT’S FRAMEWORK FOR DISTIN-
GUISHING LEGITIMATE RACE-CONSCIOUS
DECISIONS FROM UNLAWFUL QUOTAS PRE-
SERVES THE EFFICACY OF OUR FEDERAL
SYSTEM
The “unhappy persistence of both the practice and the
lingering effects of racial discrimination against minority
groups in this country is an unfortunate reality, and
government is not disqualified from acting in response to
it.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237
(1995). In their role as public officials, amici must address
practices and problems defined by their impact on one or
more groups of individuals who share a common racial
background. The Court has developed a standard for
adjudicating race-conscious governmental decision making
that recognizes the “intrusive potential of judicial inter-
vention in the legislative realm.” Miller v. Johnson, 515
U.S. 900, 916 (1995). This standard provides the necessary
flexibility to enable public officials to meet their responsi-
bilities in these situations.
A. Race May Be Considered as One of Many
Factors in Governmental Decision Making
In Some Circumstances
The Equal Protection Clause does not mandate race-
neutral decision making in all contexts. See Shaw v. Reno,
509 U.S. 630, 642 (1993) (“This Court never has held that
race-conscious decision making is impermissible in all
circumstances.”). The Court regularly distinguishes
16
between three types of governmental decision making:
(1) race-determinative,® (2) race-conscious,° and (3) race-
neutral.’ Governmental awareness of race does not impli-
cate the Equal Protection Clause unless it has a substan-
tive effect on the outcome of the government’s decision-
making process. See Bush v. Vera, 517 U.S. 952, 968 (1995)
(O’Connor, J., principal opinion) (“If district lines merely
correlate with race because they are drawn on the basis of
political affiliation, which correlates with race, there is no
racial classification to justify. . . .”). Cf. Regents of the Univ.
of Cal. v. Bakke, 438 U.S. 265, 306 (1978) (Opinion of
Powell, J.) (stating that to extent race was considered only
to correct for inaccuracies in predicting academic perform-
ance “it might be argued that there is no ‘preference’ at
all”). Over the past twenty-five years, the Court has
developed and followed distinct but consistent approaches
to assessing governmental action involving race-conscious
* “Race-determinative” decision making occurs where an individ-
ual’s race determines or controls (a) the outcome of a decision-making
process with respect to that individual; or (b) that individual’s ability to
access a service or resource made available by the government.
* “Race-conscious” decision making occurs where (a) a governmen-
tal actor takes an individual’s race into account; and (b) where the
consideration of that individual’s race either (i) has some effect on the.
outcome of a decision-making process but does not control or determine
the outcome with respect to that individual; or (ii) affects the individ-
ual’s chances of accessing a service or resource provided by the govern-
ment, without affecting his or her eligibility for that service or resource.
Where an individual’s race predominates in the decision, it becomes
race-determinative. -
” “Race-neutral” decision making occurs where an individual’s race
has no effect on either (a) the outcome of a governmental decision-
making process with respect to that individual; or (b) the individual's
ability to access government-supplied resources or services.
17
decision making, and has scrutinized that decision making
in a way that preserves the discretion and flexibility for
legislators and policy makers that is an integral part of
our federal system.
Where race controls the outcome of government
decision making, it can only be justified where it is nar-
rowly tailored to a compelling state interest and race-
neutral alternatives will not accomplish the same goal.
Adarand, 515 U.S. at 237. Thus, absent a compelling state
interest, neither Richmond, Virginia in Croson nor the
University of California, Davis Medical School in Bakke
could rigidly reserve for minorities a portion of those
programs’ available opportunities. City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 505 (1989); Bakke, 438 U.S.
at 299, 305 (Opinion of Powell, J.).
By contrast, where a state takes race into account to
influence, rather than determine, the outcome of a deci-
sion-making process, this Court has taken a different
approach. Drawing on the distinction that Justice Powell
established in Bakke between a legitimate race-conscious
decision-making process and a process that is functionally
race-determinative, this Court has held that a state may
engage in race-conscious decision making so long as
individuals’ race is not the predominant factor motivating
the decision. Miller, 515 U.S. at 915. As the Court has
noted, Justice Powell never stated that applying strict
scrutiny to all racial classifications would inhibit the
“rough compromise” of the democratic process from im-
plementing such classifications where they are appropri-
ate. Adarand, 515 U.S. at 224 (quoting Bakke, 438 U.S. at
299 (Opinion of Powell, J.)). Recent redistricting decisions
offer substantial guidance as to how and under what
18
circumstances government actors may take race into
account in decision making.
The Court’s most recent application of its race-
consciousness standard is a prime example. In Easley v.
Cromartie, 532 U.S. 234 (2001), the Court held that the
North Carolina legislature constitutionally considered race
in crafting a minority opportunity district for its reappor-
tionment plan where the district boundaries could be
explained equally by race or political behavior. Id. at 257-
58. By focusing on whether North Carolina had used race
in a way that overshadowed other permissible aspects of
the redistricting process, the Court’s approach reflects a
tolerance for the use of race in governmental decision
making that varies with the context of the decision-
making process, and the amount of influence an individ-
ual’s race has on the final outcome of that process. As a
decision-making process involving a number of factors in a
context of historical judicial deference, redistricting
suggests the circumstances in which the Court’s race-
consciousness standard provides the most appropriate
means of assessing whether a particular use of race is
constitutional.
The non-remedial considerations and need for freedom
from judicial interference that led to this Court’s adoption
of the predominant motivating factor test to evaluate race-
conscious decision making in Miller are also present in the
educational context. Institutions of higher education long
have received significant latitude from this Court in the
area of academic freedom. Within constitutional con-
straints, an institution of higher education may “deter-
mine for itself on academic grounds who may teach, what
may be taught, how it shall be taught, and who may be
admitted to study.” Sweezy v. New Hampshire, 354 U.S.
19
234, 263 (1957) (Frankfurter, J., concurring). Accord,
Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225
(1985) (requiring restrained judicial review of academic
decisions). Recognizing this tradition in his opinion in
Bakke, Justice Powell determined that an institution of
higher education was entitled to discretion in fashioning
its admissions decisions unless its policy represented the
“functional equivalent of a quota system.” Bakke, 438 U.S.
at 318 (Opinion of Powell, J.).
Critics erroneously decry the University and the Law
School’s admission of a “critical mass” of minority students
as a “quota”. This rhetoric does not demonstrate that race
determines the outconie of the admissions process. See
Miller, 515 U.S. at 916 (“Plaintiff must prove that the
legislature subordinated traditional race-neutral district-
ing principles . . . to racial considerations.”). Indeed, if the
mere establishment of a goal relating to a certain level of
participation results in a constitutional violation, numer-
ous federal programs that provide for equitable access to
government contracting markets or other resources may
be at risk. For example, Section 8(a) of the Small Business
Act, 15 U.S.C. § 637(a), establishes a program designed to
enhance the economic competitiveness of disadvantaged
small businesses (including those owned or controlled by.
members of certain specified racial minority groups) and
provide access to the federal procurement market. In
implementing this program, the Small Business Admini-
stration uses a benchmarking method to determine the
number and types of firms that will participate in the
program. See 13 C.FR. § 124.103-.105, .1002. Similarly,
minimum participation goals for disadvantaged businesses,
historically black colleges and universities and other minor-
ity institutions, and other colleges and universities with a
20
student body where a particular racial minority group
exceeds a specific threshold are to be implemented where
practicable under the Energy Policy Act of 1992, 42 U.S.C.
§ 13556, and the Clean Air Act Amendments of 1990, 42
U.S.C. § 7601.
The government also sets and enforces race-conscious
participation goals in providing access to educational
resources. The No Child Left Behind Act of 2001, 20 U.S.C.
§§ 6301 et seg., was enacted to “ensure that all children
have a fair, equal, and significant opportunity to obtain a
high-quality education” and, among other things, to
“clos[e] the achievement gap ... between minority and
non-minority children.” Id. § 6301. It requires public
schools to create performance based standards and imple-
ment testing to measure students’ progress towards those
goals at various grade levels. Id. § 6311. Under the racial
accountability standards of the Act, schools must break
down test results by race and ethnicity. Id. § 6311(b\(3)
(C)\(xiii). To avoid sanctions such as staff reorganization,
reduced federal funding, or privatization, schools must
demonstrate that each major racial and ethnic group is
adequately progressing towards performance standards.
Id. § 6311(bX 2B), (CXv)II\(bb). Those schools in which
any subgroup falls below the minimum testing level will
be designated for improvement and subject to sanctions.
Id. -
These federal programs consider race as one of several
factors in providing access to government resources and
services for disadvantaged individuals. No less than the
Michigan admissions programs, these federal programs
must seek enough participation to achieve their intended
purposes. Both sets of programs should receive the defer-
ence of the kind described by Justice Powell in Bakke and
21
traditionally provided by this Court in reviewing academic
and political decisions. Being honest and straightforward
about the minimum participation needed to achieve
otherwise constitutionally permissible goals should not be
punished. There is a constitutionally significant difference
between a quorum and a quota.
Preserving the ability of governmental actors to
engage in race-conscious decision making will maintain
the flexibility this Court has traditionally granted to
political and academic actors. As public officials responsi-
ble for ensuring effective access to government resources
and institutions by all citizens, amici have found that
racial accountability provisions have a significant ability
to preserve access to such resources. In order for such
statutes to be effective, those governmental decision
makers responsible for implementing the rules must be
able to incorporate race into their implementation and
corrective action efforts where warranted. Application of
this Court’s race-consciousness standards will preserve the
flexibility that governmental decision makers need to
address problems with racial contours, while limiting the
scope of permissible solutions to those that do not involve
using race as the predominant factor in decision making.
B. Sustaining Limited Race-Conscious Decision
Making Preserves Necessary Flexibility for
Governmental Actors
Detractors of the University and Law School’s policies
would find both plans unconstitutional based on the
purportedly race-neutral admissions policies in place in
California, Florida and Texas. See, e.g., Grutter v. Bollin-
ger, 288 F.3d 732, 806-08 (6th Cir. 2002) (Boggs, J., dis-
senting); Brief of Amicus Curiae the United States in
22
Support of Petitioner in Grutter v. Bollinger, at 13-21;
Brief of Amicus Curiae the United States in Support of
Petitioner in Gratz v. Bollinger, at 13-15, 18; Brief of
Amicus Curiae the State of Florida, at 8-10. They assert
that results of the admissions policies adopted by these
states show that race-neutral decision making is a viable
alternative for ensuring minority representation. The
assumptions and data underlying this argument do not
bear scrutiny.
Upon closer examination, the overall admissions
schemes of California, Florida and Texas universities are
not race-neutral. Rather, they rely heavily on other race-
conscious actions, such as race-targeted scholarships,
financial aid, and recruitment and retention efforts. See
Patricia Marin & Edgar K. Lee, Appearance and Reality in
the Sunshine State: The Talented 20 Program in Florida
32-37, at http//www.civilrightsproject.harvard.edu/research/
affirmativeaction/florida.pdf (Feb. 7, 2003); Catherine L. Horn
& Stella M. Flores, Percent Plans in College Admissions: A
Comparatwe Analysis of Three States’ Experiences 51-58, at
http://www.civilrightsproject.harvard.edu/research/affirma
tiveaction/tristate.pdf (Feb. 7, 2003). These components
show that far from being race-neutral, California, Texas
and Florida admissions officers have just shifted their
race-consciousness to a different stage within the admis-
sions process.”
—
re tte lie
23
Further, the enrollment data offered to show that the
new policies provide adequate minority representation are
misleading. These data focus on the enrollment of minority
students system-wide, rather than in individual schools,
particularly the most selective schools. Minority applica-
tions and enrollment at Florida, California and Texas
flagship institutions have significantly declined. See Horn
& Flores at 45-51; Marin & Lee at 27-36. The reduction of
diversity at the most selective campuses demonstrates
that these plans do not offer any meaningful alternatives
to the University and Law School’s consideration of race in
admissions.
Although searching analysis seriously undermines the
argument that there are effective race-neutral alternatives
to the Law School’s consideration of race, there is a more
compelling reason not to mandate such alternatives in
place of race-conscious decision making. Mandating admis-
sions programs of the type adopted in California, Florida
and Texas would create a conflict with the constitutionally
protected discretion of University officials. These alterna-
tive admissions plans largely provide for mandatory
admission to a state university campus for students who
place within a certain percentage at the top of their
high school graduating class. By requiring schools to
admit individuals purely on the basis of their academic
achievement in high school, such policies eliminate the
discretion that past decisions of this Court have granted to
institutions of higher education. Without meaningful
colleges and universities. See Cathy Cockrell, UC Regents Rescind SP-1,
SP-2, BERKELYAN, May 17, 2001.
24
control over the make up of their student bodies, admis-
sions officials can not create the substantive diversity that
Justice Powell sought to preserve in Bakke. This is not just
a matter of racial diversity. Admissions officials’ discretion
with regard to economic diversity, gender diversity, geo-
graphic diversity, individual's life experiences and admit-
ting legacies would also be threatened. A decision by this
Court that the Equal Protection Clause requires state
universities to adopt admissions policies of the type
described by the United States, rather than allowing
educators to choose a race-conscious admissions policy, will
create a constitutional conflict with the universities’ rights
under the First Amendment. Such a decision could also
restrict the ability of elected representatives to provide
broad access to government resources and services and to
promote full and complete political and economic partici-
pation.
C. Congress and The Executive Branch Have
Continuously Endorsed Race-Conscious
Decision Making as a Constitutional Means
Of Promoting Full and Complete Political
and Economic Participation For All Ameri-
cans. |
Congress’ commitment to ensuring access to higher
education for racial minorities is at least as old as the
Fourteenth Amendment itself. In 1866, Congress passed
the Fourteenth Amendment to eliminate any possibility of
a constitutional challenge to the Civil Rights Act and the
expansion of the Freedmen’s Bureau powers enacted that
same year. See ERIC FONER, THE STORY OF AMERICAN
FREEDOM 104-07 (1998); Eric Schnapper, Affirmative
Action and the Legislative History of the Fourteenth
~ i
— neem tt _——
25
Amendment, 71 VA. L. REV. 753, 784 (1985). As with the
Fourteenth Amendment, the original purpose and function
of the Freedman’s Bureau was to provide various forms of
aid to African Americans in the South during the Recon-
struction era. ERIC FONER, RECONSTRUCTION: AMERICA’S
UNFINISHED REVOLUTION, 1863-1877, at 243 (1988). Among
the many areas in which the Bureau exerted its efforts on
behalf of African Americans, none has endured so well or
so fruitfully as education. Howard University, along with
the many other historically black colleges and universities,
has played a substantial role in educating black Americans
who have contributed to the development and improve-
ment of American democratic systems. —
Following this Court’s decisions in such cases as
Brown v. Board of Education, 347 U.S. 483 (1954), Con-
gress enacted the Civil Rights Act of 1964, 42 U.S.C.
§ 2000 et seq. Title VI of the Civil Rights Act, 42 U.S.C.
§ 2000(d), requires recipients of federal funding to avoid
taking any action that would discriminate against or
exclude any person on racial grounds. Responsibility for
enforcing Title VI in the educational arena falls to the U.S.
Department of Education. The Department’s regulations
implement Congress’ desire that recipients of federal funds
be accountable for providing access to their programs. This
responsibility requires an awareness of race and may
require action to correct practices that exclude or disad-
vantage racial minorities. Specifically, the Department has
established regulations that permit recipients of federal
funds to “take affirmative action to overcome the effects of
conditions which resulted in limiting participation by
persons of a particular race, color or national origin ...
even in the absence of prior discrimination.” 34 C.F.R.
§ 100.3(bX6 ii).
26
In overseeing the Department’s activities, Congress
has commended the Department’s recognition “that
diversity is a legally acceptable form of affirmative action.”
ELR. REP. No. 102-1086, at 211 (1992). These statutes and
regulations reflect a determination by both Congress and
the executive branch that the Constitution permits state
educators and other governmental officials to engage in
race-conscious decision making to comply with federal
laws promoting racial equality. This position is consistent
with the views of a majority of this Court’s justices. Vera,
517 U.S. at 977-78 (O'Connor, J., principal opinion); id. at
994-95 (O’Connor, J., concurring); id. at 1034-35 (Stevens,
J., dissenting); id. at 1065 (Souter, J., dissenting). Reaf-
firming this principle in the area of education will facili-
tate Congress’ historic commitment to providing broad
access to educational activities financed with federal
funds, and will preserve Congress’ ability to address the
persistence of both the fact and the effects of racial ine-
quality.
For over a decade, Congress has consistently reaf-
firmed its determination that race-conscious action is
constitutional. Numerous recent enactments provide for
the consideration of race in the distribution of scholarship
funds. See, e.g., 42 U.S.C. § 1862n-1(c2) (requiring that
consideration be given to “the goal of promoting the
participation” of students from disadvantaged back-
grounds, including racial minorities, in awarding grants
for math, science and engineering students); H.R. REP. No.
107-229, at 18 (2001) (promoting : eS meee
iversi iding funding for i n
aie fh eter owere for racial and ethnic minorities
and other disadvantaged students); H.R. REP. Ne. 106-
645, at 23, 116 (2000) (providing funding to “increase the
27
number of minority students who pursue advanced de-
grees and careers” in science and encouraging the devel-
opment of specific numerical goals for the program). These
enactments continue a long-standing trend in congres-
sional activity requiring consideration of race as a factor in
decision making. See, e.g., 20 U.S.C. § 1136 (establishing
Thurgood Marshall Legal Opportunity Program to assist
“low-income, minority, or disadvantaged college students”
with access to legal education); 20 U.S.C. § 1131 (creating
Minority Foreign Service Professional Development
Program to “significantly increase the number of African
American and other underrepresented minorities in the
international service”).
In addition to crafting legislation that relies on
limited consideration of race by those charged with the
law’s administration, Congress has consistently rejected
bills introduced to eliminate or prohibit race-conscious
decision making needed to promote access to government
resources and benefits. With the benefit of this Court’s
decision in Adarand, Congress has reached a considered
decision to preserve race as one factor in providing access
to the benefits of federal programs and initiatives. For
example, the 105th Congress rejected the “Riggs Amend-
ment,” which would have prohibited “discrimination. and
preferential treatment in connection with admissions to
institutions of higher education” under the Higher Educa-
tion Act of 1965. See English Language Fluency Act, H.R.
3892, 105th Cong. (1998). Likewise, in 1997, a bipartisan
majority of the House Judiciary Committee voted to table
H.R. 1909, a bill sponsored by Representative Canady that
would have prohibited the consideration of race or gender
in any federal program or initiative. See Civil Rights Act of
28
1997, H.R. 1909, 105th Cong. (1997). Elected representa-
tives of both parties have joined together to preserve race-
conscious decision making as a tool for fulfilling Congress’
constitutional charge to eradicate the legacy of inequality
that results from this nation’s long history of racial dis-
crimination by providing broad access to the programs,
opportunities, and resources sponsored by the federal
government.
By contrast, this nation’s history demonstrates that
resistance to access to public resources for racial minori-
ties develops where the federal government has shown
leniency rather than leadership. A decision by this Court
mandating purportedly race-neutral policies whose indicia
of success measure access to government resources at a
general rather than specific program level would frustrate
Congress’s efforts to combat the effects of discrimination.
Such policies may permit a state to avoid its compliance
obligations under federal law. Under such a standard,
states potentially could use otherwise facially neutral
standards, such as different admission indexes or award-
ing extra points for courses not offered in schools hat
serve minority individuals, to institute or reinstitute a
dual university system in which there was very little
diversity on any campus. In reviewing whether the Uni-
versity of Mississippi had dismantled its dual structure in
Ayers v. Fordice, 505 U.S. 717 (1992), this Court concluded
that concluding that the University of Mississippi's use of
different ACT admissions thresholds for automatic admis-
sion to specific campuses, though race-neutral, had the
purpose and effect of maintaining campuses that are
identifiable white and black. Jd. at 734-39. To permit
states to use system-wide numbers to maintain or estab-
lish the type of “discriminatory system that should, by
29
now, be only a distant memory” would be a major depar-
ture from this Court’s equal protection jurisprudence. Jd.
at 745 (O’Connor, J., concurring).
+
CONCLUSION
This Court need not tear at the fabric of its equal
protection decisions to reaffirm the compelling nature of a
state’s interest in the educational and political benefits
that flow from a diverse student body. The standards
applied to race-conscious decision making in recent redis-
tricting cases provide an established and entirely appro-
priate means of evaluating the University’s and the Law
School’s consideration of race as one of several factors in
its admissions process. Application of these standards is
consistent with Justice Powell’s opinion in Bakke and this
_ Court’s other recent decisions in the area of equal protec-
tion. Application of the race-consciousness standard in this
context also will confirm this Court’s prior guidance to
other governmental decision makers as to the way in
which race may be taken into account in situations where
it is a critical aspect of responding to an identified need.
This prior guidance has resulted in enactment of race
conscious admissions criteria that have been effective to
obtain educational diversity without resort to quotas. The
University and the Law School’s consideration of race in
admissions furthers the compelling interest in educational
diversity and the resulting benefits in education and
political participation that flow to the school’s students
and society at large. Michigan educators’ discretion in this
regard is constitutional. The decisions of the Court of
30
Appeals for the Sixth Circuit and the U.S. District Court
for the Eastern District of Michigan should be upheld.
Respectfully submitted,
ANTHONY R. MILES
Counsel of Record
PAUL J. LAWRENCE
DANIEL H. ROYALTY
PRESTON GATES & ELLIS LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
(206) 623-7580
Attorneys for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.