Amicus Curiae Brief — Gratz v. Bollinger

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FEB 19 2093

No. 02-516 |

OFTRUR @F TH. LARK

IN THE

SUPREME COURT OF THE UNITED STATES

JENNIFER GRATZ AND PATRICK HAMACHER, Petitioners

Vv.

LEE BOLLINGER, ET AL., Respondents

On Writ of Certiorari to the

United States Court of Appeal for the Sixth Circuit

BRIEF OF AMICI CURIAE

THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS

UNDER LAW, NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE,

MINORITY BUSINESS ENTERPRISE LEGAL

DEFENSE AND EDUCATION FUND, INC.,

NATIONAL WOMEN’S LAW CENTER, NATIONAL

PARTNERSHIP FOR WOMEN & FAMILIES,

COALITION OF BAR ASSOCIATIONS OF COLOR,

AND SIGMA PI PHI FRATERNITY

IN SUPPORT OF RESPONDENTS

BARBARA R. ARNWINE

THOMAS J. HENDERSON

MARK A. DANN

Lawyers’ Committee for Civil

Rights Under Law

1401 New York Ave., NW,

Suite 400

Washington, D.C. 20005

202-662-8600

JOHN S. SKILTON

Counsel of Record

’ MARVIN H. LETT

JANE E. STELCK

ALLYSON BAKER

KATHLEEN BENWAY

GABRIELLE E. BINA

Heller Ehrman White &

McAuliffe LLP

1666 K Street, NW, Suite 300

Washington, D.C. 20006

202-912-2000

(List of Counsel Continues Inside Cover)

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DENNIS C. HAYES

EDEN GAINES BROWN

National Association for the

Advancement of Colored People

4805 Mount Hope Drive

Baltimore, MD 21215

MARCIA D. GREENBERGER

JOCELYN F. SAMUELS

JUDITH C. APPELBAUM

National Women’s Law Center

11 Dupont Circle, Suite 900

Washington, D.C. 20036

JUDITH L. LICHTMAN

JOCELYN C. FRYE

National Partnership for

Women & Families

1875 Connecticut Avenue, N.W.

Suite 650 ;

Washington, D.C. 20009

Counsel for Amici Curiae

Table of Contents

INTEREST OF AMICI CURIAE .......1:::cscssesssssssssesosssorosesseees

SUMMARY OF ARGUMENT ..............ccesecsseesessssssesescsesenees

THE THIRTEENTH AMENDMENT AND THE 1866

CIVIL RIGHTS ACT PROVIDE A COMPELLING

REMEDIAL INTEREST AND INFORM A

A. This Court's Compelling Remedial

Interest Has Largely Been Shaped By

Consideration of The Fourteenth

B. The Fourteenth Amendment Must Be

Read Jn Pari Materia With The

Thirteenth Amendment and the Civil

C. The Elimination Of Disparities

Associated With “Badges and Incidents

of Slavery” Is a Compelling Interest

Under The Thirteenth Amendment. .........

l. The remedial purposes and

7 authority of the Thirteenth

Amendment and the 1866 Civil

2. The Thirteenth Amendment

applies with full force to support

Michigan's admissions program. ...

.12

.15

3. Ameliorating badges and

incidents of slavery is a distinct

compelling interest under the

“badges and incidents” of

slavery the University

permissibly addresses. ................0++. 23

D. The Thirteenth Amendment And The

Cases

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

ee passim

Balsbaugh v. Rowland, 290 A.2d 85, (Pa. 1972).......... 20

Berry v. School Dist. of Benton Harbor, 505 F.2d

RC 26

Board of Directors of Rotary Int'l. v. Rotary Club

of Duarte, 481 U.S. 537, (1987) ......cccccccccccsseeseeeeeeee 20

Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970)........26

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

pe a atennisinsinitentnsicicinebimaniniiiniecensiatimsiinassss 8, 23, 25

Bush v. Vera, 517 U.S. 952 (1996).........cccccce000- 10, 27, 28

City of Memphis v. Greene, 451 U.S. 100 (1981).......... 22

City of Richmond v. Croson, 488 U.S. 469

Ee passim

Civil Rights Cases, 109 U.S. 3 (1883)............... 18, 20, 22

Crandall v. Connecticut, 10 Conn. 339 (1834)............ 24

Dred Scott v. Sandford, 60 U.S. 393 .......c.ccccccceeseeeeeeees 24

Easley v. Cromartie, 532 U.S. 234 (2001) serceccecccssseeee 11

Erlenbaugh v. United States, 409 U.S. 239 (1972)....... 13

Fullilove v. Klutznick, 448 U.S. 448 (1980)............ 21, 22

Hurd v. Hodge, 334 U.S. 24 (1948) ......c-ccccesseeeseneeenenes 12

J. E. B. v. Alabama, 511 U.S. 127 (1994) .........0-00+ 28, 29

Johnson v. Transportation Agency, 480 U.S. 616

(BGG T? .xccscescsicsccsssessccsscssenssvensssinsnnsensebacsssesses 10, 11, 19

Jones v. Alfred H. Mayer Co., 392 U.S. 409

CB DGBD .cccececessesscnscssccsescessesenssnnssonspessnssssssssonsesese passim

McDaniel v. Barresi, 402 U.S. 39 (1971) ......cccceeeeeeeeee 27

McDonald v. Santa Fe Trail Transportation Co.,

EBT US. Z73 (UGG) ccoccecerccsccessscsccesesessccscsscsscossscsses 19

Miller v. Johnson, 515 U.S. 900 (1995) .......cccceeeeeereees 1]

NAACP v. Lansing Bd. of Educ., 559 F.2d 1042

(Ga Clit. 19777) .accecccccseccceccecescsececccccecscsnsosescssccsbocscoss .26

Oliver v. Michigan State Bd. of Educ., 508 F.2d

178 (Gta Cis. 1974) .2..ccccscesceccsccsccccccccsccscsscsscssonsocsees .26

Palmer v. Thompson, 403 U.S. 217 (1971) ......--e+-seevees 22

Patton v. United States, 281 U.S. 276 (1930) ......-..-++++ 13

Plessy v. Ferguson, 163 U.S. 537 (1896).........-s-000+00+ 7,8

Regents of University of California v. Bakke, 438

UB. BES (1GTE) ccccccocccccscscsssssessccscsescssessesssssssees passim

Runyon v. McCrary, 427 U.S. 160 (1976)............. passim

United Steelworkers v. Weber, 443 U.S. 193

REE See A eRe ee, 10

United Jewish Organizations of Williamsburgh,

Inc. v. Carey, 430 U.S. 144 (1977) .....ccccccccccccesesceee 27

United States v. Paradise, 480 U.S. 149 (1987).............. 9

United States v. School Dist. of Ferndale, 616

EET ce 26

Williams v. City of New Orleans, 729 F.2d 1554

ES ee 22

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

EES Cee oe 10, 20, 27

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ..........ccccccccesee. 7

Constitutional Provision & Statutes

is in, CII, Fitts © B scccictcccnctcccnccscnteccsienscninezetenes 5

Bp ee OF ID cnicccinccceccnsnerisnecscvesnieameuen passim

kN eRe a 15, 16

Other Authorities

A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF

COLOR: RACE AND THE AMERICAN LEGAL

PROCESS--THE COLONIAL PERIOD (1978) .....-.-:++++++ 23

Cong. Globe, 38th Cong., Ist Sess. (1864) ........0000 24, 25

David R. Harris & Justin L. Thomas, THE

EDUCATIONAL COST OF BEING MULTIRACIAL:

EVIDENCE FROM A NATIONAL SURVEY OF

ADOLESCENTS (Univ. of Mich. Population

Studies Center, 2002), available at

http://www. psc.isr.umich.edu/pubs/papers/rr0

Douglas L. Colbert, Challenging the Challenge:

Thirteenth Amendment as a Prohibition

Against the Racial Use of Peremptory

Challenges, 76 CORNELL L. REV. 1, (1990) ........++-. 12

Ed Watch Online: State Summary of Michigan

(2001), available at http://www.edtrust.org ............ 27

ERIC FONER, RECONSTRUCTION, AMERICA’S

UNFINISHED REVOLUTION 1863-1877 (1988)........-. 15

Eric Schnapper, Affirmative Action and the

Legislative History of the Fourteenth

Amendment, 71 VA. L. REV. 753 (1985) .....12, 17, 18

- SO re ew

vi’

GEORGE M. STROUD, A SKETCH OF THE LAWS

RELATING TO SLAVERY IN THE SEVERAL

STATES OF THE UNITED STATES OF AMERICA

RAE SIREN ae Oe A 23

Gratz v. Bollinger, No. 97-75321 (E.D. Mich.) ............ 27

H.R. Exec. Doc. No. 11, 39th Cong., Ist Sess.

Soria ssttenrisieemscscntecsccteitncisiesnshsiaatneds ninaciditnetnomesecaibii 18

JACQUELINE JONES, SOLDIERS OF LIGHT AND

LOVE: NORTHERN TEACHERS AND GEORGIA

BLACKS, 1865-1873 (1980) .o..o..ecccccccccccecceccsceocseeeeee 24

Jed Rubenfeld, Affirmative Action, 107 YALE L.J.

ARERR eS aa 17

JEFFERY R. HENIG, et al., THE COLOK OF SCHOOL

REFORM: RACE, POLITICS, AND THE

CHALLENGE OF URBAN EDUCATION

(Princeton University Press, 1999) .o.0........cccccccsesese. 27

JONATHAN KOZOL, SAVAGE INEQUALITIES:

CHILDREN IN AMERICAN SCHOOLS SS 26

Mary Anne Case, Lessons for the Future of

Affirmative Action from the Past of the

Religion Clauses?, 2000 Sup. Ct. Rev. 325,

EST Ree eh nee 14

THE BLACK-WHITE TEST SCORE GAP

(Christopher Jencks & Meredith Phillips, eds.,

Brookings Institute Press 1998) .0.0........cccccccccceseeseee 27

So Ae ~

INTEREST OF AMICI CURIAE'

The Lawyers” Committee for Civil Rights Under Law

is a tax exempt, nonprofit civil rights legal organization

founded in 1963 by the leaders of the American bar at the

request of President Kennedy, to provide legal representation

to the victims of civil rights violations.. Its members include

former Attorneys General, former Presidents of the

American Bar Association, law school deans and professors,

and many of the nation’s leading lawyers. Over the last forty

years, the Lawyers’ Committee and its independent local

affiliates in Boston, Chicago, Denver, Los Angeles,

Philadelphia, San Antonio, San Francisco, and Washington,

D.C. have represented members of minority groups and

women in hundreds of civil rights cases. Among the

essential interests of the Lawyers’ Committee is the proper

construction and implementation of programs to remedy

racial discrimination and its effects and to ensure that all

members of our society share in its institutions,

opportunities, and benefits.

fhe National Association for the Advancement of

Colored People (“NAACP”), established in 1909, is the

nation’s oldest civil rights organization. It has state and local

affiliates throughout the nation. The fundamental mission of

the NAACP is the advancement and improvement of the

political, educational, social and economic status of minority

groups and the elimination of racial prejudice.

' Pursuant to Rule 37.6, the Amici state that no counsel for any

_ party in this case authored any portion of this brief, and no person other

than the Amici and their counsel have made any monetary contribution to

its preparation or submission. Concurrent with this brief, letters of

consent to its filing have been lodged with the Clerk of the Court under

Rule 37.3.

The Minority Business Enterprise Legal Defense and

Education Fund, Inc. (“MBELDEF”) is a_ nonprofit

corporation founded in 1980 by former Maryland

Congressman Parren J. Mitchell. The primary purpose of

MBELDEF is to promote legally defensible minority

business opportunity programs that ensure the fair and

equitable participation of minority businesses in the

marketplace. As part of its mission, MBELDEF encourages

affirmative action initiatives designed to assist minority

entrepreneurs in the marketplace.

The National Women’s Law Center (“NWLC”) is a

non-profit legal advocacy organization dedicated since 1972

to the advancement and protection of women’s legal rights

and the corresponding elimination of sex discrimination from

all facets of American life. Since 1972, NWLC has worked

to secure equal opportunity in education for girls and women

through full enforcement of the Constitution and laws

prohibiting discrimination. It has a deep and abiding interest

in assuring the continued vitality of affirmation action

programs and policies that open the doors of opportunity for

minorities and women.

The National Partnership for Women & Families, a

non-profit, national advocacy organization founded in 1971

as the Women’s Legal Defense Fund, promotes equal

opportunity for women, quality health care, and policies that

help women and men meet both work and family

responsibilities. _ The National Partnership has devoted

significant resources to combating sex and race

discrimination in education and employment, and advancing

women’s opportunities in education, employment, and other

aspects of American life.

The Coalition of Bar Associations of Color

(“CBAC”) consists of the National Bar Association, the

Hispanic National Bar Association, the National Asian

Pacific American Bar Association, and the Native American

Bar Association. CBAC advances the common interests of

these bar associations through joint resolutions, actions, and

meetings. Through these actions, CBAC reflects the unity of

these bar associations in responding to issues concerning

lawyers of color.

Sigma Pi Phi Fraternity is a non-profit organization

of college- and university-educated professional men

dedicated to the uplift of the African American community

through local and national social action programs,

concentrated heavily in the area of education, and focusing

on mentoring and providing scholarships for economically

disadvantaged minority youth. Founded in 1904, Sigma Pi

Phi is the oldest predominantly African American Greek-

letter fraternity, with 110 member boulés (local chapters)

nationwide. Its mission is to gather together men of good

training, intelligence and culture for the good of themselves

and the community and “by concerted action bring about

those things that seem best for all that cannot be

accomplished by individual efforts.” Sigma Pi Phi has

adopted a policy position in support of preserving

affirmation action in order to assure equal opportunity in

S Y OF NT

_ The question presented in the Petition asks whether

the University of Michigan’s undergraduate admissions

program is unlawful under 42 U.S.C. § 1981. This statute

codifies a provision of the 1866 Civil Rights Act enacted

pursuant to the Thirteenth Amendment. Section 1981 does

not foreclose the University's remedial consideration of race

but indeed supports it.

Amici submit that the inclusion of race, as one factor

among a number of factors, in determining admissions from

among qualified applicants to the University’s undergraduate

programs is constitutionally justified by two distinct

compelling interests. The first is the remedial interest of

eliminating the “badges and incidents of slavery,”

particularly with respect to educational opportunity. The

second compelling interest is in achieving diversity in

institutions of higher education. The first of these interests is

firmly grounded in the Thirteenth Amendment and the

articulation of its purpose and intent in contemporary

provisions of the 1866 Civil Rights Act. The second interest

is informed by this Amendment and statute. In addition, the

Thirteenth Amendment and the contemporaneous legislation

implementing its commands not only complement, but

modify, precedent developed under the Fourteenth

Amendment. The Thirteenth Amendment provides a related,

but different, remedial justification for the permissible

consideration of race. It reinforces the historical moorings

and purposes of the Fourteenth Amendment, requiring

greater elasticity in its appropriate application.”

Slavery and subsequent, state-imposed segregation

were part of a system depriving African Americans of

educational opportunities. The University should be allowed

to address voluntarily the continuing effects of that

deprivation, through remedial measures and a pursuit of

diversity informed by history.

2 Although the University has not advanced a remedial

justification for its program, instead confining itself to the interest in

diversity articulated by Justice Péwell in Bakke, the Intervenors have

asserted a remedial basis. And the evidence demonstrating racial

disparities in the application of the University’s criteria for admissions,

and in the education offered to young African Americans and other racial

minorities in Michigan and the nation, supports the remedial interest

addressed in this brief.

ARGUMENT

THE THIRTEENTH AMENDMENT AND THE 1866

CIVIL RIGHTS ACT PROVIDE A COMPELLING

REMEDIAL INTEREST AND INFORM A DIVERSITY

INTEREST.’

A. This Court's Compelling Remedial Interest Has

Sha Consideration of Th

Fou A t.

This Court’s decision in Regents of University of

California v. Bakke, 438 U.S. 265 (1978), contained two

distinct perspectives on the constitutionally permissible use

of race in university admissions.* On the one hand, Justice

Powell found “the attainment of a diverse student body” to

be “clearly [ ] a constitutionally permissible goal for an

institution of higher education,” id. at 311-12, and, that “{i]n

enjoining petitioner from ever considering the race of any

applicant ... the courts below failed to recognize that the

State has a substantial interest that legitimately may be

served by a properly devised admissions program involving

the competitive consideration of race and ethnic origin.” /d.

at 320. On the other hand, Justices, Brennan, White,

Marshall, and Blackmun joined Justice Powell in approving

3 ,

The Thirteenth Amendment provides, in pertinent part:

Neither slavery nor involuntary servitude, except as a punishment for

pene tener f the party shall have been duly convicted, shall exist within

nited States or any place subject to their jurisdiction. U.S. Const.

amend. XIII, § 1.

* Only five Justices participated in the discussion of the

Fourteenth Amendment, because four Justices confined their views

solely to the interpretation of Title V1 of the Civil Rights Act of 1964.

eT ee een eS

in part).

the competitive consideration of race to achieve diversity, “at

least so long as the use of race to achieve an integrated

student body is necessitated by the lingering effects of past

discrimination.” /d. at 326 n.1.

All of these Justices agreed that it was

constitutionally permissible to consider race to remedy

discrimination. They differed with respect to whether the

plan at issue satisfied scrutiny under the Fourteenth

Amendment on the basis of its remedial purpose. Justice

Powell distinguished the permissible use of race, where

judicial, legislative or administrative findings of

discrimination have been made, from impermissible use for

the purpose of “remedying [ Jthe effects of ‘societal

discrimination.” Jd. at 307. He viewed societal

discrimination as “an amorphous concept of injury that may

be ageless in its reach into the past.” Jd. The remaining

Justices concluded that

[The] articulated purpose of remedying the

effects of past societal discrimination is, under

our cases, sfficiently important to justify the

use of race-conscious admissions programs

where there is a sound basis for concluding that

minority underrepresentation is substantial and

chronic, and that the handicap of past

discrimination is impeding access of minorities

to the [s]chool.

Id. at 362.

The difference in views, between the justices

reaching the constitutional issue, is largely traceable to

differing constructions of the Equal Protection Clause of the

Fourteenth Amendment. Justice Powell recognized that

“(t]he Court's initial view of the Fourteenth Amendment was

that its ‘one pervading purpose’ was ‘the freedoin of the

slave race, the security and firm establishment of that

eee

freedom, and the protection of the newly-made freeman and

citizen from the oppressions of those who had formerly

exercised dominion over him.” /d. at 291. He also

recognized that “[t}he Equal Protection Clause . . . was

‘[virtually) strangled in infancy by post-civil-war judicial

reactionism, ™ ge gn to decades of relative

desuetude, during its “‘one pervading purpose’ was

displaced,” referring to Plessy v. Ferguson, 163 U.S. 537

(1896). Id. (citations and footnotes omitted). However,

when “the Equal Protection Clause [again] began to attain a

genuine measure of vitality,” Justice Powell opined that “it

was no longer possible to peg the guarantees of the

Fourteenth Amendment to the struggle for equality of one

racial minority.” Jd. at 292. Thus, Justice Powell concluded

that “[tJhe guarantees of equal protection ‘are universal in

their application, to all persons within the territorial

jurisdiction, without regard to any differences of race, of

color, or of nationality; and the equal protection of the laws

is a pledge of the protection of equal laws.’" Jd. at 292-93

(quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)).

Justice Powell’s views did not include consideration of

legislative authority under either the Thirteenth or Fourteenth

Amendments. /d. at 302 n.41.

In his powerful but angry, concurring opinion in

Bakke, Justice Marshall disagreed with broader or

“universal” construction of the Equal Protection Clause, to

the extent that the construction might be interpreted to

prohibit considering race . remedy the effects of

' j Marshall's opinion | looki

back at slavery. ”

Three hundred and fifty years ago, the Negro

was dragged to this country in chains to be sold

into slavery. Uprooted from his homeland and

thrust into bondage for forced labor, the slave

was deprived of all legal rights. It was unlawful

to teach him to read; he could be sold away

from his family and friends at the whim of his

master; and killing him or maiming him was not

a crime. The system of slavery brutalized and

dehumanized both master and slave.

Id. at 387-88 (Marshall, J.) The opinion then traced the

continuing legally ests?:\.shed and enforced deprivations of

African Americans, 2% the Court’s complicity in that

enterprise through interpretations of the Fourteenth

Amendment, see id. at 390-94. He concluded, "The position

of the Negro today in America is the tragic but inevitable

consequence of centuries of unequal treatment. Measured by

any benchmark of comfort or achievement, meaningful

equality remains a distant dream for the Negro." Id. at 395.

After reviewing existing precedent, he concluded that there

was “ample support for the conclusion that a university can

employ race-conscious measures to remedy past societal

discrimination.” Jd. at 400.

Similarly, the joint opinion authored by Justice

Brennan traced the tragic history of Fourteenth Amendment

interpretation, including the fact that it was “early turned

against those whom it was intended to set free.” Jd. at 326-

27.

In Justice Powell’s view, although the original

purpose of the Equal Protection Clause had been strangled

by “judicial reactionism” and that original purpose was then

“displaced” by Plessy, when it was later resuscitated it could

no longer serve as a basis for remedying the particular

injuries to African Americans caused by centuries of

subjugation. In contrast, the four concurring Justices felt that

this construction failed to take into account the “moorings”

of the Fourteenth Amendment as reflected in Brown v. Board

of Education, 347 U.S. 483 (1954), and its progeny. /d. at

405. As Justice Blackmun put it:

This enlargement [of the Fourteenth

Amendment] does not mean for me, however,

that the Fourteenth Amendment has broken

away from its moorings and its original intended

purposes. Those original aims persist. And

ce ER caaat, ts whet “ulliemative

action, & of proper facts, is all about.

If this conflicts with idealistic equality, that

tension is original Fourteenth Amendment

constitutionally imposed, and it is part of the

dment's very nature until complete

equality is achieved in the area. In this sense,

constitutional equal protection is a shield.

Id. at 405 (Blackmun, J.).

In cases since Bakke, the Court repeat has held

thatthe Fourteenth Amendment permits the consigeration of

race under strict scrutiny. Use of race must be supported by

a compelling interest and narrowly tailored’ to achieve that

interest. City of Richmond v. Croson, 488 U.S. 469, 491-92

(1989); id. at 518 (Kennedy, J., concurring). See also

Adarand Constructors Inc. v. Pena, 515 U.S. 200 227

(1995). The Court has emphasized that strict scrutiny is not

a veiled prohibition, and has pointed to instances in which

that scrutiny has been satisfied. Adarand, 515 U.S. at 237

(citing United States v. Paradise, 480 U.S. 149, 167 (1987)).

Among the interests recognized as compelling is the

objective, and at times, the obligation, to remedy

discrimination. See, e.g., Croson, 488 U.S. at 518 (Kennedy,

J., concurring) (“the State has the power to eradicate racial

discrimination and its effects in both the public and private

sectors, and the absolute duty to do so where those wrongs

were caused intentionally by the State itself.”). See also

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986)

(O’Connor, J., concurring) (“remedying past or present racial

discrimination by a state actor is a sufficiently weighty state

interest to warrant the remedial use of a carefully constructed

affirmative action program.”); Adarand, 515 U.S. at 237; of

Johnson v. Transp. Agency, 480 U.S. 616, 634 (1987).

The Court also has held that local, state and federal

authorities may remedy past and present, public and private

discrimination without an established constitutional or

statutory violation, when acting on a firm basis in evidence

that a remedy is needed. Croson, 488 U.S. at 491-92, 499-

501. See also Wygant, 476 U.S. at 277; id. at 292-93

(O’Connor, J., concurring). That firm basis is supplied by

evidence of a manifest imbalance or an under-representation

of members of a particular race, compared to an

appropriately qualified population, participating in or

benefiting from an activity. Johnson, 480 U.S. at 631-32

(citing, among other cases, United Steelworkers v. Weber,

443 U.S. 193 (1979)). See also Croson, 488 U.S. at 501-02.

When these requisites are met and the use of race is narrowly

tailored to achieve the remedial end, consideration of race is

constitutionally permissible under the Fourteenth

Amendment.®

* In other circumstances, consideration of race as one factor in

the decision-making has been held to be constitutionally permissible, in

the absence of strict scrutiny, when other traditionally relevant factors are

also considered and followed. Race, m certain circumstances, simply

cannot be the predominant factor in decision-making. See e.g, Bush v.

Vera, 517 U.S. 952, 958 (1996) (“Strict scrutiny does not apply merely

because redistricting is performed with consciousness of race.”). See

(Footnote continued)

Although general “societal discrimination” and other

proffered justifications have been held not compelling, see,

e.g., id. at 276 (rejecting a “role model” theory), the Court

has never attempted exhaustively to define or catalogue all of

the interests and purposes that might be found compelling.

Id. at 286 (O’Connor, J., concurring) (“certainly nothing the

Court has said today necessarily forecloses the possibility

that the Court will find other governmentai interests...

sufficiently ‘important’ or ‘compelling’ to sustain the use of

affirmative action policies.”’).

The precise contours of “strict scrutiny” review

remain open, and the Court has emphasized that this scrutiny

is strict but not necessarily fatal:

Indeed, the Court's very recognition today that

strict scrutiny can be compatible with the

survival of a classification so reviewed

demonstrates that our concepts of equal

protection enjoy a greater elasticity than the

standard categories might suggest. See ante, at

237 ("We wish to dispel the notion that strict

scrutiny is ‘strict in theory, but fatal in fact.’

Fullilove, supra, at 519 (Marshall, J., concurring

in judgment)"); see also Missouri v. Jenkins,

ante, at 112 (O'Connor, J., concurring) ("But it

is not true that strict scrutiny is ‘strict in theory,

but fatal in fact."").

Adarand, 515 U.S. at 268 (Souter, J., dissenting).

The Court's post-Bakke exploration of the permissible

extent of the constitutional consideration of race, Amici

suggest, lacks a complete exposition of the historical

also, Easley v. Cromartie, 532 U.S. 234, 242 (2001); Miller v. Johnson,

515 U.S. 900, 917 (1995); cf Johnson, 480 U.S. at 638 (gender).

moorings of the Thirteenth and Fourteenth Amendments. A

university's voluntary adoption of a plan that not only seeks

to obtain critical diversity, but also serves to remedy the

present effects of racial discrimination fairly characterized

as “badges and incidents of slavery” is compelling. Any

scrutiny of voluntary practices that serve to remedy the

historical effects of invidious racial classifications that does

not read the Equal Protection Clause in its historical context,

denies the original intent of the first two Reconstruction

Amendments. Such uninformed reading, then, would strip

this nation of its constitutional history regarding race.

B. The Fourteenth Amendment Must Be Read Jn

Pari Materia With The Thirteenth Amendment

and the Civil Rights Act of 1866.

The Civil Rights Act of 1866 inextricably

intertwines, the Thirteenth Amendment and the Fourteenth

Amendment.’ Going to first principles of statutory

construction, the Thirteenth Amendment, and the Civil

’ The Congressional record establishes that the Thirteenth

Amendment provided the foundation for Section 1 of the Fourteenth

Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment

as a Prohibition Against the Racial Use of Peremptory Challenges, 76

CORNELL L. REV. 1, 48 n.227 (1990). Soon after the Civil Rights Act of

1866 (now 42 U.S.C. § 1981) was passed, its proponents felt the need to

protect it with a new constitutional amendment. /d. at 47-48; Eric

Schnapper, Affirmative Action and the Legislative History of the

Fourteenth Amendment, 71 Va. L. REV. 753, 771 (1985). Language for

what became Section | of the Fourteenth Amendment was introduced

only three weeks after Congress had overridden President Johnson's veto

of that Act. Colbert, 76 supra at 48 n.227; see also Jones v. Alfred H.

Mayer Co., 392 U.S. 409, 436 (1968) ("It is quite true that some

members of Congress supported the Fourteenth Amendment ‘in order to

eliminate doubt as to the constitutional validity of the Civil Rights Act as

applied to the States.” (quoting Hurd v. Hodge, 334 US. 24, 32-33

(1948)).

Rights Act of 1866 must be read in pari materia with the

Equal Protection Clause.’ Reading them together guards

against the concern that the Fourteenth Amendment might

again be “broken away from its moorings and its original

intended purposes.” Bakke, 438 U.S. at 404-05 (Blackmun,

J.). The Thirteenth Amendment and its implementing

legislation remains vital and, tragically, necessary. Both the

purposes and force of these measures distinguish

discrimination and its effects traceable as badges and

incidents of slavery from a “claim to a history of prior

discrimination” asserted by “various minority groups” within

“the white ‘majority.”” See id. at 295 (Powell, J.); Croson,

488 U.S. at 505-06.

To the extent that the Thirteenth Amendment’s

purpose to eliminate the badges and incidents of slavery

increases the tension between the Fourteenth Amendment’s

remedial purpose that can require consideration of race, and

the so-called “broader” purpose of achieving equality

without reference to race, Justice Blackmun identified this as

original Fourteenth Amendment tension, constitutionally

conceived and constitutionally imposed, and it is part of the

Amendment's very nature until complete equality is achieved

in this area." Bakke, 438 U.S. at 405 (Blackmun, J.). The

increased weight of the commands of the Thirteenth

Amendment to remedy the continuing effects of slavery

Suggests a principled constitutional basis for greater

“elasticity” in the application of strict scrutiny review.’

* See, e.g., Erlenbaugh v. United States, 409 U.S. 239, 243-44

(1972); cf. Patton v. United States, 281 U.S. 276, 298 (1930) ("The first

contemporaneous should be construed in pari materia. So construed,

the latter provision fairly may be as ing the i

mn — regarded as reflecting meaning of

* In many respects, the tensions of which Justice Blackmun

wrote are analogous and require treatment similar to tensions inherent in

. (Footnote continued)

Reference to the Thirteenth Amendment and the Civil Rights

Act of 1866 also clearly establishes a “principled distinction”

between historically-linked incidents and consequences of

race-based discrimination traceable to slavery that “merit

‘heightened judicial solicitude’”’ from other claims of

“prejudice and consequent harm,” and the concept of general

"societal discrimination." See Bakke, 438 U.S. at 296-97

(Powell, J.).

The Equal Protection Clause should inform, but not

limit, analysis of the permissible consideration of race

pursuant to the Thirteenth Amendment. Because the

Fourteenth was promulgated, in large part, to give effect to

the Thirteenth, the Fourteenth Amendment must be

interpreted and applied to accommodate -- and not obstruct --

the purposes of the Thirteenth Amendment.

other words of the Constitution. See, e.g., Mary Anne Case, Lessons for

the Future of Affirmative Action from the Fast of the Religion Clauses?,

2000 Sup. Ct. Rev. 325, 329 (2001) (“the Equal Protection Clause itself

may demand [race-conscious state action] in part because the Thirteenth

and Fifteenth Amendments are like the Free Exercise Clause—

counterweights to the presumption against state use of race or religion.”).

'° The Thirteenth and Fourteenth Amendments, of course, were

intended to overcome the paradox between the “self-evident” truth of the

Deciaration of Independence and the "three fifths” clause of Article I,

Section 2 of the Constitution.

C. The Elimina ted With

“Badges and _ Incidents __ of Slavery” Is_a

Compelling _Interest_Under The Thirteenth

Amendment.

1. The remedial purposes and authority of the

Thirteenth Amendment and the 1866 Civil

Rights Acts.

The Civil Rights Act of 1866 is expressly race-

conscious. It was enacted under the authority, and gave

expression to the purpose and aims, of the Thirteenth

Amendment. See, e.g., ERIC FONER, RECONSTRUCTION,

AMERICA’S UNFINISHED REVOLUTION 1863-1877 244 (1988)

(“In consuitutional terms, the Civil Rights bill represented the

first attempt to give meaning to the Thirteenth Amendment,

to define in legislative terms the essence of freedom.”). In

fact, it was enacted over the veto of President Johnson. /d. at

251. Its clear langdage demonstrates its focus on race. The

Act establishes, as the benchmark of equality, the

classification of rights enjoyed by “white citizens.”"' Thus,

the statute explicitly contemplates race-conscious

comparisons and remedies aimed at bringing former slaves

to the advantaged position enjoyed by “white citizens,” not

only in law, but in fact.

In holding the Civil Rights Act of 1866 constitutional

under the Thirteenth Amendment, the Court in Jones v.

Alfred H. Mayer Co., 392 U.S. 409, 438 (1968), noted that

"the revolutionary implications of so literal a reading of

"' The applicable provision of the Act states: [all persons

within the jurisdiction of the United States shall have the same right . . .

to make and enforce contracts . . . as is enjoyed by white citizens ..." 42

U.S.C. § 1981(a) (1994) (emphasis added); see also 42 U.S.C. § 1982

(1994) (providing that all citizens have the same right "as is enjoyed by

white citizens” to purchase and sell propertv).

§ 1982," as to reach private conduct, were exactly what

Congress had intended. Jd. at 422. In exploring the

congressional debates, the Court found that "[i]n the House,

as in the Senate, much was said about eliminating the

infamous Black Codes. But, like the Senate, the House was

moved by a larger objective -- that of giving real content to

the freedom guaranteed by the Thirteenth Amendment." /d.

at 433.

In Jones, this Court held that § 1982 bars all racial

discrimination, private or public, in the sale or rental of

property, as a measure to enforce the Thirteenth

Amendment. Jd. at 413. In reaching this holding, the Court

looked to the “crucial language” of § 1981, guaranteeing to

all citizens: “the same right, in every State and Territory in

the United States, . . . to inherit, purchase, lease, sell, hold,

and convey real and personal property . . . as is enjoyed by

white citizens ....” Id. at 423 (emphasis added). After

expressly considering and rejecting the question whether 4

subsequent act narrowed the original intent of the Civil

Rights Act of 1866, see id. at 416 n.20, the Court examined

the statute’s language, concluding that it “meant exactly

what it said.” Jd. at 421-22. Thus, the Court expressly

rejected any prior restrictive reading of the Act. See id. at

441 n.78. As Justice Powell would later suggest, the Court

did not merely drift, almost accidentally, into this broad

interpretation, but rather arrived at its conclusion

deliberately. Runyon v. McCrary, 427 U.S. 160, 186 n.*

(1976) (Powell, J., concurring).'” :

2 As Senator Trumbull explained: “This measure is intended to

give effect to [the Thirteenth Amendment] and secure ... practical

freedom. There is very little importance in the general declaration of

abstract truths and principles unless they can be carried into effect, unless

the persons who are to be affected by them have some means of availing

themselves of their benefits.” Jones, 392 U.S. at 431-32.

Moreover, the Court also held, that the subsequent

adoption of the Fourteenth Amendment did not limit its

scope:

[I]t certainly does not follow that the adoption

of the Fourteenth Amendment or the subsequent

readoption of the Civil Rights Act were [sic]

meant somehow to limit its application to state

action. The legislative history furnishes not the

slightest factual basis for any such speculation,

and the conditions prevailing in 1870 make‘it

highly implausible.

Jones, 392 U.S. at 436.

Contemporaneous with this Civil Rights Act, the

Reconstruction Congress enacted several race-conscious

initiatives, for example, the Freedmen's Bureau Acts of 1865

and 1866. These acts permitted the Bureau to focus its

efforts almost exclusively on freedmen. See generally Eric

Schnapper, supra note 7, at 760-75; see also id. at 754

("From the closing days of the Civil War until the end of

civilian Reconstruction some five years later, Congress

adopted a series of social welfare programs whose benefits

were expressly limited to blacks."); Jed Rubenfeld,

Affirmative Action, 107 YALE L.J. 427, 430-31 (1997)

(describing various statutes passed in the same era that were

aimed at benefiting solely African Americans).'> Among

these efforts, education was recognized as fundamental. As

observed by the first commissioner of the Freedmen's

Bureau, General Oliver O. Howard: "Education is absolutely

essential to the freedmen to fit them for their new duties and

“special treatment” for African Americans. See Bakke, 438 U.S. at 397-

98; Schnapper, supra note 7, at 773-74.

responsibilities .... Yet 1 believe the majority of the white

people to be utterly opposed to educating the negroes."

Schnapper, supra note 7, at 761 n.47 (citing H.R. Exec. Doc.

No. 11, 39th Cong., Ist Sess. 33 (1865)).

2. The Thirteenth Amendment applies with

full force to support Michigan's admissions

program.

In defining its substantive scope, this Court long ago

held that the Thirteenth Amendment permits Congress to

“enact all necessary and proper laws for the obliteration and

prevention of slavery, with all its badges and incidents.”

Civil Rights Cases, 109 U.S. 3, 21 (1883). The Court listed

some of these badges and incidents, noting that

“{c]ompulsory service of the slave for the benefit of the

master, restraint of his movements except by the master’s

will, disability to hold property, to make contracts, to have a

standing in court, to be a witness against a white person, and

such lixe burdens and incapacities were the inseparable

incidents of the institution.” Jd. at 22. More recently, in

Jones, the Court made clear that this list was neither static

nor exclusive, and that Congress may identify remaining

relics of slavery and enact appropriate laws to remove them:

“Surely Congress has the power under the Thirteenth

Amendment rationally to determine what are the badges and

incidents of slavery, and the authority to translate that

determination into effective legislation.” 392 U.S. at 440.

Citing Jones; the Court has since upheld the use of

42 U.S.C. § 1981, which provides a civil remedy for racial

discrimination in the making and enforcement of private

contacts, in cases involving private discrimination in

providing education. See Runyon v. McCrary, 427 U.S. 160,

169 (1976). In Runyon, this Court expressly held that 42

. U.S.C. § 1981 properly prohibits racial discrimination in

public and private schooling, id. at 172, in furtherance of the

interests of the Thirteenth Amendment, even over claims that

ee SE — ee

the prohibition infringed on other constitutionally protected

rights. Id. at 175-79. Such rulings make clear that certain

forms of discrimination can constitute badges and incidents

of slavery.

The same day the Court decided Runyon, it also

decided McDonald v. Santa Fe Trail Transportation Co.,

427 U.S. 273 (1976), in which the Court construed § 1981 to

provide a cause of action to whites for claims of racial

discrimination. After reviewing the legislative history,

Justice Marshall, writing for the Court, concluded that

Section 1981 should be read to include a “broader principle,”

1.€., to protect all races from racial discrimination. /d. at

295-96. Of course, the existence of such a broader principle

does not obscure or remove the affirmatively remedial

purpose and capacity of the Act, as the Court expressly noted

that “the immediate impetus for the bill was the necessity for

further relief of the constitutionally emancipated former

Negro slaves.” Jd. at 289."

While Jones dealt with Congress’ authority to

eradicate the badges and incidents of slavery on a national

Scope, the opinion anticipates approval of state actions

furthering that goal.'° Indeed, it is not subject to serious

4 ons

Thus, Petitioners are mistaken in arguing that McDonald

forecloses the remedial consideration of race. See Petitioners’ Brief at

49. First, the Court in McDonald expressly does not consider the

statute's effect on affirmative action programs. McDonald, 427 U.S. at

rae lb age the "broader principle” for which McDonald has been

since given way to strict scrutiny approval of narrowly tailored,

raced-based remedies. See Bakke, 438 U.S. at 405 (Blackmun, J.,

concurring). As Justice Stevens noted, “Neither the ‘same standards’

language used in McDonald, nor the ‘color blind’ rhetoric used by the

Senators and Congressmen who enacted [Title VII], is now controlling.”

Johnson, 480 U.S. at 644 (Stevens, J., concurring).

Compare Jones, 392 U.S. at 430 n.48 (quoting Senator

Trumbull as stating thet it was “for Congress to determine, and nobody

(Footnote continued)

debate that states can advance these compelling interests by

acting to eradicate or remedy the badges of inferiority. See,

~ eg., Croson, 488 U.S. at 518 (Kennedy, J., concurring); see

also Wygant, 476 U.S. at 286 (O’Connor, J., concurring);

Adarand, 515 U.S. at 237."°

In light of its express language, its revolutionary

purpose, its broad remedial interpretation, and

contemporaneous race-conscious legislative measures, the

Civil Rights Acts of 1866 supports reasonably tailored

affirmative action programs designed to remedy race-based

educational deprivation of African Americans that can be

historically linked to badges of servitude and inferiority.

)

else,” what legislation was appropriate) with Jones, id. at 43

(stating that "Senator Trumbull later observed that his bill would add

nothing to federal authority if the States would fully ‘perform their

constitutional obligations.”). See also id. at 422 n.29 (reading the

legislative history to clarify that the 1866 statute had supremacy "over

inconsistent state or local laws").

upheld against a First Amendment challenge a state's "compelling

interest in eradicating discrimination against its female citizens... .”

468 U.S. 609, 623 (1984). See also Board of Directors of Rotary Int'l v.

Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (holding state civil

rights act advanced compelling interest in eliminating discrimination

against women). The state statute in Roberts, the Court recognized, was

an example of laws adopted by states “beginning a decade before

enactment of their federal counterpart, the Civil Rights Act of 1875.”

468 U.S. at 624. The Court recognized that while the federal statute had

been struck down in the Civil Rights Cases, the Court there had

emphasized the states’ ability to enact such laws. /d. Furthermore, "(a)

state enjoys broad authority to create rights of public access on behalf of

its citizens." Jd. at 625 (citation omitted). See also Balsbaugh v.

Rowland, 290 A.2d 85, 92 n.9 (Pa. 1972) (citing both the Thirteenth and

Fourteenth Amendments in upholding a school board plan correcting

racial imbalances in the district, even where there was no history of de

jure segregation).

3. Ameliorating badges and incidents of

slavery is a distinct compelling interest

under the Thirteenth Amendment.

A reading of the Thirteenth Amendment and the Civil

Rights Act of 1866 to establish a compelling interest for

race-conscious action is consistent with Justice Powell’s

concurrence in Fidlilove v. Klutznick, 448 U.S. 448, 509-10

(1980), where he expressly addressed the first two Civil War

Amendments in the context of strict scrutiny. There, he

approved race-conscious contracting goals under “the

analysis set forth [in his] opinion in” Bakke, finding that the

congressionally-chosen remedy “serve[d] the compelling

governmental interest in eradicating the continuing effects of

past discrimination identified by Congress.” Jd. at 496. He

observed “that a Court must accept as established the

conclusion that purposeful discrimination contributed

significantly to the small percentage of federal contracting

funds that minority business enterprises have received.” /d.

at 506. Thus, Justice Powell concluded that the program

challenged in Fullilove was “designed to serve the

compelling governmental interest in redressing racial

discrimination” and that “this Court has not required

remedial plans to be limited to the least restrictive means of

implementation.” Jd. at 508. Relying on both the Thirteenth

and Fourteenth Amendments (in pari materia), he found:

[T]he Enforcement Clauses of the Thirteenth

and Fourteenth Amendments confer upon

Congress the authority to select reasonable

remedies to advance the compelling state

interest in repairing the effects of

discrimination. But -that authority must be

exercised in a manner that does not erode the

guarantees of these Amendments.

Id. at 510 (emphasis added).

Similarly, following this Court’s lead in Jones, Judge

John Minor Wisdom, writing for five other judges, also

concluded that the Thirteenth Amendment’s compelling

interest in eradicating the badges and incidents of slavery

justified “affirmative race-conscious relief.” Williams v. City

of New Orleans, 729 F.2d cone Sherer ces bene rt

isdom, J., concurring in part and di ing in .

chorough discussion of the history of the Thirteenth

Amendment, Judge Wisdom stated that “[t]he first Justice

Harlan, in his famous dissent [in The Civil Rights Cases],

rejected the restrictive interpretation adopted by the majority.

He reasoned that badges of slavery encompassed all

practices that continued to label blacks as inferior because of

their race.” Jd. at 1578. Judge Wisdom then noted that

“(uJnder the Jones v. Mayer rationale, current forms of racial

discrimination are badges of slavery that may be proscribed

under the thirteenth amendment if they are historically linked

with slavery or involuntary servitude.” Id. at 1579 (emphasis

added).

Judge Wisdom, thereby, effectively ons

ling interest prong of the strict scrutiny review

aa a cemiies Gee tp eres a oe an

made historically with Thirteenth Amendment badges and

incidents of slavery.'’ Where the State acts to remedy what

are fairly identified as the invidious consequences of

Thirteenth Amendment badges and incidents, such a purpose

properly is recognized as compelling. See Fullilove, 448

U.S. at 508; Runyon, 427 U.S. at 169.

451 U.S. 100 (1981).

Voluntary race-conscious admission programs

designed to increase diversity in higher education and with

the effect of ameliorating the continuing deprivations of the

legacy of slavery clearly comport with the history and

purposes embedded in the Thirteenth Amendment and its

legislative progeny. Furthermore, such programs are in

harmony with the constitutional history of this Court since

Brown. See Bakke, 438 U.S. at 407-08 (Blackmun, J.).

Given the particular moorings of the Thirteenth Amendment

and the Civil Rights Act of 1866, the Fourteenth Amendment

must accommodate such voluntary affirmative programs.

Where qualified minority students have historically and

manifestly been kept out of the classroom, a race-conscious

response is constitutionally permissible.

4. Race-based educational deprivations

suggesting intellectual inferiority are

“badges and incidents” of slavery the

University permissibly addresses.

Educational deprivation and forced intellectual

suppression were, and continue to be, a direct and significant

badge and incident of American slavery. For example, under

the 1755 slave code in Georgia, the penalty for teaching a

slave to read or write was fifteen pounds sterling. A. LEON

HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND

THE AMERICAN LEGAL PROCESS--THE COLONIAL PERIOD 258

(1978). Many slave-holding states’ laws against education

covered not only ensiaved African Americans, but free

“persons of colour” as well. For example, an Alabama law

required that “[aJny person who shall attempt to teach any

free person of colour or slave to spell, read or write, shall

upon conviction, . . . be fined in a sum not less than $250 nor

more than $500,” GEORGE M. STROUD, A SKETCH OF THE

LAWS RELATING TO SLAVERY IN THE SEVERAL STATES OF

THE UNITED STATES OF AMERICA 142 (2d ed. 1856). As one

Reconstruction scholar has observed, to many whites,

educating African Americans “symbolized the breakdown of

a social system that had formed the comerstone of the

southern ‘way of life.”” JACQUELINE JONES, SOLDIERS OF

LIGHT AND LOVE: NORTHERN TEACHERS AND GEORGIA

BLACKS, 1865-1873 50 (1980).

Nor were prohibitions on the education of African

Americans confined to the South. This Court’s decision in

Dred Scott v. Sandford, 60 U.S. 393 (1856), cites to

examples of state laws that reinforced “the same opinions

and principles” of African American inferiority, including

state criminal ions for teaching African American

children to read and write. Jd. at 413-15 (citing Crandall v.

Connecticut, 10 Conn. 339 (1834) (upholding the criminal

conviction of Prudence Crandall under a Connecticut law

that prohibited teaching nonresident African American

children)).

gressional supporters of the Thirteenth

pom. -- the overwhelming majority of whom also

passed the Fourteenth Amendment — were fully cognizant of

these laws and viewed the educational deprivation of African

Americans as a badge or incident of slavery. As

Congressman Morris of New York observed, “[a]n entire

race has been deprived of all social rank, barred our schools,

shut out from the gospel, and then held to be inferior for not

rising in spite of their henderances [sic].” Cong. Globe, 38th

Cong., Ist Sess. 2615 (1864). Similarly, Senator Wilson of

Massachusetts stated, in arguing for passage of the

Amendment:

Then, sir, when this amendment to the

Constitution shall be consummated the shackle

will fall from the limbs of the hapless bondman,

and the lash drop from the weary hand of the

taskmaster. . and the school-house will rise to

enlighten the darkened intellect of a race

imbruted by long years of enforced ignorance.

Cong. Globe, 38th Cong., ist Sess. 1324 (1864).

The Amendment’s supporters understood that slavery

was institutionally supported, deeply rooted, and systemic --

that it was enforced by a system of laws that denied African

Americans the privileges and immunities of citizenship that

“belonged to every free citizen, high or low, rich or poor.”

Cong. Globe, 38th Cong., Ist Sess. 1319 (statement of Sen.

Wilson). lowa Senator James Harlan defined “some of the

necessary incidents of slavery which it was the specific

object of the amendment to abolish,” as including “the

perpetuity of the ignorance of its victims.” Jd. at 1439.

Concurring in Jones, Justice Douglas described the

pernicious effects of slavery on white persons, as well as its

continuing effects:

The true curse of slavery is not what it did to the

black man, but what it has done to the white

man. For the existence of the institution

produced the notion that the white man was of

superior character, intelligence, and morality.

The blacks were little more than livestock—to

be fed and fattened for the economic benefits

they could bestow through their labors, and to

be subjected to authority, often with cruelty, to

make clear who was master and who slave.

Some badges of slavery remain today. While

the institution has been outlawed, it has

remained in the minds and hearts of many white

men.

392 U.S. at 445 (emphasis added). In words that continue to

resonate today, Justice Douglas lamented that “the black{s]

[are] protected by a host of civil rights laws. But the forces

of discrimination are still strong.” Jd. at 447.

Brown and its continuing progeny make clear that the

Civil War Amendments have not yet achieved their goal, and

the subjugation of African Americans through educational

deprivation is not an unpleasant relic of the 1800’s, but -

rather an unremitting and contemporary badge and incident

of that past.'* In words that ring as true today as they did in

1978, one Michigan federal district judge wrote, “we observe

a generation of children being injured by an admittedly

segregated school situation, another generation receiving

inferior educations and being deprived of the technical and

intellectual skills that will enable them upon graduation to

perform - in significant positions competently and

confidently.” Berry v. School Dist. of Benton Harbor, 467 F.

Supp. 721, 732-33 (W.D. Mich. 1978). An all-too evident —

truth about this nation’s educational systems is that the Civil

War Amendments’ promise of equal educational opportunity

has yet to be realized for most students of color.'? This

includes African American students in Michigan who, by the

8 See e.g., Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970);

Berry v. School Dist. of Benton Harbor, 505 F.2d 238 (6th Cir. 1974);

Oliver v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir. 1974);

NAACP v. Lansing Bd. of Educ., 559 F.2d 1042 (6th Cir. 1977); United

States v. School Dist. of Ferndale, 616 F.2d 895 (6th Cir. 1980).

'? For example, half the University’s students derive from

Detroit metropolitan schools, yet 92% of city students are African

American, where schools have been so poorly funded classes must share

books, and in the late 1980s “(o]f an entering ninth grade class of 20,000

...» Only 7,000 graduate from high school, and, of these, only 500@a{d)

preparation to go to college.” JONATHAN KOZOL, SAVAGE INEQUALITIES:

CHILDREN IN AMERICAN SCHOOLS 198 (1992). Such disparities are

traceable to race-based considerations in school funding. For example,

as the former Speaker of the Michigan House of Representatives, made

clear, “[p]eople in affluent [predominantly white,] Farmington ... ‘are

not going to vote for more taxes so the poor black kids in Ypsilanti can

get ... better reading programs.”” Jd. at 199.

time they enter eighth grade, are nearly four years behind

their white peers in math and science.””

The simple and ineluctable fact is that an objective

review of factors considered by the University in making its

admission decisions reveals stark racial disparities.”'

Ultimately, public universities ought not to be barred from

voluntarily adjusting their admissions policies to account for

these contemporary badges and incidents of slavery. See

Wygant, 476 U.S. at 290-91 (O’Connor, J., concurring)

(citing United Jewish Organizations of Williamsburgh, Inc.

v. Carey, 430 U.S. 144, 165-66 (1977), and McDaniel v.

Barresi, 402 U.S. 39 (1971)); see also Bush v. Vera, 517

U.S. 952, 977 (1996); id. at 990, 992, 994 (O’Connor, J.,

e The Education Trust, Ed Watch Online: State Summary of

Michigan (2001), available at http://www.edtrust.org.

7! Present racial disparities exist in each of the factors the

University considers in admissions: standardized exams, Expert Report

of Claude Steele in Gratz v. Bollinger, No. 97-75321 (E.D. Mich.) (citing

THE BLACK-WHITE Test SCORE GaP (Christopher Jencks & Meredith

Phillips, eds., Brookings Institute Press 1998) (racial gap in SAT scores),

David R. Harris & Justin L. Thomas, THE EDUCATIONAL COST OF BEING

MULTIRACIAL: EVIDENCE FROM A NATIONAL SURVEY OF ADOLESCENTS

(Univ. of Mich. Population Studies Center, 2002), available at http://

www. psc.isr.umich.edu/pubs/papers/r02-521 pdf (racial differences in

GPA and difficulty of curriculum) (African Americans are 18.8% of

public school enrollment in Michigan, but only 4.5%, 3.7%, and 2.6% of

students taking the State’s Advanced Placement English Composition,

Calculus, and Biology exams); JEFFERY R. HENIG, et al., THE COLOR OF

SCHOOL REFORM: RACE, POLITICS, AND THE CHALLENGE OF URBAN

EDUCATION 43 (Princeton University Press, 1999) (high school quality)

(“the schools [black] children attended [in Detroit) were often in terrible

physical condition, and their supplies and equipment fell far below

standard.”); Joint Summary of Undisputed Facts (App.106a-118a) at

3482 (geography) (the forty-five northern counties that receive

preferences are overwhelmingly white); Interveners’ Petition for Writ of

Certiorari at 10 (alumni relationships) (African Americans in Michigan

are “less likely to have alumni parents or relatives”).

concurring); id. at 1033-35, 1014 n9 (Stevens, J.,

dissenting).

D. The T nth A t e

ts Act e Univ ,

Compelling Interest in Identifying And Admitting

A Div .

The Respondents and amici associated with higher

education will fully apprise the Court of the academic

interests, benefits, and meaning of diversity in higher

education.. We write here only to suggest that the Thirteenth

Amendment and its implementing legislation inform the

compelling interest in obtaining a diverse student body.

Stated simply, given not only the complex and torturous

history of race in this nation, but the contemporary social,

political, cultural, and economic realities it has shaped, race

is not simply a matter of skin color or features. Race is not

simply a characteristic irrelevant to an individual. It is one

of a number of dimensions of an individual, and many of the

events and factors that shape it, like the institution of slavery

itself, are based on group interaction. Recognition that race

has an influence on the individual, does not suggest an

assumption that individuals of a particular race will be

affected in the same way, or will espouse the same views.

Such stereotypical treatment gives rise to impermissible

classifications.

It is also true, however, that there are circumstances

in which a person’s race, like one’s gender, and consequent

life experiences can affect his or her perspective. In J. E. B.

v. Alabama, the Court struck down the use of peremptory

challenges to female jurors in a paternity and child support

case, holding it a violation of the Equal Protection Clause

because the use of gender served to ratify and perpetuate

invidious stereotypes about the relative abilities of men and

women. 511 U.S. 127, 140 (1994). But in her concurrence,

Justice O’Connor noted that, in some instances, “We know

——

that, like race, gender matters” — pointing to studies showing

that in rape cases, female jurors are somewhat more likely to

vote to convict than male jurors, and positing that in sexual

harassment, child custody, or spousal or child abuse cases, “a

person’s gender and resulting life experiences will be

relevant to his or her view of the case.” /d. at 148-49. Just

as gender and resulting life experiences may affect a juror’s

perspective in some cases, educators understand that race

and. gender can affect a student’s perspective and

contributions in the classroom, and race and gender diversity

can affect the educational experience for all students.

CON SION

For the foregoing reasons, Amici Curiae respectfully

submit that the jud gment of the United States District Court

for the Eastern District of Michigan, Southern Division,

should be affirmed, as that judgment relates to the

University's admissions program for 1999 and 2000.

Respectfully submitted,

BARBARA R. ARNWINE JOHN S. SKILTON

THOMAS J. HENDERSON Counsel of Record

MARK A. DANN MARVIN H. LETT

Lawyers’ Committee for Civil JANE E. STELCK

Rights Under Law ALLYSON BAKER

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