# Amicus Curiae Brief — Gratz v. Bollinger

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0608%3A70

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 244

## Text

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)

BEST AVAILABLE COPY

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

ST

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
SE

2. The Thirteenth Amendment
applies with full force to support

Michigan's admissions program. ...

.12

.15

15

18

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

iv

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

Vv
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.

2

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

3

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

4

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.

nm

5
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).

6

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

7

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:

9

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,

10

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)

11

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).

12

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)).

13

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)

14

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.

15

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).

16

§ 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.

17

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.

18

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

19

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).

1s
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)

20

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.

N
)
s

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").

© Likewise in Roberts v. United States Jaycees, the Court
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).

21

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).

22

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).

23
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,

24

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.

25
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

26
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.

27

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”).

28

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

——

29

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
1401 New York Ave., NW, KATHLEEN BENWAY
Suite 400 GABRIELLE E. BINA
Washington, D.C. 20005 Heller Ehrman White &°
202-662-8600 McAuliffe LLP

1666 K Street, NW, Suite 300
Washington, D.C. 20006
202-912-2000

~~

MARCIA D. GREENBERGER

JOCELYN F. SAMUELS

JUDITH C. APPELBAUM

National Women's Law Center
11 Dupont Circle, Suite 900
Washington, D.C. 20036

DENNIS C. HAYES
EDEN GAINES BROWN
National Association for the

Advancement of Colored

People
4805 Mount Hope Drive
Baltimore, MD 21215

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

February 19, 2003

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0608%3A70. Public record. Not legal advice.