---- .:

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 1 of 65 Pg ID 731

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

D [L"' 'II~: Ir:,i

BARBARA GRUTTER,

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~U.S. DlSTRlCr COURT

Plaintiff,

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Civil Action No. 97-75928

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v.

)

Hon. Bernard Friedman

)

LEE BOLLINGER, eta/.,

)

Hon. Virginia Morgan

)

Defendants.

)

DEFENDANTS MOTION FOR SUMMARY .JUDGMENT Pursuant to Fed. R. Civ. P. 56 and Local Rule 7.1, and for the reasons set forth in the attached Memorandum, defendants hereby move this Court for the entry of summary judgment. As set forth more fully in the accompanying Memorandum of Law, at the close of extensive discovery in this matter there is no genuine dispute as to any material fact. All of the record evidence confirms that the University of Michigan Law School's admissions processes fully comply with the standards set out in the Supreme Court's decision in Regents ofthe University ofCalifornia v. Bakke, 438 U.S. 265 (1978). Defendants arc entitled to summary judgment on all of plaintiffs claims. In addition, a separate doctrine bars all of plaintiffs damages claims against the Board of Regents. The doctrine protecting the recipients offederal funds from being sued for money damages where it is not "obvious" that they will be liable in damages applies to the damages claim against the Board of Regents under Title VI. Accordingly, summary judgment in defendants' favor is appropriate on plaintiffs claims for damages, because there is no material

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 2 of 65 Pg ID 732
dispute -- indeed, there is no evidence at all -- that defendants violated plaintiffs "clearly established" constitutional rights.
Pursuant to Local Rule 7.1(a), defendants state that on April 29, 1999, concurrence in this motion and the relief sought was requested from plaintiffs counsel and that such concurrence was not granted.

Philip Kessler Leonard M. Niehoff BUTZELLONG 350 South Main Street Suite 300 Ann Arbor, MI 48104 (734) 213-3625
Dated: October 9, 2000

John Payton Jane Sherburne WILMER, CUTLER, & PICKERING 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 3 of 65 Pg ID 733 "

D. lb. ~ IN THE UNITED STATES DISTIUCT COURT

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U.S. 0\STF!ICT COURT

BARBARA GRUTTER, Plaintiff,

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)
) Civil Action No. 97-75928 )

v.

) Hon. Bernard Friedman

LEE BOLLINGER, et al.,

) ) Hon. Virginia Morgan

)

Defendants. ·

)

)

and

)

)

KIMBERLY JAMES, eta/.,

)

)

Intervening Defendants

)

DEFENDANTS' MEMORANDUM OF LAW TN SUPPORT OF RENEWED MOTION FOR SUMMARY .JUDGMENT

John H. Pickering John Payton Jane Sherburne WILMER, CUTLER & PICKERING 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000

Philip J. Kessler, P15921 Leonard M. Niehoff, P36695 BUTZELLONG 350 South Main Street, Suite 300 Ann Arbor, MI 48104 (734) 213-3625

ATTORNEYS FOR DEFENDANTS

Dated October 9, 2000

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 4 of 65 Pg ID 734
.--
TABLE OF CONTENTS STATEMENT OF THE ISSUE PRESENTED ............................................................................ iii CONTROLLING AUTHORITIES ............................................................................................... iv TABLE OF AUTHORITIES ..........................................................................................................v INDEX OF EXHffiiTS .................................................................................................................. X INTRODUCTION ......................................................................................................................... 1 STATEMENT OF UNDISPUTED FACTS ...................................................................................3
1. The Faculty Admissions Policy ..............................................................................5 a. General Objectives ......................................................................................6 b. Grades, Test Scores, and Their Limitations ................................................6 c. Treating Each Applicant as an Individual.. ......................................8 d. The Role of Racial and Ethnic Diversity .................................................. 10
2. The Admissions Process: Implementing the Admissions Policy.......................... 14 a. File-by-File Review .................................................................................. 15 b. Race as a Single Though Important Element ........................................... 17 c. The Data............................................................................ 18
ARGUMENT ................................................................................................................................20 I. CONTROLLING PRECEDENT PERMITS THE COMPETITIVE CONSIDERATION OF RACE IN LAW SCHOOL ADMISSIONS ..............................................................................21 A. A Properly Devised Admissions Program Involving the Competitive Consideration of Race and Ethnic Origin is Constitutional.. ................22 B. Diversity Is a Compelling Interest in the University Admissions Context..............................................................................23 C. Bakke's Limitations on the Consideration of Race in University Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
i

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 5 of 65 Pg ID 735
•.

D. Bakke Is Binding Precedent .......................................................................32
II. THE LAW SCHOOL COMPLIES WITH THE BAKKE STANDARD ...............36
ill. THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN IS ALSO ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S DAMAGES CLAIMS UNDER TITLE VI OF THE CIVIL RIGHTS ACT ........43
CONCLUSION ..............................................................................................................................49

ii

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 6 of 65 Pg ID 736

'

---

STATEMENT OF THE ISSUES PRESENTED
1. Whether the defendants arc entitled to summary judgment on all of plaintiff's claims because the undisputed factual record shows that the admissions practices of the University of Michigan Law School -- which involve the "competitive consideration of race" as a "single though important factor" in order to achieve the benefits of a diverse student body-- comport with the standards set out in Justice Powell's controlling opinion
in Regents oftile University of California v. Bakke, 438 U.S. 265 (1978).

2. Whether the Board of Regents of the University of Michigan is entitled to summary judgment on plaintiff's damages claims brought under Title VI because it would not have been "obvious" to the Board of Regents that, by accepting federal funds, it was subjecting itself to liability in damages on account of an admissions system that complies fully with
Justice Powell's controlling opinion in Regents oftile University of California v. Bakke,
438 u.s. 265 (1978).

iii

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 7 of 65 Pg ID 737
CONTROLLING AUTHORITIES Regents ofthe University of California v. Bakke, 438 U.S. 265 (1978) Johnson v. Tramportation Agency, 480 U.S. 616 (1987) Marks v. United States, 430 U.S. 188 (1977) Oliver v. Kalamazoo Board ofEducation, 706 F.2d 757 (6th Cir. 1983)
iv

" ___" ______ - - - - - -
2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 8 of 65 Pg ID 738
TABLE OF AUTHORITIES
CASES
Adarand Constructors, Inc. v. Pena,
u.s. 515 200 (1995)...."."."........"."."."..".".....".".....".".".".."."."."."."."."."."."."."...20, 35
Agostini v. Felton,
u.s. 521 203 (1997)"."...."."."."."....."."."..".".....".".."."."."."."...........".".".".".".".".".".35
Ambach v. Norwick,
u.s. 441 68 (1979)."."."....".".".".....".".".."."."..". "."....."."."."."."...." .."."."."."."."."."..21
Arkansas Educational Television Commission v. Forbes,
u.s. 523 666 (1998).".".".".".".".....".".."."."....." ........"."."."."........"."."."."."."."."."."...27
Board ofEducation, Island Trees Union Free School District No. 26 v. Pica,
u.s. 457 853 (1982)" ..........".".".".....".".".".."."....."."."....."."."."."."."."."."."."."...."."..21
Board ofRegents ofthe University of Wisconsin System v. Southworth, 120 S. Ct. 1346 (2000) .......................................................................................................26, 27
Brewer v. West Irondequoit Central School District, 212 F.3d 738 (2d Cir. 2000).....................................................................................................35
Brown v. Board ofEducation,
u.s. 347 483 (1954)""""""""""""""""....""""""" """"""...." ...." ...."""""""....""""... 13. 21
City ofRichmond v. J.A. Croson Co.,
u.s. 88 469 (1989)"""""""""""""...."""...."""""...." ...." """""...."""""""...." ...." .20, 29. 30
Crawford v. Pittman, 708 F.2d 1028 (1983)...............................................................................................................28
Davis v. Halpern, 768 F. Supp. 968 (E.D.N.Y. 1991) ..........................................................................................34
Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir. 1999), cert. denied, 120 S. Ct. 1420 (2000) ........................................34
Estate ofRitter v. University ofMichigan, 851 F.2d 846 (6th Cir. 1988) ...................................................................................................44
Federated Publications, Inc. v. Board ofTrustees ofMichigan State University, 594 N.W.2d 491 (Mich. 1999) ................:...............................................................................28
v

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 9 of 65 Pg ID 739
,........ ,
Franklin v. Gwinnett County Public Schools,
503 u.s. 60 (1992) ................................................................................................................. .44
Franks v. Kentucky School for the Deaf, 142 F.3d 360 (6th Cir. 1998) ..................................................................................................45
Gebser v. Lago Vista Independent School District,
524 u.s. 274 (1998) ....................................................................................................44, 45,46
Guardians Association v. Civil Service Commission
463 u.s. 582 (1983) ................................................................................................................ .45
Healy v. James,
408 u.s. 169 (1972) .................................................................................................................26
Holm v. United States,
524 u.s. 236 (1998) .................................................................................................................35
Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996) ............................................................................................. passim
Horner v. Kentucky High School Athletic Association, 206 F.3d 685 (6th Cir.), cert. denied, No. 99-2023, 2000 WL 795898 (U.S. Oct. 2, 2000) ............................................................................................................ .44, 45
Interstate Consolidated Street Railway Co. v. Massachusetts,
207 u.s. 79 (1907)...................................................................................................................21
Jacobson v. Cincinnati Board ofEducation, 961 F.2d 100 (6th Cir. 1992) .......................................................:.....................................27, 34
Johnson v. Board ofRegents ofthe University ofGeorgia, 106 F. Supp. 2d 1362 (S.D. Ga. 2000) .................................................................................... 13
Johnson v. Transportation Agency,
480 u.s. 616 (1987) .................................................................................................................33
Keyishian v. Board ofRegents,
385 u.s. 589 (1967) .......................................................................................................2, 25, 26
Marks v. United States,
430 u.s. 188 (1977).................................................................................................................33
McLaurin v. Oklahoma State Regents for Higher Education,
339 u.s. 637 (1950) .................................................................................................................21
vi

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 10 of 65 Pg ID 740
Oliver v. Kalamazoo Board ofEducation, 706 F.2d 757 (6th Cir. 1983) ...................................................................................................34
Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989) ...................................................................................................27
Pennhurst State School and Hospital v. Halderman,
451 u.s. 1 (1981) .............................................................................................................. .44, 45
Regents ofthe University of California v. Bakke, 438 U.S. 265 (1978) ......................................................................................................... passim
Regents ofthe University ofMichigan v. Ewing, 474 U.S. 214 (1985) ........................................................................................................ passim
Rodriguez De Quijas v. Shearson/American Express, Inc.,
490 u.s. 477 (1989).................................................................................................................35
Rosenberger v. Rector and Visitors ofthe University of Virginia,
515 u.s. 819 (1995) .............................................................................................................2, 26
Rust v. Sullivan,
500 u.s. 173 (1991) ..........................................................................................................26, 27
Seminole Tribe ofFlorida v. Florida,
517 u.s. 44 (1996) ...................................................................................................................44
Smith v. University of Washington Law School, 2 F. Supp. 2d 1324 (W.D. Wash. 1998)...................................................................................34
State Oil Company v. Khan,
522 u.s. 3 (1997) ............................................................................................................... 13, 35
Sweatt v. Painter,
339 u.s. 629 (1950).................................................................................................................24
Sweezy v. New Hampshire,
354 u.s. 234 (1957) .......................................................................................................2, 25,27
Triplett Grille, Inc. v. City ofAkron, 40 F.3d 129 (6th Cir. 1994) .....................................................................................................33
Tuttle v. Arlington County School Board., 195 F.3d 698 (4th Cir. 1999) ...................................................................................................34
vii

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 11 of 65 Pg ID 741
United States v. Lanier,
u.s. 520 259 (1997).................................................................................................................45
United States v. Paradise,
u.s. 480 149 (1987) .................................................................................................................32
University & Community College System v. Farmer, 930 P.2d 730 (Nev. 1997), cert. denied, 523 U.S. 1004 (1998) ..............................................35
Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998)....................................................................................................34
Wheeler v. Barrera,
u.s. 417 402 (1974) .....................;...........................................................................................28
Winkes v. Brown University, 747 F.2d 792 (1st Cir. 1984)....................................................................................................34
Wygant v. Jackson Board ofEducation,
u.s. 476 267 (1986).................................................................................................................33
CONSTITUTION
U.S. Const., amend. XIV ("Equal Protection Clause") .................................................................22 Mich. Const., art. 8 (1963) ............................................................................................................28 Mich. Const., art. 8, § 4....................................................................................................................3 Mich. Const., art. 8, § 5....................................................................................................................3
STATUTES
20 U.S.C. § 1232a..........................................................................................................................28 20 U.S.C. § 1681 ct seq. (Title IX) ................................................................................................44 Civil Rights Act of 1964,
Title VI, 42 U.S.C. § 2000d ............................................................................................ passim Title VII, 42 U.S.C. § 2000e ....................................................................................................33
MISCELLANEOUS
Akhil Reed Amar and Neal Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745 (1996) ................20, 48
viii

------------·-···----·----------~---·-·----~~~~-
2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 12 of 65 Pg ID 742 Peter Schmidt, U. ofMichigan Turns to Scholars to Bolster Its Defense ofAffirmative Action,
Chronicle of Higher Education, April 2, 1999 at A38 ............................................................ 12
Jaimie Winkler, Expert Witnesses Discuss Diversity, Michigan Daily, March 18, 1999 at 7a .... 12
59 Fed. Reg. 8756 (1994) ..............................................................................................................46
ix

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 13 of 65 Pg ID 743

Exhibit A.
B.
c.
D. E. F. G.
H.
I.
J.
K.
L. M.
N.
0.

INDEX OF EXHIBITS
Volume 1: Documents and Materials!!
Description
University of Michigan Law School Bulletin: 1995-1997 (Deposition Exhibit 7).
Law School Admissions Office: Daily Summary of Applicant Status ("Daily Report") (Deposition Exhibit 10).
University of Michigan Law School Bulletin: 1997-1999 (Deposition Exhibit 8).
Law School Admissions Policy (Deposition Exhibit 4).
Letter, dated December 8, 1997, from JeffreyS. Lehman (Deposition Exhibit 59). "The Gospel According To Dennis" (Deposition Exhibit 5).
Tables 5 and 6 of Expert Report submitted by plaintiffs expert, Kinley Larntz. Smith v. University of Washington Law School, No. C97-335Z (W.D. Wash. Feb. 12, 1999).
Law School Announcement: 1988-89 (Deposition Exhibit 55).
Standard 212 (Deposition Exhibit 84).
American Bar Association Report on the University of Michigan Law School: February 9-12, 1992 (p. 38) (Deposition Exhibit 60).
Memorandum from Don Regan (Deposition Exhibit 32).
Letter, dated August 16, 1992, from Edward H. Cooper to James P. White (included in Deposition Exhibit 61).
Report of Kinley Lamtz, plaintiffs expert (p. 9); charts produced by Larntz (Deposition Exhibit 68).
The University of Michigan Law School Admissions Office Grid of LSAT & GPA (Deposition Exhibit 15).

!I

Certain of the documents included in Volume 1 of the Appendix were designated by

defendants as confidential pursuant to the Unopposed Stipulation and Protective Order

Concerning Confidentiality, entered May 28, 1998. Pursuant to~[ 5 of that Order, defendants

waive their confidential designations for any materials included in the Appendix.

X

- ---- ---

~-----------------------~----~~---------

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 14 of 65 Pg ID 744

----·

P.

ABA Standards For approval of Law Schools (Deposition Exhibit 30).

Q.

Association of American Law Schools (AALS) 1994 Handbook (Deposition

Exhibit 31).

R.

Letter to Dr. Don Michael Randel, President, University of Chicago, from Linda

A. McGovern, Director, Chicago Office, Midwestern Division, Office for Civil

Rights, U.S. Department of Education, re: OCR Complaint #05-97-2044 (August

14, 2000).

Deponent
Lee Bollinger Susan Eklund Donald Herzog Kinley Lamtz Jeffrey Lehman Richard Lempert Alissa Leonard Marcea Metzler Erica Munzel Stephen Raudenbush Donald Regan Theodore Shaw Dennis Shields Allan Stillwagon Jean Wong

Volume 2: Deposition Excerpts!!!
Deposition date
February 9, 1999 June 2, 1998 August 26, 1998 February 2, 1999 January 21, 1999 November 5, 1998 November 2, 1998 February 5, 1999 June 1, 1998 March 9, 1999 August 27, 1998 February 3, 1999 December 7, 1998 November 6, 1998 July 21, 1998

!!! Some of the deposition testimony included in Volume 2 of the Appendix was designated by defendants as confidential pursuant to the Unopposed Stipulation and Protective Order Concerning Confidentiality, entered May 28, 1998. Pursuant to 1[ 5 of that Order, defendants waive their confidential designations for any materials included in the Appendix.
xi

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 15 of 65 Pg ID 745 Volume 3: Expert Witness Reports
Expert Witness DerekBok Albert Camarillo Eric Foner Patricia Gurin Stephen Raudenbush (with Supplemental Reports) Claude Steele Thomas Sugrue Kent Syverud Robert Webster
xii

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 16 of 65 Pg ID 746
INTRODUCTION For more than 20 years, the consideration ofrace as a factor in university admissions has been constitutional. The United States Supreme Court so held in Regents ofthe University ofCalifornia v. Bakke, 438 U.S. 265 (1978), stating that a "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. The Court recognized in Bakke that achieving the educational benefits of a racially and ethnically diverse student body is a compelling interest. And, since that decision, institutions of higher education across the country --including the University of Michigan and its Law School-- have established admissions programs and policies that usc race as one of many factors in admissions decisions. Over and over again, these institutions have found that the educational benefits that flow from having a student body consisting of individuals from diverse backgrounds and experiences enhance their respective educational missions by fostering vibrant intellectual debate and the exchange of ideas and perspectives. Plaintiff Barbara Gruttcr and her class now seck to change the law pertaining to the consideration of race as a factor in admissions. They urge this Court to disregard completely the Supreme Court's holding in Bakke and to find that any consideration of race in admissions violates the Constitution. This Court should deny plaintiff's request. In the years since it decided Bakke, the Supreme Court has never overruled or even reconsidered its decision in that case. The Fifth Circuit is the only appellate court to conclude that a university may not seck to obtain the educational benefits of diversity by considering race and ethnicity as one of many factors to enroll a diverse group of students. That Court's Hopwood decision invalidating the admissions program formerly in usc at the University ofTexas Law School, however, has been

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 17 of 65 Pg ID 747
widely criticized as wrong and beyond its power. The Sixth Circuit, in contrast, has consistently recognized Bakke as controlling authority.
This Court is not free to ignore Bakke or the unbroken line of authority on which it is grounded, which recognizes the discretion and academic "freedom of a university to make its own judgments as to ... the selection of its student body"·· including how to foster "[t]he atmosphere of 'speculation, experiment and creation"' that is "so essential to the quality of higher education," id. at 312 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)). The Supreme Court has long noted the fact that universities, through the educational judgments they make concerning everything from admissions to curriculum issues, play a unique role in encouraging the expression of diverse voices. See, e.g., Rosenberger v. Rector and Visitors ofthe Univ. ofVa., 515 U.S. 819, 835 (1995) (noting that, in the university setting, the government "acts against a background of thought and experiment that is at the center of our intellectual and philosophic tradition"); Regents ofthe University of Michigan v. Ewing, 474 U.S. 214,226 n.12 (1985) (holding that academic freedom "thrives ... on the independent and uninhibited exchange of ideas among teachers and students," as well as on "autonomous dccisionmaking by the academy itself'); Keyishian v. Board ofRegents, 385 U.S. 589,603 (1967) (emphasizing the importance of education and the nation's commitment "to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned").
There is no basis in law, or in the undisputed factual record, to tamper with the manner in which the University of Michigan Law School has exercised its discretion. The undisputed facts contained in the extensive record developed in the nearly three years since plaintiff first filed her Complaint reveal that the Law School has consistently and conscientiously
2

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 18 of 65 Pg ID 748

complied with the standards set forth in the Court's decision in Balcke. It enrolls only qualified
individuals and docs not employ racial quotas or targets in selecting an entering class of diverse
individuals each year. Indeed, it applies only what Bakke squarely permits --the competitive
consideration of race as one of many factors in deciding who among the many individuals who apply each year should be admitted. Defendants therefore renew their motion for summary judgment on plaintiffs claims for injunctive and declaratory relief, and for money damages against the Board of Regents. Like the individual defendants whose renewed motion for summary judgment on grounds of qualified immunity has already been filed with this Court,11 they arc entitled to summary judgment on all of plaintiffs claims.
STATEMENT OF UNDISPUTED FACTS
The University of Michigan is a government institution created by the constitution
of the State of Michigan, see Mich. Canst., art. 8, § 4. The University of Michigan Board of
Regents is tl1e body responsible for making decisions concerning ilie University and the vast array of undergraduate colleges, graduate programs, and professional schools of which it
consists. See Mich. Canst., art. 8, § 5. One of those professional schools, the University of

JJ

The parties have filed a series of memoranda in support of or in opposition to

summary judgment in this case. See, e.g., Plaintiffs Memorandum of Law in Support of Motion

for Partial Summary Judgment on Liability, May 3, I999; Defendants' Memorandum of Law in

Support of Motion for Summary Judgment, May 3, I999; Defendants' Opposition to Plaintiffs

Motion for Partial Summary Judgment, May 28, I999; Plaintiffs Memorandum in Opposition to

Defendants' Motion for Summary Judgment, May 30, I999. On June I4, 2000, defendants filed

a renewed motion for summary judgment on qualified immunity grounds on behalf of the

individual defendants in this case. See Defendants' Memorandum of Law in Support of

Renewed Motion by Defendants Bollinger, Lehman, and Shields for Summary Judgment on

Grounds of Qualified Immunity, June I4, 2000. That motion has been fully briefed and is now

pending before the Court. See, e.g., Plaintiffs Memorandum in Opposition to the Renewed

Motion by Defendants Bollinger, Lehman, and Shields for Summary Judgment on Grounds of

Qualified Immunity, July I8, 2000; Defendants' Reply in Support of Renewed Motion by

Defendants Bollinger, Lehman, and Shields for Summary Judgment on Grounds of Qualified

Immunity, August I I, 2000.

3

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 19 of 65 Pg ID 749

Michigan Law School, has emerged as one of the nation's premier law schools. Founded in 1859, the Law School enrolls approximately 1200 students and "offers a curriculum that prepares its students for legal practice anywhere in the United States and throughout much of the world." Ex. A at 8-9.z1 That curriculum "reflects the view that a life in the law calls for knowledge and capacities which cannot be reduced to a single set." /d. at 9. Thus, while the Law School admits only those applicants likely to succeed, it docs not simply rank order the applicants with the highest undergraduate grade point averages and standardized test scores in choosing the best entering class possible. Instead, the Law School "encourages independence and diversity of thought, which together provide the most solid intellectual and ethical basis for any professional career." /d.
The process of assembling a student body that embodies these characteristics requires a broad range of objective and subjective judgments to select students from a wide range of diverse backgrounds who arc intellectually gifted, highly motivated, and independent-minded, and who arc likely to become deeply committed professionals. To serve these objectives, one of the many factors that the Law School considers in admissions is how an individual applicant will contribute to the racial and ethnic diversity of the class. The Law School achieves the degree of racial and ethnic diversity that it now enjoys without using quotas, set asides, separate admissions systems, or any other technique that is even arguably proscribed by the Bakke decision. As the extensive record developed in this case indicates, the Law School has strictly adhered to the standards outlined in the Court's decision in that case.

Zl

The documents and materials cited in this Memorandum arc reproduced in

Volume I of the Appendix hereto, and arc cited, e.g., as "Ex. A at_." Referenced deposition

testimony, organized by deponent, is reproduced in Volume 2 of the Appendix, and is cited, e.g.,

as "Wong Dcp. at_." Expert witness reports arc reproduced in Volume 3 of the Appendix and

arc cited, e.g., as "Steele Expert Rep. at_."

4

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 20 of 65 Pg ID 750
1. The Faculty Admissions Policy. Since 1992, and therefore at all times relevant to this lawsuit, the criteria
employed by Law School officials in rendering admissions decisions have been set forth in the Law School's Admissions Policy ("the Policy"), sec Ex. D, which was adopted by vote of the Law School faculty on April22, 1992, on the recommendation of the Faculty Admissions Committee? The Law School faculty adopted and implemented the 1992 Policy well aware that any admissions decisions made by the Law School had to comply with the Supreme Court's decision in Bakke. Bollinger Dep. at 45-46. The Policy explains why the Law School values a diverse student body; why racial diversity is an important aspect of the overall diversity that the Law School seeks to achieve; and the steps the Law School's admissions office should take to achieve that diversity.
In the years prior to 1992, no single document outlined the Law School's admissions policies or articulated the educational values to be served by tl1e admissions process. A few resolutions from the 1960s and 1970s had established a "special admissions" program that set a target range for the number of underrepresented minority students that the Law School would seck to enroll, but these aspects of the prior admissions policy, among others, were eliminated by the adoption of the 1992 Admissions Policy. Shaw Dep. at 138-42. The 1991-92 Faculty Admissions Committee decided, after discussing ilie issue, not to include any goal or
The Faculty Admissions Committee was convened during the 1991-92 school year by then-Dean Bollinger "to examine the [admissions] policy, to tl1ink about what our educational views and values were and what was required under the Constitution and tlle Jaw." Bollinger Dep. at II 0. Over the course of discovery in this case, plaintiff has deposed every member of the Faculty Admissions Committee. Those committee members include: Professor (now Dean) Jeffrey S. Lehman, Professors Donald Herzog, Richard 0. Lempert, Donald H. Regan, then-Professor Theodore M. Shaw, then-Assistant Dean and Director of Admissions Dennis J. Shields, and then-Associate Dean for Student Affairs Susan M. Eklund.
5

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 21 of 65 Pg ID 751
target for the admission of underrepresented minorities in the new admissions policy. Shields Dep. at 107-08. Instead, the Policy describes the traits, qualities, and characteristics of applicants that the admissions office should consider in the admissions process.
a. Gener:ll Objectives. The Admissions Policy adopted by the Law School faculty in 1992 -- whose implementation plaintiff challenges in this case -- establishes the goals that govern the admissions process: "to admit a group of students who individually and collectively arc among the most capable students applying to American law schools in a given year." Ex. D at 1. It recognizes the important role that students play in the education of their classmates. In conducting classes, law professors "depend on prepared and articulate students to advance the discussion." Id. At the same time, a great deal of the learning that occurs in law school actually takes place outside the classroom, "in informal conversations" and in the Law School's many journals, student organizations, and "diverse political groups of the left, right and in between." !d. at 2. The Law School therefore seeks "a mix of students with varying backgrounds and experiences who will respect and learn from each other," and who can assist the Law School in achieving its educational mission. !d. at 1. In making admissions decisions, the Law School values "people who have shown the capacity to be self-educating and to contribute to the learning of those around them." !d. at 2. b. Grades, Test Scores, and Their Limitations. Under the 1992 Policy, the goals of the admissions process employed by the Law School include "maximizing competence" and selecting a class of students likely to lead "distinguished legal career[s]." ld. at 3. Achieving this goal is an extremely difficult task. To select the 339 students enrolled in 1997, for example, the Law School had to cull through nearly
6

~ -~-------~-- --~·------· ~ --~----~--~~-~----------
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3400 applications. It was, however, only able to offer admission to 1163 students. Ex. B at UML025657.
In attempting to choose from the many students who apply for admission each year, the Law School's admissions office relics on two assumptions: first, that students who receive high grades in law school arc more likely to distinguish themselves as lawyers, and, second, that there is some statistical correlation between an applicant's undergraduate grades and scores on standardized tests (such as the LSAT exam), on the one hand, and the grades that applicant will ultimately cam in law school, on the other. The Policy notes, however, that these assumptions arc quite imperfect. Ex. D at 3. The Law School believes that the educational experience of the entire Law School community is improved, and that its students arc more likely to enjoy successful careers as lawyers, if its admissions decisions result in the composition of a diverse class of students that will create a rich and vibrant learning environment.
Consequently, the Policy establishes that grades and test scores (which arc translated into an "index score") arc important, but by no means the exclusive, admissions criteria. While the Policy generally recognizes that "the higher one's index score, the greater should be one's chances of being admitted," it docs not envision or permit admissions decisions to be reduced solely to grade point averages and LSAT scores. /d. at 4. The Policy recognizes that many applicants to the Law School have very high index scores. Id. As a result, "[w]hcn the differences in index scores arc small, we believe it is important to weigh as best we can not just the index, but also such file characteristics as the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty
7

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of undergraduate course selection." Id. at 5.11 Because each application is considered in its entirety, it very often turns out to be the case that applicants with lower grades and test scores "arc accepted while those who seem to have more attractive credentials are denied admission." Id. at 7. The Policy acknowledges that this pattern of decisionmaking is inevitable whenever "qualities not captured in grades and test scores figure in the evaluation of an application.".& However, the Policy maintains that a "minimal criterion" that applies to all admissions decisions is that no student will be admitted unless the expectation is that the applicant will "do well enough to graduate without serious academic problems." Id. at 2, I0.
c. Treating Each Applicant as an Individual. In addition to addressing the role that quantitative factors should play in the admissions process, the Policy considers the importance of non-quantitative factors in admissions decisions. It offers two ways in which reliance on factors that are not reflected in the "index" serves the Law School's larger purpose of assembling the strongest possible law school
class. Id. at 8. First, the Policy explains that there arc some applicants for whom the admissions

~1

The Policy also addresses who should exercise the discretion to rely on non-

quantitative factors in making admissions decisions. Prior to the time he left the Law School in

1990, Assistant Dean and Director of Admissions Allan Stillwagon made most admissions

decisions, "with little formal input from the faculty." Ex. D at 7; sec also Stillwagon Dep. at 17-

18. But the Policy explains that since Director Stillwagon's departure, "the Dean of Admissions

has consulted with the faculty on a portion of the admissions decisions. This has allowed the

faculty as represented by its admissions committee to tell its Dean of Admissions how a mix of

faculty evaluate the different kinds of strengths and weaknesses that arc found in applicant files."

Jd. at 7-8.

One of the factors that figures into admissions dccisionmaking is state residency. The 1992 Policy notes that the Law School has a special commitment to admit residents of the State of Michigan, in light of the "special claims of Michigan residents to a Michigan Law School education." Ex. D at 2. As "part of a publicly funded university," the faculty concluded, a "reasonable proportion of our places should go to Michigan residents, even if some have qualifications lower than those of some applicants from outside Michigan." Jd. In fact, the Dean of the Law School informed the Director of Admissions each year what proportion of the class should be consist of Michigan residents. Shields Dcp. at 92-95.

8

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office will have reason to doubt a prediction based solely on index scores: "imagine an applicant whose undergraduate course selection seems relentlessly dull, whose personal statements and [essays) arc thin or incoherent, and whose letter[s] of recommendation damn with faint praise." !d. at 4-5. Such an applicant might be denied admission despite his or her high grades and test scores. At the same time, there arc other students whom the admissions office believes arc likely to excel in the study and practice of law, despite relatively low index scores. For example, the Policy refers to a student whose college performance exceeded what one might have predicted based on his standardized test scores, and who was applying to law school with a similarly low LSAT score. !d. at 9. The Law School concluded that this student's performance on standardized tests would likely be a poor predictor of his academic success, and therefore admitted him despite his comparatively low "index" score. Id.
Second, the admissions office, by not limiting admissions review to grades and test scores, places the Law School in a position to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts." ld. at 9-10. The Policy provides three concrete examples of applicants with compelling experiences and backgrounds for whom the Faculty Admissions Committee recommended admission "influenced by diversity considerations." Id. at 10-11. After citing these examples, the Policy explains that individual members of the faculty may place different values on different achievements and characteristics. One faculty member might, for example, accord a great deal of weight to the fact that an individual was awarded an Olympic gold medal or a Ph.D. in physics, whereas another might place more emphasis on an applicant's experience as a Vietnamese boat person. Id. at II. While the Policy places the principal responsibility for deciding which characteristics will enhance the Law School learning environment in the hands of
9

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the Dean of Admissions and the Faculty Admissions Committee, it clearly states that "[t]he varied perspectives from which different [faculty] committees will interpret the concept 'diversity' should further enrich our school." !d. at 11-12.
d. The Role of Racial and Ethnic Diversity. As part of the overall goal of enrolling an intellectually vibrant and diverse class of law students, the Policy notes that there is "a commitment to one particular type of diversity that the school has long had and which should continue. This is a commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." !d. at 12. The Policy explains that students from such racial and ethnic minority groups "arc particularly likely to have experiences and perspectives of special importance to our mission," and that by "enrolling a 'critical mass' of minority students, we have ensured their ability to make unique contributions to the character of the Law School." !d. This said, the Policy emphasizes that the faculty do not "mean to define diversity solely in terms of racial and ethnic status." !d. Rather, the Policy's concern with achieving racial and ethnic diversity is an inextricable part of the Law School's broader goal of enrolling "students with distinctive perspectives and experiences," in order to improve the educational experience for all of the students enrolled in its classes. !d. at 9-10. It is, however, the Law School's judgment that, among the types of diversity to be valued, having a racially and ethnically diverse group of students will improve legal education and the quality oflawyering, and ultimately improve our society. As Jeffrey Lehman, the Dean of the Law School, has explained, the Law School's view is that the "quality of the intellectual experience that our
10

----· ·-····-····· ·····------··------
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students enjoy" is improved by bringing together, in the law school classroom, students with a broad array of perspectives, experiences and insights, including those derived from experiences related to race. Ex. E at UML024996. Having a diverse student body furthers the Law School's central educational mission •• "to cultivate in our students the ability to understand an issue from many perspectives." !d.
This view is widely shared in legal education and in the legal profession. For example, Kent Syverud, who is Dean of Vanderbilt Law School and Editor of the Journal of Legal Education, states in the expert report he prepared in this case that "all law students receive an immeasurably better legal education, and become immeasurably better lawyers, in law schools and law school classes where the student body is racially heterogeneous." Syverud Expert Rep. at 2. "[R]acial heterogeneity dramatically enhances the ability of the best active, Socratic teaching to achieve its purposes" of requiring law students to "sec any set of facts from different points of view." !d. at 3.
Similarly, Judge Robert B. Webster, a former President of the Michigan State Bar and former Chief Judge of the Oakland County Circuit Court, adds that racial and ethnic diversity in legal education is essential both to a law school's mission in training effective lawyers, and to the perception that our legal system is able to administer equal justice. Judge Webster notes that "the ability to empathize and work effectively with people of diverse races and backgrounds is critical to our profession. It is an ability that must be developed as proficiently, and as soon, as it possibly can." Webster Expert Rep. at 5. Judge Webster further notes, drawing on a number of studies of the Michigan court system, that "when diverse classes of law school students enter the legal profession it enhances the appearance that our system is just, unprejudiced, and equally available to people of all races." !d. at 5-7. Derek Bok, former
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Dean of Harvard Law School and former President ofHarvard University, echoed this point in his expert report, stating that the "bar has made clear that it views the participation of minority attorneys as essential to public confidence in the machinery ofjustice." Bok Expert Rep. at 23.
Additional expert testimony submitted by the Law School in this case provides unrcbutcd empirical proof for the common sense judgment that racial and ethnic diversity improves cducation.n' Patricia Y. Gurin, a Professor of Psychology at the University of Michigan with more than 34 years of experience in her field, has conducted an extensive empirical analysis of how diversity in higher education affects students. Using national and Michigan undergraduate student databases, Professor Gurin demonstrates that students learn better when they arc educated in racially and ethnically diverse environments. Her analysis shows that students who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with other students showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and improvement in a range of academic and intellectual skills. See Gurin Expert Rep. at 35-38. These findings-which strongly indicate that students educated in diverse environments arc better prepared to participate in our pluralistic democracy because they arc more equipped to understand different

fll

Plaintiffs counsel has made the extraordinary -- and constitutionally erroneous --

statement that "[a]ny evidence or any report that shows, or purports to show, that racial diversity

has educational value is besides the point," Peter Schmidt, U. ofMichigan Turns to Scholars to

Bolster Its Defense ofAffirmative Action, Chronicle of Higher Education, April2, 1999 at A38

(quoting Terence J. Pell, of the Center for Individual Rights). See also Jaimic Winkler, Expert

Witnesses Discuss Diversity, Michigan Daily, March 18, 1999 at 7a (quoting Pell to the same

effect). But, as explained earlier, the Law School's common sense educational judgment

regarding diversity lies at the heart of what Bakke permits and is part of a well-established line of

Supreme Court precedent recognizing the autonomy that universities, consistent with the First

Amendment, have to pursue their educational mission. Defendants' expert case, which confirms

the correctness of Bakke and the Law School's educational judgment, therefore, cannot be

viewed as "besides the point."

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perspectives, deal with conflict, and appreciate the ways in which differences can be harnessed in pursuit of a common goal, id. at 18-21 --arc applicable to undergraduate and law school education alike. See Syverud Expert Rep. at 3-4.1'
The reason for the educational benefits that diversity produces is --as the reports submitted by defendants' other experts in this case make clear -- that race still matters a great deal in American life. Indeed, in some areas, such as housing and elementary and secondary education, our society is as racially separate today as it was before Brown v. Board ofEducation, 347 U.S. 483 (1954), and the landmark civil rights legislation of the 1960s. See Sugrue Expert Rep. at 7-8, 19-44; see also Foncr Expert Rep. at 48-49; Camarillo Expert Rep. at 23-26. Americans of different races reside in different communities, attend separate elementary and secondary schools, and rarely have sustained, meaningful contact with one another. Sugrue Expert Rep. at 19-44. This persistent racial separation fosters misconceptions that make it nearly impossible for individuals outside of the higher education context to break racial stereotypes, id. at 67, and has an extremely negative impact on student experiences, perspectives, and world views.
At a very concrete level then, racial separation provides the backdrop against which the Law School necessarily makes it admissions decisions. As they approach their first year of law school, most students will have had few opportunities to benefit from exposure to the ideas and perspectives of people from backgrounds and racial groups different from their own.

11

The strong evidence regarding the educational benefits that accrue from having a

racially and ethnically diverse student body submitted by defendants distinguishes this lawsuit

from cases such as Johnson v. Board ofRegents ofthe Univ. ofGa., 106 F. Supp. 2d 1362 (S.D.

Ga. 2000), in which a district court, inter alia, recently invalidated a university admissions plan

on tl1c grounds tl1at there was only "amorphous" evidence of diversity's educational benefits.

Like Hopwood, Johnson disregards Bakke and applicable restraints on judicial authority. See,

e.g., Stale Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 29 of 65 Pg ID 759
---,
See Gurin Rep. at 4. Of course, some students will have received their undergraduate training from racially diverse institutions. But others will not have enjoyed this benefit. And, even among those who did, very few, if any, will have had the opportunity to discuss, in a diverse setting, the specific issues raised by the law school curriculum. See id.
Thus, bringing students from different races together in a law school class cannot help but challenge preconceived notions. For example, in his expert report, Judge Webster indicates that his first experiences with racial diversity gave rise to "encounters [that] exposed and destroyed racial stereotypes I did not even know I harbored.... I found myself exposed to new perspectives, new kinds of life experiences, new ways of looking at the world." Webstcr Expert Rep. at 4-5. It is encounters such as the ones described by Judge Webster-- encounters that ultimately help students to appreciate the similarities they share as well as the differences that separate them -- that create the educational opportunity for more complex and active thinking. See Gurin Expert Rep. at 15. For a law school such as the University of Michigan, creating a diverse student body in which all students can interact with members of different groups comprises a central part of the institution's overall educational mission. See Ex. Eat UML024996; see also Ex. D. Without diverse experiences, students arc not likely to develop the skills needed to move beyond the misconceptions created by racial separation and to succeed in the modern legal environment of our increasingly pluralistic society.
2. The Admissions Process: Implementing the Admissions Policy. The vast majority of the work involved in carrying out the admissions process at
the Law School each year is completed by a relatively small staff of admissions professionals who work closely together in reviewing application files. The admissions office is directed by the Assistant Dean and Director of Admissions, currently Erica Munzel, see Munzel Dcp. at 7,
14

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 30 of 65 Pg ID 760

who receives assistance in reviewing files from only two or three other file readers, and makes most of the final admissions decisions.& The extensive record evidence developed in this case makes clear that the professional staff of the Law School's admissions office has done what it has been directed to do: carry out the Admissions Policy adopted by the faculty in 1992.21
a. File-By-File Review. The Law School receives a large but fairly manageable number of applications each year. For example, between 1995 and 1997, the number of applications ranged from 3373 to 4063. Ex. Bat UML025657. Each application comes to the admissions office with an accompanying report from the Law School Data Assembly Service, a national clearinghouse that summarizes each law school applicant's grades and test scores, and provides some information about the relative strength of undergraduate institutions. Metzler Dep. at 78-79. Because it receives a manageable number of applications accompanied by information compiled and presented in a consistent manner, the admissions office -- with its relatively small staff of professional admissions counselors -- is able to review application files without having to rely on

Rl

Although final decisions arc generally made by the Assistant Dean and Director

of Admissions, Dennis Shields-- who served in that position from July 1991 until January 1998,

Shields Dcp. at 9-1 0, 13 -- sometimes authorized the Associate Director to make final admissions

decisions. Shields Dcp. at 53-56. An Assistant Director also reviewed applicant files during this

time, but did not make final admissions decisions. Metzler Dcp. at 19; Leonard Dcp. at 32-33.

21

Plaintiff has deposed almost the entire admissions staff: Olivia Birdsall (who

served as a senior admissions counselor from 1981 to 1993); Susan M. Eklund (who served as

Associate Dean, and oversaw the admissions office in 1990-91); Kurt Kaiser (who, for a time,

had responsibility for the admissions office computer system); Alissa Leonard (who worked in

the admissions office as a receptionist, secretary, and admissions counselor from 1990 to 1996);

Marcea Metzler (who worked as an admissions counselor from 1996 to 1998); Erica Munzcl

(who served as an admissions counselor from 1994 to 1998, and who was named Assistant Dean

and Director of Admissions in 1998); Dennis J. Shields (who was Assistant Dean and Director of

Admissions from 1991 to 1998); Allan Stillwagon (who was Assistant Dean and Director of

Admissions from 1979 to 1990); Kirsten Vandenburg (who worked as an admissions counselor

in 1991-92); and Jean Wong (who has served, since 1996, as the admissions office's file clerk

and office manager).

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 31 of 65 Pg ID 761
--
a set of formal guidelines (beyond those established in the Policy itself) to direct the admissions staff in the exercise of their discretion. Shields Dep. at 132. Indeed, the only document other than the Policy provided to new file readers in the admissions office was a brief memorandum, see Exhibit F, written by Admissions Director Shields. See Shields Dep. at 59; Metzler Dep. at 14-19.
The memorandum prepared by Director Shields instructs file reviewers to seek out "from an especially well credentialed pool of candidates, those that show the most promise."
'
Ex. F at 4. Making those determinations "requires more than a mere review of the numbers (LSAT and GPA), credentials." Id. This is not to say that grades and test scores are unimportant. Indeed, the memorandum recognizes, as the Policy does, that, in many cases, "we will ultimately be swayed ... by the strength of the numbers." ld. at 6. But the Law School receives applications from an extremely talented and accomplished pool of candidates, id. at 4, and does not rely heavily on narrow distinctions between candidates on the basis of grades and test scores. Indeed, an applicant's grades and test scores merely "pu[t] a context on the file as you read it." Jd. at 80. The "index score," which is calculated using an applicant's undergraduate grades and LSAT score, is used principally as a way to "sort" files, such that admissions staff would review a "batch of files" in the same index range. Shields Dep. at 72-73; see also Metzler Dep. at 26-29. As the Policy provides, "ifthe numbers are high there's more of a chance that a person will be admitted." Ex. F at 81.
However, because "many of the numbers will be so close to the same," the admissions staff is required to dig deeper into the applications, to review the essays and letters of recommendation, "to look for candidates that show intellectual talent, leadership ability, and academic acumen which augers for a lively intellectual educational community and important
16

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 32 of 65 Pg ID 762
contributions to the profession." Ex. Fat 4. The Law School's process for making admissions decisions is more of an art than a science. In order to make a decision on any given applicant, an admissions counselor must "read a file and look at the essays, look at the transcripts, look at the letters of recommendation," and decide how the particular applicant would contribute to the Law School class. Shields Dcp. at 23.
b. Race as a Single Though Important Element. In addition to conducting an individualized, file-by-file review of applications, the admissions staff also implements the 1992 Policy by considering the way in which an applicant would likely contribute to the diversity of the law school class, which includes racial diversity. It is undisputed that race is one of many important factors in the admissions process. Applicants to the Law School arc not required to disclose their race when applying. But where they do, Admissions Director Shields observed, that "would be one of the things amongst all of those things that would be part of what you thought about as you made a judgment about a file." Shields Dcp. at 23. In selecting students for admission to the Law School, the admissions office has not defined a "critical mass" of underrepresented minority students necessary to achieve the full benefits of a diverse student body. Nor have admissions decisions been made to assure that a particular number of underrepresented minority students arc admitted or enrolled. Shields Dep. at I0I. Instead, the Director of Admissions makes individual admissions decisions on an individual, file-by-file basis. For example, Admissions Director Dennis Shields has said that, while he was "concerned about there being a good representation of students of color in the class," id., there was "no precision" about what a "critical mass" or a "good representation"
17

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 33 of 65 Pg ID 763

would be. Id.lii/ Simply put, the Law School docs not employ quotas or enrollment targets as part of its admissions process.
c. The Data. The data reveal a number of important facts about the admissions process. First, over the years, the pool of underrepresented minority applicants has represented a relatively small proportion of the total group of applicants to the Law School. See Ex. B. Additionally, the rate of admission for underrepresented minority students is similar to that for majority students. Further, the number of underrepresented minority students admitted to the Law School has varied considerably from year to year, demonstrating quite clearly that the Law School does not rely upon racial quotas or enrollment targets in making admissions decisions. In 1994, for example, a year in which it received an unusually large number of applications from African American students, the Law School offered admission to 138 of the 639 African American applicants. !d. at UML025659. The following year, however, it offered admission to only 97 such applicants, a thirty percent drop in the number admitted from the year before. Likewise, the Law School's so-called yield rates vary modestly by race from year to year. See, e.g., id. "Yield" refers to the proportion of students who accept an offer of admission and actually choose to enroll. The intense competition among highly selective

.lW

Over the course of the admissions cycle, the admissions office monitors the flow

of applications, admissions decisions, and enrollment deposits. In doing so, the office pays

attention, among other things, to the status of the School's minority applicants, as the Policy

requires. In particular, the admissions office relics on a report on the status of the applicant pool

-- the daily report, Ex. B -- to provide descriptive data, which compares the current year's pool of

applicants to those in preceding years. The daily report "allows you to sec what the statuses arc

in your applicant pool at any point in time." Munzcl Dcp. at 159. It is "a way of tracking what

is occurring." Shields Dcp. at 141. Admissions Director Shields made clear-- and his testimony

is not refuted-- that the "numbers" reflected in the daily report "[did not] drive the decisions that

I make or made." !d. "[N]o matter what this tells me, I've still got to go read the files and

decide whether or not somebody should be admitted." !d. at 142.

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 34 of 65 Pg ID 764
institutions like the Law School essentially means that less than a third of the students admitted to the University of Michigan Law School each year will ever enroll. To illustrate, in 1997, the yield rate for white students was 29.9 percent. Jd. at UML025660. In other words, less than one in three white students offered admission to the Law School in 1997 actually enrolled. For African American students, the yield rate for that year was even lower-- with 25.2 or only one in four students offered admission actually enrolling in school. Jd. at UML025659.
Finally, the data show that, while there is some difference between the average grades and test scores of admitted majority and admitted minority students, the average grades and test scores for all admitted students at the Law School arc quite high. See Ex. G. For example, of those applicants in 1998 who were admitted to the Law School, the median LSAT and GPA of the Caucasian applicants was 168 (on a scale of 120 to 180) and 3.66, while for African American applicants the medians were 159 and 3.4l.W See id. Given this information -- which highlights the fact that the Law School implements its Policy solely to admit applicants who arc likely to succeed at the School and thereafter -- and the other undisputed facts in this case, there is no doubt that the Law School complies with Bakke.

w

As Claude Steele, Chair of the Psychology Department at Stanford University and

an expert witness for defendants in this matter, observes in his expert report, even much larger

differences than these in standardized test scores would "represent[] a very small difference in

skills critical to grade performance." Steele Expert Rep. at 5.

19

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 35 of 65 Pg ID 765

ARGUMENT
Plaintiff seeks to effect a sea change in the law pertaining to the academic
freedom enjoyed by university officials in making decisions-- designed to further the
educational objectives of their institutions of higher education-- to enroll a diverse class of
students with the skills and experiences needed to succeed in the modem university context. In
effect, plaintiff urges this Court to ignore the Supreme Court's holding in Bakke, which expressly
permits the competitive consideration ofracc in university admissions, and to hold that race may
never be employed as a factor in admissions. But this Court is without the authority to make
such a dramatic break with precedent. The Supreme Court's decision in Bakke has not been
overruled or even reconsidered in the more than 20 years since that case was decided, and it is
controlling hcrc..u1 Moreover, there is nothing in the extensive record developed in this case to
suggest that the Law School has failed to adhere to the standards set forth in Bakke in carrying
Like Bakke, the instant case is about the usc of race as a factor in admissions to
achieve the educational benefits of having a racially diverse student body. Thus, cases concerning the usc of race to remedy past discrimination do not bear directly on the question presented here: whether achieving the benefits of diversity in higher education is a compelling interest. Moreover, recent Supreme Court decisions, such as those in the municipal and federal construction contract context, holding that all racial classifications arc subject to strict scrutiny and must be narrowly tailored to serve a compelling interest arc consistent with and do not
question Bakke. See Adarand Constructors, Inc. v. Pena, SIS U.S. 200,227 (199S); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989). Justice Powell's pivotal opinion in Bakke is wholly consistent with this approach, as he also applied "the most exacting judicial
examination," 438 U.S. at 291, and concluded that the usc of race must be "precisely tailored to
serve a compelling governmental interest," id. at 299. It is therefore understandable that the Supreme Court has not questioned the core holding of Bakke. See, e.g., Akhil Reed Amar and Neal Katyal, Bakke's Fate, 43 UCLA L. Rev. 174S, 1746 (1996) ("Because our public
universities should be places where persons from different walks of life and diverse backgrounds come together to talk with, to learn from, and to teach each other, each person's unique background and life experience may be relevant in the admissions process-- thus, absolute color-
blindness is not constitutionally required in the education context."); see also Brief of the United States as Amicus Curiae at 3 (explaining that Bakke permits race to be considered as one of
many factors in admissions and controls the question presented in this case).
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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 36 of 65 Pg ID 766
out the 1992 Admissions Policy. The undisputed facts in the record demonstrate conclusively that, consistent with its articulated objective of achieving the educational benefits that having a racially diverse body brings, the Law School employs only what Bakke expressly permits --the competitive consideration of race and ethnicity as one of many factors in admissions. As a result, defendants are entitled to summary judgment on all of plaintiff's claims. I. CONTROLLING PRECEDENT PERMITS THE COMPETITIVE
CONSIDERATION OF RACE IN LAW SCHOOL ADMISSIONS. For nearly a century, the Supreme Court has recognized the special role and
mission of educational institutions in our democracy. As early as 1907, Justice Holmes referred to education as "one of the first objects of public care." Interstate Consol. St. Ry. Co. v. Massachusetts, 207 U.S. 79, 87 (1907). Since that time, the Court has repeatedly acknowledged the government's "special role as educator," Board ofEduc., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853,921 (1982) (O'Connor, J., dissenting), and observed that this "special role" carries with it an obligation to participate "in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests," Ambach v. Norwick, 441 U.S. 68,76 (1979). Indeed, the Court has made it clear that the "Constitution presupposes the existence of an informed citizenry prepared to participate in governmental affairs." Pico, 457 U.S. at 876 (Blackmun, J., concurring). For this reason, the Supreme Court recognized, in its landmark desegregation decisions, that an education that encourages students to "engage in discussions and exchange views with other students," McLaurin v. Oklahoma State Regents/or Higher Educ., 339 U.S. 637,641 (1950), is "the very foundation of good citizenship," Brown v. Board ofEduc., 347 U.S. 483,493 (1954).
This long history of recognizing not only the importance of education, but also the special role of educators in preparing students for participation in our society, provides the
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backdrop against which the Court rendered its seminal decision in Bakke. Justice Powell's opinion in that case, which held that the goal of attaining the educational benefits of diversity is a compelling state interest that justifies the consideration of race as a factor in university admissions, provides controlling authority for the actions taken by the Law School in administering the 1992 Admissions Policy at issue in this case.
A. A Properly Devised Admissions Program Involving the Competitive Consideration of Race and Ethnic Origin Is Constitutional. The Supreme Court's decision in Bakke concerned the constitutionality of the
admissions policy of the University of California at Davis Medical School. In contrast to the University of Michigan Law School's Admissions Policy, Davis operated a two-track admissions system, in which fixed numbers of scats were explicitly reserved for majority and minority applicants -- 16 seats in a class of I00 were allocated for minority students, while 84 went to majority students. 438 U.S. at 275. Allan Bakke, a white applicant twice rejected by Davis, challenged the medical school admissions policy, claiming that it violated his rights under both the Equal Protection Clause and Title VI of the Civil Rights Act. Id. at 277-78. The California Supreme Court invalidated the plan, holding that race can never be considered as a factor in admissions and ordering Allan Bakke admitted to the medical school.
A sharply divided Supreme Court rendered a judgment reversing the California Supreme Court decision. Four justices would have reversed the entire judgment and upheld the entire Davis admissions system, including the reservation of a fixed number of scats for minority applicants exclusivcly;111 four others would have affirmed the entire judgment, holding that Title

11/

Bakke, 438 U.S. at 324-79 (Brennan, J.,joincd by White, Marshall, and

Blackmun, JJ.)

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VI of the Civil Rights Act forbids any consideration of race.l!!' Justice Powell delivered the

judgment of the Court and authored the pivotal opinion, which invalidated the Davis admissions

system, but held that achieving the academic benefits of a diverse student body is a compelling

interest that justifies the competitive consideration of race as a factor in university admissions.

See id. at 314-15. Significantly, Part V.C. ofJustice Powell's opinion was joined by four other

Justices (Brennan, White, Marshall, and Blackmun, JJ.), establishing a majority oftl1e Court for

the following critical passage, which states Bakke's central holding and judgment regarding the

usc of race in university admissions:

In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised atlmissio11s program i11vo/ving the competitive consideratio11 of race am/ ethnic origin. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.
!d. at 320 (emphasis added). Thus, after Bakke, there can be no doubt that "a properly devised

admissions program involving the competitive consideration of race and etlmic origin" is

constitutional.

B. Diversity Is a Compelling Interest in the University Admissions Context.

Justice Powell's opinion in Bakke articulates a number of important principles.

The first of these is that "the interest of diversity is compelling in the context of a university's

admissions program," 438 U.S. at 314, because "our tradition and experience lend support to the

view that the contribution of diversity is substantial," id. at 313. Justice Powell emphasized that

"[t]he atmosphere of'spcculation, experiment and creation'-- so essential to the quality of

higher education-- is widely believed to be promoted by a diverse student body." /d. at 312.

Justice Powell understood that a university is essentially a "marketplace of ideas" that functions

l!!l

Bakke, 438 U.S. at 408-21 (Stevens, J.,joined by Burger, C.J., Rehnquist, and

Stewart, JJ.).

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only where there is a rich variety of voices available to offer a diversity of perspectives. This variety cultivates the "robust exchange of ideas which discovers truth 'out of a multitude of tongues."' !d. (citations omitted)
Because of the salience ofracc in American life, and because the vibrant exchange of ideas so essential to university life cannot occur without the presence of individuals of different backgrounds and experiences, Justice Powell concluded that racial and ethnic diversity is an essential clement of this mix.ll/ In stating this point, Justice Powell quoted from the Supreme Court's decision in Sweatt v. Painter, 339 U.S. 629 (1950): "The Jaw school, the proving ground for Jcgallcaming and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced Jaw would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the Jaw is concerned." Bakke, 438 U.S. at 314. In quoting this passage, Justice Powell recognized that the benefits of having a diverse student body reflect the values protected by the First Amendment-- the "robust exchange of ideas which

1.:[/

Justice Powell's Bakke opinion quoted an article by Dr. William Bowen, then the

President of Princeton University, in which Dr. Bowen explained why providing students with

"exposure" to a diverse group of students was essential to a university's educational mission:

[A] great deal of!earning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, "People do not learn very much when tl1cy arc surrounded only by the likes of themselves."

Bakke, 438 U.S. at 312-13 n.48.

24

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 40 of 65 Pg ID 770
discovers truth out of a multitude of tongues," id., 438 U.S. at 312 (citation and internal quotation marks omitted).
The principle that diversity constitutes a compelling interest that justifies the competitive consideration of race in university admissions has its roots in a rich heritage of cases, dating back more than two decades before the Bakke decision, that recognize that "(a]cademic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment." Bakke, 438 U.S. 312. This line of cases establishes that a university has an important interest in creating a campus environment that includes people from a wide array of backgrounds, perspectives, and beliefs in order to encourage a vigorous and healthy learning environment. Indeed, in Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957), the Court emphasized that "[n]o one should underestimate the vital role in a democracy that is played by those who guide and train our youth." In an often-quoted passage from his concurring opinion in Sweezy, Justice Frankfurter expounded still further on the importance of academic freedom to universities:
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university-- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
!d. at 263 (citation omitted). Thus, in Keyishian v. Board ofRegents, 385 U.S. 589, 603 (1967), the Court concluded that"[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned." Significantly, the Court has specifically applied these principles to the University of Michigan itself in Regents ofthe University ofMichigan v. Ewing, 474 U.S. 214,226 n. 12 (1985), where it
25

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held that "academic freedom thrives ... on the independent and uninhibited exchange of ideas among ... students," as well as "autonomous decisionmaking by the academy itself."
The academic freedom discussed in the Court's cases incorporates two important components. First, it acknowledges that the discussion and debate of diverse views, by students of diverse backgrounds, is an essential part of the mission of an institution of higher education principally because it forms the foundation for the "robust exchange of ideas," Bakke, 483 U.S. at 312 (quoting Keyishian, 385 U.S. at 603), protected by the First Amendment. In Healy v. James, 408 U.S. 169, 180-81 (1972), for example, the Court noted that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom" (citations omitted). Since Bakke, the Court has repeatedly reaffirmed the significance of such free-ranging discussions in a university. Recently, in Rosenberger v. Rector and Visitors ofthe Univ. ofVa., 515 U.S. 819 (1995), the Court held that the exclusion of a particular viewpoint from campus debate would not only violate the First Amendment's free speech guarantee, but would also undermine the very purpose of education. In the university setting, the Court explained, the government "acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." Id. at 835 (citations omitted). It also noted that encouraging "free speech and creative inquiry" improves the educational experience on our nation's campuses, which arc "vital centers for the Nation's intellectual life." ld. at 836; sec also Board ofRegents ofUniv. of Wis. v. Southworth, 120 S. Ct. 1346, 1356 (2000) (observing that a university "may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall"); Rust v.
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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 42 of 65 Pg ID 772

Sullivan, 500 U.S. 173, 200 (1991) ("[T]he university is a traditional sphere of free expression so fundamental to the functioning of our society.").
Second, the notion of academic freedom recognizes both that educational institutions should be accorded discretion when making judgments that affect their educational mission and that judges should exercise a corresponding amount of restraint when reviewing such judgments. The rationale for according universities this sphere of independent academic decision making lies both in the importance of education to our pluralistic democracy and in the expertise educators have in determining how the goals of education can best be achieved. See, e.g., Southworth, 120 S. Ct. at 1355 ("It is not for the Court to say what is or is not germane to the ideas to be pursued in an institution of higher learning"); Arkansas Educ. Television Comm 'n v. Forbes, 523 U.S. 666, 674 (1998) (noting that there are a variety of educational decisions, such as "a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum," that may not be secondguessed in federal court on the grounds that they represent a bias in favor of or against a set of ideas); Regents ofthe Univ. ofMich. v. Ewing, 474 U.S. 214,226 (1985) (observing that because of the principle of academic freedom, courts arc "rcluctan[t] to trench on the prerogatives of state and local educational institutions"); Sweezy, 354 U.S. at 263 (Frankfurter, J., concurring) (identifying the freedom of a university to "determine for itself on academic grounds ... who may be admitted to study").J.Ji/

J.Ji/

Thus, under the Court's cases, judicial supervision of primarily educational

decisions-- such as decisions concerning the intricacies of a university's admissions processes--

violates the principle of deference to educational institutions and intrudes unnecessarily into an

area where courts Jack expertise. The decisions of the Sixth Circuit support this conclusion. See

Jacobson v. Cincinnati Bd. ofEduc., 961 F.2d 100, 102 (6th Cir. 1992) (observing that "school

authorities have broad discretion to implement educational policy"); Parate v. lsibor, 868 F.2d

821, 826 (6th Cir. 1989) (noting that "[a]cademic freedom thrives not only on the robust and

27

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 43 of 65 Pg ID 773
-,
Justice Powell was therefore on firm ground when he said in Bakke that
"universities must be accorded the right to select those students who will contribute the most to
the 'robust exchange of ideas'" and emphasized that, by attempting to foster diversity among its
student body, a university seeks "to achieve a goal that is of paramount importance in the
fulfillment of its mission." 438 U.S. at 313. In light of the profound role that race has played in
our history and continues to play in American life today, Justice Powell was also on firm ground
in determining that a university may properly conclude that it is better able to reflect a rich
variety of experiences, backgrounds, and insights, if it is permitted to include racial and ethnic
diversity among the types of diversity it values and seeks to achieve. Defendants have marshaled
abundant evidence that demonstrates that Justice Powell was right about the connection between
educational excellence and a racially and ethnically diverse student body -- and that the hundreds
of institutions of higher learning that have relied on.his opinion in crafting their admissions
policies to achieve such diversity are right as well. As we have discussed, see supra at 10-14,
racial and ethnic diversity on campus enhances the academic skills and civic preparedness of all
uninhibited exchange of ideas between the individual professor and his students, but also on the 'autonomous decisionmaking [of] ... the academy itself."') (citation omitted). Similarly, the constitution of the State of Michigan recognizes the need for autonomous decision making in the university setting. It expressly vests the authority to govern the University of Michigan in the Board of Regents of the University of Michigan and insulates that body from the control of the state's political branches of government. See Mich. Const., art. 8 (1963); cf Federated Publications, Inc. v. Board ofTrustees ofMichigan State Univ., 594 N.W.2d 491, 495-96 (Mich. 1999) (noting that the "Michigan Constitution confers a unique constitutional status on our public universities and their governing boards"). Significantly, Congress and the Supreme Court have also recognized the importance of allowing state and local educational institutions to make judgments regarding tl1e manner and conditions in which their students will be educated without interference from federal agencies and officials. See 20 U.S.C. § 1232a ("No provision ... shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction ... over tl1e curriculum, program of instruction, administration, or personnel of any educational institution ....");see also Wheeler v. Barrera, 417 U.S. 402 (1974) (recognizing statutorily imposed limits on federal involvement in administration of state education programs); Crawfordv. Pittman, 708 F.2d 1028 (5th Cir. 1983) (same).
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students -- minorities and non-minorities alike. Contrary to what plaintiff argues in this case, valuing such diversity is not to assert that one's race determines or preordains the views that any particular person will hold regarding any given subject. Indeed, there may be no better way to debunk stereotypes than by exposing students-- in a racially diverse educational setting --to the wide array of viewpoints that arc very often held by members of a single racial or ethnic group, or to confront students with the fact that members of other racial groups have similar views to their own when differences arc expected.
C. Bakke's Limitations on the Consideration of Race in University Admissions. Although he held that p_ublic universities generally have a compelling interest in
achieving the benefits of a diverse student body, Justice Powell concluded that the Davis policy at issue in Bakke was not precisely tailored to achieve that objective. Bakke permits colleges and universities to consider race as a factor in admissions, but imposes certain limitations on the manner in which race may be employed.
First, Justice Powell's opinion makes clear that the "fatal flaw" in the Davis admissions system was not the consideration of race, but rather the fact that minorities were rigidly insulated from competition with other applicants. 438 U.S. at 319-20. The Davis program was deemed to violate the Constitution because it shielded minority applicants from non-minority applicants. Bakke provides that, in an admissions system "in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," id. at 315 (emphasis added), minority applicants arc impermissibly insulated "from comparison with all other candidates," id. at 317.J1J Racial quotas arc thus incompatible with the

J1J

In City ofRichmond v. J.A. Croson Co., 488 U.S. 469, 496 (1989), Justice

O'Connor underscored this reading of Bakke. She described the flaw identified by a majority of

29

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 45 of 65 Pg ID 775
"competitive consideration" of race as a factor in admissions upheld as constitutional in Bakke because they create a "two-track," separate admissions system in which minority applicants arc compared only with one another and non-minority applicants arc compared only with one another.
Additionally, as Justice Powell described, racial quotas arc an inexact means of achieving the kind of diversity that constitutes a compelling interest. Reliance on rigid quotas "misconceives the nature of the state interest that would justify consideration of race or ethnic background." !d. at 315. Admissions systems that rely on racial quotas do not regard applicants of any race as individuals. Instead, they treat them solely as representatives of groups, improperly reflecting an interest in "simple ethnic diversity," without regard to the variety of other factors that contribute both to diversity and to educational excellence. !d. In sum, using racial quotas ignores the fact that the "diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important clement." !d.
Bakke's prohibition on rigid quotas, or a system that operates as a "functional equivalent" of a racial quota, id. at 318, docs not invalidate a policy that takes race into account in a systematic way in order to realize the benefits of a diverse student body. As Justice Powell explained, the fact that a university includes race as one of many factors to be considered under an admissions policy or concerns itself with the number of minority students to whom it offers admissions docs not render its program unconstitutional. Sec id. Indeed, Justice Powell's explicit approval of the Harvard admissions plan, which expressly treated race and ctlmic
the Court in tl1c Davis plan as the "complete[] climinat[ion] [of] minorities from consideration for a specified percentage of opportunities." !d. at 496.
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background as a "plus" factor, plainly forecloses such an argument. Discussing the Harvard policy, Justice Powell wrote:
This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a 'plus' on the basis of ethnic background will not have been foreclosed from all consideration for that scat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.
Bakke, 438 U.S. at 318.
Moreover, the fact that race is a decisive factor in certain applications cannot,
without more, render an admissions plan unconstitutional under Bakke. The consideration of
race in admissions is not an end in itself. Rather, a racially diverse student body is the "end" that constitutes a compelling state interest. Therefore, the consideration of race and ethnicity in the
admissions process is constitutional precisely because of-- not in spite of-- the fact that it is
designed to enroll more minority students and produce a diverse student body, which is essential to a university's mission. If this factor made no difference whatsoever in selecting a student body, no university would bother to include it as a "phantom" factor in the admissions process.
Bakke, then, must be read to mean what it says. Fixed quotas that insulate minorities from
competition with non-minority applicants arc forbidden, but systematic efforts to achieve a racially and ethnically diverse student body-- which requires each applicant to compete with the other applicants in the pool -- arc permissible.
Second, in addition to limiting the manner in which race can be considered in a university admissions process, Bakke also limits the use of race as a factor in admissions to the ·extent that it eradicates threshold qualifications. Justice Powell's Bakke opinion makes clear that
a "properly devised" admissions system is one that considers race as a factor in choosing among
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"otherwise qualified" applicants. 438 U.S. at 320..I.l!' Accordingly, race cannot be weighed so heavily in the admissions process that it warrants the admission of applicants who arc not
deemed capable of succeeding at the university. This said, Bakke clearly docs not require that all
factors be weighed equally. "[T]he weight attributed to a particular quality or attribute may vary from year to year depending upon the 'mix' both of the student body and the applicants for the
incoming class." Bakke, 438 U.S. at 317-18 (emphasis added). So long as an admissions
program is "flexible enough to consider all pertinent clements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for
consideration" it will pass constitutional muster, id. at 317. Under principles of academic
freedom, courts must respect the academic judgments made by university officials who decide what the proper balance of factors, including race, should be in the admissions process, where
they adhere to Bakke's requirements regarding the manner and extent to which race can be
considered as a factor in the admissions process.
D. Bakke Is Binding Precedent.
As previously noted, four other Justices joined Part V.C. of Justice Powell's opinion expressly holding that a "properly devised admissions program involving the competitive consideration of race and ethnic origin" is constitutional. 438 U.S. at 320. Thus, there can be no question that this holding by a majority of the Court constitutes binding

Similarly, in United Stales v. Paradise, 480 U.S. 149 (1987), the Court upheld a
racial set-aside that had been designed to remedy a showing of discrimination, but also set out a limitation on the extent to which race may be used: "the basic limitation, that black troopers promoted must be qualified, remains. Qualified white candidates simply have to compete with qualified black candidates." Jd at 183.
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prcccdcnt..l2i In the years since Bakke, the Court has never overruled or even reconsidered its holding in that case. Indeed, the Court has recognized Bakke's essential holding on a number of occasions. In her concurring opinion in Wygant v. Jackson Bd. ofEduc., 476 U.S. 267 (1986),
for example, Justice O'Connor noted that "although its precise contours arc uncertain, a state interest in the promotion of racial diversity has been found sufficiently 'compelling,' at least in the context of higher education, to support the usc of racial considerations in furthering that
interest." !d. at 286 (citing Bakke). Similarly, Johnson v. Transportation Agency, 480 U.S. 616 (1987), a case
involving an alleged violation of Title VII of the Civil Rights Act of 1964, also recognized
Bakke's primary holding. In that case, the Court noted that a promotion plan that considered the
gender of an employee as one of a range of factors was similar to the Harvard plan "approvingly
noted by Justice Powell" in Bakke. Johnson, 480 U.S. at 638. Upholding the promotion plan,
the Court observed that, despite its consideration of gender, the plan "requires women to

121

As t11c "narrowest grounds" offered in support of the result, Justice Powell's

opinion also represents the holding of the Court under the Supreme Court's decision in Marks v.

United States. 430 U.S. 188, 193 (1977). See also Ex. H (Smith v. University ofWash. Law

Sch., No. C97-335Z (W.D. Wash. Feb. 12, 1999)) (holding Justice Powell's opinion controlling

under a Marks analysis). The Sixth Circuit has adopted an interpretation of Marks tlmt supports

the conclusion that Bakke provides controlling authority on the usc ofracc in university

admissions. See Triplett Grille, Inc. v. City ofAkron, 40 F.3d 129, 132 (6th Cir, 1994) ("In light

of the Supreme Court's instruction tl1at '[w]hcn a fragmented Court decides a case and no single

rationale explaining tl1c result enjoys the assent offivc Justices, 'the holding of the Court may be

viewed as tl1at position taken by those Members who concurred in the judgments on tl1c

'narrowest grounds."") (citations omitted) In Bakke, Justice Powell's diversity rationale--

announced in Part V.C. of the Court's opinion and joined by four ot11cr Justices to reverse the

part of the California Supreme Court's decision prohibiting any consideration ofracc in

admissions-- stands not only as the holding of the Court, but also as the "narrowest grounds" in

support of the judgment. The opinion authored by Justice Brennan was much broader in

approach than Justicc Powell's. Justicc Brennan's opinion would not have applied strict

scrutiny, as Justice Powell's decision did, to "benign" racial classifications and would have

upheld not only a Harvard-style admissions plan, but also the two-tiered Davis plan at issue.

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compete with all other qualified applicants. No persons arc automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants." !d. Thus, endorsing Bakke's precedential value and its reasoning, a five-member majority concluded that the consideration of gender was lawful.
Significantly, the opinions of the Sixth Circuit have consistently relied on the Bakke opinion as controlling authority. In Oliver v. Kalamazoo Bd. ofEduc., 706 F.2d 757 (6th Cir. 1983), for example, the court cited Bakke for the proposition that "affirmative action admission programs of educational institutions may take race into account, but racial quotas arc prohibited." !d. at 763. Referring to Bakke, tl1e Sixth Circuit invalidated a court-imposed racial quota for minority teachers and expressly stated that a "wiser approach is a more flexible affirmative action program rather than a hiring quota." !d. More recently, in Jacobson v. Cincinnati Bd. ofEduc., 961 F.2d 100, 103 (6th Cir. 1992), it relied on Bakke in upholding Cincinnati's policy of transferring teachers to balance tl1e racial composition of its schools "to achieve a racially integrated faculty throughout the Cincinnati public school system."W

ZQt

Other appellate courts have also agreed that Bakke is controlling precedent. See,

e.g., Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123, 131 (4th Cir. 1999) (concluding

that Bakke permits considering race in admissions and assuming that diversity is a compelling

interest, but invalidating a magnet school transfer system as not narrowly tailored to achieve that

objective); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698,705 (4th Cir. 1999) (same as to a

school admissions system); Wessman v. Gittens, 160 F.3d 790 (I st Cir. 1998) (assuming Bakke is

controlling Supreme Court authority, but invalidating race-conscious admissions program

because the school would have achieved meaningful racial and ethnic diversity even without

consideration of race as a factor in admissions); Winkes v. Brown Univ., 747 F.2d 792,799 (1st

Cir. 1984) ("In Bakke, the Court held that some consideration of race in a medical school's

admissions criteria was permissible, but that the usc of a rigid quota was not."); see also Smith v.

University of Wash. Law Sch., 2 F. Supp.2d 1324, 1334 (W.D. Wash. 1998) ("The attainment of

a diverse student body ... is a compelling interest and constitutionally permissible goal for a

university or graduate program. Thus, an institution of higher education may take race into

account in achieving 'educational diversity."') (citing Bakke); Davis v. Halpern, 768 F. Supp.
968, 975 (E.D.N.Y. 1991) ("While the court [in BakkeJexplicitly rejected the usc of strict

numerical quotas to achieve diversity, it endorsed the plans of many colleges and universities

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The Fifth Circuit is the only appellate court that has failed to adhere to Bakke. In Hopwood v. State ofTexas, 78 F.3d 932, 944 (5th Cir. 1996), that court rejected Bakke's diversity rationale as inconsistent with more "recent Supreme Court precedent." Its decision in that case, however, was wrong and beyond its power. While the Supreme Court has-- since Bakke -- made clear that all racial classifications, even those that benefit racial minority groups, arc subject to strict scrutiny, see, e.g.,Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), it has never rejected Bakke's holding that there is a compelling interest in achieving a racially diverse student body, and that the competitive consideration of race in admissions is narrowly tailored to achieve that interest.
Thus, in rejecting Bakke's conclusion that an institution of higher education has a compelling interest in enrolling a racially diverse student body, the Fifth Circuit completely disregarded the constraints on its authority. Under existing case law, it is clear that the Hopwood court lacked the authority to override or disregard the Supreme Court's decision in Bakke. See, e.g., Hahn v. United States, 524 U.S. 236,252-53 (1998) ("Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality."); State Oil Company v. Khan, 522 U.S. 3, 20 (1997) ("[I]t is this Court's prerogative alone to overrule one of its precedents."); Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (only the Supreme Court can overrule its own precedents); Rodriguez De
which consider race or ethnic background as one of many factors in weighing a candidate's strength."); University and Community College Sys. v. Farmer, 930 P.2d 730, 734 (Nev. 1997) (Bakke held that "an attempt to attain a diverse student body through a preferential treatment admissions policy is not per sc unconstitutional so long as race is one of several factors used in evaluating applicants. Quotas, however, arc proscribed.") (citations omitted), cert. denied, 523 U.S. 1004 (1998); cj Brewerv. West Irondequoit Cent. Sch. Dist., 212 F.3d 738 (2d Cir. 2000) (denying preliminary injunction in challenge to race-conscious elementary school transfer program because plaintiffs were not likely to be able to establish that that program is unconstitutional).
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Quij'as v. Shearson/American Express, Inc., 490 U.S. 477 (1989) (same). As a result, its decision in Hopwood cannot provide a basis for effecting the drastic change in the law urged by the plaintiff in this case. II. THE LAW SCHOOL COMPLIES WITH THE BAKKE STANDARD.
The record evidence compiled after extensive discovery in this case permits only one conclusion-- that the Law School's admissions process is a properly devised system within the meaning of Bakke. The testimony of the Law School admissions personnel is unrefuted: that, as in the Harvard system approvingly discussed by Justice Powell in Bakke, race is considered as one of a number of important factors in admissions decisions, and that the admissions office carefully examines each application and makes an individual judgment, based on the entire file, about how the applicant would contribute to the law school class. After extensive discovery, the facts show that:
• The Law School has no two-track admissions system. Shields Dep. at 104; Munzel Dcp. at 125-26; Eklund Dep. at 49.
• The Law School does not utilize racial quotas -- either in form, or in effect. Shields Dep. at 104; Munzel Dep. at 125-26; Eklund Dep. at 49.
• The admissions office does not physically separate applications by race. Wong Dep. at 29.
• It does not assign minority applications to underrepresented minority student reviewers or particular readers within the admissions office. Munze1 Dep. at 60.
• It applies the same academic standards to all ofits students. Lempert Dep. at 174. • The Law School considers race as a single, though important factor in admissions.
Shields Dep. at 23. In short, no genuine issues offact exist with respect to what the 1992 Policy says and the actions taken by the admissions office in carrying out that policy. The Law School has clearly complied with Bakke in administering its Admissions Policy.
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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 52 of 65 Pg ID 782
-··~'
The Law School's compliance with governing legal standards is not surprising given the fact that all of the record evidence demonstrates that a major purpose of the 1992 Admissions Policy was to ensure that the Law School complied with the standards set forth in the Bakke decision. When Lee Bollinger became Dean of the Law School in 1987, Allan Stillwagon was Assistant Dean and Director of Admissions, a position he had held since 1979. Stillwagon Dcp. at 8-9. During Stillwagon's tenure as Director of Admissions, the Law School employed a number of strategies designed to address the "racial imbalance now existing in the legal profession" and to make "the [Law] School a livelier place to learn." Ex. I at 85. One such strategy, referred to as a "special admissions" policy, had as its explicit goal the enrollment of a first-year class that consisted of between 10 and 12 percent minority students. Another strategy, employed by the admissions office from 1979 to 1990, consisted of a "pool" system under which approximately half of the students admitted to the entering class were admitted primarily "on the numbers," while the other half of the class was chosen from a group of applicants with slightly lower grades and test scores, on the basis of non-quantifiable factors such as extracurricular or charitable activities, or "remarkable or interesting ethnic or national backgrounds." Stillwagon Dcp. at 22-23. Where this "pool system" did not yield a class with a sufficient number of minority students-- and during Stillwagon's tenure it typically would not, Stillwagon Dep. at 3031, 39-43 --the admissions officer would, employing the "special admissions" policy, admit a sufficient number of minority students to maintain the Law School's goal at that time of achieving an entering class composed of 10 to 12 percent minority students. Sec Stillwagon Dcp. at 22-24, 37-39.w

;w

For students admitted under the "special admissions" program, "qualifications

predicting success beyond the LSAT and GPA [were] somewhat more emphasized in the

selection process in order to yield [greater] numbers of members oftl1cse groups in the entering

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 53 of 65 Pg ID 783
However, the "pool system" and the "special admissions" policy, like practices
such as using underrepresented minority students to review the files of underrepresented
minority applicants, were eliminated by the Admissions Policy adopted by the Faculty
Admissions Committee in 1992,w which, as explained previously, was formed by then-Dean
Bollingcr.:U' In adopting the 1992 Policy, the Committee chose not to rely on the "special
admissions" program and "pool" system utilized by the previous admissions program. Instead, it
adopted an approach to diversity that did not include numerical goals or targets for any group
other than Michigan residents, Bollinger Dcp. at 107-08; Lempert Dep. at 70, and that valued
class." Ex. J at 2. In addition, "[m]cmbcrs of minority student organizations read files and [made] recommendations to the admissions staff, who [made] the final admissions decisions." Ex. Kat 38.
During the faculty committee's deliberation, Professor Don Regan circulated a memorandum suggesting that the Policy include a "target range" of minority students. See Ex. L. The full committee, however, ultimately determined not to include such a "target range." Regan Dcp. at 59-60. Professor Don Herzog, who opposed the inclusion of a "target range" in the Policy, explained that he did not believe that a judgment to value diversity lent itself to "quantitative glosses." Herzog Dcp. at 137. He stated:
[R]cfcr to the example oflcttcrs of recommendation, some students arc admitted to the University of Michigan Law School on their strength-- who otherwise would not get in but for the letters of recommendation, but it would be crazy to think that we say six percent or six to ten percent or eight to 20 percent of our students arc admitted on the basis of!etters of recommendation.
Wc could still have a meaningful discussion about whether the admissions office is paying too little or too much attention to them, but any attempt in that context, to specify a range of numbers, would seem to me on its face absurd, and I have very much the same view about the usc of race and cthnicity.
Herzog Dcp. at 137-38. :UI As Admissions Director Dennis Shields explained during his deposition in this case, President Bollinger expressed "general concerns about ... not really understanding special admissions and not really approving of the way it was articulated" fairly early in his tenure as Dean of the Law School. Shields Dep. at 37-38,.41-42.
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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 54 of 65 Pg ID 784

diversity not "to increase the numbers of minorities in the legal profession," but rather for the "purpose of providing the best educational experience for our students." Bollinger Dcp. at I07; Lempert Dcp. at 76.
During the course of discovery in this case, plaintiffall but lost interest in the actual policy at issue here --the 1992 Admissions Policy adopted by the Faculty Admissions Committee. The reason for this is clear: the 1992 policy plainly complies with Bakke. Plaintiff has therefore spent the vast majority of her time conducting discovery of old policies irrelevant to this litigation, deposing former administrators not involved in the implementation of the current policy, and scrutinizing statements made by Law School officials to the ABA in a desperate attempt to manufacture a violation for which she might be able to extract damages from the Law SchooJ.ll' Her efforts have, however, been in vain. At the end of the day, there is

lll

At the same time that the admissions committee was drafting the Admissions

Policy, the Law School was required to describe its admissions policies to the American Bar

Association and the Association of American Law Schools as part of their process of accrediting

the Law School, a process that takes place once every seven years. Thus, in a "self study" and

other documents submitted to the ABA/MLS committee in January of 1992, the Law School

described its "special admissions policy," which was still in effect at that time. This committee

then visited the Law School in February 1992, and met with various Law School officials. In the

committee's report relating to the Law School's admissions process-- which the Law School

received in July 1992, three months after the new Policy had been adopted by the faculty-- the

ABA committee described the "special admission" program. Referring to the review of

admissions policies, which had been in progress at the time of the ABA committee visit, the

ABA committee stated that the "new Assistant Dean for Admissions ... is conducting a study of

the school's special admission program ... but that the basic thrust of the special admissions

program will be maintained." Ex. Kat 38. Plaintiff has seized on that language.

After receiving this report from the ABA, Professor Edward Cooper, then the Associate Dean for Academic Affairs, responded to the ABA committee by noting that "[s]cvcral changes have been made in our statement of admissions policy since the time of the team visit," including a "general change" to the "diversity component of our statement of admissions policy." Cooper's letter the(! quotes the sections of the Admissions Policy that describe the Law School's interest in enrolling a student body that is diverse in many ways, including with respect to race and cthnicity, making no reference to the former special admissions program. See Ex. M at AALS 008-009.

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 55 of 65 Pg ID 785
no genuine issue offact as to what the 1992 Policy says; there is no genuine issue offact on whether the admissions office has followed that Policy; and there is no question that the 1992
Policy and its application comply with Bakke.
Because there is no question that the manner of the Law School's consideration of
race in admissions decisions complies fully with the requirements set forth in Bakke, the plaintiff
is reduced to a focus on a very different question -- whether race can somehow be characterized as a "predominant factor in the admissions process." She alleges that "[d]cfcndants did not merely usc race as a 'plus' factor" but "[r]athcr, race was one of the predominant factors (along with scores on the Law School Admissions Test and undergraduate grade point averages) used
for determining admission." Compl. ~ 23. But Bakke docs not envision that courts arc to decide
whether one factor in the admissions process "predominates" over another. Rather, in addressing
the manner in which race may be employed, the question Bakke ultimately asks is whether the
school at issue seeks only to admit qualified applicants. And on this point, the record in this case is more than clear-- the admissions office docs not admit any student whom it docs not believe to be qualified to succeed at the Law School.
Moreover, nothing in the record developed in this case supports a conclusion that race "predominates" over other factors in the admissions process. Because race is an "important
clement" in the admissions process, see, e.g., Answer~ 19, it is, of course, true that the potential
ability to contribute to the racial diversity of the Law School will sometimes make a difference for some applicants-- just as for other applicants it will be in-state residency, grades, test scores, a powerful essay, or some unique experience or talent that will lead to a favorable admissions decision. To say this, however, is to say nothing more than that race is one of many factors in
the admissions process, a fact defendants fully concede and a policy that Bakke plainly permits.
40

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 56 of 65 Pg ID 786
Nevertheless, in a rather curious effort to prove this undisputed point, plaintiffs expert Professor Larntz has created a series of charts using database information produced in this
litigation. See Ex. N. These charts divide the pool of applicants to the Law School into 120
cells, with each cell on the chart representing a narrow range of undergraduate grade point averages and standardized test scores. A separate chart is generated for each of the demographic groups for which data is available, in each of the four separate academic years at issue in this litigation-- 1995 through 1998.w These charts demonstrate that, if all you know about an applicant is his or her I) undergraduate grade point average; 2) LSAT scores; and 3) race, it turns out that being a member of an underrepresented minority increases the chances of a small number of applicants being admitted. Based on only some of the data contained in these charts,
see Larntz Dep. at 119-20, Larntz drew the conclusion that "membership in certain ethnic groups
is an extremely strong factor in the decision for acceptance." Ex. Nat 9. However, the notion that race is an important factor in the admissions process
docs not mean that it is the predominant factor, as plaintiff asserts. See Complaint ~ 23. Indeed,
plaintiffs own expert conceded this point after analyzing the same data: "[f)or the applicants as a whole ... I think grade point average and LSAT arc more important than any other factors" in the admissions process. Larntz Dep. at 90. Clearly, a factor cannot "predominate" if at least two other factors arc more important considerations in the process. The manner or extent to which race is considered in the admissions process cannot fairly be measured by examining plaintiffs charts, or by merely comparing the grades and test scores of majority and minority students. Such an artificial, two-dimensional comparison necessarily excludes many other factors that bear on admissions decisions.
At one point, the Law School also regularly generated such charts. See, e.g., Ex. 0. However, it has not done so since 1995. See Metzler Dcp. at I04-07.
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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 57 of 65 Pg ID 787
' -~I
·)
Defendants' expert, Professor Stephen Raudenbush, a nationally recognized Professor of Education at the University of Michigan, agrees, stating that "one cannot reasonably conclude that [race] predominates over other factors in the admissions process." Raudenbush Supp. Expert Rep. at 5. Moreover, as Professor Raudenbush noted, any analysis of the extent to which the Law School considers race as a factor in admissions is put in perspective by the fact that the overall proportion of minority students admitted each year is similar to the admissions rates for majority students. Raudenbush Expert Rep. at 6; Raudenbush Supp. Expert Rep. at 2. In 1997, for example, the Law School offered admission to 38.1 percent of the Caucasian applicants, but admitted only 31.1 percent of the African American applicants for that year. See Ex. B at UML025659-25660. These basic descriptive statistics belie the notion that race is a "predominant"· factor in the admissions process.
Further, as Professor Raudenbush also pointed out, in order to draw a responsible global conclusion relating to the usc of race in admissions, one would have to compare the results from the current admissions system with those from a hypothetical system in which race was not considered as a factor. See Raudenbush Dep. at 41-44. Professor Larntz has not conducted such an analysis. Professor Raudenbush observed that the underrepresented minority applicant pool represents a relatively small proportion of the total group of applicants to the Law School. Accordingly, if the Law School were to abandon its policy of considering race as a factor in admissions, the likelihood that any given minority applicant would be admitted would decline dramatically, while at the same time the likelihood that any given majority applicant would be admitted would increase only slightly. Raudenbush Supp. Expert Rep. at 6-11.
Finally, as previously indicated, in examining the extent of the Law School's consideration of race as an admissions factor, one must also acknowledge tlmt the University of
42

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 58 of 65 Pg ID 788
Michigan Law School competes for top students -- both majority and minority -- with its peer
institutions. This competition is reflected in the fact that the yield rate-- i.e., the percentage of
admitted students who accept the Law School's offer to enroll-- is somewhat lower for minority students than for majority students. That lower yield rate presumably reflects the fact that, even given the somewhat lower grades and test scores earned by some of the minority applicants to whom the Law School offers admission, many of those students are declining the University of Michigan's offer of admission, electing instead to attend another highly-regarded law school.
Ex. Bat UML025659; see Raudenbush Expert Rep. at 6 (emphasizing that yield rates must be
considered in any effort to compose a diverse student body). In sum, plaintiffs efforts to generate a factual dispute that might block
defendants' claims for summary judgment in this case have been a resounding failure. The facts in this case are clear and undisputed. The record plainly demonstrates that the Law School has fully and conscientiously complied with Bakke in implementing its Admissions Policy. This Court should therefore grant defendants' claims for summary judgment. III. THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN IS ALSO
ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S DAMAGES CLAIMS UNDER TITLE VI OF THE CIVIL RIGHTS ACT.
In addition to seeking to enjoin the implementation of the Law School's Admissions Policy, plaintiff has, as noted previously, brought damage claims against the individual defendants -- whose defense of qualified immunity was addressed in an earlier filing with this Court-- and the Board of Regents of the University of Michigan. Like her claims for declaratory relief and her efforts to obtain damages from the individual defendants in their personal capacity, however, plaintiffs claims against the Board of Regents, which have been
brought under Title VI of the Civil Rights Act, see Complaint~ 33, must fail. As an arm of the
43

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 59 of 65 Pg ID 789
state of Michigan, the Board of Regents generally enjoys Eleventh Amendment immunity from suit for damages in federal court. See Regents of the Univ. ofMich. v. Ewing, 474 U.S. 214, 217 n.3 (1985); Seminole Tribe ofFla. v. Florida, 517 U.S. 44 (1996); Estate ofRitter v. University ofMich., 851 F.2d 846, 847 n.4 (6th Cir. 1988). The Board cannot be understood to have waived its immunity and, therefore, cannot be held liable for damages in this case.
Under existing precedent, a state generally has immunity from suits brought under Title VI. A state, however, may effect a waiver of that immunity as a condition on its receipt of federal funds. Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. I, 17 (1981); see also Horner v. Kentuc!..y High Sch. Athletic Ass 'n, 206 F.3d 685, 692 (6th Cir.), cert. denied, No. 992023, 2000 WL 795898 (U.S. Oct. 2, 2000). The Supreme Court has made clear that Title VI, like Title IX, provides a damages action against entities that receive federal funds. See Franklin v. Gwinner County Pub. Sch., 503 U.S. 60 (1992). "The two statutes [Title VI and Title IX] operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). In short, Title VI, like statutes such as Title IX, expressly abrogates the Board of Regents' sovereign immunity. See 42 U.S.C. § 2000d-7. Thus, through its acceptance of federal funds, the University of Michigan has effectively entered into an agreement that permits it to be sued, under certain circumstances, for damages in federal court. The question here, of course, is how broadly should that agreement be read-- what, in effect, is its scope.
Title VI's "contractual nature has [certain] implications for [any] construction of the scope of available remedies." Lago Vista, 524 U.S. at 287. Accordingly, a court must "examine closely the propriety of private actions holding the recipient liable in monetary
44

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 60 of 65 Pg ID 790
I
damages for noncompliance with the condition." !d. Specifically, where a state's liability is inferred from its acceptance of federal funds, the state must "voluntarily and knowingly accept[) the terms of the 'contract."' Pennhurst, 451 U.S. at 17; see also Horner, 206 F.3d at 692.~1 Because there can "be no knowing acceptance if a State is unaware of the conditions," id., a damages action is permitted under Title VI only where it would be "obvious that the grantee was aware that it was administering the program in violation of the [law]." Guardians Ass 'n v. Civil Serv. Comm 'n, 463 U.S. 582, 598 (1983). Put differently, damages arc not available against the recipient of federal funds unless the recipient can reasonably be said to be on notice tlmt its conduct will obviously subject it to liability in damages.
Read togetl1er then, the Supreme Court's decisions in Guardian, Franklin, Pennhurst and Lago Vista essentially forbid the imposition of a damages remedy against a state as the recipient of federal funds where the recipient's conduct does not violate clearly established legal principles. Cj United States v. Lanier, 520 U.S. 259,270 (1997) (where
Congress would not intend to impose liability without giving the defendant "fair warning," liability will not be imposed unless "the contours of the right violated arc sufficiently clear that a reasonable official would understand that what he is doing violates that right") (citation omitted). This standard plainly bars the claims for damages plaintiff now asserts against the Board of Regents. Where, as in this case, a recipient offedcral funds establishes a policy that is fully consistent with the Supreme Court's statement of the governing legal principles, it is "sensible to
The abrogation of a state's sovereign immunity may also occur as the result of
congressional action under the Fourtcentl1 Amendment. In Franks v. Kentucky Sch. for the Deaf,
142 F.3d 360 (6th Cir. 1998), the Sixth Circuit held that Title IX represents an abrogation of state
sovereign immunity. But as the Supreme Court's subsequent Lago Vista decision makes clear, the question of the scope of that abrogation is governed by Spending Clause principles: a
recipient of federal funds is liable in damages only insofar as-- by accepting federal funds -- it "voluntarily and knowingly acccpt[s] the terms of the contract."
45

2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 61 of 65 Pg ID 791

assume that Congress did not envision a recipient's liability in damages." Lago Vista, 524 U.S.

at 275.

The University of Michigan Law School's Admissions Policy, as demonstrated

more fully above, is a flexible policy that does not employ racial quotas and requires all applicants to compete against one another according to the same standards and measures of achievement. It complies with Bakke, and therefore cannot be said to be in violation of"clcarly

established" legal rules. Plaintiffs claims to the contrary arc belied by the fact that the United States, which has primary responsibility for enforcing Title VI, has made clear that Bakke

supports the competitive consideration of race in admissions in order to attain the educational

benefits of a diverse student body. In this Court, as it has in others, the United States concludes that the "interest in obtaining the educational benefits of a diverse student body supports an appropriately structured plan under which [a] University may take race into consideration as one

of many factors in making its admissions decisions." Brief of the United States as Amicus

Curiae at 3. Moreover, the Department of Education ("DOE"), which disburses tl1e Title VI

funds at issue here, has published guidelines in the Federal Register-- guidelines on which

universities across the country, including the University of Michigan, rely in administering their

admissions programs --that recognize tl1e continued vitality and importance of Bakke in the

university context. See 59 Fed. Reg. 8756, 8761 (1994) ("[C]ollcgcs have a First Amendment

right to seck diversity in admissions to fulfill t11eir academic mission through the 'robust .

exchange of ideas' that flows from a diverse student body.").

Earlier this year, the Office for Civil Rights, a division of the Department of

Education that is, inter alia, responsible for monitoring compliance with Title VI, relied upon those guidelines in concluding that the University of Chicago Law School's admissions policies

46

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 62 of 65 Pg ID 792

\

for 1997-98, which considered race as one of many factors in admissions, violated neither Title VI nor its implementing regulations. See Ex. R (Letter to Dr. Don Michael Randel, President, University of Chicago, from Linda A. McGovern, Director, Chicago Office, Midwestern Division, Office for Civil Rights, U.S. Department of Education, rc: OCR Complaint# 05-972044 at I (August 14, 2000) ("OCR concluded that, according to the evidence, the Law School's admissions practices for the 1997-98 entering class included the consideration of race and national origin in a manner that was narrowly tailored to achieve its compelling interest in attaining the educational benefits of a diverse student body.")) There can be no doubt then that defendants have not violated any clearly established law in operating their Bakke-compliant admissions program.
That the vast majority of law schools in this country utilize admissions programs designed -- consistent with the guidelines set forth in Bakke -- to achieve education-enhancing diversity also attests to the lawfulness of defendants' action in this case. Both the American Bar Association and the Association of American Law Schools require, as a condition of accreditation and membership, that a law school demonstrate a commitment to having a racially diverse student body. Sec Ex. P (ABA Standard 211) ("Consistent with sound legal education policy and the Standards, a law school shall demonstrate, or have carried out and maintained, by concrete action, a commitment to providing full opportunities for the study of law and entry into the professions by qualified members of groups, notably racial and ethnic minorities, which have been victims of discrimination in various forms."); Ex. Q (AALS Bylaws Section 6-4(c)) ("A member school shall seck to have a faculty, staff, and student body which arc diverse with respect to race, color, and sex."). These accrediting legal institutions arc hardly likely to adopt requirements that violate clearly established constitutional law.

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 63 of 65 Pg ID 793
Finally, the fact that the academic legal community has also assumed that raceconscious admissions policies arc constitutional under Bakke is significant here. See, e.g., Akhil Reed Amar and Neal Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745, 1779 (1996) ("[O]ur [analysis of the case law] suggests that educational affirmative action on a Harvard-plan model may pass Supreme Court muster. There arc sound reasons why this is so -- reasons that we believe arc at the heart of Bakke."). The prevailing view is clearly that admissions programs operated in accordance with Bakke arc constitutional.
In light of this, it cannot be seriously maintained that the Board of Regents-- as a consequence of the decision making authority it wields over the Law School and the other academic components of the University of Michigan system-- has violated "clearly established" legal principles. Such an outlandish claim is simply not supported by the record or the law. The Law School's Admissions Policy comports with Bakke's requirements and, therefore, the Board of Regents of the University of Michigan-- at the very least-- is entitled to summary judgment on the claims for monetary damages plaintiff advances. It plainly has not waived its sovereign immunity in this case.
* * *
The Law School and the University of Michigan's Board of Regents arc entitled to summary judgment on all of the claims for relief-- monetary, as well as declaratory and injunctive-- brought by the plaintiff in this case. Plaintiffs challenge to any usc of race in admissions is foreclosed by Bakke's holding, in which a majority of the Court expressly permitted the "competitive consideration" of race as a factor in admissions. And plaintiffs claim that tl1c Law School violates Bakke just cannot be squared with the undisputed facts in the record. The extensive record developed in this litigation confirms that the Law School fully
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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 64 of 65 Pg ID 794

complies with Bakke. Race is considered as one among many factors in the Law School's admissions process, in order to achieve a diverse student body. Summary judgment in the defendants' favor is therefore appropriate.
CONCLUSION For the foregoing reasons, this Court should grant Defendants' motion for summary judgment.
Respectfully submitted,

Philip Kessler Leonard M. Niehoff BUTZELLONG 350 South Main Street Suite 300 Ann Arbor, MI 48104 (734) 213-3625

h H. ick mg Jo n Payt Jane Sherburne WILMER, CUTLER, & PICKERING 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000

Dated: October 9, 2000

49

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2:97-cv-75928-BAF Doc # 216 Filed 10/10/00 Pg 65 of 65 Pg ID 795

' \

CERTIFICATE OF SERVICE I hereby certify that on this 9th day of October, 2000, I caused a copy of the foregoing Renewed Motion For Summary Judgment to be served, by courier, on:

David F. Herr, Esq: Kirk 0. Kolbo, Esq. Maslon, Edelman, Borman & Brand 300 Norwest Center 90 South Seventh Street Minneapolis, MN 55402
And, by Federal Express on October I Oth, on:
Michael E. Rosman, Esq. Hans F. Bader, Esq. Center for Individual Rights 1233 20th Street, N.W. Washington, D.C. 20036

George B. Washington, Esq. Eileen R. Scheff, Esq. Miranda K.S. Massie, Esq. One Kennedy Square, Suite 2137 Detroit, MI 48226
Kerry L. Morgan, Esq. Pentiuk, Couvreur & Kobiljak Suite 230, Superior Place 20300 Superior Street Taylor, MI 48180

nA. Lenharo WILMER, CUTL & PICKERING 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000

50

 
 .. / .. .. . '
'

2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 1 of 12 Pg ID 1
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

)

BARBARA GRUTTER,

)

)

for herself and all others

)

similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

LEE BOLLINGER, JEFFREY LEHMAN,

)

DENNIS SHIELDS, REGENTS OF

)

THE UNIVERSITY OF MICHIGAN, AND )

THE UNIVERSITY OF MICHIGAN LAW

)

SCHOOL,

)

______________D__e_fe_n_d_a_n_t_s_. ________))

7-75928

MAGISTRATE ~GE MOR@-1~i~

COMPLAINT Ul (;;

..... -

o --1 :-•, rn r". -

~
c-;1

.. ~,..,:,<• .,

c:..' -·.'· CLASS ACTION::'.'; :

I

I.,.J

r
0
Nature of the Action

1. This is a class action brought for violations and threatened violations of the rights of plaintiff and the class she represents)o equal protection of the laws under the Fourteenth Amendment to the United States Constitution, and for racial discrimination in violation of 42 U.S.C. §§ 1981, 1983 and 2000d et seq. Plaintiff seeks declaratory and injunctive relief and compensatory and punitive damages in an amount to be proven at trial.

----------
2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 2 of 12 Pg ID 2
Jurisdiction and Venue
2. This Court has jurisdiction of the action under 28
u.s.c. §§ 1331 and 1343. This action arises under the
Fourteenth Amendment to the United States Constitution, and under federal laws, 42 U.S.C. §§ 1981, 1983, and 2000d et
3. Venue in this Court is proper under 28 U.S.C. § 1391 and this Court has personal jurisdiction over the defendants in this matter because the events giving rise to this claim occurred, and will occur, in this district.
Plaintiff
4. Barbara Grutter is, and at all times relevant to this litigation was, a resident of the State of Michigan. She applied in 1996 for admission to the University of Michigan Law School (the "Law School") in the academic year 1997-98. After being placed on a "wait list," she was apprised by the Law School, by a letter dated June 25, 1997, that her application had been rejected. She has not
•
attended any other law school, but still desires to attend the Law School and become a lawyer.
2

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- - - - - - - - - - - - - - - · - · ..
2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 3 of 12 Pg ID 3 ......._,
)

Defendants
5. The Regents of University of Michigan ("the University") is the governing body of the University of Michigan, a public educational institution in the State of Michigan. The University of Michigan Law School ("Law School") is a school under the supervisory authority of the University.
6. On or around February 1, 1997, Lee Bollinger became the President of the University. Prior to that time he was Dean of the Law School, and was responsible for the initial implementation of the admissions policies that were used at least from 1995 until the present and which led to plaintiff being treated unequally. As President, Bollinger has responsibility for all of the admissions programs at the University of Michigan, including those at the Law School. He is being sued in his individual and official capacities.
7. Jeffrey Lehman is Bollinger's successor as Dean of the Law School. As Dean, he continued Bollinger's admissions policies and was responsible for the admissions policies that were used in 1997 and which led to plaintiff
3

•.. . .
,· J'"·· .... ' ..

- - - - - - - - - ~----~~
2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 4 of 12 Pg ID 4

being treated unequally. As Dean, Lehman has responsibility for the admissions program at the Law School. He is being sued in his individual and official capacities.

8. Dennis Shields is the Dean of Admissions at the Law School and was responsible for the admissions policies that were used at least from 1995 until the present and which led to plaintiff being treated unequally. He is being sued in his individual and official capacities.

9. Unless enjoined, defendants will continue to approve of, and implement, an admissions system for the Law School substantially the same as the system described below.

Class Action Allegations

10. Plaintiff brings this action as a class action pursuant to Rules 23(a), 23(b), and 23(c) (4) (A) of the Federal Rules of Civil Procedure on behalf of a class consisting of all students who:
a. applied for and were not granted admission to the Law School for all academic years since 1995-98 through the entry of a judgment in this action or are ready and able to apply to the Law School; and

4

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~

2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 5 of 12 Pg ID 5

,--. .

....._

~

;
'.-'

b. are members of those racial or ethnic groups, including Caucasian, that defendants have treated less favorably in considering their applications for admission to the Law School.

11. Plaintiff seeks to maintain this class, pursuant to Rules 23(b) and 23(c) (4), on the issues of whether defendants engaged in unlawful discrimination and whether defendants should be enjoined from continuing their discriminatory policies.

12. The class is so numerous that joinder of all its members is impracticable. Defendants receive thousands of applications for admission each year for the Law School and will continue to do so in the future. Plaintiff does not know addresses or the precise number of rejected applicants, but can ascertain this information from the defendants' records.
13. Common questions of law and fact exist as to all members of the class and predominate over any questions solely affecting iadividual members of the class. Among the questions of law and fact common to the class is whether defendants violated the Fourteenth Amendment to the United

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States Constitution, and federal laws, 42 U.S.C. §§ 1981, 1983, and 2000d et seq., by discriminating and by conspiring to discriminate against certain applicants on the basis of race, and whether they will continue to do so.

14. Plaintiff's claims are typical of the claims of the members of the class and she is an adequate representative of the class. Plaintiff and members of the class have sustained damages, or will sustain damages in the future if defendants' policies are not enjoined, because of defendants' unlawful activities alleged herein. Plaintiff has retained counsel competent and experienced in race discrimination litigation and intends to prosecute this action vigorously. Plaintiff will fairly and adequately protect the interests of the class.

15. A class action is superior to other available means for the fair and efficient adjudication of the controversy.
Facts

16. The University is a State-run university which also receives federal funds. The Law School is an

6

2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 7 of 12 Pg ID 7
..
educational unit part of, operated by, and responsible to, the University. It also receives federal funds.
17. The Law School Admissions form asks each applicant to disclose his or her race.
18. Plaintiff identified her race by checking the box next to "white."
19. Defendants used the race information provided by plaintiff and other applicants to determine who would be admitted to the Law School.
20. Defendants used different admissions standards based on each student's self-identified race. As a result, students from favored racial groups had a significantly greater chance of admission than students with similar credentials from disfavored racial groups.
21. Applicants from disfavored racial groups were not compared directly to applicants from favored racial groups.
22. Plaintiff, categorized as white, was not in one of the favored racial groups that benefitted from less stringent admissions standards.
7

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2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 8 of 12 Pg ID 8

23. Defendants did not merely use race as a "plus" factor or as one of many factors to attain a diverse student body. Rather, race was one of the predominant factors (along with scores on the Law School Admissions Test and undergraduate grade point averages) used for determining admission.

24. Defendants had no compelling interest to justify their use of race in the admissions process, and were not motivated by either an interest in educational diversity or by a desire to remedy the present effects of any past discrimination.

25. Assuming arguendo that defendants had a compelling interest for which they used race in their admissions criteria, defendants did not consider, and never employed, any race neutral alternative to achieve that interest.

26. As a result of defendants' racially discriminatory procedures and practices, plaintiff's application was rejected. Plaintiff suffered humiliation, emotional distress, and pain and suffering as a consequence of her application being rejected. She also suffered humiliation, emotional distress, and pain and suffering upon learning

- . . ~ '

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2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 9 of 12 Pg ID 9
.,,_,

that defendants had discriminated against her on the basis of her race.

27. As a result of defendants' discrimination, plaintiff has never attended law school, and has suffered economic damages resulting from her inability to proceed with her planned career as a lawyer. Plaintiff still desires to attend the Law School, and to become a lawy~r.

28. If not enjoined, defendants will continue to use race in selecting students for the Law School.

FIRST CLAIM
29. Plaintiff repeats and realleges the allegations and averments of paragraphs 1-28 as if fully set forth herein.
30. Bollinger acted under color of law in implementing policies that eventually led the Law School to deny plaintiff equal protection of the laws, and to discriminate against her on the basis of race, in violation of 42 U.S.C. §§ 1981 and 1983. Lehman and Shield acted under culor of law in implementing the policy in 1997 that led the Law School to deny plaintiff equal protection of the laws, and

9

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2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 10 of 12 Pg ID 10

to discriminate against her on the basis of race, in
violation of 42 u.s.c. §§ 1981 and 1983.

31. Bollinger, Lehman, and Shields violated plaintiff's clear and well-established Constitutional right to receive the same consideration for admissions as applicants of other races.

SECOND CLAIM

32. Plaintiff repeats and realleges the allegations and averments of paragraphs 1-31 as if fully set forth herein.
33. The University and the Law School, as recipients of federal funds, discriminated against plaintiff on the basis of her race, color, and/or ethnicity in violation of 42 U.S.C. § 2000d et seq.
RELIEF

WHEREFORE, plaintiff demands judgment:
A. Declaring that defendants violated her rights to nondiscriminatory treatment under the Fourteenth

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2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 11 of 12 Pg ID 11

.

.. .
'

-._.-·

Amendment and 42 U.S.C. §§ 1981, 1983, and 2000d et

~;

B. Enjoining defendants from continuing to discriminate on the basis of race in violation of the Fourteenth Amendment;

C. Awarding her compensatory and punitive damages in an amount to be proven at trial;

D. Requiring the Law School to offer her admission;

E. Awarding attorney's fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable authority; and

F. Providing any other relief that is appropriate and just.

II

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2:97-cv-75928-BAF Doc # 1 Filed 12/03/97 Pg 12 of 12 Pg ID 12

Respectfully submitted,

Farmington

48331

David F. Herr, Esq.~ ~
--Kirk 0. Kolbo, Esq. (applications for admission forthcoming) Maslon, Edelman, Borman & Brand, LLP
3300 Norwest Center 90 South Seventh Street Minneapolis, MN 55402-4140 (612) 672-8200

~ Michael E. Rosman, Esq. ~Michael P. McDonald, Esq.
" ~Hans F. Bader, Esq.
(applications for admission forthcoming)
CENTER FOR INDIVIDUAL RIGHTS 1233 20th Street, NW,
Suite 300 Washington, D.C. 20036 (202) 833-8400

12

 
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 1 of 19 Pg ID 211

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BARBARA GRUTTER, Plaintiff,
vs.

----~
Civil Action No. ' 97-CV-75928-D

LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, REGENTS OF THE UNIVERSITY OF MICHIGAN, and THE UNIVERSITY OF MICHIGAN LAW SCHOOL,
Defendants.
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OPINION AND ORDER STRIKING AUGUST 6, 1998, "OPINION" OF .JUDGES FEIKENS AND COOK

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OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR AN ORDER DESIGNATING ACTIONS AS COMPANION CASES

.~ .....
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 2 of 19 Pg ID 212

This matter is presently before the court on one aspect of Defendants' Motion for

Reassignment or, Alternatively, for Designating Actions as Companion Cascs. 1 Plaintiff has filed

a response in opposition, and defendants have filed a reply. Pursuant to E.D. Mich. LR 7.1(e)(2),

the court shall decide this motion without oral argument.

Background On December 3, 1997, plaintiff Barbara Grutter commenced this action under 42
U.S.C. §§ 1981, 1983 and 2000d on behalfofherself and others similarly situated. Gruttcr, who is white, alleges that in June 1997 The University ofMichigan Law School rejected her application for admission because ofher race. Gruttcr alleges that the law school has an admissions policy whereby "students from favored racial groups had a significantly greater chance of admission than students with similar credentials from disfavored racial groups." Complaint, ,[20. Plaintifffurther alleges that "race was one of the predominant factors ... used for determining admission" and that this
policy is not justified by any compelling state interest. Id. ,1,1 23, 24. Plaintiff claims that
defendants have violated her Fourteenth Amendment right to equal protection and a federal statute prohibiting racial discrimination by educational institutions receiving federal funds, 42 U.S.C. § 2000d. She seeks damages, injunctive and declaratory relief, and attorney fees and costs. She also proposes to represent a class of law school applicants whose applications for admission were

1 Defendants' motion is presented in two parts. The first part is addressed to the chief judge and seeks an order of reassignment pursuant to E.D. Mich. LR 83.11 (b)(2). The second part is addressed to me and seeks an order designating two actions as companion cases pursuant to E.D. Mich. LR 83.11 (b)(7)(A). This opinion resolves only the second part of defendants' motion.
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 3 of 19 Pg ID 213

evaluated less favorably because of their race.

On October 14, 1997, plaintiffs Jennifer Gratz and Patrick Hamacher commenced

Civil Action No. 97-75231 against Lee Bollinger (the current president of The University of

Michigan), James J. Dudcrstadt (the president ofThc University ofMichigan immediately preceding

Bollinger), The University ofMichigan, and The University ofMichigan College ofLitcrature, Arts

and Science ("LS&A"). The 97-75231 matter is assigned to Judge Patrick J. Duggan of this court.

Gratz and Hamacher, both of whom arc white, allege that in 1995 and 1997, respectively, The

University of Michigan's LS&A undergraduate college rejected their applications for admission

because of their race. They allege that the undergraduate college has an admissions policy which

favors certain racial groups over others; that race is a predominant factor in the admissions process;

and that this policy is not justified by any compelling state interest. Sec Gratz Complaint, ,[,[19, 22,

23. Plaintiffs Gratz and Hamacher claim that defendants have violated their Fourteenth Amendment

right to equal protection and 42 U.S.C. § 2000d. They seck damages, injunctive and declaratory

relief, and attorney fees and costs, and propose to represent a class of LS&A applicants whose

applications for admission were evaluated less favorably because of race.

On July 15, 1998, defendants filed a motion in the Gruttcr matter seeking at page one

the following relief:

1. Pursuant to Local Rule 83 .II (b)(2), Defendants hereby move the Chief Judge (or her designee) for an order reassigning Gmttcr v. Bollinger. ct al., Civil Action No. 97-75928 (E.D. Mich. 1997) from Judge Friedman to Judge Duggan, who is presiding over Gratz. ct al. v. Bollinger. ct al., Civil Action No. 97-75231 (E.D. Mich. 1997).

2. Alternatively, pursuant to Local Rule 83.11 (b)(7)(A), Defendants move Judge Friedman for an order designating these matters as "companion cases."

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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 4 of 19 Pg ID 214

Motion for Reassignment Pursuant to Local Rule 83.11 (b)(2)2
In support of their first request -- for reassignment pursuant to E.D. Mich. LR 83.11 (b)(2) -- defendants argue that the complaints in Gmtter and Gratz arc "virtually identical"; that the parties arc represented by the same attorneys in both cases; that in the two cases "most of the defendants overlap"; and that reassignment "will promote docket efficiency and conserve judicial resources by avoiding duplication of efforts and the risk ofinconsistent rulings." Memorandum of Law in Support of Defendants' Motion, p. 1.
Defendants' motion, which bears only the Gmtter caption and civil action number, was filed on July 15, 1998. The motion is accompanied by a cover letter dated July 15, 1998, addressed to ChiefJudge Taylor. Copies of the motion, and ofthe cover letter, were also delivered to me, to Judge Duggan, and to all counsel of record. The second paragraph of defendants' cover letter states:
Local Rule 83.11 (b)(2) requires that this Motion be addressed to you. As your spouse is a member of the Board of Regents of the University ofMichigan, which has been named as a defendant in this litigation, we anticipate that you will likely direct this matter to another judge for consideration. On July 23, 1998, Chief Judge Taylor issued an Order of Disqualification and Transfer. In this

2E.D. Mich. LR 83.11 (b)(2) states:
To promote docket efficiency, or to conform to the requirement of any case management plan adopted by the Court, or upon consent of the parties, or after notice and hearing, or in the interests ofjustice, the Chief Judge may order a civil case to be reassigned, but only with the consent of the Judge to whom the case was originally assigned and with the consent of the Judge to whom it is to be reassigned.
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 5 of 19 Pg ID 215
order, which bears only the Gmtter caption and civil action number, ChiefJudge Taylor stated that
she "must disqualify herself from consideration of the motion, pursuant to 28 U.S.C. § 455, for the
reason that her spouse, a Regent ofthe Defendant University, is a Defendant in both ofthe lawsuits
in issue." Chief Judge Taylor further ordered that "the motion be and hereby is reassigned for
consideration and decision by the two former Chief Judges of this Court who remain in service, Judge John Fcikens and Judge Julian Abele Cook, Jr."
On July 31, 1998, Judges Fcikens and Cook, sitting as a two-judge panel, conducted
a hearing "to determine whether or not these two cases, the Barbara Gruttcr case and the other case,
Gratz ct al., arc companion cases." Hearing Transcript, p. 4. The hearing transcript bears only the
caption and civil action number of the Gmtter matter.
On August 6, 1998, Judges Fcikens and Cook issued a 5-page "opinion." Inexplicably, this "opinion" bears the caption and civil action number not only of Gruttcr but also
of Gratz. This "opinion" was filed on August 6, 1998, and entered on the docket in the Gmtter
action on August 7, 1998; however, this "opinion" has not been entered on the docket in the Gratz
action. Judges Feikcns and Cook, acting "as designees of Hon. Anna Diggs Taylor" and as a "specially convened judicial panel," "opinion," p. 1, stated that
The Gmtter Defendants moved for reassignment pursuant to E.D. Mich. LR 83.11 (b)(2) or for a designation ofthe case as a companion to Gratz undcrE.D. Mich. LR 83.11(b)(7), and presented these issues to ChicfJudgc Anna Diggs Taylor. Upon disqualifying herself from considering the motion because her husband is a Regent of the University of Michigan in accordance with 28 U.S.C. § 455, Chief Judge Taylor entered an Order on July 23, 1998 that reassigned the motion to this judicial panel.
As argued by the parties, the sole and narrow issue we arc called upon to decide is whether Gmttcr and Gratz arc companion cases under E.D. Mich. LR 83.11(b)(7).
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 6 of 19 Pg ID 216
-

"Opinion," p. 2. The "opinion" did not make any finding or conclusion regarding the portion of defendants' motion which was addressed to ChicfJudgc Taylor- namely, the first prong, which seeks reassignment pursuant to E.D. Mich. LR 83.11 (b)(2). Instead, the "opinion" focused exclusively on the portion of defendants' motion which was addressed to me- namely, the second prong, which seeks an order designating the two cases as companions pursuant to E.D. Mich. LR 83.11(b)(7)(A). Judges Feikcns and Cook "conclude[d) that Gmttcr and Gratz arc companion cases under the provisions of Local Rule 83.11(b)(7)." "Opinion," p. 5. The "opinion" docs not purport to either grant or deny defendants' motion; the motion seeks an order ofreassignment, whereas the "opinion" is not accompanied by an order, but appears to be more in the nature of an advisory opinion.3
The court shall strike the "opinion" of Judges Fcikcns and Cook from the record of this case. Judges Fcikens and Cook have no authority to take any action or issue any rulings in this case, and their "opinion" is a nullity.
Judges Feikcns and Cook lacked authority for several reasons. First, their designation by the Chief Judge was unlawful. When Chief Judge Taylor disqualified herself, a federal statute required that she assign the portion of defendants' motion addressed to her to "the district judge in active service, present in the district and able and qualified to act, who is next in precedence." 28 U.S.C. § 136(c).4 Iffor whatever reason ChicfJudge Taylor believed this statute did not apply, she

3Courts in the American legal system, by long-standing tradition and case law, do not issue advisory opinions. Sec 13 C. Wright & A. Miller, Federal Practice and Procedure § 3529.1 (1984).
4 28 U.S.C. § 136(c) states: "If a chiefjudge is temporarily unable to perform his duties as such, they shall be performed by the district judge in active service, present in the district and
6

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might instead have elected to reassign the portion ofdefendants' motion addressed to her to another judge by blind draw pursuant to B.D. Mich. LR 83.1!(d)(!).5 This alternative procedure would at least have protected the appearance of fairness and impartiality. However, Chief Judge Taylor followed neither § 136(a) nor Local Rule 83.11 (d)( I), but instead devised her own, novel procedure, whereby she reassigned the entire motion (not just the portion addressed to her) to two judges whom she personally selected to act as a special two-judge panel.
In her Order ofDisqualification and Transfer, ChiefJudge Taylor docs not cite any authority permitting her to reassign defendants' motion, or any portion thereof, to any other judge or judges she has personally selected. Nor has the court succeeded in discovering any statute, local court rule, or precedent authorizing this method of reassignment. To the contrary, by statute, case law, and common sense, once the chiefjudge disqualified herselfshe was duty bound to refrain from taking any further action in the matter whatsoever.
While ChicfJudge Taylor recognized that she must disqualify herselfpursuant to 28

able and qualified to act, who is next in precedence."
5 Local Rule 83.11(d)(l) states:
In Ann Arbor, Detroit, Flint and Port Huron, when a Judge to whom a case is assigned is disqualified from hearing it, the Clerk shall reassign the case in accordance with (a)(!).
Local Rule 83.11(a)(l), in tum, states in relevant part:
In Ann Arbor, Detroit, Flint and Port Huron, the Clerk shall employ, a random method for the assignment to Judges of civil cases and special civil cases....
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 8 of 19 Pg ID 218

U.S.C. § 455, 6 she nonetheless violated her legal and ethical duty by selecting the judicial officers who were to act in her stead. As one respected treatise has noted,
When the chiefjudge of a district is disqualified under § 455, the chiefjudge should not be the one to assign the case to another judge, since this would violate the statutory command that the disqualified judge be removed from all participation in the case and, in addition, might create suspicion that the disqualified judge will select a successor whose views arc consonant with his own. 32 Am. Jur. 2d Federal Courts§ 52 (1995). American .Turispmdcncc cites as case authority for this proposition McCuin v. Texas Power & Light Co., 714 F.2d 1255 (S'h Cir. 1983). In McCuin, a chief
judge disqualified himself and assigned the case to another district judge of his own choosing. In remanding, the Fifth Circuit ordered that the case be reassigned "in accordance with local practice, ifone exists" or, alternatively, to the senior active judge in accordance with 28 U.S.C. § 136(c). !d. at 1261. The court noted that a chief judge "patently ... has no authority to sign [an order of assignment], or any other judicial order, pertaining to a proceeding in which he is disqualified.... Congress intended the statutory antisepsis to be absolute in order to avoid any bacterium of
impugnment." !d. Sec also R. Flamm, Judicial Disqualification § 22.3.2 (1996) ("The reasons for
the rule prohibiting a disqualified judge from having any input into the reassignment of the case arc plain. To permit a disqualified judge to participate in the selection of his successor judge would violate the rule that a disqualified judge must be removed from all participation in the case ...."). By continuing to act after disqualifying herself, ChiefJudge Taylor clearly violated§ 455, and any action taken subsequent to her disqualification is a nullity. Sec id § 22.4.1 ("When a judge presumes

"Under § 455(b)(S)(i), a judge must disqualify herself if her spouse "(i]s a party to the proceeding, or an officer, director, or trustee of a party."
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 9 of 19 Pg ID 219
--
to take substantive action in a case despite having recused himself from it ... any such action is often considered a nullity and any orders issued by such a judge arc considered absolutely void for want ofjurisdiction.").
ChicfJudgc Taylor's order oftransfcr also violates 28 U.S.C. § 137, which states that the court's business "shall be divided among the judges as provided by the rules and orders of the court. The chiefjudge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe." (Emphasis supplied.) The "rules and orders of the court" clearly provide for a case to be randomly reassigned in the event of disqualification. The random assignment of cases, and the random reassignment in the event ofdisqualification, has the obvious, commonsensical and beneficial purpose of maintaining the public's confidence in the integrity of the judiciary. This purpose is defeated when cases or motions arc assigned, or reassigned, to judges who arc handpicked to decide the particular case or motion in question. A system ofrandom assignment is purely objective and is not open to the criticism that business is being assigned to particular judges in accordance with any particular agenda. The subjective method employed in the present case was anything but random, and at a minimum the appearance of impropriety is manifest. Chief Judge Taylor's decision to disregard the procedure prescribed by 28 U.S.C. § !36(c) and the alternative blind draw procedure prescribed by this court's own local rules, tarnishes this court's appearance of fairness and appears to place the court's imprimatur upon a judge-shopping practice which we, collectively as a bench, in the past always have denounced.
The infirmity of Chief Judge Taylor's order is compounded by the fact that defendants' motion was reassigned to not one, but two judges ofthis court. The court has searched
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 10 of 19 Pg ID 220
. ... •' •'
diligently, using computer data bases as weII as ail ofthe other resources available to it, but has been unable to discover any statute, local court rule, or precedent authorizing the appointment at the district court level of a "two-judge panel" for any purpose. While three-judge panels arc known to the federal system at both the district and circuit levels,7 a two-judge panel apparently has neveruntil now- been convened within any United States District Court. Not only docs such a creature not exist; its existence is positively inconsistent with both 28 U.S.C. § 136(c), which requires the duties of a chiefjudge who is temporarily unable to act to be performed by "the district judge" (not judges) next in prccedcncc, and with this court's and the American legal system's long-standing practice of assigning a case or motion, at the trial level, to a single judge.
Chief Judge Taylor's Order of Disqualification and Transfer suffers from an additional defect which further detracts from its legitimacy: The order purports to reassign both portions of defendants' motion to Judges Fcikcns and Cook, although only the first portion namely, the request for an order of reassignment pursuant to Local Rule 83.11 (b)(2)- was directed to the chiefjudge. The second portion- namely, the request for an order designating the two cases as companions pursuant to Local Rule 83.11 (b)(7)(A)- is specifically addressed to me, and not to the chicfjudgc. Nonetheless, ChicfJudgc Taylor's order reassigned both requests to Judges Fcikcns and Cook, stating:
Defendants having filed a motion before Chief Judge Anna Diggs Taylor in the above-entitled matter, requesting that she, as Chief
Judge, reassign the matter pursuant to L.R. 83.11 (b)(2) to the judge
to whom an earlier-filed case has been assigned; or in the alternative,
7 Sec, Q,g,, 28 U.S.C. § 46(b) (three-judge circuit court panels); 28 U.S.C. § 2284 (threejudge district courts); E.D. Mich. LR 83.22(g)(1) (three-judge panels in attorney reinstatement proceedings).
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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 11 of 19 Pg ID 221
that the matter be reassigned as a companion case to the predecessor
case, pursuant to L.R. 83.11 (b)(7); ...
IT IS FURTHER ORDERED that the motion be and hereby is reassigned for consideration and decision by the two former Chief Judges of this Court who remain in service, Judge John Feikcns and Judge Julian Abele Cook, Jr.

ChicfJudge Taylor had authority to reassign the first portion ofdefendants' motion to anotherjudge, by the procedure set forth in either 28 U.S.C. § 136(e) or E.D. Mich. LR 83.11(d)(l) and (a)(!), but she had no authority to reassign the second portion of defendants' motion by any procedure.
The court concludes that Chief Judge Taylor acted without authority when she reassigned both portions of defendants' motion to a hand-picked, two-judge panel. Because this two-judge panel was constituted unlawfully, it lacked any authority to convene, to hear argument, to issue any opinion or decision, or to take any action ofany kind whatsoever in this case. The court therefore concludes that the August 6, 1998, "opinion" ofJudges Fcikens and Cook is a nullity, void ab initio, and without any purpose or effect whatsoever.H The docketing of this "opinion" in a case properly assigned to a judge by blind draw, is an affront to the dignity and the independence of the court and an unlawful intrusion upon and interference and meddling with this court's business. The court shall therefore strike this "opinion" from the docket of Civil Action No. 97-75928.
The court notes that the "opinion" itsclflacks legitimacy for reasons aside from, and

HRegrcttably, Judges Fcikcns and Cook continued to participate in this proceeding even afier I personally called to their attention, by a memorandum circulated to all members of this court on July 31, 1998, that (I) two-judge panels do not exist, (2) a disqualified judge may not select his/her successor judge, (3) this court's local rule on disqualification ofjudges calls for the usc of reassignment by blind draw, (4) 28 U.S.C. § 136(c) specifics the judge who is to act when a chiefjudge is temporarily unable to do so, and (5) my consent to a reassignment would be required in any event and I do not consent.
I I

2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 12 of 19 Pg ID 222
I ','
in addition to, the fact that the two-judge panel was unlawfully constituted. As noted above, defendants' motion presented only one request to Chief Judge Taylor- namely, that Gruttcr be reassigned to Judge Duggan pursuant to E.D. Mich. LR 83.1l(b)(2). Defendants' other request, for designation of the two cases as companions pursuant to E.D. Mich. LR 83.11(b)(7)(A), was specifically directed to me, and not to the chiefjudge. Nonetheless, the two-judge panel, through Judge Feikcns, indicated at the hearing that the panel's "purpose is to determine whether or not these two cases ... arc companion cases." Hearing Transcript, p. 4. The panel's focus throughout the hearing was whether Gmttcr and Gratz arc companion cases within the meaning of Local Rule 83.11(b)(7). Sec id. at 4, 7, 8, 14, 15, 20, 21, 22, 23. Reassignment under Local Rule 83.11(b)(2), which defendants had specifically addressed to Chief Judge Taylor, was never mentioned at the hearing by either member of the two-judge panel. Thus, the two-judge panel devoted the hearing to consideration of an issue never presented to the chief judge, and essentially ignored the issue which had been presented to her.
The "opinion" likewise asserts that "[d]cfcndants moved for reassignment pursuant to E.D. Mich. LR 83.11(b)(2) or for a designation ofthc case as a companion to Gratz under E.D. Mich. LR 83.11(b)(7), and presented these issues to Chief Judge Anna Diggs Taylor." "Opinion," p. 2 (emphasis supplied). Of course, only the first issue was presented to Chief Judge Taylor. The "opinion" also incorrectly asserts that "the sole and narrow issue we arc called upon to decide is whether Gruttcr and Gratz arc companion cases under E.D. Mich. LR 83.11(b)(7)." Jd. Obviously, this is not the issue defendants presented to the chiefjudge; and, as the chiefjudge's "designees," the two-judge panel had no business concerning itselfwith this issue. Nonetheless, the focus of the "opinion" is entirely upon the companion case question, and the conclusion of the
12

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.

"opinion" is that "Gmttcr and Gratz arc companion cases under the provisions of Local Rule 83.11(b)(7)." Tel. at S. The reassignment mlc, Local Rule 83.11 (b)(2), is mentioned only in passing, sec id. at 2 & n.l, and is completely absent from the two-judge panel's analysis.
The court also notes that the document issued by Judges Fcikcns and Cook is void because it is merely an advisory opinion. Sec n.l, supra. While Chief Judge Taylor's Order of Disqualification and Transfer reassigned defendants' motion "forconsideration and decision," in fact the "opinion" docs not make a decision or grant any reliefrequested in defendants' motion. Rather, the "opinion" simply opines that Gmttcr and Gratz arc companion cases.
Finally, the court notes that Judgcs Fcikcns and Cook, both at the hearing and in their "opinion," completely ignored the matter of my consent to any reassignment. Local Rule 83.11(b)(2) specifically states that a case may be reassigned "only with the consent of the Judge to whom the case was originally assigned and with the consent of the Judge to whom it is to be reassigned." Likewise, Local Rule 83.11 (b)(7)(C) requires reassignment ofa companion case only "[w]hcn it becomes apparent to the Judge to whom a case is assigned and to a Judge having an earlier case number that two cases arc companion cases." At the hearing, plaintiffs counsel properly raised this issue, but Judge Fcikcns interrupted him and asserted that consent is an issue only "in non-companion cases." Hearing Transcript, p. 21. Here Judge Fcikcns erred in two ways. First, the only issue addressed to the chief judge was reassignment under Local Rule 83.11(b)(2), which specifically requires consent of both the assignor and assignee judges. Second, under Local Rule 83.11 (b)(7)- which concerns the portion ofdefendants' motion that was never presented to the chief judge- reassignment is required only when it is "apparent to" the assignor judge that the two cases in question arc companions. Ifthe relatedness ofthe cases is not apparent to the assignorjudge then,
13

2:97-cv-75928-BAF Dr-o, c # 42 Filed 08/17/98 Pg 14 of 19 Pg ID 224
' •..
in effect, he will not consent to the reassignment. And, for the reasons stated below, it is not at all apparent to me that Gmttcr and Gratz arc companion cases, notwithstanding the contrary "opinion" of the hand-picked two-judge panel.
For these reasons, the court concludes that Chief Judge Taylor lacked authority to refer defendants' motion, or any portion thereof, to Judges Fcikcns and Cook; and that the August 6, 1998, "opinion" of Judges Fcikcns and Cook is unlawful, void and must be stricken.
Motion for an Order Designating Cases as Companions Pursuant to Local Rule 83.11 (b)(7)(A)9 In support oftheir alternate request for designation ofthe two cases as companions
9E.D. Mich. LR 83.11(b)(7) states: (7) Companion Cases (A) Companion cases arc those cases in which it appears that: (i) substantially similar evidence will be offered at trial, or (ii) the same or related parties arc present, and the cases arise out of the same transaction or occurrence. Cases may be companion cases even though one of them may have already been terminated. (B) Counsel ... shall be responsible for bringing such cases to the attention of the Court by responding to the questions included on the civil cover sheet. (C) When it becomes apparent to the Judge to whom a case is assigned and to a Judge having an earlier case number that two cases arc companion cases, upon consent of the Judge having the earlier case number, the Judge shall sign an order reassigning the case to the Judge having the earlier case number.
14

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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 15 of 19 Pg ID 225

,.

pursuant to E.D. Mich. LR 83. I I(b)(7)(A), defendants argue that Gratz and Gmttcr "arc premised on the same alleged constitutional and statutory violations. The two lawsuits challenge the admissions process of two units within the University of Michigan." Defendants' Motion, p. 2. Defendants also repeat the arguments made in support of the first part of their motion concerning the other alleged similarities between the two cases. While Judges Fcikcns and Cook purport to have "ruled" that the two cases arc companions, they had no authority to make such a ruling and, as noted above, the court shall strike their "opinion" from the record ofthis case. Thus, the companion case issue is still pending and I shall decide it at this time.
This court's Local Rule 83.I l(b)(7)(A) defines companion cases as those in which it appears that:
(i) substantially similar evidence will be offered at trial, or (ii) the same or related parties arc present, and the cases arise out of the same transaction or occurrence. Cases may be companion cases even though one of them may have already been terminated. It is quite apparent that Gruttcr and Gratz arc not companion cases under either definition. The cases do not have "the same or related parties." The plaintiff in Gmttcr is an applicant to the law school who seeks to represent a class of white applicants who were denied admission to the law school during the 1995-1998 academic years. The plaintiffs in Gratz arc applicants to the LS&A undergraduate college who seck to represent a class ofwhite applicants who were denied admission to that college since I995-1996. The defendants in the two cases arc completely different, the only overlap being Lee Bollinger, who was dean of the law school during part of the period at issue in Gmttcr and is the current president of The University of Michigan. Other than Bollinger, there is no overlap whatsoever in the parties of the two cases.
I5

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2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 16 of 19 Pg ID 226

Nor is it apparent to me that the two cases "arise out of the same transaction or

occurrence." The "transaction" at issue in Gruttcr is the rejection ofplaintiffGruttcr's application

for admission to the law school in June 1997. If a class is certified, the transaction at issue will be

the rejection of the law school applications of the class members. The transaction in Gratz is the

rejection of the applications of plaintiff Gratz and Hamacher for admission to the undergraduate

college in April 1995 and the spring of 1997, respectively. If a class is certified in that case, the

transaction at issue will be the rejection ofthe class members' applications to that institution. While

the general legal issue (i.e., the constitutionality of an admissions policy which favors applicants of

certain races over others) is the same in both cases, this is not the test under this court's companion

case rule. Nor is the test whether the parties in the two cases arc represented by the same attorneys.

By the same token, it is not apparent to me that "substantially similar evidence will

be offered at trial" in the two cases. One of the attorneys who represents plaintiffs in both cases,

Kirk Kolbo, has submitted an affidavit averring that defendants have produced "over 5,000 pages

ofdocuments in the two cases .... I do not believe that any documents produced or identified in one
case were also produced or identified in the other case." Kolbo Affidavit, ,I 8. Mr. Kolbo also

indicates that the defendants in Gratz have identified 20 individuals who arc primarily responsible

for admissions policies and the usc of racial preferences at the undergraduate college, and that the

defendants in Grutteridcntificd 22 individuals who arc primarily responsible for admissions policies

and the usc ofracial preferences at the law school. There is no overlap between the two groups. Sec

Plaintifrs Memorandum in Opposition to Motion for Reassignment or Designation as Companion

Cases, pp. 2-3. The reason for the lack of any overlap apparently is due to the simple fact that the

law school and the undergraduate college operate as independent units within The University of

16

2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 17 of 19 Pg ID 227 ' -
Michigan, and it appears their admissions policies have little, if anything, to do with one another. For all ofthese reasons, it is quite apparent to me that the Gratz and Gmtter cases arc
not companions under B.D. Mich. LR 83.11 (b)(7)(A). Accordingly, there is no occasion for me to reassign this matter to Judge Duggan.
Additionally, the court would note that the timing of defendants' motion further counsels against reassignment. As noted above, the complaint in Grutter was filed on December 3, 1997. The instant motion was not filed until July 15, 1998 --more than seven months later. I raised the companion case issue at two conferences with counsel, and no one seriously argued on either of those occasions that I should consider reassigning the case to Judge Duggan. Nor did either party file a motion or take any other action seeking reassignment- until now, more than seven months after the filing of the complaint in Gmtter.
Conclusion For the reasons stated above,
IT IS ORDERED that the August 6, 1998, "opinion" ofJudges Feikens and Cook is stricken from the docket in Gmttcr v. Bollinger, 97-75928.
IT IS FURTHER ORDERED that defendants' motion pursuant to B.D. Mich. LR
17

. ... ' ~

2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 18 of 19 Pg ID 228

83.ll(b)(7)(A) for an order designating Gmtter v. Bollinger, 97-75928, as a companion to Gratz v. Bollinger, 97-75231, is denied.

Dated: AUG 171998
Detroit, Michigan

BERNARD A. FRIEDMAN UNITED STATES DISTRICT JUDGE

18

.' ,.
. :. (.

2:97-cv-75928-BAF Doc # 42 Filed 08/17/98 Pg 19 of 19 Pg ID 229
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BARBARA GRUTTER,

Plaintiff,

HON. BERNARD A. FRIEDMAN

v.
LEE BOLLINGER, et al.,
Defendants.
---------------------------'

Case No. 97-75928

CERTIFICATE OF MAILING

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I, the undersigned, hereby certify that on this date I forwarded a copy by first-class mail of

the foregoing Opinion and Order Striking August 6, 1998, "Opinion" of Judges Feikens and Cook

and Opinion and Order Denying Defendants' Motion for an Order Designating Actions as

Companion Cases to the following persons at the addresses indicated:

Kerry L. Morgan, Esq. Pentiuk, Couvreur & Kobiljak, P.C. Suite 230, Superior Place 20300 Superior Street Taylor, Ml48180-6303

John A. Payton, Esq.
Wilmer, Cutler & Pickering
2445 M Street, NW Washington, DC 20037

Kirk 0. Kolbo, Esq.
Maslen, Edelman, Borman & Brand, LLP 3300 Norwest Center 90 South Seventh Street Minneapolis, MN 55402

Leonard M. Niehoff, Esq. Butzel Long 150 West Jefferson Suite 900 Detroit, Ml 48226

Dated: Detroit, Michigan

A~c.m~
Sandra A. Murtha
Secretary to Judge Bernard A. Friedman

 
 2:97-cv-75928-BAF Doc # 166 Filed 04/19/00 Pg 1 of 3 Pg ID 535

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

~~~~~!~~
BERNARD A. FRIEDMAN
U.S. DISTRICT JUDGE

)

BARBARA GRUTTER,

)

)

Plaintiff,

)

)

v.

)

!-Ion. Bernard Friedman

)

LEE BOLLINGER, ct al.,

)

l-Ion. Virginia Morgan

)

Defendants.

)

)

and

)

)

KIMBERLY JAMES, ct al.

)

,C:::

) Intervening Defendants. )

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ORDER REQUIRING THE PRODUCTION OF STUO~~ FitJESf'Ui;

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Upon consideration of the Plaintiffs Motion to Compel and Morfomfor\r.!'clidt:/

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w
0

From Order relating to the production of individual student files relating to students who have

enrolled in the Law School, the oppositions thereto filed by Defendants and Defendant·

Intervenors, the Reply in support thereof filed by plaintiff, and after a hearing before this Court

held on April 12,2000, this Court finds that in view of the importance of the issues presented in

this case, and the need to assure that all parties to this proceeding have access to a full and

complete factual record in order to present their cases, and without prejudice to any party's right

to contest the relevance of any material produced, plaintiffs motions shall be and hereby arc

granted. The Court further finds that the privacy interests of individual students may adequately

be protected by the redaction of individually identifying information, the protective order in

2:97-cv-75928-BAF Doc # 166 Filed 04/19/00 Pg 2 of 3 Pg ID 536
place in this matter, and the representations of counsel that they will not undertake to match up individual application files with particular names. It is therefore
ORDERED that defendants shall produce to the plaintiff the application files, and materials relating thereto, that arc the subject ofthc plaintiffs motion; and it is further
ORDERED that defendants may redact from such files any and all personally identifying information, consistent with the defendants' practice with respect to the application files of those students who have not enrolled; and it is further
ORDERED that defendants may designate any such materials produced in response to this order as "Confidential Information," subject to the terms of the Stipulation and Protective Order entered by this Court on May 28, 1998; and it is further
ORDERED that the parties may negotiate, and if necessary seck leave of the Court with respect to, whether any amendment to the May 28, 1998 Stipulation and Protective Order is necessary and appropriate regarding Confidential Information produced in response to this Order, and it is further
ORDERED that, pursuant to the Federal Educational Rights and Privacy Act, 20 U.S.C. § 1232g(b)(2)(B), defendants' compliance with the terms of this Order, or any subsequent Order relating to the production of applicant files, shall not be construed as a violation of FERPA; and it is further
2

2:97-cv-75928-BAF Doc # 166 Filed 04/19/00 Pg 3 of 3 Pg ID 537 •
ORDERED that defendants shall provide the individual students whose files arc to be produced in compliance with this Order with written notice, no less than ten business days before the production of the files. Such notice may be provided by e-mail.
APR 19 2000
Dated: Ospn: ( t8 102ooo
Agreed as to form:
k, ~ ~!rd_Q,N/"viehoff ~ L~ r~ : .::kf'_ Counsel for the Defendants
~k(Qpfib~~.G..-) K1rk 0. Kolbo Counsel for the Plaintiff kfb<OilJl~H<N-1·:..c%*tLwf~) M1 nda MassiC Counsel for the Intervening-Defendant
3

 
 2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 1 of 10 Pg ID 538
. '

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BARBARA GRUTTER,

Plaintiff,
vs.
LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, REGENTS OF THE UNIVERSITY OF MICI-IIGAN, and THE UNIVERSITY OF MICHIGAN LAW SCHOOL,

~ I-ION. BERNARD A. FRIEDMAN

Defendants. _ _ _ _ _ _ _ _ _ _ _ _ _ _......!!

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U OPINION AND ORDER DENYING DEFENDANTS' MOTioN;;:;'
FOR RELIEF FROM ORDER REGARDING CLASS CERTJFICA:'T.R>NW

AND BIFURCATION IN LIGHT OF SUBSEQUENT AUTHORJ# :=f

This matter is presently before the court on defendants' motion for relief from order regarding class certification and bifurcation in light of subsequent authority. Plaintiff has filed a response brief, defendants have filed a reply, and the court has heard oral argument.

I. Introduction Plaintiff Barbara Grutter alleges that she is white and that in 1996 she applied for
admission to The University ofMichigan Law School. At first she was placed on a waiting list, but in June 1997 her application was rejected. Plaintiffalleges that her application was rejected because the law school uses race as a "predominant" factor, giving minority applicants "a significantly greater

- - - - - - - ·----·------ ..
2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 2 of 10 Pg ID 539
chance of admission than students with similar credentials from disfavored racial groups." Complaint, ~,[20, 23. In their answer to the complaint, defendants "state that they do have a current intention to continue using race as a factor in admissions, as part of a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important clement." Answer,,[~ 9, 23.
Plaintiffasserts two claims. First, she claims that defendants discriminated against her on the basis of her race, thereby violating her rights to equal protection under the Fourteenth Amendment. This claim is brought undcr42 U.S.C. §§ 1981 and 1983. Second, plaintiffclaims that defendants violated a federal statute, 42 U.S.C. § 2000d, which prohibits recipients offederal funds from discriminating on the basis of race. For relief, plaintiff seeks a declaratory judgment to the effect that her rights were violated; an injunction prohibiting racial discrimination in admissions; compensatory and punitive damages; an order requiring defendants to admit her to the law school; and attorney fees and costs.
In an opinion and order dated January 7, 1999, the court granted plaintiffs motion for class certification and for bifurcation of the trial into liability and damages phases. In that opinion, the court concluded that class certification is appropriate in this matter under Fed. R. Civ. P. 23(b)(l )(A) and 23(b)(2), but not under Rule 23(b)(I )(B). The court also determined that the trial should be bifurcated. In the liability phase, the court intends to rule on the lawfulness ofdefendants' admission policy. Ifthe policy is found to be unlawful, damages would be determined in the second phase of the trial.
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2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 3 of 10 Pg ID 540

II. Defendants' Motion for Relief from Order Defendants' motion is entitled "motion for relief from order regarding class
certification and bifurcation in light of subsequent authority." It is essentially a motion for reconsideration of the January 7, 1999, opinion. Defendants argue that the court's rulings on class certification and bifurcation arc erroneous in light of two recent Supreme Court decisions: Texas v. LeSage, 120 S. Ct. 467 (1999), and Ortiz v. Bibrcboard, 119 S. Ct. 2295 (1999). In response, plaintiff argues that these cases do not represent a change in the law and that the court should not change its earlier rulings.
A. Bifurcation Defendants first argue that the January 7, 1999, opinion erred in its statement that
"[a]ny applicant who was rejected under an unconstitutional admissions policy has a cause ofaction, at least for nominal damages." Defendants argued previously that this case should not be certified as a class action until after plaintiffGruttcr proves, in the liability phase of the trial, that she would have been admitted under a race-neutral admissions policy. The court rejected this argument on the grounds that a rejected applicant is entitled to at least nominal damages, regardless of whether he would also have been rejected under a race-neutral policy. That is, the court concluded that defendants' liability would be established if it is determined that the present admissions policy is unlawful. If a particular applicant would have been rejected even under a race-neutral policy, this fact would be relevant in assessing compensatory damages, but it would not be relevant in determining liability.
Defendants argue that a different ruling on this question is required by the Supreme
3

2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 4 of 10 Pg ID 541
Court's decision in Texas v. Lesage, 120 S. Ct. 467 (1999). In that case, plaintiff Francois Lesage,
who is white, applied to the Ph.D. program in psychology at the University of Texas. When his
application was rejected, he sued on the grounds that the university gave preferential consideration
to minority applicants. The university moved for summary judgment, arguing that plaintiff's
application was so weak that he would not have been admitted under any circumstances. The district
court granted the motion because any consideration of race was irrelevant in plaintiff's case, since
the evidence showed that all of the admitted students had superior academic qualifications.
The Fifth Circuit reversed on the grounds that "[a]n applicant who was rejected at a
stage of the review process that was race conscious ... has 'suffered an implied injury' - the inability to compete on an equal footing." 120 S. Ct. at 468, quoting !58 F.3d 213,222 (5'11 Cir.
1998). The court of appeals remanded the case because a factual dispute existed "as to whether the
stage ofreview during which Lesage's application was eliminated was in some way race conscious."
The Supreme Court reversed the court of appeals, stating:
Under Mt. Healthy City Bd. ofEd. v. Doyle, even ifthe government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration. Our previous decisions on this point have typically involved alleged retaliation for protected First Amendment activity rather than racial discrimination, but that distinction is immaterial. The underlying principle is the same: The government can avoid liability by proving that it would have made the same decision without the impermissible motive.
Simply put, where a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983.
4

2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 5 of 10 Pg ID 542
Td. (citations omitted). Defendants point to this portion of the Lesage opinion and argue that they
should be permitted to show, in the liability phase of the trial, that plaintiffGruttcr would not have
been admitted even if her race had not been considered. Defendants contend that if they can prove
this, then there is no basis for proceeding to the damages phase of the trial, since they will have
prevailed on the issue ofliability. Defendants believe Lesage undercuts the statement in the court's
January 1999 opinion that all applicants would be entitled to at least nominal damages, due merely
to the fact that their race was considered in rejecting their applications, if defendants' admissions
policy is found to be unlawful. Thus, defendants seck to have tl1is statement from the opinion
vacated; and, in addition, they seck leave to prove in the first phase ofthe trial that plaintiff Gruttcr
would not have been admitted even under a race-neutral admissions policy, in which case there will
be no need to bifurcate the trial, since there will be no occasion to address the damages issue.
The second half ofthe opinion in Lesage shows that the relief defendants seck is not
warranted. After the above-quoted passage, the Supreme Court went on to say:
Of course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question ifrace were not considered. The relevant injury in such cases is "the inability to compete on an equal footing." Northeastern Fla. Chapter, Associated Gen. Contractors ofAmerica v. Jacksonville, 508 U.S. 656 (1995). . . . But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forwardlooking relief, the government's conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability.
. . . [I]n deciding that summary judgment was improper, the Court of Appeals did not distinguish between Lesage's retrospective claim for damages and his forward-looking claim for injunctive rcliefbascd on continuing discrimination. Further, in their petition for certiorari, petitioners assert that"... there is no allegation that the department of counseling psychology continues to usc race-based admissions
5

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2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 6 of 10 Pg ID 543

subsequent to the Fifth Circuit's Hopwood v. Stale of Texas decision." The brief in opposition docs not contest this statement. It therefore appears, although we do not decide, that Lesage has abandoned any claim that the school is presently administering a discriminatory admissions process.
Insofar as the Court of Appeals held that petitioners were not entitled to summary judgment on Lesage's § I983 claim for damages relating to the rejection ofhis application for the 1996-1997 academic year even if he would have been denied admission under a raceneutral policy, its decision contradicts our holding in MI. Healthy. We therefore grant the petition for writ of certiorari and reverse the judgment of the Court of Appeals in this respect.
Lesage also asserted claims under 42 U.S.C. §§ 1981 and 2000d (Title VI). Whether these claims remain, and whether Lesage has abandoned his claim for injunctive relief on the ground that petitioners arc continuing to operate a discriminatory admissions process, arc matters open on remand.
120 S. Ct. at 469 (citation added).
The Supreme Court distinguished between "a discrete government decision" and an
"ongoing race-conscious program." This court read Lesage as standing for the proposition that the
Mt. Healthy defense can be used to defeat liability for a money damages claim where plaintiff is
complaining about a "discrete" decision on an application in a particular year and where plaintiff
docs not allege the continuing existence of a racially discriminatory admissions policy. In the
present case, plaintiff alleges the existence of such an admissions policy. Therefore, defendants
cannot avoid liability by asserting the Mt. Healthy defense. Certainly, there is nothing in Lesage
which suggests that the plaintiffclass in the present case may not receive at least nominal damages,
since "the relevant injury in such cases is 'the inability to compete on an equal footing."' lei., 120 S.
Ct. at 468. If the plaintiff in the present case proves that defendants' admissions policy is
unconstitutional, then defendants' liability is established and at that point plaintiff will be entitled
to at least nominal damages. If there arc class members who would not have been admitted under
6

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2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 7 of 10 Pg ID 544
a race-neutral system, those individuals will not be entitled to compensatory damages; however, this is an issue which will be addressed in the damages phase of the trial. The court concludes that the January 7, 1999, opinion was correct on this issue, and there is no reason to change the order as to bifurcation.
B. Class Certification In this section of their motion, defendants repeat their argument from the fall of 1998
that this case should not be certified as a class action because plaintiffs complaint seeks damages, and class-wide resolution ofdamages claims requires notice to all class members and an opportunity to opt out of the class. Defendants' principal case for this proposition, when the issue was first briefed and again in the instant motion, is Allison v. Citgo Petroleum Com., 151 F.3d 402 (5'h Cir. 1998). In tlmt case, plaintiffs were a group of 130 African-American employees of defendant Citgo Petroleum Corporation, and applicants for employment. They alleged race discrimination under Title VII, and sought injunctive and declaratory relief, as well as compensatory and punitive damages. Plaintiffs sought to certify a class ofall African American employees and applicants from 1979 to the present. The district court denied the motion, and the court of appeals affirmed. The basic holding of Allison is that class certification under Fed. R. Civ. P. 23(b)(2) is appropriate ifthe claim for non-monetary relief "predominates." Conversely, certification under this subrulc is inappropriate when plaintiffs' demand for damages is not merely "incidental to" their demand for injunctive or declaratory relief. The court stated:
By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. . . . Ideally, incidental damages should be only
7

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2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 8 of 10 Pg ID 545
those to which class members automatically would be entitled once liability to the class ... as a whole is established. That is, the recovery ofincidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member's circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual's case .... Allison, 151 F.3d at 415 (citations omitted; emphasis in original). The court's January 1999 opinion indicated the court's belief that the primary form of relief sought in this case is injunctive and declaratory. The only damages which arc being determined on a class-wide basis arc clearly incidental, as they would be nominal damages to which each class member would be entitled, if the court were to find that defendants' admissions policy is unconstitutional. The court's opinion also made clear that the trial will be bifurcated, and that nothing will be determined in the first phase other than liability. This is perfectly consistent with Allison. If liability is found, the court can revisit the issue of whether class certification is appropriate before proceeding with the damages phase. It may well be that any claims for compensatory or punitive damages must proceed on an individual, not on a class action, basis. In addition to restating their reliance on Allison, defendants now also argue that class certification is inappropriate because the class members have not been given notice of the class action and an opportunity to opt out. In this connection, defendants rely principally on a recent Supreme Court decision, Ortiz v. Fibreboard Corn.. 119 S. Ct. 2295 (1999). Defendants argue that the class members have a due process right to be given notice of the action, and an opportunity to opt out, because to the extent they have a claim for money damages they should be given the chance
8

2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 9 of 10 Pg ID 546
to decide whether to remain in the class or to pursue their own lawsuit. Plaintiffs correctly argue that Ortiz is readily distinguishable from the present case.
Ortiz involved the certification of a class under Rule 23(b)(l)(B), which applies to "limited fund" cases. The court's January 1999 opinion specifically concluded that this subrulc docs not apply in the present case, as there is no "limited fund." Ortiz was an asbestos case, in which a class was certified in order to divide a $2 billion settlement fund. The Supreme Court held that class certification was inappropriate because the class excluded certain persons who should have been included, such as persons who presently had individual lawsuits pending against defendant and persons who had previously dismissed cases but retained the right to reopen in the event they became ill. The rights of these excluded persons to money damages were being litigated, and no notice or opportunity to opt out had been given. The Supreme Court also found that this was not a proper "limited fund" case because the amount ofthe fund was set by negotiations between the lawyers and the insurance companies.
Orti:>; bears no resemblance to the present case. In the present case, the main relief at issue is declaratory and injunctivc1; in Ortiz plaintiffs were primarily interested in money damages. In the present case, the class was certified under Fed. R. Civ. P. 23(b)(I)(A) and 23(b)(2); in Ortiz, the class was certified under Fed. R. Civ. P. 23(b)(I)(B). In the present case, the class has been certified in order to litigate the issue of defendants' liability; in Ortiz, the class was a "settlement class" which was certified to disburse a fund created for that purpose. And in the present case, the
1 In this connection, plaintiff correctly notes at page 17 of her response brief that "[n]o class mcmbcr[s] will be deprived of their jury trial right to a damages determination because the first and only class-wide phase of the bifurcated proceedings will relate solely to claims for classwide injunctive and declaratory relief regarding defendants' race-conscious admissions policy."
9

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2:97-cv-75928-BAF Doc # 167 Filed 04/19/00 Pg 10 of 10 Pg ID 547

issue of the constitutionality of defendants' admissions policy is of equal interest to all class members; in Ortiz, the class members all had unique, individual claims to the settlement fund, which meant that there was a great potential for conflicts of interest between class members. The court concludes that Ortiz docs not call into question the propriety of the certification order.
III. Conclusion For the reasons stated above, the court concludes that the correctness of its January
7, 1999, order bifurcating the trial and certifying the plaintiffclass has not been called into question by subsequent Supreme Court authority. Accordingly,
IT IS ORDERED that defendants' motion for relief from order regarding class certification and bifurcation in light of subsequent authority is denied.

Dated: APR 19 2000
Detroit, Michigan
Copy Mailed This Date To:

0
RNARD A. FRIEDMAN UNITED STATES DISTRICT JUDGE
Miranda K. S. Massie, Esq.; George Washington, Esq. Eileen Scheff, Esq.
Michael E. Rosman, Esq.; Michael P. McDonald, Esq. Hans F. Bader, Esq.
Kierry L. Morgan, Esq. Leonard M. Niehoff, Esq. Jolm Payton, Esq.; Jane Sherburne, Esq.;
John H. Pickering, Esq. Craig Goldblatt, Esq.
10

 
 2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 1 of 20 Pg ID 993
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BARBARA GRUTTER, for herself and all others similarly situated,
Plaintiff, v. LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, AND THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN, and
Defendants. -andKIMBERLY JAMES, ET. AL.
____________I_n_te_rv_e_ni_ng__D_ef_e_nd_a_nt_s_. __/
BRIEF OF THE ATTORNEY GENERAL AS AMICUS CURIAE
JENNIFER M. GRANHOLM Attorney General
Susan I. Leffler Assistant Solicitor General Department of Attorney General Appellate Division P.O. Box 30212 Lansing, MI 48909 (517) 373-1124

2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 2 of 20 Pg ID 994

TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES................................................................................................... ii
INTEREST OF THE MICHIGAN ATTORNEY GENERAL............................................ I
INTRODUCTION....................................................................................................................2
ARGUMENTS
I. THE UNIVERSITY'S CHOICE TO SEEK TO ATTAIN A DIVERSE STUDENT BODY TO ADVANCE ITS EDUCATIONAL MISSION FALLS WITHIN THE INSTITUTIONAL AUTONOMY AFFORDED BY THE FIRST AMENDMENT AND IS, THEREFORE, PERMISSIBLE UNDER THE FOURTEENTH AMENDMENT............................................. 4
II. THE UNIVERSITY'S CHOICE TO ENROLL A DIVERSE STUDENT BODY IS ALSO ENTITLED TO DEFERENCE UNDER ARTICLE 8, § 5 OF MICHIGAN'S CONSTITUTION..............................................................ll
CONCLUSION AND RELIEF...................................................................................... IS

1

2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 3 of 20 Pg ID 995

INDEX OF AUTHORITIES

Page

Adarand Contractors, Inc. v. Pena,
u.s. 515 200 (1995)............ " "' "' ........ "" ... "" ...... "'. "'" ....... "' "' ............ " "' "' "' "'" ........ "' .10
Ambach v. Norwick,
u.s. 441 68 (1979)......... "' "' ... "' "' "'" """' "'." .... '"""" ... "" ... "'". "' ... "'" "' "' "' '"" "' "'". "" ..4
Board of Control of Eastern Michigan University v. Labor Mediation Board,
384 Mich. 561 (1971 )........................................................................................................13
Board of Curators of the University of Missouri v. Horowitz,
436 U.S. 78 (1978)...............................................................................................................8
Board of Regents of the University of Michigan v. Auditor General,
167 Mich. 444 (1911 )........................................................................................................12
Brown v. Board of Education,
347 U.S. 483 (1954).........................................................................................................4, 6
City of Richmond v. J.A. Croson Co.,
u.s. 488 469 (1989)............... "' "' "' "' ............. "' "' "' .... """ "' "' ...... "' ... "'" "' "' '"" ........ "' ...10
Doherty v. Southern College of Optometry,
862 F.2d 570 (6th Cir. 1988).............................................................................................. 9
Federated Publications, Inc. v. Michigan State University, Board of Trustees,
460 Mich. 75 (1999)..............................................................................................12, 13, 14
Foley v. Connelie,
u.s. 435 291 (1978).... "' """". "' "' "'" .......... "' "' .... """'" "" "' "' ..... "" "'" ... "' ... "'" ........... " ..4
Griswold v. Connecticut,
381 u.S. 379 (1965)..... "' """ ......... "'" "' "" .... """ "' ................ "' "' "' ...... " "' "' "' ..... ""' "' "'" .5
Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996)....................... 9, 10, 11
Humphrey v. Kleinhardt,
157 F.R. D. 404 (W.D. Mich. 1994)...................................................................................1
Keyishian v. Board of Regents,
u.s. 385 589 (1967) """ """" """ """ "."."""." "" ".."." """."""" """ """" """."" """ .5' 6' 7

ii

2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 4 of 20 Pg ID 996
Lovelace v. Southeastern Massachusetts University, 793 F.2d 419 (1st Cir. 1986)............................................................................................... 8
Martin v. Helstad, 579 F. Supp, 1473 (W.D. Wise. 1983)............................................................................. 9
Metro Broadcasting,Inc. v. FCC,
u.s. 497 547 (1990)...........................................................................................................10
Regents of the University of Michigan v. Ewing,
474 u.s. 214 (1985)...................................................................................................7, 8, 10
Regents of the University of California v. Bakke,
438 u.s. 265 (1978).................................................................................2, 3, 6, 7, 9, 10, 11
State Board of Agriculture v. Auditor General, 226 Mich. 417 (1924)..................................................................................................13, 14
State of Michigan v. C. R. Equipment Sales, Inc., 898 Supp. 509 (W.D. Mich. 1995)................................................................................... 1
Sterling v. Regents of the University of Michigan, 110 Mich. 369 (1896)........................................................................................................12
Sweezy v. New Hampshire,
354 u.s. 234 (1957)...............................................................................4, 5, 6, 7, 10, 11, 14
Wieman v. Updegraff,
u.s. 344 183 (1952).............................................................................................................4
Wygant v. Jackson Board of Education,
476 u.s. 267 (1986)...........................................................................................................10
Statutes Mich. Comp. Laws Ann. 14.28.............................................................................................. 1 Mich. Comp. Laws. Ann. 14.101........................................................................................... 1 Const. Mich. Const. 1850, art. 13, § 8...........................................................................................3, 11 Mich. Const. 1935, art. 10, § 5...............................................................................................12
iii

2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 5 of 20 Pg ID 997 Mich. Canst. 1963, art. 5, § 21 .................................................................................................1 Mich. Canst. 1963, art. 8, § 5.................................................................................3, 11, 12, 15 Other Darlene C. Goring, Affirmative Action and the First Amendment:
The Attainment of a Diverse Student Body is a Permissible Exercise of Institutional Autonomy, 47 U. Kan. L. Rev. 491 (1999) .......................................................................................... 6
J. Peter Byrne, Academic Freedom: A "Special Concern of the
First Amendment,"
99 Yale L. J. 251 (1989)...........................................................................................8, 11, 13
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2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 6 of 20 Pg ID 998
INTEREST OF THE MICHIGAN ATTORNEY GENERAL Amicus Jennifer M. Granholm is the Attorney General of Michigan. The Attorney General of Michigan is a constitutional officer elected by the people. Mich. Const. 1963, art. 5, § 21. In addition to her authority under Michigan's Constitution, federal courts have recognized that Michigan's Attorney General has broad statutory and common law authority to act on behalf of the people of the State of Michigan and to appear in any cause that may be of interest to the people generally. State of Michigan v. C. R. Equipment Sales, Inc., 898 Supp. 509, 513-514 (W.O. Mich. 1995); Humphrey v. Kleinhardt, 157 F.R.D. 404, 405 (W.O. Mich. 1994). See Mich. Comp. Laws Ann. 14.28 and 14.101. Among the issues to be decided in this case is whether the admissions policy of the University of Michigan Law School -- a policy that includes consideration of race and ethnic origin as one of a broad array of factors in making admission decisions -- is constitutional. That policy seeks to effectuate the University's best judgment that having a racially and ethnically diverse student body is essential to fulfilling its educational mission. Because Michigan law jealously guards against any interference with the educational autonomy specially conferred on Michigan's universities by constitution, this case is unquestionably of interest to the people of the State of Michigan and warrants the appearance of the Attorney General. Moreover, it cannot seriously be disputed that providing an education to their citizens is one of the most important functions performed by state and local governments. The critical importance of protecting state control over education from encroachment by the federal judiciary where that control represents a constitutionally justifiable policy choice is an additional vital interest of the people of the State of Michigan the Attorney General seeks to uphold by filing this amicus brief.
1

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INTRODUCTION
In the seminal case of Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the United States Supreme Court held that a university's properly devised admissions program involving the competitive consideration of race and ethnic origin did not violate the Equal Protection Clause of the Fourteenth Amendment. Id. at 320, 328 (opinion of Powell, J., joined by Brennan, White, Marshall, and Blackmun, JJ.) Justice Powell's controlling opinion in Bakke examined each of the goals asserted by the university in defense of its use of race in its admissions process and concluded that only one -- obtaining the educational benefits that flow from a diverse student body -- was constitutionally permissible. Id. at 311-312 (opinion of Powell, J.)l In so ruling, Justice Powell relied on the Court's long-honored doctrine of "academic freedom," grounded in the First Amendment, and recognized the right of educational institutions to engage in academic decisionmaking with limited judicial interference based on the unique
and vital role they play in a democratic society. Id. at 312-313 (opinion of Powell, J.)2
In this case, the University of Michigan Law School has devised an admissions policy that takes race and ethnic origin into account as one of many
1 A number of distinguished amici curiae have thoroughly addressed the point that enrolling a diverse student body is a compelling interest that institutions of higher education may further -- consistent with the Equal Protection Clause -- with an admissions program that considers race as one element to achieve that result. The Attorney General will not repeat those arguments in this brief, but rather recommends the able briefing of her fellow amici to this Court.
2 Justice Powell's opinion is controlling with regard to its statements that rely on the First Amendment's protection of academic freedom because it garnered the support of four justices of the Brennan plurality. They noted that California law had vested plenary legislative and administrative power in the University of California's Board of Regents and that nothing in the Equal Protection Clause justified limiting the scope of their power to make academic choices. Bakke, 438 U.S. at 366, n. 42 (opinion of Brennan, J.)
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factors in making admissions decisions and has done so based on its judgment that enrolling a racially diverse student body is essential to providing a quality legal education to its students. This amicus brief defends the University's right to make that academic choice and urges this Court to follow Justice Powell's controlling opinion in Bakke as an eminently sound and correct statement of constitutional principles)
Additionally, this brief urges this Court to pay deference to the University's academic decisionmaking based not only on federal constitutional principles, but also based on Michigan's Constitution. Since 1850, Michigan's Constitution has conferred a unique status on public universities. Michigan has made the conscious choice to place authority over the operation of the University of Michigan in its Board of Regents and has consistently and strictly forbidden any encroachment on the university's educational autonomy. Mich. Const. 1850, art. 13, § 8; Mich. Const. 1963, art. 8, § 5. As Michigan law has afforded universities the same freedom to pursue their educational mission as has the federal law, this brief urges this Court to consider Michigan's Constitution as an additional basis for upholding the University's admissions policy choices in this case.
3 This brief addresses only the legal question of whether institutional autonomy applies to the University's admissions choice. It is beyond the scope of this amicus brief to address the evidence presented in this case and whether the University's actual implementation of its admissions policy is narrowly tailored to meet its compelling interest in achieving a diverse student body.
3

2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 9 of 20 Pg ID 1001
ARGUMENTS I.
THE UNIVERSITY'S CHOICE TO SEEK TO ATTAIN A DIVERSE STUDENT BODY TO ADVANCE ITS EDUCATIONAL MISSION FALLS WITHIN THE INSTITUTIONAL AUTONOMY AFFORDED
BY THE FIRST AMENDMENT AND IS, THEREFORE, PERMISSIBLE UNDER THE FOURTEENTH AMENDMENT.
"[F]rom Thomas Jefferson onwards," the connection between education and the endurance of our democracy has been unquestionable. Wieman v. Updegraff, 344 U.S. 183, 196 (1952) (opinion of Frankfurter, J.) The Supreme Court has consistently sounded the theme that education is of crucial importance to our political system and "fulfills a most fundamental obligation of government to its constituency." Ambach v. Norwick, 441 U.S. 68, 76 (1979) (quoting Foley v. Connelie, 435 U.S. 291, 297 (1978)). Among the primary purposes of education is to prepare "individuals for participation as citizens." Id. (citing Brown v. Board of Education, 347 U.S. 483, 493 (1954)). Indeed, of all the functions served by state and local governments, "education is perhaps the most important." Brown, 347 U.S. at 493.
From this profound appreciation and respect for education in our democratic system has flowed a natural corollary of judicial deference to educational decisionmaking crystallizing in the doctrine of "academic freedom." The foundation for this doctrine was eloquently described by Justice Frankfurter in his concurring opinion in Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957), where he first enumerated the often-quoted "four essential freedoms" of a university:
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
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In Sweezy, the Court was called upon to decide whether the due process rights of Paul Sweezy, a lecturer at the university, had been violated when he was jailed for contempt after refusing on First Amendment grounds to cooperate with the State's investigation into subversive activities. In finding an invasion of Sweezy's liberties, Chief Justice Warren, who issued the decision of the Court, cautioned that the areas of political expression and "academic freedom" were areas in which "government should be extremely reticent to tread." Id. at 250. He explained that "[t]he essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth." Id. In his concurrence, Justice Frankfurter emphasized that a free society depends on free universities, meaning "the exclusion of governmental intervention in the intellectual life of a university."
Id. at 262 (Opinion of Frankfurter, J.).
This same point was made later by Justice Douglas in Griswold v. Connecticut, 381 U.S. 379, 482-483 (1965) where he premised protection for academic freedom on the First Amendment:
In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read...and freedom of inquiry, freedom of thought, and freedom to teach... -- indeed. the freedom of the entire university community. ...Without those peripheral rights the specific rights would be less secure. (citations omitted) (emphasis added)
A decade after Sweezy was decided the doctrine of academic freedom became even more clearly grounded in the First Amendment in the case of Keyishian v. Board of Regents, 385 U.S. 589 (1967). In Keyishian, the Court struck down a state statute that required faculty members to sign certificates stating that they were not
5

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Communists. In balancing the State's interest in assuring its teachers were not "subversives" against the faculty's right to academic freedom, the Court spoke in broad terms recognizing that some areas of society should be free of excessive interference to function effectively:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." ... The classroom is peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, (rather) than through any kind of authoritative selection."
385 U.S. at 603 (citation omitted).
Against this backdrop, Justice Powell's controlling opinion in Bakke is seen as a natural and principled application of the recurring constitutional thread that had been woven since Brown v. Board of Education. In ruling that the University of California's goal of attaining a racially diverse student body was constitutionally permissible, Justice Powell correctly relied on the academic freedom doctrine, noting that it had "long ... been viewed as a special concern of the First Amendment." Bakke, 438 U.S. at 312 (opinion of Powell, J.) He also appropriately drew on the "four essential freedoms" of a university that were summarized in Sweezy, including the freedom "to determine for itself on academic grounds ... who may be admitted to study," in concluding that "the freedom of a university to make its own judgments as to education includes the selection of its student body." Id. In short, Bakke permits universities as separate autonomous entities to rely on First Amendment guarantees to protect their right (and freedom) to make academic
6

2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 12 of 20 Pg ID 1004
decisions.4 All these cases, taken together, serve to recognize the unique status of
educational institutions in our democratic society and to counsel that courts should pay special deference to the expertise of those involved in academic decisionmaking to assure them the greatest chance for success in furthering their educational mission.
In the case of Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985), the Court made clear that academic freedom was a doctrine that applied not only to individuals, but to educational institutions as well, and to the University of Michigan in particular. In Ewing, plaintiff, who was dismissed from the university's accelerated medical school program based on a negative evaluation of his academic credentials, claimed he had a protectable property interest in continued enrollment. Even assuming such an interest, however, the Court, citing Bakke, Keyishian, and Sweezy, stated its "reluctance to trench on the prerogatives of state and local educational institutions" and acknowledged a "responsibility to safeguard their academic freedom" as a special concern of the First Amendment. Id. at 226 (citations omitted). The Court stressed that "[a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students but also ... on autonomous decisionmaking by the academy itself." Id. at 226 n. 12 (citation omitted).
Justice Powell's concurring opinion was even more explicit. He agreed fully with the Court's emphasis on the "respect and deference that courts should accord academic decisions made by the appropriate university authorities" and admonished that judicial review of academic decisions, including admission
4 For a thorough discussion on academic freedom, institutional autonomy, and the attainment of a diverse student body, see Darlene C. Goring, Affirmative Action and the First Amendment: The Attainment of a Diverse Student Body is a Permissible Exercise of Institutional Autonomy. 47 U. Kan. L. Rev. 491 (1999).
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decisions, "is rarely appropriate." Id. at 230 (Opinion of Powell, J.)5
In these cases, the Supreme Court has charted a clear course that this Court
should follow in evaluating the University of Michigan Law School's admissions
policy in this case-- deference. Consistently, the Court has respected and deferred to
the specialized judgments made by our educational institutions -- including
judgments relating to the composition of a student body -- and has expressed its
view that universities, not courts, are best entrusted with the crucial job of assuring
that our Nation's "marketplace of ideas" continues to thrive.
Indeed, courts across the country, including the Sixth Circuit, have followed
the doctrine of institutional academic freedom, or "institutional autonomy,"
embodied in these cases. See, e.g., Lovelace v. Southeastern Massachusetts
5 The Court in Ewing cited Board of Curators of the University of Missouri v. Horowitz, 436 U.S. 78 (1978), a case in which the Court upheld the university's dismissal of a medical student based on an evaluation showing poor performance. In so ruling, Justice Rehnquist writing for the Court acknowledged that academic decisions requiring an expert evaluation of cumulative information are "not readily adapted to the procedural tools of judicial or administrative decisionmaking." Id. at 90.
Explaining a possible underpinning of the court's deference to universities, one scholar has noted that the doctrine of institutional academic freedom may have its roots in common law academic abstention:
The constitutional right of institutional academic freedom appears to be a collateral descendent of the common law notion of academic abstention. This heritage is made explicit in [Ewing], where the Court ... suggests that these views recommend themselves as protection for academic freedom. And the 'four freedoms' of Sweezy reflect the kinds of university decisions courts have refused to review under common law principles. Institutional academic freedom can be viewed as academic abstention raised to constitutional status.... J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 Yale L. J. 251, 326-27 (1989) (footnotes omitted).
He goes on to summarize cases like Horowitz as counseling courts to appreciate "that universities proceed on assumptions different from society as a whole and that an insistence by courts on conforming to legal standards or procedures will likely destroy something uniquely valuable in higher education." Id. at 326.
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University, 793 F.2d 419, 426 (1st Cir. 1986) (university's decision not to renew faculty member's contract for his alleged failure to inflate grades and to lower academic standards upheld, court emphasizing that university has a recognized right to govern its institution according to the "four essential freedoms" that superseded the individual faculty member's right to academic freedom); Doherty v. Southern College of Optometry, 862 F.2d 570, 576 (6th Cir. 1988) (affirming dismissal of plaintiff's breach of contract claim in a disability discrimination case because it "arises in an academic context where judicial intervention in any form should be undertaken only with great reluctance"); Martin v. Helstad, 578 F. Supp, 1473, 1482 (W.O. Wise. 1983) ("[a]cademic institutions are accorded great deference in their freedom to determine who may be admitted to study at the institution").
There is, however, one exception, which warrants brief mention -- Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996). In Hopwood, the Fifth Circuit ruled that the University of Texas Law School could not use race as a factor in its law school admissions to further its goal of achieving diversity in its student body. The Fifth Circuit explicitly rejected the university's reliance on Justice Powell's opinion in Bakke, stating "[it] is not binding precedent on this issue." Id. at 944. Hopwood's reasoning, however, is severely flawed and indeed, internally inconsistent, and this Court should not be misguided by it.
First, and perhaps most significantly, Judge Smith's opinion6 in Hopwood offers so little considered analysis of the university's First Amendment institutional autonomy defense as to have virtually ignored it. In a short footnote, the panel dismisses the university's First Amendment right to assemble the student body of 6 Judges Smith and DeMoss joined in the lead opinion, but Judge Wiener filed a special concurring opinion in which he disagreed with the panel's conclusion that diversity can never be a compelling governmental interest in a public graduate school, 78 F.3d 932, 962 (opinion of Wiener, concurring). He would have assumed without deciding that diversity is a compelling state interest and would have proceeded to then address the issue of whether implementation of the university's policy was narrowly tailored to meet its diversity interest.
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its choice as "somewhat troubling," but then makes no attempt to refute it on any legal basis except to distinguish Sweezy as involving individual, not institutional, academic rights. 78 F.3d at 943, n. 25. On this point the panel makes no mention of Ewing and its explicit statement regarding institutional rights. Second, the panel inexplicably begins its analysis with a statement that, subsequent to Bakke, "Supreme Court decisions regarding education state that non-remedial state interests will never justify racial classifications" and yet nowhere in its opinion are any such cases identified or analyzed. Indeed, only cases such as Adarand Contractors, Inc. v. Pena,7 515 U.S. 200 (1995) and City of Richmond v. f.A. Croson Co., 488 U.S. 469 (1989) are discussed which the panel then characterizes as having implicitly "overruled" Bakke, despite the panel's own quotation of Justice O'Connor's concurrence in Wygant v. Jackson Board of Education, 476 U.S. 267, 286 (1986), in which she noted that a "state interest in the promotion of racial diversity has been found sufficiently 'compelling,' at least in the context of higher education, to support the use of racial considerations in furthering that interest." 78 F.3d at 945, n. 27 (emphasis added). Obviously, cases like Croson and Adarand (dealing with highway construction and government contracting) do not implicate the kind of constitutional protections appropriate in the educational contextS and, accordingly,
are of little value to this Court.
7 Further question about Hopwood's soundness is raised considering that Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 (1990) (overruled by Adarand on other grounds) cites Bakke for the proposition that a diverse student body contributing to a "robust exchange of ideas" is a constitutionally permissible goal on which a raceconscious university admissions program may be predicated.
8 Judge Wiener's concurring opinion in Hopwood identifies this very flaw in the panel's opinion, concluding that "[t]his unique context [constructing an entering class at a public graduate or professional school], first identified by Justice Powell, differs from the employment context, differs from the minority business set aside context, and differs from the redistricting context; it comprises only the public higher education context ...." 78 F.3d at 965, n. 21.
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Hopwood stands alone and should not be followed by this Court. The "essentiality of freedom" in American universities is as self-evident today as it was in 1957 when Sweezy was decided. The First Amendment protects the University of Michigan Law School's admissions decisionmaking process against undue judicial interference and, accordingly, this Court, consistent with Bakke and the Fourteenth Amendment, should defer to the University's policy choice to attain a diverse student body in this case.
II. THE UNIVERSITY'S CHOICE TO ENROLL A DIVERSE STUDENT BODY IS ALSO ENTITLED TO DEFERENCE UNDER ARTICLE 8. § 5 OF MICHIGAN'S CONSTITUTION.
Like the California educational system discussed in Bakke, (see footnote 2, supra) Michigan is one of the states that has devised its system of higher education based on an abiding conviction that university autonomy best serves the goal of educating its citizens.9 Toward that end, Michigan's Constitution confers a unique constitutional status on its public universities and their governing boards. Specifically, art 8, § 5 of Michigan's Constitution vests plenary authority over educational matters in the University of Michigan's Board of Regents in the following provision:
The regents of the University of Michigan and their successors in office shall constitute a body corporate known as the Regents of the University of Michigan ... [The] board shall have general supervision of its institution and the control and direction of all expenditures from the institution's funds....
9 In fact, the State of Michigan enacted our nation's first constitutional provision for the separate government of its state university (the University of Michigan) in
1850. Mich. Const. 1850, art 13, § 8. See Byrne, supra note 5, 99 Yale L.J. at 327-328.
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This conviction that institutional autonomy is necessary to achieve quality education is based on more than faith; it is grounded in experience. Under Michigan's 1835 Constitution, the Legislature controlled and managed the University of Michigan, our State's first public university. Mich. Const. 1935, art. 10, § 5. This experiment failed, however, and prompted extensive debate about the future of the University at the Constitutional Convention of 1850. Federated Publications, Inc. v. Michigan State University, Board of Trustees, 460 Mich. 75, 85 (1999) (citing Sterling v. Regents of the University of Michigan, 110 Mich. 369, 374378 (1896)). What emerged out of these debates was a consensus that the Legislature should be divested of its power and that control of the university should be placed in an elected board. Under this new system lead by a board of regents, the University thrived.l0 Sterling, 110 Mich. at 377. The regent system has been in place ever since, Mich. Const. 1963, art. 8, § 5, and the University of Michigan has continued to maintain its position as one of our country's finest educational
10 Michigan's Supreme Court has described the status of university governing boards as:
the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is coordinate with and equal to that of the legislature. Board of Regents of the University of Michigan v. Auditor General, 167 Mich. 444, 450 (1911) (quoted approvingly in Federated Publications, 460 Mich. at 84, n. 8.)
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institutions. II
That the University enjoys full autonomy over educational matters is a matter that was unequivocally confirmed in the recent Federated Publications case. There, the Michigan Supreme Court held that the Legislature did not have the power to regulate open meetings for universities in the context of presidential searches without unconstitutionally infringing on their power to supervise their institutions. Federated Publications, 460 Mich at 78.
In so ruling, the Court reiterated the principle it had "long recognized" that legislative regulation that encroaches on the university's educational autonomy "must ... yield to the university's constitutional power." Id. at 86-87. The Court observed that the constitution grants university governing boards authority over '"the absolute management of the University' and that the Court has 'jealously guarded' these powers from legislative interference." Id. at 87 (citing State Board of Agriculture v. Auditor General, 226 Mich. 417, 424 (1924) and Board of Control of Eastern Michigan University v. Labor Mediation Board, 384 Mich. 561, 565 (1971)). Although universities may be subject to certain state laws (such as the public employees relations act), even those laws "cannot extend into the university's sphere of educational authority...." Federated Publications, 460 Mich. at 87-88. Similarly, even in the appropriations process, although the Legislature may attach
11 As explained by Professor Byrne:
When Michigan constitutionalized institutional autonomy in 1850, it did so against a history of frustrating failures to establish respectable state universities in America. ...The legislature was perceived to manage the university for practical, political ends, rather than for longterm scholarly and educational objectives. The solution adopted -- the election for eight year terms of officials responsible only for university governance -- was an ingenious innovation, accommodating conflicting values and fostering a university known and admired throughout the world.
Byrne, supra note 5, 99 Yale L. J. at 328-329.
13

2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 19 of 20 Pg ID 1011 conditions to an appropriation, those conditions "cannot invade university autonomy." Id. at 88 citing State Board of Agriculture, 226 Mich at 425. In short, "[w]ithin the confines of the operation ... of the University, it is supreme." Id. at 87 (citation omitted).
Certainly decisions regarding the composition of a university's student body are quintessentially within the educational sphere and may not be infringed under state law. Like Sweezy's "four essential freedoms," the decision regarding who may be admitted to study is, at its core, an academic one.
Accordingly, as prevails under principles of federal constitutional law, this Court should defer to the University's admissions choices in this case under principles of state constitutional law as well.
14

2:97-cv-75928-BAF Doc # 246 Filed 11/29/00 Pg 20 of 20 Pg ID 1012

CONCLUSION AND RELIEF

Both the First Amendment of the federal constitution and article 8, § 5 of Michigan's Constitution confer on the University of Michigan a right as a separate autonomous entity to make academic choices with only limited judicial scrutiny. The importance of preserving that "essential freedom" of the university cannot be overstated. The University's choice to seek to enroll a diverse student body to provide the best educational experience for its students falls squarely within the protection afforded by the doctrine of institutional autonomy and should therefore be held constitutionally permissible by this Court.
For all the above reasons, the Attorney General urges this Court to uphold the University's choice to enroll a diverse student body as constitutionally permissible under the doctrine of institutional autonomy both as a matter of federal and state law.

Date: November 20, 2000

Respectfully submitted,
JENNIFER M. GRANHOLM Attorney General
~~(UlAh!.>.,fJA., ~.l__'rU-ff-Y'~
Susan I. Leffler Assistant Solicitor General
Department of Attorney General Appellate Division P.O. Box 30212 Lansing, MI 48909 (517) 373-1124

15

 
 2:97-cv-75928-BAF Doc # 268 Filed 12/28/00 Pg 1 of 2 Pg ID 1054 •

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

BARBARA GRUTTER, et. a!., Plaintiffs,
v.

Case No. 97-75928 HON. BERNARD A. FRIEDMAN

LEE BOLLINGER, et. a!., Defendants.
--------------------~/

ORDER

"' -n . ··-- ;o
On December 22, 2000, the parties' cross-motions for summary judgment came::::

' - m .

.

.

O before the court. A hearing was held and oral argument heard. For the reasons statgd on

the record,

.,

~ .

= =

IT IS ORDERED that the court will take the parties' cross-motions for summary

judgment under advisement to the extent that they involve the legal determination of

whether the attainment of a racially diverse student body is a compelling state interest.

IT IS FURTHER ORDERED that the court will hold a bench trial 1 to hear testimony on the following:

(I) The extent to which race is a factor in the Law School's admissions decisions, (2) Whether the Law School's consideration of race in making admissions
decisions constitutes a double standard in which minority and non-minority students are treated differently, and

1 The parties have stipulated that the Law School uses race as a factor in making its admissions decisions. Therefore, this issue need not be tried.

2:97-cv-75928-BAF Doc # 268 Filed 12/28/00 Pg 2 of 2 Pg ID 1055 •
(3) The issues argued at the hearing in relation to the LSAT scores and grade point averages as they relate to the intervenors' contention that the Law School may take race into account to "level the playing field." IT IS FURTHER ORDERED that the trial shall commence on January 16,
2001, at 9:00a.m., and will continue as per the schedule stated on the record. IT IS FURTHER ORDERED that each party shall have thirty hours to
present its case, consistent with the memorandum that the court will forward to all parties concerning the manner in which the thirty hours will be calculated.
Dated:

Copy Mailed This Date To:

David F. Herr, Esq.; Kirk Kolbo, Esq.; R. Lawrence Purdy, Esq. John Payton, Esq.; Jane Sherburne, Esq.
John H. Pickering, Esq.; Craig Goldblatt, Esq.
Kierry L. Morgan, Esq. Leonard M. Niehoff, Esq. Richard A. Wilhelm, Esq. Patrick J. Wright, Assistant Attorney General Mari.in Michaelson, Esq.; Steven J. Routh, Esq.;
Alexander E. Dreier, Esq. Jeremiah Glassman, Esq.; Katluyn M. Woodruff, Esq.;
Kenneth D. Johnson, Esq. Edward B. Foley, Assistant Attorney General

 
 2:97-cv-75928-BAF Doc # 363 Filed 09/15/03 Pg 1 of 1 Pg ID 1131

q 7~75'72%

~~FOR YOUR llliFORMATION

AC1

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SUPREME COURT OF THE UNITED STATES

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CLERK
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August 25, 2003

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Clerk United

Statit.e.fsC~ CJ.k~ of

Appeals

for

the Sixth Circuit

524 Potter Stewart Courthouse

100 East Fifth Street

Cincinnati, OH 45202

LEONI\RO GREEN,

Re: Dear Clerk:

Barbara Grutter v. Lee Bollinger, et al. No. 02-241 (Your No. 01-1447/1516)

The Court today entered the following order in the above entitled case:
The petition for rehearing is denied.

Sincerely,
W~t.~
William X. Suter, Clerk

 
 137 F.Supp.2d 874 United States District Court,
E.D. Michigan, Southern Division.
Barbara GRUTTER, Plaintiff, v.
Lee BOLLINGER, et al., Defendants. and
Kimberly James, et al., Intervening Defendants.
No. CIV. A. 97–CV75928–D. | April 3, 2001.
Law school moved for a stay of an injunction prohibiting it from using applicants’ race as a factor in its admissions decisions pending appeal. The District Court, Friedman, J., held that: (1) law school failed to demonstrate the existence of serious questions going to the merits; (2) law school did not establish a certain and immediate threat of irreparable harm; and (3) interests of other parties and the public interest weighed against granting a stay of injunction.
Motion denied.
Attorneys and Law Firms
*874 Kerry L. Morgan, Pentiuk & Couvreur, Taylor, MI, Kirk O. Kolbo, David F. Herr, Mason, Edelman, Minneapolis, MN, for plaintiff.
Leonard M. Niehoff, Butzel Long, Ann Arbor, MI, John A. Payton, John H. Pickering, Wilmer, Cutler, Washington, DC, Philip J. Kessler, Butzel Long, Detroit, MI, Jane Sherburne, Stuart F. Delery, Wilmer, Cutler, Washington, DC, for Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ. of Michigan.
Martin Michaelson, Steven J. Routh, Alexander E. Dreier, Hogan & Hartson, Washington, DC, for American Council on Educ.
*875 Jeremiah Glassman, Kathryn M. Woodruff, Kenneth D. Johnson, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for U.S.
Edward B. Foley, Ohio Depart. of Attorney General, Columbus, OH, for State of Ohio.
Richard A. Wilhelm, Dickinson, Wright, Bloomfield Hills, MI, for Association of American Law Schools, National Association Of State Universities and Land Grant Colleges, Committee on Institutional Corporation,

Wayne State University.
Opinion
OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO STAY INJUNCTION
FRIEDMAN, District Judge.
This matter is presently before the court on defendants’ motion to stay injunction. Plaintiffs have filed a response in opposition. For the following reasons, the motion is denied.
In an opinion and order dated March 27, 2001, the court found that the University of Michigan Law School has violated the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 by using race as a factor in considering applications for admission. See Grutter v. Bollinger, 137 F.Supp.3d 821 (E.D.Mich.2001). Accordingly, the court ordered that the law school “is hereby enjoined from using applicants’ race as a factor in its admissions decisions.” Id. at 871. Defendants have indicated that they intend to appeal the court’s decision. In the instant motion, defendants ask that the court stay the injunction pending appeal. The intervenors concur in the motion; plaintiffs oppose it.
Legal Standards [1] A motion to stay an injunction pending appeal is governed by Fed.R.Civ.P. 62(c), which states:
When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party....
In deciding such a motion, the court considers the following factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2)

whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). The Sixth Circuit has provided considerable guidance as to how these factors should be weighed:
These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.
Although the factors to be considered are the same for both a preliminary injunction and a stay pending appeal, the balancing process is not identical due to the different procedural posture in which each judicial determination arises. Upon a motion for a preliminary injunction, the court must make a decision based upon “incomplete factual findings and legal research.” Even so, that decision is generally accorded a great deal of deference on appellate review ....
Conversely, a motion for a stay pending appeal is generally made after the district court has considered fully the merits of the underlying action and issued judgment, usually following completion *876 of discovery. As a result, a movant seeking a stay pending review on the merits of a district court’s judgment will have greater difficulty in demonstrating a likelihood of success on the merits. In essence, a party seeking a stay must ordinarily demonstrate to a reviewing court that there is a likelihood of reversal. Presumably, there is a reduced probability of error, at least with respect to a court’s findings of fact, because the district court had the benefit of a complete record that can be reviewed by this court when considering the motion for a stay.
To justify the granting of a stay, however, a movant need not always establish a high probability of success on the merits. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Simply stated, more of one excuses less of the other. This relationship, however, is not without its limits; the movant is always required to demonstrate more than the mere “possibility” of success on the merits. For example, even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the defendant if a stay is granted, he is still required to show, at a minimum, “serious questions going to the merits.”

In evaluating the harm that will occur depending upon whether or not the stay is granted, we generally look to three factors: (1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided.... In addition, the harm alleged must be both certain and immediate, rather than speculative or theoretical....
Of course, in order for a reviewing court to adequately consider these four factors, the movant must address each factor, regardless of its relative strength, providing specific facts and affidavits supporting assertions that these factors exist.
Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153–54 (6th Cir.1991) (citations omitted). “Because the burden of meeting this standard is a heavy one, more commonly stay requests will not meet this standard and will be denied.” 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2904, pp. 503–505 (1995).
Application Defendants first argue that “there is a reasonable possibility that Defendants’ position will ultimately prevail.” Defendants’ Mem. of Law in Support of Motion to Stay Injunction, p. 4. “Reasonable possibility” is not the standard. Rather, as noted above, defendants must make a “strong showing” that they are likely to succeed on the merits; they must, at a minimum, demonstrate the existence of “serious questions going to the merits.”
[2] Defendants have failed to demonstrate the existence of “serious questions going to the merits.” While the status of Justice Powell’s endorsement of the diversity rationale is debatable, the court is convinced that in Part IV–D of his opinion in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), Justice Powell was speaking only for himself, not for a majority of the Supreme Court. A majority of the Court has never recognized racial diversity in university admissions as a compelling state interest. And as this court noted in its March 27, 2001, opinion, post-Bakke Supreme Court decisions cast further doubt on the constitutionality of any use of race that is not strictly remedial. See Grutter, 137 F.Supp.2d at 847.
*877 The cases cited by defendants are not to the contrary. Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757 (6th Cir.1983), was a school desegregation case in which the district court imposed a racial hiring quota for teachers as part of the remedy for the intentional racial segregation of students. The court of appeals reversed on

the grounds that the quota was arbitrary and because the school district was acting in good faith to remedy the effects of past discrimination. See id. at 762–63. In dictum, the court stated that hiring quotas as not per se improper, but “generally, the wiser approach is a more flexible affirmative action program rather than a hiring quota. Cf. Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (affirmative action admission programs of educational institutions may take race into account, but racial quotas are prohibited).” Id. at 763. Nothing in Oliver supports defendants’ argument that diversity in university admissions has ever been recognized as a compelling state interest, or that the Sixth Circuit has held that Bakke stands for such a proposition.
Defendants’ citation to United States v. Ovalle, 136 F.3d 1092 (6th Cir.1998), is equally inapposite. In that case, defendants challenged the manner in which the district court selected qualified jurors for inclusion in the jury wheel. Specifically, defendants challenged the court’s practice of removing a certain number of non-African Americans from the wheel in order to bring the African American representation in line with census figures for the counties from which jurors were drawn. The court of appeals found that the creation of a representative jury wheel is a compelling state interest, but that the exclusion of potential jurors simply because of their race violates the Equal Protection Clause as well as the Jury Selection and Service Act. See id. at 1100, 1105–07. Again, nothing in Ovalle suggests that this court erred in enjoining defendants’ consideration of race in making admissions decisions.
Nor are defendants assisted by Hopwood v. State of Texas, 236 F.3d 256, 276 (5th Cir.2000), in which the Fifth Circuit reversed the district court’s order enjoining the University of Texas School of Law “from taking into consideration racial preferences in the selection of those individuals to be admitted as students.” The first reason for the reversal was that the district court failed to make findings of fact and conclusions of law, as required by Fed.R.Civ.P. 52(a), something which cannot be said of this court’s injunction. The second reason for the reversal was that the injunction “forbids the University from using racial preferences for any reason, despite Bakke ‘s holding that racial preferences are constitutionally permissible in some circumstances.” Id. at 276–77 (emphasis in original; footnote omitted). This court’s injunction should not be understood as prohibiting “any and all use of racial preferences,” id. at 277 (emphasis in original), but only the uses presented and argued by the defendants and the intervenors in this case—namely, in order to assemble a racially diverse class or to remedy the effects of societal discrimination. No other justifications were offered by the parties to this lawsuit, none others were considered by this

court, and none others are enjoined by this court’s order.
Even if a higher court rules that assembling a racially diverse class can be a compelling state interest, defendants cannot overcome the overwhelming evidence, and this court’s findings based on that evidence, that their use of race is not narrowly tailored to the achievement of that interest. At pages 49–54 of its opinion, the court listed five reasons why the law school’s admissions policy is not narrowly tailored. See Grutter, 137 F.Supp.3d at 850–51. In their motion to *878 stay, defendants do not even mention narrow tailoring or suggest why the court’s analysis of this prong of the strict scrutiny test is likely to be reversed on appeal. As the Sixth Circuit has observed, defendants’ task is more difficult than it would be if they were seeking a stay of a preliminary injunction, as the injunction in question was issued after an exhaustive consideration of the merits. See Griepentrog, 945 F.2d at 153.
Defendants next argue that they will be irreparably harmed unless the injunction is stayed. Defendants claim that the admissions process for the current season will be disrupted, that they will be prevented from admitting a racially diverse class, and that their First Amendment rights to academic freedom and the pursuit of educational goals will be infringed.
[3] Defendants’ arguments do not satisfactorily establish a certain and immediate threat of irreparable harm. Taking the arguments in reverse order, defendants’ First Amendment rights to select the student body and to pursue educational goals are not seriously infringed by an injunction prohibiting the unconstitutional consideration of race in making admissions decisions. In any event, the equal protection rights of all applicants to be considered for admission without regard to their race clearly outweighs the First Amendment rights claimed by the law school.
Defendants’ second argument is that the injunction will “thwart[ ] the Law School’s ability to enroll a meaningful number of underrepresented minority students, which is critical to its educational mission.” Defendants’ Mem. of Law in Support of Motion to Stay Injunction, p. 9. This goes to the heart of the case and is in effect an argument for reconsideration of the merits. The court heard extensive testimony during a 15–day bench trial as to the reasons why defendants believe they must consider race in order to admit a critical mass of underrepresented minority students. However, for the reasons explained at length in its March 27, 2001, opinion, the court has concluded that the attainment of a racially diverse class is not a sufficiently compelling interest to justify race-based admissions decisions. The court has found that defendants’ use of race is indistinguishable from a quota

system, and there is no doubt that racial quotas in this context and for this purpose are unconstitutional. Defendants are not irreparably harmed by an injunction that requires them to comply with the Constitution.

300–450 more offers must be made in order to round out the entering class.1 The court sees no insurmountable obstacle in completing the admissions process while obeying the injunction.

Nor is the court convinced that the law school “will have to halt its entire admissions process immediately” unless a stay is granted. Defendants’ Mem. of Law in Support of Motion to Stay Injunction, p. 7. Defendants claim that they cannot predict how many offers they must make under a race-blind system in order to enroll the desired number of students; that they will need “several weeks” to analyze the new situation statistically; and that the best candidates will enroll elsewhere during the delay.
These arguments, which are supported by an affidavit of the acting dean of admissions, are unpersuasive. The court’s injunction is simply and easily complied with: race is not to be used as a factor to achieve a racially diverse class or to remedy societal discrimination. Defendants testified at trial that they review every application individually. They should continue to do so, but without considering the race of the applicants. Defendants indicate the immediate urgency is that “[a]pproximately 100 additional offers need to be extended in the next 10 days in order to fill [the summer] section.” Defendants’ Mem. of Law in Support of Motion to Stay Injunction, p. 8. With their extensive experience *879 in reviewing law school applications, defendants should have no difficulty identifying 100 excellent candidates within this time frame without considering race. Nor should the law school be unduly hindered in finishing the admissions process for the class entering in the fall of 2001. Defendants indicate they have already made over 750 offers of admission and that approximately

[4] The final two factors—the interests of other parties and the public interest—also weigh against granting a stay. Because this is a class action, the plaintiffs are not merely one individual but all non-minority applicants whose applications are reviewed less favorably than those of minority applicants. Clearly, the members of the plaintiff class with pending applications have a strong interest in keeping the injunction in place. There is also a strong public interest in ensuring that public institutions comply with the Constitution.
For these reasons, the court concludes that defendants have failed to demonstrate their entitlement to a stay of the injunction. Defendants have not shown they are likely to succeed on the merits on appeal; defendants have not demonstrated that they will be irreparably harmed if the injunction is not stayed; and the interest of the other parties and of the public would be harmed by a stay. Accordingly,
IT IS ORDERED that defendants’ motion to stay injunction is denied.2
Parallel Citations
153 Ed. Law Rep. 239

Footnotes

1

Defendants indicate they have made 826 offers of admission to date, and that 70 of these are for students who will begin studying

in the summer of 2001. Therefore, approximately 756 offers of admission have been made for the class entering in the fall of 2001.

Defendants further indicate that they generally must make a total of between 1,050 and 1,200 offers of admission in order to enroll

a fall class of 350. Therefore, it appears that between 294 and 444 offers must still be made. The court’s injunction does not require

the law school to rescind any offers it has already extended.

2

Defendants’ alternative request for a 10–day “administrative stay” is also denied. Defendants seek this alternative relief “to permit

Defendants an opportunity to file their notice of appeal and seek a stay from the Court of Appeals.” Defendants’ Mem. of Law in

Support of Motion to Stay Injunction, p. 2. Defendants are free at any time to apply to the court of appeals for a stay of this court’s

injunction. See Fed.R.Civ.P. 62(g). Indeed, defendants state in their brief that they intended to file a notice of appeal on April 2,

2001, and to seek a stay from the court of appeals if this court did not grant one by that date. Thus, it does not appear that any

purpose would be served by a 10–day stay.

 
 137 F.Supp.2d 821 United States District Court,
E.D. Michigan, Southern Division.
Barbara GRUTTER, Plaintiff, v.
Lee BOLLINGER, Jeffrey Lehman, Dennis Shields, Regents of the University of Michigan,
and the University of Michigan Law School, Defendants, and
Kimberly James, Farah Mongeau, Jeanette Haslett, Raymond Michael Whitlow, Shabatayah
Andrich, Dena Fernandez, Shalamarel Kevin Killough, Diego Bernal, Julie Fry, Jessica Curtin,
James Huang, Heather Bergman, Ashwana Carlisle, Ronald Cruz, Nora Cecilia Melendez, Irami Osei-Frimpong, Gerald Ramos, Arturo Vasquez, Edward Vasquez, Vincent Kukua, Hoku Jeffrey, Karlita Stephens, by her Next Friend Karla Stephens-Dawson, Yolanda Gibson, by her Next Friend Mary Gibson, Erika Dowdell, by her Next Friend Herbert Dowdell, Jr., Agnes Aleobua, by her Next Friend Paul Aleobua, Cassandra Young,
by her Next Friend Yolanda J. King, Jaasi Munanka, Jodi-Marie Masley, Shannon Ewing, Julie Kerouac, Kevin Pimentel, Bernard Cooper, Norberto Salinas, Scott Rowekamp, Russ Abrutyn, Jasmine Abdel-Khalik, Meera Deo, Winifred Kao, Melisa Resch, Oscar De La Torre, Carol Scarlett, United for Equality and Affirmative Action, the Coalition to Defend Affirmative Action by any
Means Necessary, and Law Students for Affirmative Action, Intervening Defendants.
No. 97CV75928–DT. | March 27, 2001.
Previously rejected and prospective caucasian applicants to state university law school sued state, claiming that admissions policy encouraging student body diversity violated their equal protection rights and their rights under Title VI, prohibiting discrimination in programs receiving federal funding. Following trial, the District Court, Friedman, J., held that: (1) desire for student body diversity was insufficient basis for compelling government interest necessary to support policy; (2) in any event, policy was not narrowly tailored to further that objective; (3) university officials had qualified immunity from suit; (4) board of regents was liable for damages; and (5) alternate reason for policy, to redress historic discrimination and societal imbalances, did not give rise to compelling government interest.

Judgment for claimants.
Attorneys and Law Firms
*823 Kerry L. Morgan, Pentiuk & Couvreur, Taylor, MI, Kirk O. Kolbo, Kai Richter, R. Lawrence Purdy, Maslon, Edelman, Borman & Brand, Minneapolis, MN, Godfrey J. Dillard, Detroit, MI, for plaintiff.
Philip J. Kessler, Okemos, MI, John A. Payton, Jane Sherburne, Wilmer, Cutler & Pickering, Washington, D.C., Leonard M. Niehoff, Butzel & Long, Ann Arbor, MI, Richard A. Wilhelm, Dickinson Wright, Detroit, MI, Susan I. Leffler, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, Kenneth S. Geller, Mayer Brown & Platt, Washington, D.C., Jeffrey S. Silver, Ann Arbor, MI, for Defendants.
Opinion
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FRIEDMAN, District Judge.
On December 22, 2000, the court heard oral argument in this case on the parties’ cross motions for summary judgment. The court took the motions under advisement and identified the issues for trial. Over a period of 15 days in January and February 2001, the court conducted a bench trial. In this opinion, the court shall rule on the motions and make findings of fact and conclusions of law.
I. Introduction Plaintiff Barbara Grutter commenced this action in December 1997. Ms. Grutter alleges that in 1996 she applied for admission to the University of Michigan Law School (hereinafter “the law school”). At first plaintiff was placed on a waiting list, but in June 1997 her application was rejected. *824 Plaintiff, who is Caucasian, alleges that her application was rejected because the law school uses race as a “predominant” factor, giving minority1 applicants “a significantly greater chance of admission than students with similar credentials from disfavored racial groups.” Complaint ¶ ¶ 20, 23. In their answer to the complaint, defendants “state that they do have a current intention to continue using race as a factor in admissions, as part of a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Answer

¶¶ 9, 23.
Plaintiff asserts two claims. First, she claims that defendants discriminated against her on the basis of her race, thereby violating her rights to equal protection under the Fourteenth Amendment.2 This claim is brought under 42 U.S.C. §§ 1981 and 1983. Second, plaintiff claims that defendants violated Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, which prohibits recipients of federal funds from discriminating on the basis of race.3 For relief, plaintiff seeks a declaratory judgment to the effect that her rights were violated; an injunction prohibiting racial discrimination in admissions; compensatory and punitive damages; an order requiring defendants to admit her to the law school; and attorney fees and costs. The defendants are Lee Bollinger, the dean of the law school from 1987 to 1994 and president of the University of Michigan from 1997 to the present; Jeffrey Lehman, the dean of the law school from 1994 to the present; Dennis Shields, the director of admissions at the law school from 1991 to 1998; the regents of the University of Michigan; and the University of Michigan Law School.
In an opinion and order dated January 7, 1999, the court granted plaintiff’s motion for class certification and for bifurcation of the trial into liability and damages phases. The class was defined as consisting of “all persons who (A) applied for and were not granted admission to the University of Michigan Law School for the academic years since (and including) 1995 until the time that judgment is entered herein; and (B) were members of those racial or ethnic groups, including Caucasian, that Defendants treated less favorably in considering their applications for admission to the Law School.”
In March 1998, 41 individuals and three pro-affirmative action student groups4 *825 sought to intervene in the case as defendants. The individual intervenors include 21 undergraduate students of various races who currently attend the University of Michigan, Wayne State University, the University of California at Berkeley, or Diablo Valley Community College in Pleasant Hill, California, all of whom plan to apply to the law school for admission; five black students who currently attend Cass Technical High School or Northwestern High School in Detroit and who plan to apply to the law school for admission; twelve students of various races who currently attend the law school; a paralegal and a Latino graduate student at the University of Texas at Austin who intend to apply to the law school for admission; and a black graduate student at the University of Michigan who is a member of the Defend Affirmative Action Party. Motion to Intevene ¶¶ 1–41. The court initially denied the motion to intervene, but in August 1999 the court of appeals reversed and directed that the intervention be permitted.

On December 22, 2000, the court heard oral argument on the parties’ cross motions for summary judgment. The court took those motions under advisement. The court indicated that the trial would focus on the following three issues: (1) the extent to which race is a factor in the law school’s admissions decisions; (2) whether the law school’s consideration of race in making admissions decisions constitutes a double standard in which minority and non-minority students are treated differently; and (3) whether the law school may take race into account to “level the playing field” between minority and non-minority applicants.
II. Diversity as a Rationale for Using Race as a Factor in University Admissions
A. Evidence
1.
The starting point in this case is the written admissions policy of the University of Michigan Law School, which was admitted at trial as Exhibit 4. This policy, which was adopted by the law school faculty in April 1992, was the subject of many hours of testimony during trial as well as extensive discovery. Due to the central role the policy has played in this case, the court shall summarize the policy and highlight certain provisions.
The policy expresses the law school’s desire “to admit a group of students who individually and collectively are among the most capable students applying to American law schools in a given year.... Collectively, we seek a mix of students with varying backgrounds and experiences who will respect and learn from each other.” Exhibit 4, Admissions Policy, p. 1. The policy notes that “no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems.” Id. at 2. In identifying applicants who can be expected to succeed academically, the law school’s “most general measure ... is a composite of an applicant’s [Law School Admission Test] score and undergraduate gradepoint average (UGPA) (which we shall call the ‘index’).” Id. at 3.
Under this admissions policy, the law school pays close attention to LSAT scores and UGPA’s in reviewing applications. The significance of these numbers is visually apparent from the “grid” of law school applicants, an example of which is attached to the law school’s admissions policy.5 *826 LSAT scores are shown along the horizontal axis in three- or four-point increments; UGPA’s are shown along the vertical axis in quarter-point increments. Every combination of LSAT and UGPA is

shown in a “cell” on this grid. In each cell, the law school reports the number of applicants with that particular combination of numerical qualifications, as well as the number of offers of admission made to the applicants in that cell.6 Constructed in this manner, the highest combinations of LSAT scores and UPGA’s are found in the upper right-hand corner of the grid. Even a cursory review of the numbers contained in this grid reveals that one’s chances of being admitted increase dramatically as one moves into the upper right corner. Of the 966 offers of admission made in 1991, 843(87%) were made to applicants who fell within the nine cells closest to this corner. In short, the numbers reflect the law school’s stated policy: “Bluntly, the higher one’s index score, the greater should be one’s chances of being admitted. The lower the score, the greater the risk the candidate poses.... So we expect the vast majority of those students we admit to have high index scores.” Id. at 4. See also id. at 6–7 (“The further applicants are from the upper right corner the less likely they are to be offered admission. Thus we may think of the upper right portion of the grid as indicating the combinations of LSAT and UGPA that characterize the overwhelming bulk of students admitted.”)
The policy also notes, however, that admissions decisions should not be made strictly based on the index scores. A high index score may not necessarily identify an applicant who is likely to succeed in law school, and a low index score may not necessarily identify one who is likely to fail. See id. at 4–5. The policy states:
When the differences in index scores are small, we believe it is important to weigh as best we can not just the index but also such file characteristics as the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of undergraduate course selection. These “soft” variables not only bear on the applicant’s likely graded performance but also have the additional benefit that they may tell us something about the applicant’s likely contributions to the intellectual and social life of the institution. Thus an applicant who has performed well in advanced courses in a demanding subject may have more to offer both faculty and students than an applicant with a similarly high average achieved without ever

pursuing in depth any area of learning. Other information in an applicant’s file may add nothing about the applicant’s likely LGPA [law school grade-point average] beyond what may be discerned from the index, but it may suggest that that applicant has a perspective or experiences that will contribute to the diverse student body that we hope to assemble. The applicant may for example be a member of a minority group whose experiences are likely to be different from those of most students, may be likely to make a unique contribution to the bar, or may have had a successful *827 career as a concert pianist or may speak five languages.
Id. at 5–6.
Thus, while the policy indicates that most offers for admission should be made to applicants with high “index” scores, the policy also states that “considerable discretion is exercised in the admissions process ..., for many qualities not captured in grades and test scores figure in the evaluation of an application.” Id. at 7. The reasons behind the exercise of this discretion are an important part of the admissions policy, and they also lie at the heart of the dispute between the parties in this case. The policy articulates two reasons why an offer of admission may be made to applicants with grades and test scores “that place them relatively far from the upper right corner of the grid.” Id. at 8. The first reason is that “there are students for whom we have good reason to be skeptical of an index score based prediction.” Id. As an example, the policy describes an applicant who received a poor SAT score but nonetheless went on to perform well academically in college. This applicant received an unimpressive LSAT score, which pulled down his index, but he was admitted on the strength of his undergraduate record “with the expectation that this record would be a better predictor of [his] performance at Michigan than his LSAT score.” Id. at 9.
The second reason for admitting applicants with comparatively lower index scores is that they “may help achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts. In particular we seek to admit students with distinctive perspectives and experiences as well as students who are particularly likely to assume the kinds of leadership roles in the bar and make the kinds of contributions to society discussed in the introduction to this report.” Id. at 9–10. The policy

identifies these as “diversity admissions,” id. at 10, and provides three examples of applicants who were admitted in 1991 under this rubric. One was born in Bangladesh, graduated from Harvard, received “outstanding references” from his professors, and had a “truly exceptional record of extracurricular activity.” Id. Another was a single mother from Argentina who worked successfully in business for several years, graduated from college summa cum laude, received “glowing references,” and was fluent in four languages. Id. at 10–11. The third had excellent grades and a good LSAT score; “diversity considerations” further strengthened her application because her parents were Greek immigrants, she was “immersed in a significantly ethnic home life,” she had studied and traveled in Europe and was fluent in three languages. Id. at 11.
In addition to the type of diversity that may come, for example, from an applicant’s interesting or unusual employment experiences, extracurricular activities, travel experiences, athletic accomplishments, volunteer work, or foreign language fluency, the admissions policy also describes the importance of an applicant’s race as a qualification which may make him a more attractive candidate for admission:
There is, however, a commitment to one particular type of diversity that the school has long had and which should continue. This is a commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African–Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers. These students are particularly likely to have experiences *828 and perspectives of special importance to our mission.
Over the past two decades, the law school has made special efforts to increase the numbers of such students in the school. We believe that the racial and ethnic diversity that has resulted has made the University of Michigan Law School a better law school than it could possibly have been otherwise. By enrolling a “critical mass” of minority students, we have ensured their ability to make unique contributions to the character of the Law School; the policies embodied in this document should ensure that those contributions continue in the future.
Id. at 12.
The law school’s admissions policy is further described in an October 13, 1992, memorandum from defendant Dennis Shields, who was the Director of Admissions at the law school from 1991 to 1998. This memorandum

(Trial Exhibit 5), entitled “The Gospel According to Dennis,” was addressed to “File Readers 1992–93,” and was intended to provide guidance to his staff who assisted him in reviewing application files. Mr. Shields explained his philosophy as follows:
As one of my colleagues so elegantly stated recently “our mission is to pick winners”.... To make those selections requires more than a mere review of the numbers (LSAT and GPA), credentials. This is because many of the numbers will be so close to the same as to make the candidates indistinguishable from one another on that basis. Rather we must begin with the numbers and go forward from there to scrutinize the essays and letters of recommendation (as well as considering extracurricular and work experience) to look for candidates that show intellectual talent, leadership ability, and academic acumen which augers for a lively intellectual community and important contributions to the profession.
* * * * * *
[O]f the 5,000 or more applications we will receive this year, we will offer admission to about 1,000 of the candidates. Of that thousand offers, fully 500 of the decisions are pretty easy, another 300 or are [sic] a bit tougher, and the last 200 very difficult because the numbers will be so close that in these cases we will clearly be making the most subjective of judgements.
Mr. Shields went on to explain that in reviewing an application file he looked first at an applicant’s grades and LSAT score. “My view is we will ultimately be swayed in any case by the strength of the numbers so it makes sense to know what they are before one proceeds to judge the rest of the file.” “The numbers” referred to the LSAT score, the cumulative GPA, the undergraduate institution, the trend in grades, and the rank at the undergraduate institution. In addition, Mr. Shields indicated that in reviewing transcripts he looked to see if applicants chose a rigorous major, whether they pursued a liberal education, and whether they took difficult courses. After reviewing “the numbers,” Mr. Shields proceeded to the essays and the letters of recommendation. The essays reveal an applicant’s writing and intellectual abilities and interests, and “what the candidate might offer the academic enterprise which is legal education at Michigan.” The letters of recommendation are useful because they provide information about the applicant’s academic abilities, particularly “growth and improvement or other trends” and “the general rigor of the curriculum pursued by the student.” Finally, Mr. Shields noted that “[t]here is a preference for those who have demonstrated academic and/or intellectual strength. Hard work and discipline evidenced in file [sic] are also important. *829 I

also like to see people who have been challenged in one way or the other and have faced up to that challenge in a positive way.”
The law school’s admissions policy is also succinctly described in the University of Michigan Law School Bulletin. The bulletin for the 1996–1997 academic year, which was admitted as Trial Exhibit 6, states at page 81:7
All applications are read in their entirety, and all of the information elicited by the application is factored into the admission decision. All admissions are made with the goal of forming a class with an exciting and productive mix of students who will enhance the educational experience for each other and for the School. Law School Admission Test (LSAT) scores and undergraduate course work and performance are relied on heavily, as are comparative studies of the past performance of similar students at the Law School. Serious regard is also given to an applicant’s promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic—e.g., an unusual intellectual achievement, employment experience, nonacademic performance, or personal background. The guiding purpose for selection among applicants is to make the School a better a livelier place in which to learn and to improve its service to the profession and the public.
In addition to its own interest in forming a class which is strengthened by the talents and diversity of its members, Michigan recognizes the public interest in increasing the number of lawyers from groups which the faculty identifies as significantly underrepresented in the legal profession. In particular, we strongly encourage prospective students who are African American, Mexican American, Native American, or Puerto Rican and raised on the U.S. mainland to apply. Such applicants are invited to contact the Admissions Office for further information about the School’s affirmative efforts to increase enrollment from among these groups. Similarly, the Law School welcomes applications from all persons without regard to their sex, religious affiliation, national origin or ancestry, age, marital status, sexual orientation, or handicap. Every Law School matriculant must be a graduate of an accredited college or university. In the 1997–1999 law school bulletin (Exhibit 8, p. 85), the first paragraph of this passage is repeated, but the second paragraph was rewritten as follows:
Based on its years of teaching experience, the Michigan faculty

has determined that the quality of classroom analysis and discussion is enhanced by the multiplicity of perspectives and experiences that students bring with them. Each year, the Law School enrolls a talented and diverse class of students, and the admissions office considers the ways in which a potential student will contribute to the diversity of the Law School as one of the factors in its admissions decisions. The Law School welcomes applications from all persons without regard to their sex, religious affiliation, national origin or ancestry, age, marital status, sexual orientation, or handicap. Every Law School matriculant must be a graduate of an accredited college or university.
2.
At trial, a number of witnesses testified as to the admissions procedures prior to *830 the adoption of the 1992 policy; the reasons why, and the process by which, the 1992 policy was adopted; and the manner in which the 1992 policy has been administered. This testimony assisted the court in understanding the genesis of the 1992 policy and how it works in practice.
Allan Stillwagon was the law school’s Director of Admissions from 1979 to 1990. He testified that during his tenure admissions decisions were made in accordance with the policy described at pp. 85–86 of the 1988–89 Law School Announcement (Exhibit 55), which states:
One half of the entering class is selected primarily on the basis of a prediction of their academic success in law study. The prediction is calculated on the basis of Law School Admission Test scores, undergraduate records, and studies of the past performance of previous students at the Law School....
The other half of the class will be chosen from a group of several hundred applicants whose grades and test scores qualify them for further consideration. The grades and scores necessary to gain admission to this pool vary from year to year, but the academic credentials of all who are included are invariably strong.

Selections among applicants in the pool are made for the purpose of making the School a livelier place to learn and for improving its service to the profession and the public. Specifically, the School seeks those students who are more likely to contribute affirmatively to the learning of others by reason of their unusual intellectual attainments, significant employment experience or outstanding non-academic achievements, demonstration of emotional maturity and self-discipline, unusual social background, or exceptional capacity to benefit from a particular phase of the School’s program....
In administering its admissions policy, the Law School recognizes the racial imbalance now existing in the legal profession and the public interest in increasing the number of lawyers from the ethnic and cultural minorities significantly underrepresented in the profession. Minorities are strongly encouraged to apply and to call upon Assistant Dean Stillwagon for information and assistance. Black, Chicano, Native American, and many Puerto Rican applicants are automatically considered for a special admissions program designed to encourage and increase the enrollment of minorities.
Mr. Stillwagon testified that under this system, which was in effect throughout his tenure, applicants were selected from one of three groups. The first group consisted of applicants who were chosen based on “the numbers,” that is, their LSAT scores and UGPA. The second consisted of a “pool” of candidates who had lower numbers but other interesting qualities. The third, known as “special admissions,” was for minority candidates who did not fall within the other two groups. According to Mr. Stillwagon, approximately one-half of the minority applicants who were admitted came from the first two groups, and the other half came from the third. The “special admissions” program was adopted in order to increase minority enrollment at the law school.8 Mr. Stillwagon indicated *831 that the law school had a “goal” or “target” whereby 10–12% of the students of each entering class should be Black, Chicano, Native American, and mainland Puerto Rican. The law school faculty increased this percentage in the 1970s from 10% to 10–12% because they believed it necessary to increase the representation of minorities in the legal profession. Mr. Stillwagon testified that he had no discretion to disregard this policy, and that the policy was considered flexible only to the extent that the number of minority admittees could deviate by three or four students on either side of the target range. Mr. Stillwagon also testified that the 10–12% target could be achieved only through the special admissions program due to the “considerable differences” in academic credentials between the minority and non-minority applicants.

Mr. Stillwagon testified that Exhibits 112 and 113 show admissions statistics for 1988–1989 and 1989–1990, respectively. These reports to the law school Committee of Visitors show significant differences in the numerical qualifications between “regular” admissions (i.e., students admitted based on LSAT and UGPA and those admitted from the “pool”) and “special” admissions. In 1988, the regular admissions had a median LSAT score of 43 and a median UGPA of 3.58, whereas the special admissions had a median LSAT score of 34 and a median UGPA of 3.05. This gap in the numbers was essentially the same in 1989 and 1990.9 On cross-examination, Mr. Stillwagon testified that explicit consideration of race was necessary since otherwise very few minority students would have been admitted.
Dennis Shields succeeded Allan Stillwagon as the director of the law school’s admissions office in 1991 and he held this position until 1998. Mr. Shields testified that his memo entitled “The Gospel According to Dennis” was intended to give newcomers to his staff some guidance in reading application files. Mr. Shields did not mention race in this memo because this is not a “primary consideration” in making admissions decisions. Mr. Shields indicated that he did not tell his staff to strive to admit a particular percentage of minority students, but that an applicant’s race was considered along with all other factors. Mr. Shields said that he never spoke with the law school dean about the number or percentage of minority students who should be admitted, although the dean *832 did tell him that approximately one-third of the class should consist of Michigan residents because the law school is a state institution. Mr. Shields also testified that the minority and non-minority admittees were all well qualified for admission.
On cross-examination, Mr. Shields was asked about the manner in which he would use the so-called “daily reports,” an example of which was admitted as Exhibit 10. These reports provide an overview, as of the day the report is generated, of the number of applications and their current status. That is, one can see at a glance the number of applications received to date, the number offered admission, the number rejected, the number on the waiting list, and so on. While the first page of the report provides an overview for the total applicant pool, each of the next seven pages breaks down the information by the following racial categories: Native American, Black/African American, Caucasian/White, Mexican American, Other Hispanic, Asian American, and Puerto Rican American. Page 9 is devoted to “Other/Non–Citizen” and page 10 is “unknown.” The last four pages break down the applicants by gender and by their status as either Michigan or Non–Michigan residents. Mr. Shields testified that as an admissions season progressed, he would consult the daily reports

more and more frequently in order to keep track of the racial and ethnic composition of the class. This was done in order to ensure that a “critical mass” of minority students were enrolled so as to realize the educational benefits of a diverse student body. Mr. Shields could not say what percentage was needed in order to achieve this goal. He doubted if five percent would be enough but thought that 10% might suffice. While Mr. Shields testified that he did not seek to admit a particular number or percentage of underrepresented minority students, he acknowledged that during his tenure at least 11% of each entering class consisted of African American, Hispanic and Native American students.
Mr. Shields’ attention was drawn to Exhibit 15, which is the law school’s admissions grids for the class entering in 1995. Like the law school’s daily reports, the admissions grids are broken down by racial groups. In each cell of each grid, one can see the number of applicants who applied, the number who were accepted, and the number who enrolled for any given combination of LSAT score and undergraduate GPA. When asked why most white applicants are rejected and most black applicants are accepted in the mid-ranges of LSAT scores and UGPA, Mr. Shields acknowledged that race does account for some of the difference.10
Erica Munzel replaced Dennis Shields as the director of the law school’s admissions office in 1998. She testified that she feels bound by the law school’s 1992 admissions policy, including the provision that calls for the enrollment of a “critical mass of minority students.” See Exhibit 4, p. 12. Ms. Munzel testified that a “critical mass” means “meaningful numbers” or “meaningful representation,” which she understands to mean a number that is *833 sufficient so that the minority students can contribute to classroom dialog and not feel isolated. When pressed to express this concept in numerical terms, Ms. Munzel stated that there is no number or percentage, or range of numbers or percentages, which constitute critical mass. However, she stated that there must be more than a “token” number of minority students, since small numbers of students cannot contribute in the manner foreseen by the law school’s diversity policy.
Ms. Munzel also indicated that she must consider the race of the applicants because a critical mass of minority students could not be enrolled if admissions decisions were based primarily on LSAT scores and UGPA’s. This is apparent from Exhibit 14, which Ms. Munzel acknowledged shows the median LSAT scores and UGPA’s for the students enrolled in 1994 and 1995. These figures show the same gap in the numbers between minority and non-minority admittees as is shown in similar exhibits for previous years.11 Ms. Munzel testified that only ten minority students per entering class would

be admitted if admissions decisions were driven by the numbers.
In deciding whether to admit an applicant, Ms. Munzel stated that she reviews the entire file. In addition to grades and test scores, she also considers the strength of the undergraduate curriculum, the college attended, the personal statements, letters of recommendation, and the applicant’s background and experiences. The student’s race is considered because it is relevant to achieving diversity in the entering class. Ms. Munzel stated that she was never told by the dean or by the faculty to admit a particular number or percentage of minority students, but she does consult the daily reports (such as Exhibits 11 and 12) to make sure that admissions goals, including those regarding the admission of a critical mass of minority students, are being achieved.
The court also heard testimony from Lee Bollinger and Jeffrey Lehman as to the reasons why race is considered in the admissions process. Mr. Bollinger was the dean of the law school from 1987 to 1994, and he has been the president of the University of Michigan since 1997. Mr. Lehman succeeded Mr. Bollinger as the dean of the law school in 1994, and he continues to hold this position. President Bollinger testified that in the fall of 1991 he convened a faculty committee to review the law school’s admissions policy.12 President Bollinger sought to ensure that the policy complied with the Supreme Court’s ruling in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). He believes that it is appropriate for an applicant’s race to be considered because the law school seeks a student body with diverse backgrounds and perspectives.
Dean Lehman testified that racial diversity in the student body is an important part of one’s education at the law school because exposure to students of various *834 races and perspectives helps students to understand and be sympathetic to differing points of view. He described racial diversity as “part of the general commitment to diversity.” Dean Lehman agreed with the testimony offered by other witnesses to the effect that the law school seeks to admit a critical mass of underrepresented minority students, particularly those from groups which have been discriminated against historically. He was unable to quantify “critical mass” in terms of numbers or percentages, or ranges of numbers or percentages, but indicated that critical mass means “meaningful numbers,” that is, numbers such that the minority students do not feel isolated or like spokespersons for their race, and feel comfortable discussing issues freely based on their personal experiences. He doubted whether critical mass would be present if only five percent of a class consisted of minority students, and he acknowledged that minority students have constituted at least 11% of every entering

class since 1992.
When asked about the extent to which race is considered in admissions, Dean Lehman testified that this varies from one application file to another. In some files the applicant’s race may play no role, while in others it may be a “determinative” factor.13 Dean Lehman indicated that race is taken into consideration to the extent necessary to achieve a critical mass, although he could not quantify this in terms of numbers or percentages. While Dean Lehman reviews the daily admissions reports with the admissions director, he said he has not given any direction as to a number or percentage of minority students who should be admitted. Dean Lehman also stated that a critical mass of minority candidates cannot be admitted unless race is explicitly considered, due to the gap in LSAT scores and UGPA’s between minority and non-minority students. He fears that minority enrollment would drop to “token levels” if race could not be considered, and in this context he pointed to the experience of the University of California at Berkeley, where minority enrollment dropped sharply after passage of Proposition 209.
The court also heard extensive testimony from Professor Richard Lempert, the law school professor who chaired the faculty admissions committee that drafted the 1992 admissions policy.14 Professor Lempert testified that the admissions committee was charged with examining the law school’s admissions policy and ensuring that it complied with the Supreme Court’s ruling in Bakke. The 1992 written policy, which was conceived in a “very deliberative process,” was debated and then adopted unanimously by the full faculty. It remains in effect today.
Professor Lempert emphasized that the law school seeks to admit an interesting and dynamic class, which has a certain “synergy” that is greater than the sum of its parts. That is, the law school seeks students with a diversity of interests and backgrounds in order to enhance classroom discussion and the educational experience of students and faculty, both in and outside the classroom. In Professor Lempert’s view, racial diversity is an important *835 part of “perspective” or “experiential” diversity. A critical mass is needed so that minority students do not feel that they must be spokespersons for their race.
When asked about the policy’s “commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,” see Exhibit 4, p. 12, Professor Lempert stated that this was not intended as a remedy for past discrimination, but as a means of including students who may bring to the law school a perspective different from that of members of groups which have not been the victims of such discrimination.15 Professor Lempert

indicated that race is one element in the admissions decision-making process, but that some minority applicants would be admitted even if their race were not considered. He believes that race is considered only to the extent necessary to achieve critical mass.

Exhibit 34 is a draft of the admissions policy, which contains several provisions omitted from the final version. One such provision, on page 13 of the draft, states:

Our goal is to have substantial and

meaningful racial and ethnic

diversity, but we do not wish to

exhaust the positions that are open

to non-grid diversity admittees in

promoting racial and ethnic

diversity. Nor are we insensitive to

the competition among all students

for admissions to this law school.

Thus while we set no floors or

ceilings on the numbers or

proportion of students who are to

be admitted as minority diversity

candidates, in making judgments

about admitting such candidates the

Admissions

Officer

and

Admissions Committee should be

sensitive to such factors as the

proportion of minority students

who would be attending Michigan

without a diversity admissions

program and the strength of the

credentials that various minority

candidates bring. Also it is

important to note that in the past

we seem to have achieved the kinds

of benefits that we associate with

racial and ethnic diversity from

classes in which the proportion of

African American, Hispanic and

Native American members has

been between about 11% and 17%

of total enrollees.

Professor Lempert testified that the “11% to 17%” figure, which is the range he believes constitutes critical mass, was omitted from the final version of the admissions policy because percentages were too rigid and could be misconstrued as a quota. Another provision omitted for the same reason stated on page 12 of the draft that “non-grid admittees admitted for diversity purposes shall not exceed 20% of the expected matriculants in a class.” One faculty member, Don Regan, argued for retaining the “numbers on the ‘target range’ ... [f]or a variety of reasons, including candor.” See Exhibit 32, p. 1.

The final witness who testified about the law school’s policy, and the reasons for the inclusion of race as a factor in admissions decisions, was Kent Syverud. He was a professor at the law school when the 1992 admissions policy was adopted, and he is now the dean of Vanderbilt Law School. He has also submitted expert reports on the educational benefits of diversity. See Exhibits 153, 154, 155. Like the other witnesses who testified on this subject, Dean Syverud believes that racial diversity is part of the diversity of perspectives needed to enhance the “classroom dynamic.” Also like the other witnesses, he indicated *836 that critical mass cannot be quantified, but that a professor knows when it is present because minority students feel free to express their views, rather than to state “expected views” or “politically correct views.” Dean Syverud also indicated that when a critical mass of minority students are present, racial stereotypes are dismantled because non-minority students see that there is no “minority viewpoint”; they see, in other words, that there is a diversity of viewpoints among minority students.
3.
While defendants concede that race is a factor in the admissions process, they have consistently argued that race is simply one of many factors and not a “trump card.” Plaintiffs, on the other hand, have argued that race is a “super factor” in the admissions process. In an attempt to quantify the extent to which race actually has been considered during the years in question, the parties presented expert testimony, and expert reports, from two statisticians. Plaintiffs presented Dr. Kinley Larntz, a professor emeritus in the Department of Applied Statistics at the University of Minnesota.16 Defendants presented Dr. Stephen Raudenbush, a professor of education at the University of Michigan.17 Both were qualified as experts in statistics and both testified at great length.
Dr. Larntz analyzed admissions data provided by the law school. This data consists of the “admissions grids” for each of the years in question (1995–2000). As noted previously, these grids show the number of applicants and the number of admittees for all combinations of undergraduate GPA and LSAT score.18 The UGPA is presented along the vertical axis in quarter-point increments (as well as “below 2.00” and “No GPA”); the LSAT score is presented along the vertical axis in two- or three-point increments (as well as “170–Above,” “120–145” and “No LSAT”). The ten UGPA rows and twelve LSAT columns in these grids produce 120 “cells” with admissions data. For each of the years in question, the law school compiled one admissions grid for all

applicants, as well as separate grids for various racial groups.19
Dr. Larntz used this extensive numerical data, compiled by the law school, to make “cell-by-cell” comparisons between applicants of different races to determine by logistic regression analysis whether a statistically significant relationship exists between race and admission rates. Because the grids show the number of applicants and the number of admittees in each cell, and because different grids have been prepared for various racial groups, it is possible to make cross-racial comparisons of applicants with closely similar “academic credentials” or “numbers.” To make this comparison, Dr. Larntz calculated the odds of admission for Caucasian applicants and compared them with the odds of admission for applicants of other races in order to calculate the “relative odds of acceptance” for each racial group. Caucasians were *837 the “comparison group”—that is, each group’s odds of acceptance were calculated relative to those of Caucasians. Relative odds, or an “odds ratio,” greater than 1.0 would indicate that a member of the racial group in question has a greater chance of admission than does a Caucasian applicant. Relative odds less than 1.0 would indicate the opposite. “For perspective, attaining a relative odds of 2 or 3 for cure of a disease is often the goal of a medical study. That is, a drug that doubled or tripled the odds of cure would be of great value. Double and triple digit relative odds are simply enormous!” Exhibit 137, p. 8.
Dr. Larntz calculated the relative odds of acceptance for various racial groups for each of the years in question. The results of these calculations, and the grids themselves, are presented in his expert reports. See Exhibits 137 and 138 (1995–98), 139 (1999), 141 (2000). For each of the years in question, the relative odds of acceptance for Native American, African American, Mexican American and Puerto Rican applicants were many times greater than for Caucasian applicants.20 Dr. Larntz characterized these relative odds as “extremely large.” He concluded that in 1995–2000,
membership in certain ethnic groups is an extremely strong factor in the decision for acceptance. Native American, African American, Mexican American, and Puerto Rican applicants in the same LSAT x GPA grid cell as a Caucasian American applicant have odds of acceptance that is many, many (tens to hundreds) times that of a similarly situated Caucasian American applicant. Exhibit 137, p. 9; Exhibit 139, p. 7; Exhibit 141, p. 7. This conclusion remained the same even when Dr. Larntz controlled for other factors, such as Michigan residency status, gender, and whether the applicant

received an application fee waiver. See Exhibit 137, p. 11; Exhibit 139, p. 8; Exhibit 141, p. 10. At trial Dr. Larntz characterized his relative odds figures as “enormous” and as showing that a “tremendous advantage” was given to applicants from these minority groups in each of the years in question. In addition to calculating relative odds of acceptance, Dr. Larntz also prepared graphs which plotted the probability of acceptance against the selection index. The selection index, or simply “index,” is a combination of an applicant’s undergraduate GPA and LSAT score. As noted above, the law school’s admissions policy states that “[b]luntly, the higher one’s index score, the greater should be one’s chances of being admitted. The lower the *838 score, the greater the risk the candidate poses.” Exhibit 4, p. 4. Each of Dr. Larntz’ graphs plots the relationship between the selection index and the probability of acceptance for Caucasian applicants and for applicants from one minority group for comparison. As one would expect, these graphs show that for all races the higher one’s index score, the greater one’s chances of being admitted. However, each graph shows a significant gap between the lines plotted for the Caucasian and certain minority applicants.21 Dr. Larntz concluded that “[a]ll the graphs comparing Native American, African American, Mexican American, and Puerto Rican applicants to Caucasian American applicants show wide separation indicating a much higher probability of acceptance for the particular ethnic group at a given selection index value.” Exhibit 137, p. 14; Exhibit 139, pp. 9–10; Exhibit 141, pp. 9–10. Based on all of his analysis, Dr. Larntz concluded that membership in these racial groups “is an extremely strong factor in the decision for acceptance,” Exhibit 137, p. 14, and that applicants from these minority groups “are given an extremely large allowance for admission” as compared to Caucasian applicants. Exhibit 139, p. 13; Exhibit 141, p. 13. Dr. Larntz found this to be the case for each of the years in question (1995–2000).
At trial Dr. Larntz made certain cell-by-cell comparisons to highlight the difference in acceptance rates for Caucasian and minority applicants. For example, in 1995 African American and Caucasian applicants with LSAT scores of 161–163 were accepted in clearly disparate proportions at every UGPA level. Two of the three African American applicants with a UGPA of 2.5–2.74 were accepted, whereas none of the seven Caucasian applicants were accepted. All of the four African American applicants with a UGPA of 2.75–2.99 were accepted, whereas none of the 14 Caucasian applicants were accepted. Seven of the eight African American applicants with a UGPA of 3.00–3.24 were accepted, whereas two of the 42 Caucasian applicants were accepted. All of the four African American applicants with a UGPA of 3.25–3.49 were accepted, whereas five of

the 126 Caucasian applicants were accepted. Five of the six African American applicants with a UGPA of 3.50–3.74 were accepted, whereas 14 of the 161 Caucasian applicants were accepted. All of the three African American applicants with a UGPA of 3.75 and above were accepted, whereas eight of the 93 Caucasian applicants were accepted. See Exhibit 143, slide 27.
Dr. Larntz highlighted similarly disparate rates of admission between African American and Caucasian applicants by holding the UGPA constant and showing the admissions figures for applicants with various LSAT scores. Dr. Larntz’ Exhibit 143, slide 28, compares applicants in 1995 from these two racial groups with UGPA’s of 3.25–3.49. In this UGPA range, of six African American applicants with an LSAT score of 148–150, two were admitted; of 16 Caucasian applicants, none was admitted. Of seven African American applicants with an LSAT score of 151–153, three were admitted; of 24 Caucasian applicants, none was admitted. Of five African American applicants with an LSAT score of 154–155, four were admitted; of 51 Caucasian applicants, one was admitted. Of ten African American applicants with an LSAT score of 156–158, all were admitted; of 51 Caucasian applicants, one was admitted. Of three African American applicants with an LSAT score of 159–160, all were admitted; of 61 Caucasian applicants, one was admitted. Of four African American applicants with an LSAT score of 161–163, all were *839 admitted; of 126 Caucasian applicants, five were admitted.
Dr. Larntz showed similar discrepancies in the admissions rates between Caucasians and members of other minority groups in each of the years in question. See, e.g., Exhibit 143, slides 47–51. He concluded that the law school gives an “incredibly large allowance” to Native American, African American, Mexican American and Puerto Rican applicants, as compared to Caucasian applicants with similar undergraduate GPA’s, LSAT scores, and residency status.
Dr. Raudenbush testified as defendants’ statistician. He suggested that Dr. Larntz’ analysis of the admissions data is flawed because it did not consider the effect of “unquantifiable” factors such as applicants’ letters of recommendation and essays, or the reputation of the applicants’ undergraduate institutions. In addition, Dr. Raudenbush criticized Dr. Larntz’ odds ratio analysis because it disregarded cells in which all applicants were accepted, or all were rejected, and this resulted in the loss of information.22 He also suggested that because the odds ratios vary from one cell to another, an overall or “composite” odds ratio is not informative. In addition, Dr. Raudenbush was suspicious of the odds ratios because they vary widely from one year to another, whereas the actual percentage of applicants admitted (at least for

African Americans and Caucasians) has remained relatively stable. See Exhibit 194.
Aside from criticizing Dr. Larntz’ analysis, the primary focus of Dr. Raudenbush’s own analysis and testimony was on the predicted effect of eliminating race as a factor in the law school’s admissions process. In Dr. Raudenbush’s view, a “race-blind” admissions system would have a “very dramatic,” negative effect on minority admissions but only a slight effect on non-minority admissions, due to the vastly greater number of non-minority applicants. In the year 2000, 35% of underrepresented minority applicants and 40% of non-minority applicants were admitted. See Exhibit 187. Dr. Raudenbush predicted that if race were not considered, then only 10% of underrepresented minority applicants and 44% of non-minority applicants would be admitted. If correct, this would mean that in the year 2000 only 46 underrepresented minority applicants would have been admitted (instead of 170 who actually were admitted), of whom only 16 would enroll (instead of 58 who actually enrolled). Under this scenario, underrepresented minority students would have constituted 4% of the entering class in 2000, instead of 14.5% as actually occurred. See Exhibit 189.
B. Findings of Fact and Conclusions of Law [1] From this testimony and documentary evidence, the court makes the following findings and conclusions.
1.
The law school clearly considers an applicant’s race in making admissions decisions. While the reasons for doing so have changed somewhat over time, the law school has given some degree of preference to members of particular racial groups for more than 30 years.23 In the early years of affirmative action, the law school extended this preference only to African American applicants. In the *840 years since then, the preference has been broadened to include Native Americans, Mexican Americans and mainland Puerto Ricans. It does not appear that any preference is given to members of any other racial groups.
The current stated reason for granting a preference to members of these groups is that certain educational benefits flow from a racially diverse student body, and members of underrepresented minorities would not be admitted in significant numbers unless race is explicitly considered.24 This is due to the fact that members of these groups, on average, have lower LSAT scores and lower

undergraduate GPA’s as compared to other applicants (i.e., Caucasians and Asians), so that comparatively few would be admitted in a system where admissions decisions were based on “the numbers.”
A major bone of contention in this case has been the extent to which race is considered in the admissions process. The evidence shows that race is not, as defendants have argued, merely one factor which is considered among many others in the admissions process. Rather, the evidence indisputably demonstrates that the law school places a very heavy emphasis on an applicant’s race in deciding whether to accept or reject.
This emphasis on race is apparent from the admissions policy itself, which explicitly states the law school’s “commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African–Americans, Hispanics and Native Americans, ...” Exhibit 4, Admissions Policy, p. 12. The admissions policy is equally explicit about the extent of this commitment: race is considered at least to the extent necessary to enroll a “critical mass” of students from these groups. While “critical mass” has proved to be a concept that has eluded precise quantification, over the years it has meant in practice that the law school attempts to enroll an entering class 10% to 17% of which consists of underrepresented minority students. The 10% figure, as a target, has historical roots going back to the late 1960s. Beginning in the 1970s, law school documents begin referring to 10–12% as the desired percentage. Professor Lempert testified that critical mass lies in the range of 11–17%. Indeed, this percentage range appeared in a draft of the 1992 admissions policy, and it was omitted from the final version despite Professor Regan’s suggestion that it remain for the sake of “candor.”
The actual admissions and graduation statistics confirm the law school’s commitment to enroll African American, Native American and Hispanic students in the 10–17% range. For example, Exhibit 97 shows the number of students graduating (total as well as by various racial groups) for each year from 1950 to 1999. From 1973 to 1985, underrepresented minority students constituted approximately 9–10% of the graduating class,25 and from 1986 to 1999 students from these groups constituted approximately 12–13% of the graduating class.26 These percentages conclusively *841 demonstrate that the law school considers race in the admissions process because applicants from the underrepresented minority groups have, on average, considerably lower undergraduate GPA’s and LSAT scores as compared to Caucasian applicants and yet, nonetheless, the percentage of applicants from these minority groups who are admitted is roughly equal to the percentage they constitute of the total

applicant pool.
In 1995, for example, Native Americans constituted 1.1% of the total applicant pool and 1.2% of the admitted students; African Americans constituted 9.3% of the total applicant pool and 9.2% of the admitted students; Mexican Americans constituted 2.3% of the total applicant pool and 3.5% of the admitted students; Puerto Ricans constituted 0.5% of the total applicant pool and 0.4% of the admitted students; and Caucasians constituted 56.3% of the total applicant pool and 59.7% of the admitted students. See Exhibit 146, Table 1. That is, the representation of each group in the applicant pool roughly approximates its representation among the total admitted. Yet the median undergraduate GPA and LSAT score are generally lower—even considerably lower—for underrepresented minority applicants than for Caucasian applicants. See Exhibit 137, pp. 18–19 (Tables 2 and 3). The same pattern can be seen in 1996 and 1997. See Exhibit 146 (Tables 2 and 3) and Exhibit 137, pp. 18–19 (Tables 2 and 3). If race were not considered in the admissions process, one would expect to see underrepresented minority applicants admitted in much lower proportions than has been the case.
Plaintiffs’ and defendants’ statisticians analyzed the admissions data and both provided testimony and expert reports which assisted the court in understanding the extent to which race is considered in the law school’s admissions process. Dr. Larntz’ cell-by-cell analysis provided mathematically irrefutable proof that race is indeed an enormously important factor. In each year at issue in this case, Native American, African American, Mexican American and Puerto Rican applicants have been admitted in significantly greater proportions than Caucasian applicants with the same or similar undergraduate GPA’s and LSAT scores. As Dr. Larntz noted, this fact is apparent on the face of the law school’s admissions grids. One does not need to undergo sophisticated statistical analysis in order to see it; the statistical analysis simply confirms empirically what the grids suggest intuitively. The court specifically adopts Dr. Larntz’ analysis and his conclusion that “membership in certain ethnic groups is an extremely strong factor in the decision for acceptance.”
The court rejects Dr. Raudenbush’s criticism of Dr. Larntz’ cell-by-cell analysis. While it is true that Dr. Larntz’ analysis did not include cells in which all applicants were either accepted or rejected, the court was persuaded by Dr. Larntz’ explanation that these cells do not contain any comparative data. The issue in this case is whether similarly situated applicants are treated differently because of their race, and this question can be answered by examining cells in which some applicants are accepted and others rejected so that the differences in

the admissions rates can be calculated. Moreover, Dr. Larntz testified that the cells he included in his analysis are the ones containing more than 95% of all admittees. Thus, the court believes that Dr. Larntz omitted very little data from his analysis and none that is relevant.
The court also rejects Dr. Raudenbush’s other criticisms of Dr. Larntz’ methodology. For example, Dr. Raudenbush argued that the admissions process is complex and cannot be reduced to a comparison of acceptance *842 odds based on “the numbers” and membership in various racial groups. The court agrees, and specifically finds, that the law school examines each application file individually and considers not only grades and test scores but also letters of recommendation, the applicant’s personal statements, extracurricular activities, work experience, residency status, relationship to university alumni, rigor of undergraduate curriculum, trend in undergraduate grades, and reputation of undergraduate institution. Nonetheless, the court does not believe that the complexity of the admissions process undermines the validity of Dr. Larntz’ analysis. When cell by cell, and year by year, underrepresented minority applicants are admitted in significantly greater proportions than their non-minority competitors with similar UGPA and LSAT scores, it is clear that the law school accords the race of the applicants a great deal of weight.
Even the testimony and reports of the law school’s statistician, Dr. Raudenbush, support this conclusion. As noted above, Dr. Raudenbush testified that the number of underrepresented minority admittees would drop “sharply and dramatically” if race were not considered in the admissions process. By his calculations, the percentage of underrepresented minority applicants who are admitted would have dropped from 26% to 4% in 1995, and from 31% to 8% in 1996, under a race-blind admissions system. See Exhibit 146, Table 8. In 1997 the percentage admitted would have dropped from 33% to 8%; in 1998 the percentage admitted would have dropped from 34% to 9%; in 1999 the percentage admitted would have dropped from 37% to 8%; and in 2000 the percentage admitted would have dropped from 35% to 10%. See Exhibit 149, Table 1; and Exhibit 149, Tables 1–3. These figures, which the court has no reason to doubt, may explain even more plainly than Dr. Larntz’ odds ratios and graphs the extent to which race is considered in the law school’s admissions process.
Finally, the testimony of the witnesses who are familiar with the inner workings of the law school’s admissions office confirmed that race is considered and that it makes a difference in admissions decisions. The current and former dean, as well as the current and former admissions directors, all testified that race is considered to the extent

necessary to enroll a critical mass of underrepresented minority students. While none of these witnesses acknowledged that they have a particular number or percentage in mind as the admissions season progresses, the written and unwritten policy at the law school charges the admissions office with assembling entering classes which consist of between 10% and 17% African American, Native American, and Hispanic students. Over the years this target has been achieved, and even exceeded,27 despite the underrepresented minority students’ generally lower LSAT scores and undergraduate GPA’s. The court also finds it significant that the dean and the admissions director monitor the law school’s “daily admissions reports,” which classify applicants by race. These reports inform the reader how many students from various racial groups have applied, how many have been accepted, how many have been placed on the waiting list, and how many have paid a deposit. There would be no need for this information to be categorized by race unless it were being used to ensure that the target percentage is achieved.
*843 In conclusion, the court finds that the law school explicitly considers the race of applicants in order to enroll a critical mass of underrepresented minority students—that is, the law school wants 10% to 17% of each entering class to consist of African American, Native American, and Hispanic students.
2.
The court must now turn to the central issue in this case: whether the Constitution permits the consideration of race in order to achieve racial diversity. In current constitutional parlance, the question is whether the achievement of racial diversity is a compelling state interest and, if so, whether the law school’s admissions policy is narrowly tailored to serve that interest.28 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (“all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests”).
In answering this question, the starting point is the Supreme Court’s landmark decision in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), the only case in which the high court has ever addressed the “diversity rationale” as a justification for considering race in reviewing an

application for admission to a university.
In Bakke, the plaintiff was a white male who applied in 1973 and 1974 to the University of California at Davis Medical School (“U.C.Davis”), a state institution. In both years, U.C. Davis rejected Bakke’s application. After the second rejection Bakke sued the Regents of the University of California, claiming that U.C. Davis’ special admissions program, which reserved 16 places in the class of 100 for members of certain minority groups, violated the California state constitution, Title VI, and the Fourteenth Amendment’s Equal Protection Clause. The trial court held that U.C. Davis could not consider race in making admissions decisions. The California Supreme Court affirmed and enjoined any consideration of race in the admissions process.
On appeal, a sharply divided Supreme Court affirmed in part and reversed in part. Justice Stevens wrote an opinion in which Chief Justice Burger and Justices Stewart and Rehnquist joined. The Stevens group concluded that Title VI prohibited U.C. Davis, as a state educational institution receiving federal funding, from considering an applicant’s race in making admissions decisions. Bakke, 438 U.S. at 412, 98 S.Ct. 2733. Justices Brennan, White, Marshall, and Blackmun authored a joint opinion in which they concluded that both Title VI and the Constitution permit a state educational institution to “take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area.” Id. at 325, 98 S.Ct. 2733.
In a separate, tie-breaking opinion, Justice Powell expressed the view that a state educational institution has a compelling interest in admitting a diverse student body, and that “[e]thnic diversity ... is only one element in a range of factors a university *844 properly may consider in attaining the goal of a heterogeneous student body.” Id. at 311, 314, 98 S.Ct. 2733. Because the Brennan group joined in the short portion of Justice Powell’s opinion (Part V–C) which reversed the California Supreme Court’s holding that an applicant’s race may never be considered, a total of five Justices agreed 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.” Bakke, 438 U.S. at 320, 98 S.Ct. 2733. However, Justice Powell also found that U.C. Davis’ special admissions program, which implemented a strict quota system along race lines, was not narrowly tailored to serve the interest of admitting a diverse class of students. Thus, Justice Powell joined the Stevens group, albeit on different grounds, to make a five-Justice majority holding that U.C.

Davis’ special admissions program was unlawful.29
This court is faced with the task of piecing together the above opinions to determine Bakke’s holding.30 Specifically, the court must determine whether Bakke held that a state institution’s desire to assemble a racially diverse student body is a compelling government interest. The parties sharply disagree on this issue. In short, plaintiffs argue that although Justice Powell’s opinion announced the Court’s judgment, his opinion contained statements and conclusions in which no other Justice or group of Justices joined and are therefore not part of the Court’s holding. Plaintiffs argue that Justice Powell’s discussion of the “diversity rationale” in Part IV–D of his opinion is one such matter. Defendants argue that the Brennan group concurred with Justice Powell’s conclusions regarding diversity by joining in Part V–C of his opinion, and that under Marks31 Justice Powell’s conclusions regarding diversity are part of the Court’s holding. For the reasons stated below, the court is persuaded that Bakke did not hold that a state educational institution’s desire to assemble a racially diverse student body is a compelling government interest.
Of the six separate opinions issued by the Supreme Court in Bakke, Justice Powell’s was the only one that considered whether a state educational institution may have a compelling interest in admitting a racially diverse class of students. While rejecting the other justifications offered for the special admissions program,32 Justice Powell found in Part IV–D of his opinion that “the attainment of a diverse student body ... clearly is a constitutionally *845 permissible goal for an institution of higher education.” 438 U.S. at 311–12, 98 S.Ct. 2733. He cited Justice Frankfurter’s statement in Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957), that universities must have the freedom to decide which students to admit, as this is relevant to providing an “atmosphere which is most conducive to speculation, experiment and creation.” Justice Powell also indicated his belief that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” 438 U.S. at 313, 98 S.Ct. 2733. He quoted approvingly from an article by the president of Princeton University, who wrote:
[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most

deeply held assumptions about themselves and their world. Id. at 313, 98 S.Ct. 2733 quoting Bowen, “Admissions and the Relevance of Race,” Princeton Alumni Weekly 7, 9 (September 26, 1977). Justice Powell emphasized that “[e]thnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded.” Id. at 314, 98 S.Ct. 2733. Having recognized the compelling nature of a university’s interest in diversity, including ethnic diversity, Justice Powell went on in Parts V–A and V–B of his opinion to find that U.C. Davis’ quota system was not narrowly tailored to serve this interest. He stated:
It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner’s argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.
438 U.S. at 315, 98 S.Ct. 2733. While rejecting a quota system, Justice Powell endorsed an admissions program such as the one adopted by Harvard College, which states

that
race or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, *846 for example, with that of an applicant identified as an Italian–American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.
438 U.S. at 317–18, 98 S.Ct. 2733.
In Part V–C of his opinion, Justice Powell concluded that
In enjoining petitioner from ever considering the race of any applicant, however, 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. For this reason, so much of the California court’s judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.

438 U.S. at 320, 98 S.Ct. 2733.
The clearest indication that the Brennan group did not concur with Justice Powell’s conclusions regarding the diversity rationale is that, although they joined in other portions of Justice Powell’s opinion, they did not join in Part IV–D, the only portion of any of the Bakke opinions that specifically addressed the diversity issue.33 Moreover, the Brennan group apparently did not believe that the diversity rationale was before the Court, as those Justices stated that the “issue presented” in the case was “whether government may use race-conscious programs to redress the continuing effects of past discrimination.” Id. at 324, 98 S.Ct. 2733. The Brennan group also stated that in their view the “central meaning of today’s opinions [is that] Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area.” Id. at 325, 98 S.Ct. 2733. The Brennan group did not so much as mention the diversity rationale in their opinion, and they specifically declined to join in the portion of Justice Powell’s opinion that addressed this issue. At the same time, Justice Powell specifically and vigorously disagreed with the Brennan group’s conclusion that the special admissions program at U.C. Davis could be justified on the grounds that it sought to remedy general, societal discrimination. See 438 U.S. at 294–97 & nn. 34, 36, 98 S.Ct. 2588. In short, while the Brennan group and Justice Powell agreed that race may be considered in admissions (hence the joinder of the Brennan group in Part V–C of Justice Powell’s opinion), they disagreed entirely as to the reasons why (hence their failure to join in Part IV–D). Thus, there is no force at all to defendants’ contention that the Brennan group’s joinder in Part V–C of Justice Powell’s opinion may be taken as an endorsement of Justice Powell’s discussion of the diversity rationale.
*847 The defendants next argue that under Marks, Justice Powell’s opinion is controlling because it is the narrowest grounds which support the judgment. The court must reject this argument because a Marks analysis does not assist in interpreting Bakke.
In Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), the Court held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” In Marks this rule was applied to determine the holding of “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), a

pornography case in which the Supreme Court reversed a state court judgment finding a book obscene. In Memoirs, three Justices reversed on the grounds that the book had not been shown to be “utterly without redeeming social value”; two others reversed on the grounds that the First Amendment prohibits any action by government to suppress obscenity; and one Justice reversed on the grounds that the book was not “hard core pornography.” In Marks the Court stated that the “governing standards” of Memoirs were those announced by the three-Justice plurality because the other Justices who concurred in the judgment did so “on broader grounds.” 430 U.S. at 193, 97 S.Ct. 990.
The Court in Marks did not clearly explain what it meant by “narrow” and “broad” grounds. But in that particular case, the plurality’s opinion was the “narrowest” in the sense that it was the most conservative reason for reversing the finding of obscenity and it was a reason that was subsumed within the grounds articulated by the other justices who concurred in the judgment.
The Marks framework cannot be applied to a case like Bakke, where the various Justices’ reasons for concurring in the judgment are not merely different by degree, as they were in Memoirs, but are so fundamentally different as to not be comparable in terms of “narrowness.” In Memoirs, the six Justices concurring in the judgment expressed three viewpoints which could be placed on a continuum from narrow to broad. The narrowest would permit a finding of obscenity if the book in question is “utterly without redeeming social value.” A somewhat broader view would permit a finding of obscenity if the book is “hard cord pornography.” An even broader view would not permit any book to be found obscene. On this continuum, the first view is clearly the narrowest and, therefore, articulates the binding legal standard constituting the Court’s holding.
In Bakke, however, it is nonsensical to ask which opinion—Justice Powell’s or the Brennan group’s—offers the “narrowest grounds” in support of the judgment reversing the finding that race may never be considered in university admissions. The diversity rationale articulated by Justice Powell is neither narrower nor broader than the remedial rationale articulated by the Brennan group. They are completely different rationales, neither one of which is subsumed within the other. There is simply no overlap between the two rationales; in fact, as noted above, the two opinions are very much at odds with one another. Thus, the Marks framework is inapplicable because the varying positions cannot be compared for “narrowness.”
For these reasons, the court concludes that Justice Powell’s discussion of the diversity rationale is not among the governing standards to be gleaned from Bakke. No

other member of the Court joined in *848 his view that the attainment of a diverse student class is a compelling state interest which can justify the consideration of race in university admissions. Nor can Justice Powell’s discussion of this issue be understood as part of the Court’s holding on the grounds that, under Marks, it is the narrowest grounds for the judgment in which he and the Brennan group joined. Therefore, this court concludes that Bakke does not stand for the proposition that a university’s desire to assemble a racially diverse student body is a compelling state interest.34
Further, in post-Bakke decisions the Supreme Court has indicated quite clearly that it looks upon racial classifications with even more suspicion than was the case at the time Bakke was decided. In Metro Broadcasting, Inc. v. Federal Communications Comm’n, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), the Court upheld FCC regulations which gave a preference to various racial minority groups in the awarding of broadcast licenses. Applying intermediate scrutiny, the Court upheld the regulations because “the interest in enhancing broadcast diversity is, at the very least, an important governmental objective ....” Id. at 567, 110 S.Ct. 2997. Five years later, however, in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), the Court stated “that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled.” Adarand clarified that strict scrutiny applies to all racial classifications, regardless of the level of government using the classification. Here it should be noted that the Brennan group in Bakke used the less demanding standard of intermediate scrutiny in their review of U.C. Davis’ admissions program. See Bakke, 438 U.S. at 359, 98 S.Ct. 2733 (“racial classifications designed to further remedial purposes ‘must serve important governmental objectives and must be substantially related to achievement of those objectives’ ”). Moreover, the Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), made the following significant statement: “Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.”35 When read together, *849 Adarand and Croson clearly indicate that racial classifications are unconstitutional unless they are intended to remedy carefully documented effects of past discrimination.36 The Supreme Court has rejected various “benign” justifications for racial classifications. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (finding race-conscious layoff policy unconstitutional, and rejecting “minority role model” and “societal

discrimination” justifications).
The court concludes that the Supreme Court in Bakke did not recognize the achievement of racial diversity in university admissions as a compelling state interest. The court further concludes that under the Supreme Court’s post-Bakke decisions, the achievement of such diversity is not a compelling state interest because it is not a remedy for past discrimination.
3.
This is not to say that diversity does not have important educational benefits. The evidence defendants submitted on this issue, both at trial and in their summary judgment briefs, demonstrated that the educational atmosphere at the law school is improved by the presence of students who represent the greatest possible variety of backgrounds and viewpoints. Several law professors testified that classroom discussion is livelier, more spirited, and simply more enlightening and interesting when students from varying walks of life, and representing varying world views, participate. As Professor Syverud has written, “in the best classrooms, every voice is heard, and the quality of the education received is largely a function of the diversity of viewpoints and experiences among the students in the class.” Report of Kent Syverud, p. 3.37
However, a distinction should be drawn between viewpoint diversity and racial diversity. While the educational benefits of the former are clear, those of the latter are less so. The defendants’ witnesses emphasized repeatedly that it is a diversity of viewpoints, experiences, interests, perspectives, and backgrounds which creates an atmosphere most conducive to learning. As Dean Lehman testified, it is primarily a “diversity of views” that the law school seeks.
The connection between race and viewpoint is tenuous, at best. The defendants walk a fine line in simultaneously arguing that one’s viewpoints are not determined by one’s race but that certain viewpoints might not be voiced if students of particular races are not admitted in significant numbers. Some of defendants’ witnesses testified that classroom discussion is improved when the class is racially diverse, and some gave examples of viewpoints expressed in class by underrepresented minority students. However, these witnesses generally conceded that these *850 viewpoints might equally have been expressed by non-minority students.38
Another asserted benefit of racial diversity is, essentially,

that it promotes socialization. That is, cross-racial understanding is advanced, and racial stereotypes break down, in a multi-racial setting. This, it is argued, enhances all students’ legal education because it enables them to better understand persons of different races and better equips them to serve as lawyers in an increasingly diverse society and an increasingly competitive world economy. See, e.g., Report of Derek Bok, pp. 3, 11, 13, 17; Report of Robert Webster, pp. 2–5; Amicus Curiae Brief of General Motors Corp., pp. 8–25. Defendants have also submitted a lengthy report by Patricia Gurin, a professor of psychology and women’s studies at the University of Michigan, whose research suggests that “[s]tudents learn better in a [racially and ethnically] diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting.” Report of Patricia Gurin, p. 3.
The court does not doubt that racial diversity in the law school population may provide these educational and societal benefits. Nor are these benefits disputed by the plaintiffs in this case. Clearly the benefits are important and laudable. Nonetheless, the fact remains that the attainment of a racially diverse class is not a compelling state interest because it was not recognized as such by Bakke and it is not a remedy for past discrimination.
4.
[2] Even if racial diversity were a compelling state interest, defendants’ use of race as an admissions factor would be constitutional only if “narrowly tailored” to serve that interest. See Adarand, 515 U.S. at 227, 115 S.Ct. 2097. For the following reasons, the court finds that defendants’ use of race has not been so narrowly tailored at any time under consideration in this case.
First, defendants have indicated that they use race in admissions to the extent necessary to achieve a “critical mass” of underrepresented minority students. None of the witnesses was able to clearly define critical mass in terms of numbers or percentages. While Professor Lempert indicated that critical mass lies somewhere between 11% and 17% of the entire class, Professor Syverud stated that even one to three minority students in a particular classroom might suffice. The current director of admissions, Erica Munzel, testified that she does not know what number or percentage of the entering class would constitute critical mass, and that she relies on faculty members to keep her informed as to whether she is achieving it. “Critical *851 mass” has proved to be an amorphous concept. Apparently defendants know it when

they see it, but it cannot be quantified. Narrow tailoring is difficult, if not impossible, to achieve when the contours of the interest being served are so ill-defined.
Second, there is no time limit on defendants’ use of race in the admissions process. The Supreme Court has been highly critical of racial classifications which are not strictly limited in duration. See, e.g., Croson, 488 U.S. at 510, 109 S.Ct. 706 (“Proper findings ... defin[ing] both the scope of the injury and the extent of the remedy ... serve to assure all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself”); Wygant, 476 U.S. at 275, 106 S.Ct. 1842 (“The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose”). The defendants have indicated that they will continue to use race as a factor in admissions for as long as necessary to admit a critical mass of underrepresented minority students, and no one can predict how long that might be. Such indefiniteness weighs heavily against a finding of narrow tailoring.
Third, by using race to ensure the enrollment of a certain minimum percentage of underrepresented minority students, the law school has made the current admissions policy practically indistinguishable from a quota system. As noted above, the law school has an unwritten policy of constituting each entering class so that at least 10–12% are students from underrepresented minority groups. This percentage has fluctuated somewhat from one year to another, but 10–12% is the approximate percentage that has been established as the minimum level needed to achieve a “critical mass” of students from these groups. While the law school has not set aside a fixed number of seats for underrepresented minority students, as did the medical school in Bakke, there is no principled difference between a fixed number of seats and an essentially fixed minimum percentage figure. Under either system, students of all races are not competing against one another for each seat, with race being simply one factor among many which may “tip the balance” in particular cases. The reservation of some seats for applicants of particular races, and the attendant lack of competition for those seats, was the principle reason Justice Powell found U.C. Davis’ quota system unconstitutional. See Bakke, 438 U.S. at 315–19, 98 S.Ct. 2733. While defendants contend that the law school’s admissions policy differs from U.C. Davis’ in that all applicants compete against one another, the fact of the matter is that approximately 10% of each entering class is effectively reserved for members of particular races, and those seats are insulated from competition. The practical effect of the law school’s policy is indistinguishable from a straight quota system, and such a system is not narrowly tailored under any

interpretation of the Equal Protection Clause. See, e.g., Bakke, 438 U.S. at 307, 98 S.Ct. 2733 (“Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake”). It appears that the law school is engaging in simple racial balancing by focusing so carefully on admitting and enrolling a particular percentage of students from particular racial groups.
Fourth, there is no logical basis for the law school to have chosen the particular racial groups which receive special attention under the current admissions policy. The 1992 admissions policy, at page 12, identifies “African Americans, Hispanics and Native Americans” as “groups which have been historically discriminated *852 against39 [and] who without this commitment might not be represented in our student body in meaningful numbers.” During some of the years at issue in this lawsuit, the law school bulletin indicated that special attention has been given to “students who are African American, Mexican American, Native American, or Puerto Rican and raised on the U.S. mainland.”40 The law school has failed to offer a principled explanation as to why it has singled out these particular groups for special attention. Certainly, other groups have also been subjected to discrimination, such as Arabs and southern and eastern Europeans to name but a few, yet the court heard nothing to suggest that the law school has concerned itself as to whether members of these groups are represented “in meaningful numbers.” No satisfactory explanation was offered for distinguishing between Puerto Ricans who were raised on the U.S. mainland from Puerto Ricans who were raised in Puerto Rico or elsewhere. No satisfactory explanation was offered for singling out Mexican Americans but, by implication, excluding from special consideration Hispanics who originate from countries other than Mexico. A special “commitment” is made to African Americans, but apparently none is made to blacks from other parts of the world. This haphazard selection of certain races is a far cry from the “close fit” between the means and the ends that the Constitution demands in order for a racial classification to pass muster under strict scrutiny analysis.41 If the law school may single out these racial groups for a special commitment today, there is nothing to prevent it from enlarging, reducing, or shifting its list of preferred groups tomorrow without any reasoned basis or logical stopping point.
A fifth and final factor the court must note in this connection is the law school’s apparent failure to investigate alternative means for increasing minority enrollment. See Croson, 488 U.S. at 507, 109 S.Ct. 706 (finding that narrow tailoring was absent because, among other reasons, the city failed to consider “the use of race-neutral means to increase minority business participation in city contracting”); Wygant, 476 U.S. at

280 n. 6, 106 S.Ct. 1842 (“The term ‘narrowly tailored’ ... may be used to require consideration of whether lawful alternative and less restrictive means could have been used.... [T]he classification at issue must ‘fit’ with greater precision than any alternative means”). The court did hear some testimony from witnesses who indicated that underrepresented minority students cannot be enrolled in significant numbers unless their race is explicitly considered in the admissions process. However, the court heard very little *853 testimony from the authors of the 1992 admissions policy, or from those who have been involved in administering it, as to whether the deans or the faculty at the law school itself have ever given serious consideration to race-neutral alternatives. Such efforts might have included increasing recruiting efforts, decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores, using a lottery system for all qualified applicants, or a system whereby a certain number or percentage of the top graduates from various colleges and universities are admitted. Even if these alternatives would not be as effective in enrolling significant numbers of underrepresented minority students, the law school’s failure to consider them, and perhaps experiment with them, prior to implementing an explicitly race-conscious system militates against a finding of narrow tailoring.
[3] For all of these reasons, the court believes that the attainment of a racially diverse student body is not a compelling state interest. Even if it were, the law school’s admissions policy is not narrowly tailored to serve that interest. Accordingly, the court concludes that the law school’s 1992 admissions policy violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act.
5.
[4] Nonetheless, having listened to extensive testimony and having reviewed all of the relevant documents, the court also concludes that the individual defendants are qualifiedly immune from damages. Under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court indicated that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This

is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”
While the court is convinced that the law school’s admissions policy is unconstitutional, the court is equally convinced that the individual defendants (Lee Bollinger, Jeffrey Lehman, and Dennis Shields) did not participate in the adoption or administration of a policy they either knew or had reason to believe was unconstitutional. The state of the law in this area is murky, to say the least. No Supreme Court decision since Bakke has addressed the constitutionality of affirmative action in university admissions, and Bakke itself, to borrow a phrase, “is a riddle wrapped in a mystery inside an enigma.”42 Lower courts have struggled for years, with little success, to divine the legal principles to be gleaned from Bakke, and to understand how, if at all, the teachings of other affirmative action cases may apply to the higher education context. Under these circumstances, university officials understandably had difficulty formulating admissions policies that conformed with Bakke.
Moreover, it is clear from the defendants’ testimony that they were concerned *854 about the constitutionality of the law school’s admissions policy and that they attempted to comply with Bakke, as they interpreted the decision, while still striving to fulfill their admissions goals. President Bollinger testified that he formed the faculty Admissions Committee in the fall of 1991 because he wanted to ensure that the law school was in compliance with the law. He deliberately selected committee members who were knowledgeable about Bakke and constitutional law. Dean Lehman, who served on that committee, testified that the committee members wanted the law school’s admissions policy to be lawful, especially in light of Bakke. Dennis Shields, the director of admissions from 1991 to 1998, also served on that committee. Nothing in his testimony, or in any other evidence admitted in this case, suggests that he knew or should have known that it was unconstitutional for the law school to consider race as part of its admissions policy.
In short, the “contours” of the legal standards governing affirmative action in university admissions have not been so clearly defined as to permit reasonable law school officials to know whether it was constitutional to use race in the admissions process in order to assemble a racially diverse student body. The court finds that the individual defendants in this case acted reasonably and in good faith in adopting and administering the policy in question. Accordingly, the court shall grant the motion of these defendants for summary judgment on grounds of qualified

immunity.
6.
[5] Plaintiffs also seek, as part of their Title VI claim, money damages from the board of regents. The board argues that this damages claim is barred by the Eleventh Amendment, which generally prevents individuals from obtaining damages from a state or a state institution in federal court. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
However, the board acknowledges that in this context Congress has abrogated Eleventh Amendment immunity by conditioning the receipt of federal funds upon the duty to comply with various anti-discrimination laws. Title 42 U.S.C. § 2000d–7(a) states:
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.
Nonetheless, the board argues that it may be held liable in damages only if it is found to have violated “clearly established legal principles.” Defendants’ Memorandum of Law in Support of Renewed Motion for Summary Judgment, p. 45. Plaintiffs argue that it is inappropriate to graft a qualified immunity standard onto Title VI, and that the board is liable so long as intentional discrimination has been proven. See Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment, p. 33.
*855 The court has reviewed the cases cited by both sides and is convinced that, under Title VI, liability for damages attaches upon a showing of intentional discrimination. The right at issue need not have been “clearly established”; it suffices for a state to have violated a plaintiff’s rights by intentional action. In

Guardians Ass’n v. Civil Serv. Comm’n of the City of New York, 463 U.S. 582, 608 n. 1, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), a majority of the Court agreed “that a violation of [Title VI] requires proof of discriminatory intent.” When intentional discrimination is proven, damages are among the remedies which may be awarded. See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75–76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). In Franklin, the Court held that damages could be awarded under Title IX to a student who allegedly had been sexually harassed by a teacher, even though the law in this area was not clearly established. See id. at 75, 112 S.Ct. 1028 (citing a Title VII sexual harassment case as sufficient authority for the proposition that sexual harassment of a student by a teacher is an “intentional action[ ]” proscribed by Title IX). The court agrees with the Fifth Circuit’s view on this issue:
“Intentional discrimination,” as used in this context means that a plaintiff must prove “that the governmental actor, in adopting or employing the challenged practices or undertaking the challenged action, intended to treat similarly situated persons differently on the basis of race.” While we agree with the district court’s conclusion that the various defendants acted in good faith, there is no question that they intended to treat the plaintiffs differently on account of their race.
Hopwood, 78 F.3d at 957 (citations omitted). Accord, Gratz, 122 F.Supp.2d at 834–36; Smith v. University of Wash. Law Sch., 2 F.Supp.2d 1324, 1331 (W.D.Wash.1998). See also Pederson v. Louisiana State Univ., 201 F.3d 388, 410–12 (5th Cir.2000) (defendants liable for damages under Title IX for “intentional discrimination” where university sports program treated women differently because of their sex, although defendants were ignorant of their legal obligations. Court noted the defendants “need not have intended to violate Title IX, but need only have intended to treat women differently”).
In the present case, there is no doubt that the law school’s official admissions policy intentionally treats applicants differently because of their race. While the constitutionality of this policy may be debatable, the board of regents is nonetheless subject to liability in damages under Title VI insofar as it intentionally endorsed, or acquiesced in, an admissions policy that treats applicants differently because of their race. The unlawfulness of the policy need not have been clearly established for liability to attach.43 Accordingly, the court must deny the board’s motion for summary judgment.

III. Remedying Societal Discrimination as a Rationale for Using Race as a Factor in University Admissions: The Intervenors’ Case
A. Evidence [6] The intervenors presented many witnesses who testified about the history and current status of racial discrimination in this country; the causes of the “achievement gap” between underrepresented minority *856 and non-minority students; the alleged cultural bias in standardized tests such as the SAT and the LSAT; and the recent experiences of some African American and Mexican American students at high schools, colleges and universities. Some of these witnesses are preeminent experts in their respective fields of history, sociology, psychology and education. Others testified about their personal experiences of the deplorable conditions at a Detroit high school, and of isolation and discrimination at predominantly white universities. The court listened intently to nearly 30 hours of testimony from the intervenors’ witnesses. The court shall summarize briefly the highlights of each witness’s testimony.
Four students testified. Erica Dowdell is an African American student in her junior year at the University of Michigan. She was elected to the university’s student assembly on the Defendant Affirmative Action Party ticket. Ms. Dowdell grew up in Detroit and attended public schools, where all or nearly all of the students were African American. She testified to the generally shoddy conditions at her elementary, middle and high schools. Her high school, Lewis Cass Technical High School, is one of the best in Detroit, yet the building is poorly maintained and books and other resources are often lacking. Ms. Dowdell testified that in her senior year she attended a band festival at Livonia Churchill High School in the suburbs, where most of the students are white, and she was hurt and shocked at the differences in such things as the sports facilities and the quality of the students’ musical instruments. As an undergraduate student at the University of Michigan, Ms. Dowdell testified that she feels isolated because African Americans are in the minority. She also testified that she experiences racism on a daily basis, and she gave examples of insensitive remarks by other students and instructors. While Ms. Dowdell is doing well academically, she feels that racism negatively affects her performance because it is discouraging and distracting.
Concepcion Escobar is a Mexican American and Native American student at the University of Michigan Law School. She testified primarily about her experiences at a predominantly black public high school in Chicago and then at Amherst College, where most of the students are white and from privileged backgrounds. In her high school there were very few college counselors, and Ms.

Escobar was not given any information about scholarships for which she may have been eligible. At Amherst, she abandoned her plans to pursue a pre-med curriculum because her high school had not adequately prepared her for college-level math and science classes. Ms. Escobar indicated that she did not often speak in class at Amherst because the student population was predominantly white and she did not want to play the role of representing her race. She also testified about some of the difficulties she and her classmates had in understanding one another, as they came from such completely different backgrounds.
Crystal James is an African American student in her second year of law school at the University of California at Los Angeles. Ms. James entered UCLA in 1999, three years after the passage of Proposition 209, which banned state-sponsored affirmative action and racial preferences in California. She testified that she was shocked to discover that she was one of only two African American law students in her entering class of 300. Ms. James feels isolated and believes that students and teachers expect her to represent the “black viewpoint” when racial issues are discussed. She also has experienced a loss of self-confidence and optimism, and a decline *857 in her academic performance, which she attributes to her racial isolation and to subtle forms of racism on campus. The latter phenomenon has taken the form of students making anti-affirmative action comments, teachers failing to direct classroom discussion of racial issues in a positive manner, and teachers neglecting to call on her in class because, she believes, they assume she would not be able to respond. In sum, Ms. James testified that the loss of affirmative action in California has resulted in far fewer underrepresented minority students being admitted to prestigious state universities such as UCLA and Berkeley, and that those who are admitted feel isolated and defeated.
The last student to testify was Tania Kappner, an African American graduate of the master’s of education program at the University of California at Berkeley. Like Ms. James, Ms. Kappner testified about her feelings of isolation, since the number of black students in her program dropped significantly following the passage of Proposition 209. Ms. Kappner teaches English at a high school near Berkeley, and she testified that the abolishment of affirmative action has had a demoralizing effect on her minority students.
The court also heard testimony from several university professors who, as noted above, are highly respected scholars in their various fields of endeavor. Gary Orfield is a professor of education and social policy at Harvard University. He testified extensively about racial segregation and affirmative action. His expert report, which is a collection of articles he has published on these

issues, was admitted as Exhibit 167.
Professor Orfield testified that racial segregation in American public schools is particularly pronounced in the northeast and midwest sections of the country, and that Michigan is among the four most highly segregated states.44 Of all the states, Michigan has the highest percentage (64%) of black students who attend schools whose student populations are 90–100% minority. See Exhibit 196. Detroit has the most highly segregated schools of any major metropolitan area in the country. Over 90% of the children enrolled in Detroit public schools are African American. Professor Orfield testified that racial segregation in the schools is related to segregation in housing, and he characterized housing in Detroit as “hyper-segregated.” Further, Professor Orfield indicated that segregation in schools is associated with high levels of poverty which, in turn, are associated with poor resources and decreased educational opportunities. And as a rule, the poorest schools are the ones with the highest minority population. See Exhibit 197. Two-thirds of African American and 70% of Hispanic schoolchildren attend segregated schools. Professor Orfield testified that, as a result, most minority students do not receive a public education that prepares them for college. He noted, for example, that the University of Chicago has routinely rejected applicants who are Chicago valedictorians, even those from magnet schools, because city schools do not compare with schools in the suburbs. Professor Orfield has written that “[c]ollege admissions officers have long known that class rank is hardly comparable from one high school to the next. The top students in many high-poverty schools are woefully unprepared for college.” Exhibit 167 D, G. Orfield and E. Miller, Chilling Admissions 10 (1998).
Professor Orfield was also asked several questions about the effects of Hopwood v. State of Texas, 78 F.3d 932 (5th Cir.1996), *858 which banned the consideration of applicants’ race in university admissions in the Fifth Circuit; and of Proposition 209, which in 1996 eliminated all racial preferences, including in university admissions, in California. Professor Orfield noted that following Hopwood and Proposition 209, enrollment of underrepresented minority students dropped sharply in Texas and California. For example, at the University of Texas School of Law at Austin, whose admissions system was challenged in Hopwood, the percentage of the entering class that is African American dropped from 5.8% (29 students) in 1996 to 0.9% (4 students) in 1997.45 Native American enrollment at that law school dropped from 1.2% (six students) in 1996 to 0.2% (one student) in 1997.46 Hispanic enrollment dropped from 9.2% (46 students) in 1996 to 6.7% (31 students) in 1997.47 See Exhibit 131.

Professor Orfield also cited statistics showing that similar declines in law school enrollments occurred in California following the passage of Proposition 209. In 1996, for example, 89 Hispanics, 43 African Americans and 10 Native Americans were enrolled as first year students at the top three public California law schools.48 In 1997, these numbers fell to 59, 16, and 4, respectively. At Berkeley, only one African American enrolled in the freshman law class in 1997, whereas 20 had been enrolled in the freshman class the year before. See Exhibit 132.
Part of the reason for the drop in the number of underrepresented minorities in law schools, following the elimination of affirmative action, can be seen in Exhibits 199 and 200. These exhibits are graphs showing the distribution of LSAT scores by race in 1997–1998. Exhibit 199 shows that the test scores of each racial group formed a similar bell-shaped curve, but that the curve for whites is located to the right of those of all underrepresented minority groups. This confirms the data from other exhibits, which reveal that the median LSAT score of white test-takers is significantly higher than the median underrepresented minority score. See Exhibit 137, p. 19; Exhibit 139, p. 20; Exhibit 141, p. 17. Exhibit 200 shows the distribution of LSAT scores by race, but indicates the absolute numbers of tests taken. The curve of the white test-takers absolutely dwarfs the curves of the minority test-takers; this graph dramatically illustrates the fact that the vast majority of test-takers are white and that the vast majority of high LSAT scores are obtained by white test-takers. In Professor Orfield’s words, “hardly any” minority test-takers receive scores in the 169–180 range from which the best law schools expect their applicants to come.
Professor Orfield concluded that affirmative action is needed in order to achieve racial diversity at law schools because the academic averages between underrepresented minority and non-minority groups is such that a “very segregated outcome” would result if race were not considered in the admissions process. He believes there is no double standard in doing so, since most minority children are so disadvantaged in their public school education.
*859 Professor Orfield also testified that the elimination of affirmative action in university admissions leads to a phenomenon known as “cascading,” whereby minority students no longer gain admittance to the most prestigious institutions and are instead relegated to less selective ones. In his view, this is undesirable because the more prestigious universities are “leadership training institutions.”49
The court also heard extensive testimony from another distinguished sociologist, Dr. Walter Allen, a professor of

sociology at the University of California at Los Angeles. His expert reports were admitted as Exhibits 156–158.
Professor Allen testified that affirmative action in the law school admissions process is needed in order to counterbalance the negative effects of racism on the academic performance of underrepresented minority students in college. Professor Allen believes that underrepresented minorities suffer systematic deprivations in both housing and educational opportunities, which account for much of the “GPA gap” that exists between minority and non-minority college students. Professor Allen indicated that underrepresented minority students at predominantly white undergraduate institutions often experience a racially hostile environment, which depresses their confidence and desire to succeed academically. He stated that African American students perform better at historically black colleges and universities (HBCU’s) than at predominantly white institutions because they feel validated and encouraged to succeed in the friendlier and more supportive atmosphere at HBCU’s. In contrast, at predominantly white institutions, African Americans and other underrepresented minority students often feel isolated, disliked and marginalized.
Professor Allen studied the racial climate at four of the undergraduate institutions which supply a portion of the students who apply to the University of Michigan Law School. The “feeder schools” selected for this research were the University of Michigan, Michigan State University, the University of California at Berkeley, and Harvard University. Professor Allen also studied the racial climate at the law school itself. His research was conducted at these campuses principally by studying the responses of minority and non-minority students in focus groups and surveys.
Professor Allen concluded that the students at the four feeder campuses “described the overall racial climate of their campuses as a place where they feel their presence is questioned and belittled.” Exhibit 157, p. 11. The underrepresented minority focus group participants described various items which contributed to this climate, including insensitive or racist remarks by faculty and students, a feeling of isolation due to the low number of fellow students of the same race, avoidance of racial issues in classroom discussions, the *860 lack of minority role models such as faculty members, exclusion from white study groups, and unequal treatment by campus police. Some of the focus group participants also indicated that the negative racial climate caused them to feel alienated and discouraged and that this harmed their academic performance.
Professor Allen also surveyed 200 students at the feeder

institutions. Thirty-five percent felt discriminated against at their campus because of their race, and 47% felt they had been unfairly graded. See Exhibit 157, p. 51. However, 75% felt they had made the right choice in attending their undergraduate institution, and 84% “would definitely recommend their university to other students who want to attend college.” Id. pp. 51, 55.
The court also heard testimony from Professor John Hope Franklin, a renowned historian with special expertise in the history of race relations in the United States.50 His expert report was admitted as Exhibit 163. Professor Franklin described his personal experiences as the victim of racial discrimination as an undergraduate student in Nashville, as a graduate student doing research in North Carolina, and as a young history professor seeking housing in Brooklyn. Professor Franklin testified that even now, as a distinguished educator and historian, he experiences racism. For example, in recent years he has been approached more than once by a white person in a hotel lobby or private club who asked him to fetch her coat or car. Professor Franklin believes that great strides have been made in improving race relations, but that much more remains to be done. Professor Franklin believes that active effort is needed to eliminate the race problem, and that the abolishment of affirmative action at universities is a step toward resegregation. However, he also expressed the belief that academic standards should not be lowered for minority students, and that all people should be judged on their individual merits.
Three witnesses testified on the subject of bias in standardized testing. This was important testimony, given the significance of such tests in undergraduate and graduate admissions. The first such witness was Jay Rosner, the executive director of the San Francisco office of the Princeton Review Foundation (PRF). The PRF is affiliated with the Princeton Review, an organization that provides LSAT preparation courses to approximately 10,000 students each year. The PRF focuses on providing such courses to underrepresented minority students.
Mr. Rosner’s expert reports were admitted as Exhibits 168 and 169. He testified that the LSAT is developed and administered by the Law School Admission Council (LSAC), which claims that the LSAT score helps predict students’ first year grades in law school. However, according to Mr. Rosner, the actual correlation is only 16–20%, which is to say that 80–84% of first year law school grades are not predicted by the LSAT. Mr. Rosner stated that test preparation courses like those offered by the Princeton Review, or by its competitor Kaplan, Inc., generally improve one’s LSAT score by approximately seven points.
Mr. Rosner testified that the PRF engages in “targeted

outreach” to offer its test preparation services to African American and other minority students. In his experience, white students are aware of the benefits of taking such a course, but minority students do not share this awareness. For example, at Howard University, *861 a predominantly African American institution, Mr. Rosner once had difficulty filling the 15 seats in an LSAT preparation course, despite the fact that the customary $1,000 fee was reduced to $200. He also testified that despite PRF’s outreach efforts, the vast majority of the students who take an LSAT preparation course are white, and that this fact accounts for some of the test-score gap between minority and non-minority test-takers.
Martin Shapiro, a professor of psychology at Emory University, testified on the issue of bias in standardized testing. He also submitted an expert report, which was admitted as Exhibit 170. Professor Shapiro testified that standardized admission tests, by the manner in which new test questions are “pretested,” tend to perpetuate bias against groups which have performed poorly on the tests in the past. He also noted the large difference between the average LSAT score for whites and blacks, and the weak correlation, of about 27%, between performance on the LSAT and first year law school grades.
On the issue of bias in standardized testing, the court also heard testimony from David White, director of Testing for the Public, a group which offers test preparation courses for women and minority students. His expert report was accepted as Exhibit 173. White provided information similar to that provided by Dr. Larntz regarding the gaps in LSAT scores and UGPA’s between whites and underrepresented minorities. Exhibit 219 shows that while 46% of white law school applicants in 1996–1997 scored at or above 155 on the LSAT, only 8% of black applicants did so. While 46% of white applicants had a UGPA of 3.25 or above, only 17% of black applicants had a UGPA in this range. And while 27% of white applicants had both qualifications, only 3% of black applicants had both. Whites on average score higher on the LSAT than any other racial group at all socioeconomic levels. See Exhibits 220, 221. Even among applicants who attend the same undergraduate institution and have the same undergraduate GPA, the LSAT gap as compared to white applicants is 4.0 points for Native Americans, 6.8 points for Hispanics, and 9.2 points for African Americans. See Exhibit 223.
The court also heard testimony from Dr. Eugene Garcia, the Dean of the School of Education at the University of California at Berkeley. His expert report was admitted as Exhibit 164. Dr. Garcia testified about the effects of Proposition 209 on student admissions at the eight campuses of the University of California system.51 From 1995 to 2000, underrepresented minority admissions

dropped by 1% overall. See Exhibit 213. Underrepresented minority admissions at the most selective campuses, Los Angeles and Berkeley, have dropped by 45% and 42%, respectively, whereas the admission rates at Santa Cruz and Riverside, which are less selective, have increased by 27% and 87%, respectively.52 Dr. Garcia attributed these *862 changes to the fact that underrepresented minority applicants generally have lower GPA’s and test scores. Their lower average GPA is due in large part to the generally poorer quality of the schools attended by underresented minority students. And their lower average test scores are to some extent due to the fact that standardized tests, like the SAT and LSAT, are “heavily loaded with academic English.” This disadvantages many Hispanics because English is their second language. African Americans are also disadvantaged because many—60% by his estimate—speak “Black English.” Dr. Garcia indicated that test preparation courses do improve test scores, but that these courses are expensive, which adds to the disadvantage against poorer groups. Dr. Garcia characterized the loss of underrepresented minority students at Los Angeles and Berkeley, and the corresponding gain of underrepresented minority students at Santa Cruz and Riverside, as a “redistribution” within the University of California system. This is the phenomenon which Professor Orfield called “cascading.”
Dr. Garcia testified that the University of California has been unable to admit underrepresented minority students in significant numbers by any means other than by explicitly considering race in admissions. He favors race-conscious admissions policies because they enable universities to consider historical discrimination against particular racial groups. Dr. Garcia testified that a decrease in racial diversity at universities decreases the quality of the educational experience for all students. He also expressed the belief that institutions of higher education prepare students to take leadership roles later in life, and that part of this preparation should include exposure to people of other races, particularly in light of the fact that American society is itself becoming increasingly diverse.
On cross-examination, Dr. Garcia acknowledged that at the school of education of which he is the dean, 28% of this year’s class consists of underrepresented minority students. Dr. Garcia indicated that the school of education was able to achieve this level of diversity by decreasing reliance on the Graduate Record Examination (GRE), and by expending greater effort in recruiting new students.
The court also heard testimony from Faith Smith, the president of Native American Educational Services (NAES) College; and Frank Wu, an associate professor of law at Howard University. Ms. Smith testified about the

educational difficulties which face Native Americans, and the importance of increasing the number of Native American lawyers. Her expert report was admitted as Exhibit 171. Professor Wu testified about the historical and present societal discrimination against Asian Americans, particularly in the areas of employment and housing. His expert report was admitted as Exhibit 175.
Finally, the intervenors called Professor Richard Lempert. As noted above, Professor Lempert has served for many years on the faculty of the law school as well as in the sociology department at the University of Michigan. While the defendants called him to testify about the genesis of the law school’s admissions policy, the intervenors called him to testify about a survey study he and others performed which examined the career success of underrepresented minority graduates of the law school. Professor Lempert’s study, and a condensed version thereof, were admitted as Exhibits 165 and 166.
While Professor Lempert’s report is quite lengthy, he summarized the main conclusions as follows:
The results reveal that almost all of Michigan Law School’s minority graduates pass a bar exam and go on to have *863 careers that appear successful by conventional measures. In particular, the survey indicates that minority graduates (defined so as to include graduates with African American, Latino, and Native American backgrounds) are no less successful than white graduates, whether success is measured by the log of current income, self-reported satisfaction, or an index of service contributions. Also, although an admissions index that combines LSAT scores and undergraduate grade-point average is a significant predictor of law school grades, it does not predict career success on any of our three outcome measures.53
Exhibit 166, p. 1. Professor Lempert also wrote:
What we find is a strong, statistically significant relationship between LSAT and UGPA, on the one hand, and grades at the end of three years of law school on the other. But we find no significant relationship between the LSAT or UGPA and what matters more—the

achievement of students after graduation. Drawing on work done in connection with the affirmative action lawsuit against the University of Michigan Law School, we can also say that had the LSAT and the UGPA been the only criteria for admissions at Michigan, few of Michigan’s minority graduates would have been admitted to the school, even though their career success since law school is similar to the career success of Michigan’s white graduates and consistent with the aspirations Michigan has for all students it admits.
Id. at 33–34. In his testimony, Professor Lempert also indicated that the law school’s race-conscious admissions policy has helped to integrate the legal profession. He testified that if affirmative action in admissions did not exist, the number of underrepresented minorities admitted to any law school in the country would be reduced by 75%. Not only would underrepresented minority applicants “cascade down” to less selective law schools, but they probably would, if admitted, simply displace other minority applicants. Professor Lempert believes that the LSAT is a valid predictor of academic success in law school (though not of later success in the profession), and he does not believe there are any “hard data” showing any racial bias against minorities in terms of the LSAT’s predictive capacity. See also Exhibit 166, p. 34 (“LSAT scores and an index based on LSAT scores and UGPAs are significantly correlated with both first-year and final law school grade-point averages”).
B. Findings of Fact and Conclusions of Law From this extensive body of evidence, the court makes the following findings and conclusions.
1.
First, there is no question about the long and tragic history of race discrimination in this country. At different times in history, Native Americans have been deprived of land and forced onto reservations; African Americans have been held in slavery; and Asian Americans have been detained in internment camps. Many ethnic and racial groups—including, but not limited to, the underrepresented minority groups identified by the law

school’s admissions policy—have been victims of discrimination in housing, employment, education, public accommodations, and elsewhere.
*864 While American public policy has sought to eradicate race discrimination, its lingering effects are apparent. As Professor Wu has written, “[F]or many people of color, racism has decreased the amount and value of economic, social, and cultural capital inherited from our ancestors. Not only did we receive less material wealth, we also received less ‘insider knowledge’ and fewer social contacts so instrumental to one’s educational and professional advancement in America.” Exhibit 175, p. 131. The lingering effects can be seen, for example, in lower education rates and higher poverty rates among some minority groups as compared to whites.54
2.
The evidence presented at trial also made clear that underrepresented minority groups have, on average, lower undergraduate grade-point averages than whites. Among applicants accepted by the University of Michigan law school from 1995 through 2000, the median UGPA of every underrepresented minority group has been lower than the median UGPA of Caucasians by approximately one-tenth to three-tenths of a point.55 A greater gap exists in LSAT scores. From 1995 to 2000, the median LSAT score of the underrepresented minority groups has been lower than the median LSAT score of Caucasians by approximately seven to nine points.56
The reasons for the “GPA gap” and the “LSAT gap” are complex. While one must be cautious in making generalizations, the evidence at trial clearly indicates that much of the GPA gap is due to the fact that disproportionate numbers of Native Americans, African Americans, and Hispanics live and go to school in impoverished areas of the country. It should not surprise anyone that students who attend schools where books are lacking, where classrooms are overcrowded, and where Advanced Placement or other higher level courses are not offered are at a competitive disadvantage as compared with students whose schools do not suffer from such shortcomings. An educational deficit in the K–12 years will, for most students, have a negative ripple effect on academic performance in college. Ms. Escobar, for example, had to drop out of the pre-med program in college because her high school, a large public school in Chicago, failed to provide her with the necessary *865 mathematics and science background. Of course, students of any race will have difficulty “catching up” in college if they have had a poor K–12 education.

The intervenors have also argued that the GPA gap is due in part to the racially hostile environment at college and university campuses. The court does not doubt that many underrepresented minority students find the racial climate hostile at the law school’s “feeder” institutions. Nor does the court doubt that such a climate can have a negative effect on these students’ academic performance. Nonetheless, the court is unable to give any weight to Professor Allen’s study of this issue, due to the small number of students who participated in the focus groups and surveys and due to the manner in which the students were selected.
Regarding the small numbers, the court notes that a total of 65 students participated in Professor Allen’s focus groups. Of these, 18 were white and Asian students; only 47 were members of the underrepresented minority groups at issue in this case.57 Of these 47 students, 20 participated in four focus groups at the University of Michigan; 15 participated in three focus groups at Berkeley; eleven participated in two focus groups at Harvard; and one participated in one focus group at Michigan State University. See Exhibit 157, Figure 2.58 Similarly small numbers of underrepresented minority students participated in the surveys. Of the 200 total respondents, 140 were African Americans, Hispanics or Native Americans, 47 of whom were participants in the focus groups. See Exhibit 157(2), Tables 3, 6, 9 and 12. At trial, Professor Allen acknowledged that it is difficult to make generalizations based on results from such small sample sizes. The court seriously doubts whether any reliable generalizations can be made about the racial climate at the feeder institutions, whose total student population well exceeds 125,000, based on the information gathered from 47 focus group participants and 140 survey respondents.
The reliability of Professor Allen’s conclusions is further undermined by the manner in which students were solicited for inclusion in the research project. While Professor Allen supervised the focus groups and the composition of the survey, he relied on student volunteers to recruit the study’s participants. Several of these solicitations, in the form of electronic mail and facsimile transmissions, were co-authored by United for Equality and Affirmative Action, which is one of the intervenors in this case. These solicitations called upon students “to contribute to a legal case that will impact the educational opportunities of minority students for generations to come. It is our ‘Brown v. Board of Education’ and we must do everything we can to ensure a victory.” Exhibit 176. Other solicitations began with the heading, “URGENT—PLEASE PARTICIPATE IN A STUDY FOR THE U OF M AFFIRMATIVE ACTION CASES.” Exhibit 177. These solicitations also indicated that “[t]he

student intervenors in the watershed University of Michigan affirmative action cases are seeking students ....” Id. Professor Allen acknowledged that the wording of these solicitations “possibly” could have biased *866 the selection process. The court believes not only that such bias may have occurred, but that it surely did occur, because the solicitations clearly communicated a desire to attract research participants who shared a particular viewpoint.
The court has three other difficulties with Professor Allen’s research results. The first is that they fail to quantify the degree to which the academic performance of underrepresented minority students is reduced by the racially hostile environment at the feeder institutions. Nor did the evidence show that the academic performance of all underrepresented minority students is reduced to the same extent, or whether the effect varies from one individual to another. Thus, even if it were constitutionally permissible for the law school to consider the race of underrepresented minority applicants in order to compensate for the reduction in their grades and test scores attributable to a racially hostile environment in college, the court has no means of knowing the permissible extent of such compensation, either for particular individuals or for all underrepresented minority law school applicants.
Second, even if the effect of a racially hostile environment on academic performance could be quantified, no testimony was offered as to the percentage or numbers of underrepresented minority students at the University of Michigan Law School who come from the four “feeder” institutions.59 Nor was any testimony or other evidence offered to show whether the racial climate at other undergraduate institutions from which underrepresented minority law students have graduated is hostile to the same degree as at the four feeder schools. Thus, it is impossible to know whether Professor Allen’s findings apply to most or only some of the underrepresented minority law school applicants.
Third, Professor Allen’s research failed to inquire into the effects of racial hostility on the academic performance of minority groups other than African Americans, Latinos, Asian Americans and Native Americans. It seems quite likely that Arab students, or those from eastern or southern Europe, or adherents of a religious minority, may also to one degree or another be subjected to a hostile undergraduate environment. Given the narrow focus of Professor Allen’s research project, the court and the law school admissions office can only guess as to precisely which applicants are entitled to a “boost.”

3.
The gap in LSAT scores between underrepresented minorities and Caucasians is even more difficult to explain than the gap in undergraduate GPA’s. The intervenors contend that this gap is due to various factors, including cultural bias in the LSAT and a psychological phenomenon experienced by underrepresented minority test-takers known as “stereotype threat.” The court is unable to find that anything in the content or design of the LSAT biases the test for or against any racial group. If such a bias exists, it was not proved at trial. Jay Rosner gave some testimony about “white preference” and “black preference” questions on the SAT (not the LSAT). Three of these questions appeared in newspaper articles in 1997 and 1999, while Mr. Rosner found others in unspecified “ ‘88–‘89 ETS data.” See Exhibits 202–210. The court is unable to give *867 any weight to this testimony, as Mr. Rosner is not an expert in test design. Nor did he claim to have studied, or to have the expertise to study, the issue of bias in standardized tests. Professor Shapiro testified generally as to how pre-testing procedures can be used to perpetuate a test-score gap, but he did not testify that such procedures are used in connection with the LSAT. Professor Shapiro and David White testified about the existence of the LSAT gap, but they did not demonstrate to the court’s satisfaction that the gap is due to the selection of the test questions or the design of the test.
The intervenors have also suggested that underrepresented minority students do less well than Caucasians on the LSAT, and on other standardized tests, because of a psychological phenomenon known as “stereotype threat.” No witnesses testified directly on this subject. However, defendants did file a report by Dr. Claude Steele, a psychology professor at Stanford University who has done some research in this area. See Appendix in support of defendants’ motion for summary judgment on grounds of qualified immunity, volume 3. Professor Steele writes that stereotype threat
refers to the experience of being in a situation where one recognizes that a negative stereotype about one’s group is applicable to oneself. When this happens, one knows that one could be judged or treated in terms of that stereotype, or that one could inadvertently do something that would confirm it. In situations where one cares very much about one’s performance or related outcomes—as in the case of serious students taking the SAT—this threat of being negatively stereotyped can be

upsetting and distracting. Our

research confirms that when this

threat occurs in the midst of taking

a high stakes standardized test, it

directly

interferes

with

performance.

Steele Report, p. 7. Professor Steele indicates that he once conducted an experiment where black and white Stanford University sophomores were given a difficult verbal test, using questions from the advanced Graduate Record Examination in literature. When the students were told that their ability was being tested, the black students performed “dramatically worse” than did the white students. But when the students were told that the test was a “problem-solving task,” not a measure of ability, black and white performance was the same. Id. at 8. Professor Steele indicates that he has performed other research which “shows stereotype threat to be a very general effect, one that is undoubtedly capable of undermining the standardized test performance of any group negatively stereotyped in the area of achievement tested by the test.” Id. at 9.

Due to the sparseness of the evidence on this issue, the court is unable to determine whether stereotype threat explains any part of the gap between Caucasian and underrepresented minority LSAT scores. Professor Steele’s report describes his research only in the most general terms. He reports the results of only one experiment he performed using the GRE, and he does not indicate when the experiment was done, how many students participated, whether the results were tested for statistical significance, or whether the results were published and subjected to peer review. Nor has Professor Steele provided any evidence, by way of survey data for example, to show that the members of any particular racial group perceive themselves as being the object of a stereotype that expects underachievement. Professor Steele does not quantify the effect of stereotype threat; nor, at least according to this report, has he performed any research on the LSAT. If there is evidence showing that stereotype threat accounts for some of *868 the LSAT gap, it was not produced in this case.

The intervenors’ witnesses offered two explanations for the LSAT gap which the court does find plausible. The first is that the LSAT, and other standardized tests, are written in what Dr. Garcia characterized as “academic English.” Evidence at trial indicated that this causes a problem for underrepresented minority students, many of whom do not speak English, or do not speak standard English, as their first language. The second is that underrepresented minority students are less likely to take an LSAT preparation course, which could increase one’s score. Mr. Rosner testified that underrepresented minority

students enroll in such courses only in “token numbers.” This may well be due to the cost of taking a test preparation course, although Mr. Rosner testified that in his experience underrepresented minority students are simply less aware than are Caucasian students about the benefits such a course can provide.
4.
The intervenors have argued strenuously that the law school’s race-conscious admissions policy does not apply lower academic standards to underrepresented minority applicants than are applied to non-minority applicants. In this view, there is no “double standard” in the admissions process because the UGPA gap and the LSAT gap are attributable to past and present discrimination against underrepresented minorities in the form of segregation in housing and schools, a racially hostile environment at undergraduate institutions, cultural bias in standardized tests, and stereotype threat. That is to say, underrepresented minority applicants are actually performing at a higher academic level than is suggested by their undergraduate grade-point averages and LSAT scores because of the more difficult conditions under which they were obtained. Therefore, the intervenors argue, the law school’s race-conscious admissions policy simply “levels the playing field,” or compensates for the differing levels of adversity, by giving some degree of preference to underrepresented minority applicants.
The court has made its findings on the factual issues relevant to this inquiry and, as noted above, the court concludes that the comparatively lower grades and test scores of underrepresented minorities is attributable, at least in part, to general, societal racial discrimination against these groups. While the court may agree with some of the factual underpinnings of the intervenors’ argument, the legal conclusion they draw therefrom is flawed both as a matter of logic and as a matter of constitutional law.
The logical flaw in the argument is that it assumes all members of the underrepresented minority groups have suffered adversity entitling them to some degree of upward adjustment in their UGPA and LSAT scores. Conversely, the intervenors’ argument assumes that no members of non-minority groups have suffered any such adversity which would entitle them to a similar adjustment in their grades and scores. Of course, neither assumption is correct. Every law school applicant is an individual whose personal history is unique. Some applicants, regardless of their race, may have been the victims of racial discrimination or have attended a

substandard school or have grown up in poverty, while others will have been more fortunate. There is no basis in logic or in the evidence for assuming that all members of some racial groups are victims of adverse circumstances or, conversely, that all members of other racial groups are beneficiaries of privilege.
The legal flaw in the intervenors’ conclusion is even more daunting, and it is this: *869 the Supreme Court has held that the effects of general, societal discrimination cannot constitutionally be remedied by race-conscious decision-making. For example, in Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), the Supreme Court stated that it “never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.”60 See also id. at 276, 106 S.Ct. 1842 (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.”)61 In the present case there has been no evidence, or even an allegation, that the law school or the University of Michigan has engaged in racial discrimination. All of the evidence submitted by the intervenors relates to discrimination on the part of society at large or by entities other than the law school or the University of Michigan. As a matter of federal constitutional law, the law school is not permitted to “level the playing field” in the manner urged by the intervenors. That is, the law school may not consider the race of applicants in order to compensate for the effects of discrimination by others or by society generally.
5.
The intervenors’ other argument in support of the law school’s race-conscious admissions policy is that it is necessary in order to prevent “resegregation.” The intervenors fear that if the law school is prohibited from considering race in admissions, then the number of underrepresented minority students will fall dramatically, perhaps to mere “token” levels. They point to the law schools at Austin and Berkeley, where underrepresented minority enrollment fell sharply following the elimination of affirmative action, as examples of what may occur here.
The court agrees that it would be unfortunate if the number of students from any racial group would decline at the University of Michigan Law School. It is the court’s sincere hope that such consequences can be

avoided, and some evidence adduced at trial suggested that they can be. Dr. Garcia testified that Berkeley’s school of education has succeeded in constituting a class that is 28% minority by increasing its recruiting efforts and decreasing its reliance on standardized test scores. At the most selective law schools in the University of California system, the underrepresented minority population increased *870 from 9.3% of the entering class in 1999 to 10.5% in 2000. See Exhibit 132. Throughout the University of California system, underrepresented minority admissions decreased just one percent from 1995 to 2000, although one must recognize the significant shift of the underrepresented minority student population from the more to the less selective campuses during this time period. See Exhibit 213.

Regardless of one’s analysis of the admissions data in California and Texas, the constitutionality of the current admissions system at the University of Michigan Law School does not turn on the predicted consequences of instituting a race-blind admissions system. The current system is either constitutional or it is not. The court is unaware of any precedent for the proposition that a constitutional challenge to a voluntarily adopted racial classification may be defeated by the argument that elimination of the classification will or may have undesirable consequences, be they political, social, economic or otherwise.62 If undesirable consequences are likely or even certain to occur, the answer is not to retain the unconstitutional racial classification but to search for lawful solutions, ones that treat all people equally and do not use race as a factor.

One such solution may be to relax, or even eliminate, reliance on the LSAT. The evidence presented at trial indicated that the LSAT predicts law school grades rather poorly (with a correlation of only 10–20%) and that it does not predict success in the legal profession at all. If, as its admissions policy states, the law school seeks students who “have substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law,” one must wonder why the law school concerns itself at all with an applicant’s LSAT score. Defense counsel, and counsel for the intervenors, asserted at trial that the American Bar Association (ABA) and the Association of American Law Schools (AALS) will not accredit law schools which do not require applicants to submit an LSAT score. This is not entirely accurate. Standard 503 of the ABA’s Standards for the Approval of Law Schools states:

A law school shall require all

applicants to take an acceptable test

for the purpose of assessing the

applicants’

capability

of

satisfactorily completing its

education program. A law school that is not using the Law School Admission Test sponsored by the Law School Admission Council shall establish that it is using an acceptable test.
Section 6–2 of the AALS bylaws, which covers law school admissions, states:
a. A member school shall admit only those applicants who appear to have the capacity to meet its academic standards.
b. In order that appropriate intellectual rigor may be maintained, a member school shall admit to its first professional degree program only those applicants *871 who have the level of intellectual maturity and accomplishment normally demonstrated by the award of an undergraduate degree.
c. A member school shall deal fairly with applicants for admission. Exhibit 31. Thus, neither accrediting organization requires law schools to require applicants to take the LSAT. While the ABA does require law schools to “require all applicants to take an acceptable test,” such as the LSAT, it does not require that law schools give the test results any particular weight.63
Another solution may be for the law school to relax its reliance on undergraduate GPA. The law school’s admissions policy acknowledges that, even in combination, the LSAT score and undergraduate GPA are “far from perfect” predictors of success in law school. In fact, the policy asserts that the correlation between the index score and first-year law school grades is merely 27%. See Exhibit 4, Admissions Policy, p. 3. The policy also notes the obvious fact that high undergraduate grades may overstate an applicant’s academic achievements or promise, and that low grades may understate them. To determine the significance of an applicant’s undergraduate GPA, the law school’s admissions officers say they consider such factors as the difficulty of the course work and the reputation of the undergraduate institution. The law school may be able to counterbalance some of the negative effect of the UGPA gap by also determining whether individual applicants have had to overcome any particularly challenging or difficult obstacles. So long as the law school acknowledges that such obstacles may confront an applicant of any race, consideration might be given to such things as growing up in difficult family circumstances, attending underfunded public schools, or learning English as a second language.
Another solution may be for the law school to reduce or

eliminate the preference now given to the sons and daughters of University of Michigan alumni. The current admissions director testified that applicants with a family connection to alumni are given “careful consideration,” although this factor adds nothing in terms of diversity. Common sense would suggest that a preference of this nature perpetuates past imbalances and has no connection to any measure of “merit.”
In this regard, the court would make the obvious observation that, ultimately, the law school student population naturally will become racially diverse under a race-blind admissions system when the gaps in LSAT scores, undergraduate GPA’s, and other measures of academic performance are eliminated by investing greater educational resources in currently under-performing primary and secondary school systems. Dr. Garcia testified to some of the efforts being made in this regard in California. This is a social and political matter, which calls for social and political solutions. The solution is not for the law school, or any other state institution, to prefer some applicants over others because of race.
Whatever solution the law school elects to pursue, it must be race neutral. The focus must be upon the merit of individual applicants, not upon assumed characteristics of racial groups. An admissions policy that treats any applicants differently from others on account of their race is unfair and unconstitutional. As a matter of constitutional law, such a system cannot be justified on the grounds that certain races are at a greater competitive disadvantage *872 than others because of discrimination or other societal conditions which may have created an “uneven playing field.” Nor can a race-conscious system be upheld based on the predicted consequences of moving to a race-blind system. In sum, the court must reject the arguments raised by the intervenors in defense of the law school’s current admissions policy.
IV. Conclusion The Supreme Court has often stated that “distinctions between citizens solely because of their ancestry [are] odious to a free people whose institutions are founded upon the doctrine of equality.” Wygant, 476 U.S. at 273, 106 S.Ct. 1842, quoting Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). In our history, such distinctions generally have been used for improper purposes. Even when used for “benign” purposes, they always have the potential for causing great divisiveness. For these reasons, all racial distinctions are inherently suspect and presumptively invalid. This presumption may be overcome only upon a showing that the distinction in question serves a compelling state interest, and that the use of race is narrowly tailored to the

achievement of that interest. It does not suffice for the interest in question merely to be important, beneficial, or laudable; the interest must be compelling.
For the reasons stated in this opinion, the court concludes that the University of Michigan Law School’s use of race as a factor in its admissions decisions is unconstitutional and a violation of Title VI of the 1964 Civil Rights Act. The law school’s justification for using race—to assemble a racially diverse student population—is not a compelling state interest. Even if it were, the law school has not narrowly tailored its use of race to achieve that interest. Nor may the law school’s use of race be justified on the alternative grounds urged by the intervenors—to “level the playing field” between applicants of minority and non-minority races—because the remedying of societal discrimination, either past or present, has not been recognized as a compelling state interest.64 Accordingly,
IT IS ORDERED that plaintiffs’ request for declaratory relief is granted. The court finds and declares that the University of Michigan Law School’s use of race in its admissions decisions violates the Equal Protection Clause

of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.
IT IS FURTHER ORDERED that plaintiffs’ request for injunctive relief is granted. The University of Michigan Law School is hereby enjoined from using applicants’ race as a factor in its admissions decisions.
IT IS FURTHER ORDERED that the parties’ various motions for summary judgment are denied, except that the motion of the individual defendants for summary judgment on grounds of qualified immunity is granted.
IT IS FURTHER ORDERED that the clerk schedule the damages phase of the trial.
*873 EXHIBIT A

Parallel Citations

153 Ed. Law Rep. 186

Footnotes

1

Unless indicated otherwise, the court uses the terms “minorities,” “minority groups,” and “underrepresented minorities”

interchangeably in this opinion to refer to African American, Native American, Mexican American and mainland Puerto Rican

students, as these are identified in University of Michigan Law School documents as the groups which receive special attention in

the admissions process.

2

Section 1 of the Fourteenth Amendment to the Constitution states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws.

3

42 U.S.C. § 2000d states: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance.”

4

These groups are United For Equality and Affirmative Action (UEAA), the Coalition to Defend Affirmative Action By Any Means

Necessary (BAMN), and Law Students for Affirmative Action (LSAA).

5

For easy reference a copy of this grid, which shows admissions information for 1991, is attached to this opinion as Exhibit A.

6

For example, in 1991 there were 499 applicants with an LSAT score between 38 and 41 and a UGPA between 3.50 and 3.74; and

of these, 36 were offered admission. In later years, the LSAT was scored on a scale between 120 and 180 points. The grids for the

years at issue in this case (1995 to the present) still show UGPA in quarter-point increments on the vertical axis, as was done in

earlier years. But the LSAT scores, which are still shown along the horizontal axis, are presented in the following increments: no

LSAT, 120–145, 146–147, 148–150, 151–153, 154–155, 156–158, 159–160, 161–163, 164–166, 167–169, and 170–above.

7

The identical statement appears at page 81 of the law school bulletin for 1995–1997. See Trial Exhibit 7.

8

Trial Exhibit 53 is a document entitled “The History of Special Admissions at the University of Michigan Law School,

1966–1981.” This document traces the history of the law school’s efforts to enroll a certain percentage of students from particular,

identified minority groups during this time period. Beginning in 1966, the law school faculty became concerned about the low

numbers of black students. For the first time, “those who are Negroes or from disadvantaged backgrounds” who were on the

waiting list for admission were given preference. Id. at 5. In 1970, the dean of admissions indicated he would seek to admit black

and Mexican–American students “who fall below the admission standards regularly applied” in sufficient numbers to constitute

10% of the entering class. Id. at 16. Exhibit 53 shows that from the late 1960s to the early 1980s the law school faculty frequently

debated the issue of special admissions—the reasons for the policy, how it should be administered, the minority groups to which it

was directed, and the “target” percentage the law school should aim to achieve. Over the years, the law school faculty apparently

reached a consensus that black and Hispanic students should constitute between 10% and 12.5% of the entering class. See id. at 16,

19, 22, 27, 31, 34, 45, 48–50, 57. In 1975 the law school faculty formally adopted a special admissions policy that identified

“Blacks, Chicanos, American Indians, and Puerto Rican Americans” as the groups which “have been substantially

underrepresented in the student body and the legal profession” and directed that members from these groups constitute 10–12% of

the entering class. See id. at 48–49. The dean of the law school, Terrance Sandalow, reaffirmed the 10–12% goal in a memorandum

to the faulty in 1978. See id. at 53–55.

9

In 1989, regular admissions had a median LSAT score of 43 and a median UGPA of 3.60, while special admissions had a median

LSAT score of 35 and a median UGPA of 3.06. In 1990, regular admissions had a median LSAT score of 45 and a median UGPA

of 3.60, while special admissions had a median LSAT score of 38 and a median UGPA of 3.16.

10 Mr. Shields also acknowledged that, at his deposition, he testified that race “generally” explains the difference in admissions rates between minority and non-minority groups. The comparison during Mr. Shields’ cross-examination was the difference in admission rates between white and black applicants with LSAT scores between 154 and 169 and with UGPA’s between 3.25 and 4.00. In these cells nearly all of the African American applicants (48 of 52) were accepted, whereas a much smaller percentage of the Caucasian applicants (379 of 1437) were accepted. In the same cluster of cells, 30 of 40 Mexican American applicants were accepted; 7 of 14 Native American applicants were accepted; and 3 of 5 Puerto Rican applicants were accepted.

11 See, e.g., Exhibit 112 (1988–1989), Exhibit 113 (1989–1990), Exhibit 114 (1990–1991), Exhibit 115 (1992), Exhibit 116 (1993). Exhibit 14 shows that in the 1994 entering class, white students had a median LSAT score of 168 and a median UGPA of 3.57, while the corresponding figures were 157 and 2.97 for African American students, and 162 and 3.26 for Mexican American students. In the 1995 entering class, white students had a median LSAT score of 167 and a median UGPA of 3.59, while the corresponding figures were 155 and 3.18 for African American students, and 159 and 3.35 for Mexican American students.
12 It was this committee’s report and recommendation that became the law school’s official admissions policy when it was adopted, unanimously, by the law faculty in April 1992. See Exhibit 4 (cover sheet).
13 Dean Lehman conceded that the different admission rates for different racial groups is “partly indicative” of the extent to which race is considered. Referring to Ex. 15 (the law school’s 1995 grids), Dean Lehman acknowledged that all African American applicants with an LSAT score of 159–160 and a UGPA of 3.00 and above were admitted, whereas only one of 54 Asian applicants and four of 190 Caucasian applicants with these qualifications were admitted.
14 The other members of the committee were Don Herzog, Jeffrey Lehman, Don Regan, Ted Shaw and Dennis Shields. See Exhibit 4, p. 14.
15 Professor Lempert indicated that other groups, such as Asians and Jews, have also been discriminated against, but they were not mentioned in the law school’s admissions policy because members of these groups are already being admitted to the law school in significant numbers.
16 Dr. Larntz’ expert reports were admitted as Exhibits 137–142. Exhibit 143 consists of the tables and charts of Dr. Larntz’ “powerpoint presentation.”
17 Dr. Raudenbush’s expert reports were admitted as Exhibits 145–150.
18 The law school grids also indicate the “yield,” that is, the number of admittees who enrolled.
19 For example, separate grids are compiled for Native Americans, African Americans, Caucasian Americans, Mexican Americans, Hispanic Americans, Asian/Pacific Island Americans, Puerto Rican Applicants, and for other groups as well.
20 In 1995, the relative odds of acceptance were 61.37 for Native Americans, 257.93 for African Americans, 81.90 for Mexican Americans, and 37.86 for Puerto Ricans. In 1996, the relative odds were 29.81 for Native Americans, 313.59 for African Americans, 81.46 for Mexican Americans, and 45.40 for Puerto Ricans. In 1997, the relative odds were 37.37 for Native Americans, 53.49 for African Americans, 17.55 for Mexican Americans, and 32.78 for Puerto Ricans. In 1998, the relative odds were 23.98 for Native Americans, 132.16 for African Americans, 23.53 for Mexican Americans, and 17.84 for Puerto Ricans. See Exhibit 137, pp. 23–26. In 1999, the relative odds were 32.05 for Native Americans, 206.45 for African Americans, 43.77 for Mexican Americans, and 41.71 for Puerto Ricans. See Exhibit 139, p. 21. And in 2000, the relative odds were 24.61 for Native Americans, 443.26 for African Americans, 16.99 for Mexican Americans, and 28.63 for Puerto Ricans. Dr. Larntz cautioned that the relative odds do not express the “number of times greater” a minority applicant’s chances of admission are as compared to those of a Caucasian applicant. For the 1995 relative odds, for example, if a Caucasian applicant has a 6–7% chance of being admitted, an African American with a similar index score would have a 93% chance of being admitted. If a Caucasian applicant has a 10% chance of being admitted, a Mexican American applicant with a similar index score would have a 90% chance of being admitted.
21 See Exhibit 137, Figures 9, 10, 11, 14, 17, 18, 19, 22, 25, 26, 27, 30, 33, 34, 35, 38; Exhibit 139, Figures 3, 4, 5, 8; Exhibit 141, Figures 3, 4, 5, 8.
22 Dr. Larntz testified that he disregarded these cells because they do not contain “comparative information.” That is, if all applicants in a particular cell are accepted, or if all are rejected, then there is no basis for calculating the odds ratio.
23 Professor Lempert has written that the law school has considered applicants’ race since 1966. See Exhibit 166, p. 2.
24 This is the reason stated in the policy itself, and it is the reason given by defendants’ witnesses and counsel. However, the court notes that as recently as 1996–1997 the law school’s bulletin indicated that one reason for the affirmative action policy has been to further “the public interest in increasing the number of lawyers from groups which the faculty identifies as significantly underrepresented in the legal profession.” Exhibit 6, p. 81.
25 The percentages range from a low of 5.8% in 1974 to a high of 12.5% in 1977, but the mean percentage of underrepresented minority students from 1973 to 1985 was 9.7%.
26 The percentages range from a low of 5.4% in 1998 to a high of 19.2% in 1994, but the mean percentage of underrepresented

minority students from 1986 to 1999 was 12.6%.
27 From the graduation years 1986 to 1999, underrepresented minorities constituted at least 9.8% (1999) and as much as 19.2% (1994) of the class, except in 1998 when the percentage dipped to 5.4%. See Exhibit 97.
28 While plaintiffs claim that the law school’s policy violates both the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, the legal analysis under the two claims is the same. See Bakke, 438 U.S. at 287, 98 S.Ct. 2733; Johnson v. Board of Regents, 106 F.Supp.2d 1362, 1366 (S.D.Ga.2000).
29 Justice Powell found U.C. Davis’ special admissions program invalid under the Fourteenth Amendment, see Bakke, 438 U.S. at 320, 98 S.Ct. 2733; while the Stevens group avoided the constitutional issue and found that the program violated Title VI, see id. at 421, 98 S.Ct. 2733.
30 The difficulty of this task was perhaps best summarized by the Fifth Circuit in United States v. City of Miami, 614 F.2d 1322, 1337 (5th Cir.1980), which stated: “We frankly admit that we are not entirely sure what to make of the various Bakke opinions. In over one hundred and fifty pages of United States Reports, the Justices have told us mainly that they have agreed to disagree.”
31 See Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
32 U.C. Davis argued that its special admissions program served four purposes: “(i) reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession; (ii) countering the effects of societal discrimination; (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body.” Bakke, 438 U.S. at 306, 98 S.Ct. 2733.
33 The Brennan group stated that it “join[ed] Parts I and V–C of our Brother POWELL’s opinion and three of us agree with his conclusion in Part II that this case does not require us to resolve the question whether there is a private right of action under Title VI.” 438 U.S. at 328, 98 S.Ct. 2733.
34 The court acknowledges that the status of Justice Powell’s opinion has been the subject of much debate and disagreement. Some courts have concluded that the diversity rationale is part of Bakke ‘s holding. See, e.g., Smith v. University of Wash. Law Sch., 233 F.3d 1188, 1200–1201 (9th Cir.2000); Gratz v. Bollinger, 122 F.Supp.2d 811, 819–21 (E.D.Mich.2000). Others have reached the opposite conclusion. See, e.g., Hopwood v. State of Texas, 78 F.3d 932, 944–45 (5th Cir.1996); Johnson v. Board of Regents of the Univ. Sys. of Georgia, 106 F.Supp.2d 1362, 1368–69 (S.D.Ga.2000). Other courts have avoided deciding the issue. See, e.g., Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123, 130 (4th Cir.1999) (“whether diversity is a compelling governmental interest remains unresolved, and in this case, we also choose to leave it unresolved”); Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir.1998) ( “we need not definitively resolve this conundrum today”).
35 This statement appears in Part III–A of Justice O’Connor’s opinion, in which Justices Rehnquist, White and Kennedy joined. Justice Scalia, in a concurring opinion, wrote that “[a]t least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb ... can justify an exception to the principle embodied in the Fourteenth Amendment that ‘[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.’ ” 488 U.S. at 521, 109 S.Ct. 706 (citations omitted). Thus, four members of the Court expressed the view that racial classifications are permissible only to remedy past discrimination, and a fifth expressed the view that they are permissible only in cases of social emergency.
36 For example, race-based hiring or promotion programs have been upheld where necessary to correct a racial imbalance caused by documented race discrimination by a particular agency or employer. See, e.g., United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987); Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). Race-based student assignments have been upheld where necessary to correct a racial imbalance, or a misallocation of school resources, caused by de jure racial segregation. See, e.g., Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
37 Professor Syverud’s report is among those contained in volume 3 of the appendix filed by defendants in support of their renewed motion for summary judgment on grounds of qualified immunity.
38 Professor Terrance Sandalow, former dean of the law school and long-time law professor, has written in this connection: Students learn from one another in different ways. In the course of discussion, whether in the classroom or in dormitory ‘bull sessions,’ participants are likely to be exposed to unfamiliar ideas. My own experience and that of colleagues with whom I have discussed the question, experience that concededly is limited to the classroom setting, is that racial diversity is not responsible for generating ideas unfamiliar to some members of the class. Students do, of course, quite frequently express and develop ideas that others in the class have not previously encountered, but even though the subjects I teach deal extensively with racial issues, I cannot recall an instance in which, for example, ideas were expressed by a black student that have not also been expressed by white students. Black students do, at times, call attention to the racial implications of issues that are not

facially concemed with race, but white and Asian–American students are in my experience no less likely to do so. Terrance Sandalow, “Identity and Equality, Minority Preferences Reconsidered,” 97 Mich. L.Rev. 1874, 1906–1907 (1999).
39 In this connection it is worth noting that the law school, like U.C. Davis, “does not purport to have made, and is in no position to make such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality.” Bakke, 438 U.S. at 309, 98 S.Ct. 2733.
40 See the University of Michigan Law School Bulletin, 1996–1997 (Exhibit 6), p. 81; the University of Michigan Law School Bulletin, 1995–1997 (Exhibit 7), p. 81. No such statement appears in the University of Michigan Law School Bulletin, 1997–1999 (Exhibit 8), p. 85.
41 A close fit is lacking for another reason—namely, that there is no basis for believing that a particular member of any underrepresented minority group is “particularly likely to have experiences and perspectives of special importance to our mission.” Exhibit 4, 1992 Admissions Policy, p. 12. One cannot assume, for example, that a particular African American applicant has been the victim of race discrimination or that a particular Mexican American applicant has grown up in an economically depressed neighborhood.
42 Winston Churchill, in a radio broadcast in October 1939. J. Bartlett, Familiar Quotations 620 (1968).
43 Of course, whether plaintiffs actually should be awarded any damages is a question to be resolved in the next phase of the trial. Now that defendants’ liability has been established, defendants may still defeat plaintiffs’ claim for compensatory damages by showing that plaintiffs would not have been admitted under a race-blind admissions policy. See Hopwood, 78 F.3d at 955–57 (discussing burden of proof under Mt. Healthy ).
44 In this connection Professor Orfield meant racial separation, not de jure segregation.
45 The percentage of African American students increased to 1.8% (nine students) in 1998 but fell slightly to 1.7% (nine students) in 1999.
46 The percentage of Native American students increased to 1.0% (five students) in 1998 but fell to 0.4% (two students) in 1999.
47 The percentage of Hispanic students increased to 7.6% (37 students) in 1998 and to 8.1% (42 students) in 1999.
48 By this Professor Orfield was referring to the University of California at Berkeley, the University of California at Davis, and the University of California at Los Angeles.
49 Professor Orfield has written: The reversal of affirmative admissions in higher education can drastically reduce black, Latino, and American Indian enrollment on highly selective campuses. The increased use of tests and grades as entrance standards will tend to exacerbate the existing inequities in U.S. society. If affirmative action is outlawed nationally, as it has been in Texas, the impact on access to leading public and private universities would be enormous. Many of our most able students would find themselves on campuses overwhelmingly dominated by white and Asian students. The severe isolation characteristic of our more affluent suburbs would become the rule in the institutions that train the leaders of our society and our professions. This threatens critical educational functions of universities and their ability to fully serve their communities.
Exhibit 167D, G. Orfield and E. Miller, Chilling Admissions 14 (1998).
50 Additional testimony about this history of racial discrimination in the United States was provided by Dr. Eric Foner, a professor of American history at Columbia University.
51 The University of California has campuses at Los Angeles, Berkeley, San Diego, Irvine, Davis, Santa Barbara, Santa Cruz, and Riverside.
52 Exhibit 214 shows applications, admissions, admissions rates, and enrollment figures for the years 1995 to 2000 at all of the University of California campuses by the race of the applicants. It appears that the most significant declines in admission rates occurred among African Americans, Native Americans, Chicanos and Latinos at Berkeley, Los Angeles and San Diego. The court notes that admission rates of whites and Asian Americans also dropped at most of the campuses over the same time period, albeit less dramatically. At San Diego, for example, the admission rate for Asian Americans fell from 62.8% in 1995 to 46.1% in 2000. At Santa Barbara, the admission rate for whites fell from 85.3% in 1995 to 48.9% in 2000.
53 Professor Lempert found that the law school’s “admissions index” (combination of LSAT score and UGPA) was an equally poor predictor of career success for both minority and white alumni. See Exhibit 166, pp. 94–99 (Tables 29A, 29B, 29C, 30A, 30B, 30C).

54 While not introduced at trial, defendants did submit a report from Dr. Thomas Sugrue, a professor of history and sociology at the University of Pennsylvania, in support of their motion for summary judgment on grounds of qualified immunity. Professor Sugrue cites census data showing the significant disparities along racial lines in educational attainment, unemployment rates, income levels, poverty rates, and household net worth. See Sugrue Report, pp. 50, 53–57.
55 The median undergraduate GPA for accepted applicants, by race, is shown in Exhibit 137, p. 21; Exhibit 139, p. 19; and Exhibit 141, p. 16. The smallest difference between the Caucasian UGPA and an underrepresented minority group UGPA was .05 (Caucasian vs. Puerto Rican in 1996, and Caucasian vs. Native American in 1998). The largest difference was .41 (Caucasian vs. African American in 2000). Averaging the figures over the six years, one sees that the gap between the Caucasian UGPA was .21 for Native Americans, .32 for African Americans, .14 for Mexican Americans, and .22 for Puerto Ricans.
56 The median LSAT scores for accepted applicants, by race, is shown in Exhibit 137, p.22; Exhibit 139, p. 20; and Exhibit 141, p. 17. The smallest difference between the Caucasian LSAT score and an underrepresented minority group LSAT score was three points (Caucasian vs. Native American in 2000). The largest different was 12 points (Caucasian vs. African American in 2000). Averaging the figures over the six years, one sees that the point gap between the Caucasian LSAT score was 6.8 for Native Americans, 9.6 for African Americans, 7 for Mexican Americans, and 7.6 for Puerto Ricans.
57 All 47 of these students were African American or Hispanic. No Native Americans participated in the focus groups. See Exhibit 157, Figure 2.
58 At trial Professor Allen indicated that focus groups 1, 2, 5, 8, 9 and 11 were conducted at The University of Michigan; focus groups 4, 6 and 10 were conducted at Berkeley; focus groups 3 and 7 were conducted at Harvard; and focus group 12 was conducted at Michigan State University.
59 The magnitude of this flaw is suggested by Exhibit 18, which identifies all of the undergraduate schools which graduated students who entered the law school’s 1995 class. Of the 337 students in that class, only 85(25%) came from the four “feeder” institutions studied by Professor Allen. The remaining 252 students (75%) came from 106 other colleges and universities which were not included in the study.
60 This statement is from Part I of Justice Powell’s opinion, which was joined by Justices Burger and Rehnquist. Justice O’Connor filed a concurring opinion in which she specifically joined Part I of Justice Powell’s opinion, see 476 U.S. at 294, 106 S.Ct. 1842 and “agree[d] with the plurality that a governmental agency’s interest in remedying ‘societal’ discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster under strict scrutiny.” 476 U.S. at 288, 106 S.Ct. 1842. Justice White also concurred in the judgment and wrote that “[n]one of the interests asserted by the Board, singly or together, justify this racially discriminatory layoff policy and save it from the strictures of the Equal Protection Clause.” 476 U.S. at 295, 106 S.Ct. 1842. Thus, five members of the court indicated that the Fourteenth Amendment does not permit government to make racial classifications in order to remedy societal discrimination.
61 This statement is from Part III–A of Justice Powell’s opinion, in which Justices Burger, Rehnquist and O’Connor joined. Justice White, in a concurring opinion, tacitly agreed with the statement by indicating that “[n]one of the interests asserted by the Board, singly or together, justify this racially discriminatory layoff policy and save it from the structures of the Equal Protection Clause.” 476 U.S. at 295, 106 S.Ct. 1842.
62 This is not a case where a challenge to a desegregation order is opposed on the grounds that the order must be kept in place lest the school district revert to a racially segregated state. See, e.g., Belk v. Charlotte–Mecklenburg Bd. of Educ., 233 F.3d 232 (4th Cir.2000) (opinion vacated). Nor, with all due respect to the intervenors’ counsel, can the present admissions policy be defended on the grounds that its elimination would result in the creation of an all-white campus. In this connection the intervenors have raised the specter of Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950), in which the Supreme Court struck down the de jure exclusion of blacks from the University of Texas Law School and the creation of a separate law school for black students. There is simply no comparison between the de jure segregation at issue in Sweatt and a race-blind admissions policy which may admit fewer underrepresented minority students than are admitted by a race-conscious policy.
63 The court did not hear any testimony as to whether the University of Michigan Law School has considered reducing its reliance on the LSAT or whether it has considered challenging the ABA’s requirement that applicants take “an acceptable test.”
64 The court notes again that no party in this case has alleged, or offered any evidence to suggest, that the law school or the University of Michigan has committed any acts of discrimination against any minority group which might warrant a race-based remedy.

 
 Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 1 of 33
CLOSED,APPEAL
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:97−cv−75928−BAF

Grutter v. Bollinger, et al Assigned to: District Judge Bernard A. Friedman Demand: $0
Plaintiff

Date Filed: 12/03/1997 Date Terminated: 03/16/2004 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Barbara Grutter

represented by David F. Herr Mason, Edelman, 90 S. Seventh Street 3300 Norwest Center Minneapolis, MN 55402−4140 612−672−8200 Fax: 612−672−8200 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kerry L. Morgan Pentiuk, Couvreur, 2915 Biddle Avenue Suite 200 Wyandotte, MI 48192 734−281−7100 Fax: 734−281−7102 Email: kmorganesq@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kirk O. Kolbo Maslon, Edelman, 90 S. Seventh Street 3300 Wells Fargo Center Minneapolis, MN 55402−4140 612−672−8200 Email: kirk.kolbo@maslon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick J. Wright Mackinac Center for Public Policy 140 West Main Street P.O. Box 568 Midland, MI 48640 989−631−0900 Fax: 989−631−0964 Email: wright@mackinac.org TERMINATED: 04/29/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Lee Bollinger

represented by John A. Payton Wilmer, Cutler, 2445 M Street, N.W. Washington, DC 20037−1420

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 2 of 33

202−663−2000 Fax: 202−663−2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John H. Pickering Wilmer, Cutler, 2445 M Street, N.W. Washington, DC 20037−1420 202−663−2000 Fax: 202−663−2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard M. Niehoff 130 S. First Steet 4th Floor Ann Arbor, MI 48104 734−418−4246 Fax: 734−418−4247 Email: lniehoff@honigman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip J. Kessler Thompson &Knight LLP 2000 Town Center, Suite 1900 Southfield, MI 48075 248−233−0852 Fax: 214−999−1576 Email: Philip.Kessler@tklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart F. Delery Wilmer, Cutler, 2445 M Street, N.W. Washington, DC 20037 202−663−6000 Fax: 202−663−6000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Sherburne Wilmer, Cutler, 2445 M Street, N.W. Washington, DC 20037 202−663−6000 Fax: 202−663−6000 ATTORNEY TO BE NOTICED

Defendant Jeffrey Lehman

represented by John A. Payton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John H. Pickering (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 3 of 33

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Philip J. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Sherburne (See above for address) ATTORNEY TO BE NOTICED

Defendant Dennis Shields

represented by John A. Payton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John H. Pickering (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip J. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Sherburne (See above for address) ATTORNEY TO BE NOTICED

Defendant
University of Michigan Regents of

represented by John A. Payton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John H. Pickering (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip J. Kessler

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 4 of 33

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Sherburne (See above for address) ATTORNEY TO BE NOTICED

Defendant
University of Michigan Law School TERMINATED: 04/02/1999

represented by John A. Payton (See above for address) TERMINATED: 04/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) TERMINATED: 04/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Sherburne (See above for address) TERMINATED: 04/02/1999 ATTORNEY TO BE NOTICED

V. Intervenor Defendant Kimberly James
Intervenor Defendant Farah Mongeau
Intervenor Defendant Jeanette Haslett
Intervenor Defendant Raymond Michael Whitlow

represented by Miranda K.S. Massie Scheff &Washington 65 Cadillac Square Suite 3800 Detroit, MI 48226 313−963−1921 Fax: 313−963−1921 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 5 of 33

Intervenor Defendant Shabatayah Andrich
Intervenor Defendant Dena Fernandez
Intervenor Defendant Shalamarel Kevin Killough
Intervenor Defendant Diego Bernal
Intervenor Defendant Julie Fry
Intervenor Defendant Jessica Curtin
Intervenor Defendant James Huang
Intervenor Defendant Heather Bergman
Intervenor Defendant Ashwana Carlisle
Intervenor Defendant Ronald Cruz

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 6 of 33

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Intervenor Defendant Nora Cecilia Melendez

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Irami Osei−Frimpong

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Gerald Ramos

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Arturo Vasquez

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Edward Vasquez

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Vincent Kukua

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Hoku Jeffrey

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Karla Stephens−Dawson Next Friend of Karlita Stephens

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Mary Gibson Next Fried of Yolanda Gibson

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Herbert Dowdell, Jr. Next Fried of Erika Dowdell

represented by Miranda K.S. Massie (See above for address)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 7 of 33

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Paul Aleobua Next Friend of Agnes Aleobua

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Yolanda J. King Next Friend of Cassandra Young

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Jaasi Munanka

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Jodi Marie Masley

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Shannon Ewing

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Julie Kerouac

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Kevin Pimentel

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Bernard Cooper

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Norberto Salinas

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Scott Rowekamp

represented by

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 8 of 33

Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Russ Abrutyn

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Jasmine Abdel−Khalik

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Meera Deo

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Winifred Kao

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Melisa Resch

represented by Lynn B. D'Orio 214 S. Main Street Suite 208 Ann Arbor, MI 48104 734−913−5660 Fax: 734−913−5660 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Oscar De La Torre

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Carol Scarlett

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
United for Equality and Affirmative Action

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 9 of 33

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Intervenor Defendant
Coalition to Defend Affirmative Action by any Means Necessary

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Law Students for Affirmative Action

represented by Miranda K.S. Massie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Movant American Council on Education
Movant United States of America

represented by Alexander E. Dreier Hogan &Hartson 555 13th Street, N.W. Washington, DC 20004−1109 202−637−5600 Fax: 202−637−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Michaelson Hogan &Hartson 555 13th Street, N.W. Washington, DC 20004−1109 202−637−5600 Fax: 202−637−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Routh Hogan &Hartson 555 13th Street, N.W. Washington, DC 20004−1109 202−637−5600 Fax: 202−637−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremiah Glassman U.S. Dept of Justice Civil Rights Division Educational Opportunities Section P.O. Box 65958 Washington, DC 20035−5958 202−305−1582 Fax: 202−305−1582 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn M. Woodruff U.S. Dept of Justice Civil Rights Division Educational Opportunities Section P.O. Box 65958 Washington, DC 20035−5958

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 10 of 33

202−305−1582 Fax: 202−305−1582 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth D. Johnson U.S. Dept of Justice Civil Rights Division Educational Opportunities Section P.O. Box 65958 Washington, DC 20035−5958 202−305−1582 Fax: 202−305−1582 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Ohio, State of

represented by Edward B. Foley Ohio Department of Attorney General 30 E. Broad Street 17th Floor Columbus, OH 43215−3428 614−466−8980 Fax: 614−466−8980 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Association of American Law Schools

represented by Richard A. Wilhelm Dickinson Wright 38525 Woodward Avenue Suite 2000 Bloomfield Hills, MI 48304−2970 248−646−4300 Email: rwilhelm@dickinsonwright.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
National Association of State Universities and Land Grant Colleges

represented by Richard A. Wilhelm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Committee on Institutional Cooperation

represented by Richard A. Wilhelm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Wayne State University

represented by Richard A. Wilhelm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant College Entrance Examination Board

Movant National Association of Scholars

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 11 of 33
Amicus National Association of Social Workers
Amicus Council on Social Work Education
Amicus Association of Baccalaureate Social Work Program Directors, Incorporated
Amicus National Association of Deans and Directors of Schools of Social Work

Date Filed 12/03/1997 12/03/1997 12/03/1997 12/03/1997 12/03/1997 12/03/1997 12/09/1997 12/22/1997 12/22/1997 01/08/1998 02/04/1998 02/04/1998 02/19/1998 03/27/1998 03/27/1998
03/27/1998

# Docket Text
1 COMPLAINT − Receipt # 353648 − Date Fee Received: 12/3/97 (db) (Entered: 12/05/1997)
2 SUMMONS returned executed by personal service on 12/3/97 − answer due 12/23/97 for Lee Bollinger (db) (Entered: 12/05/1997)
3 SUMMONS returned executed by personal service on 12/3/97 − answer due 12/23/97 for Dennis Shields (db) (Entered: 12/05/1997)
4 SUMMONS returned executed by personal service on 12/3/97 − answer due 12/23/97 for Univ MI (db) (Entered: 12/05/1997)
5 SUMMONS returned executed by personal service on 12/3/97 − answer due 12/23/97 for Univ MI Law School (db) (Entered: 12/05/1997)
6 SUMMONS returned executed by personal service on 12/3/97 − answer due 12/23/97 for Jeffrey Lehman (db) (Entered: 12/05/1997)
7 APPEARANCE for defendants of attorney John A. Payton and Jane Sherburne with proof of mailing (ew) (Entered: 12/11/1997)
8 ANSWER by defendants to complaint [1−1] with proof of mailing (lh) (Entered: 12/30/1997)
8 AFFIRMATIVE defenses by defendants with proof of mailing (lh) (Entered: 12/30/1997)
9 DEMAND by plaintiff Barbara Grutter for jury trial with proof of mailing (ls) (Entered: 01/09/1998)
SCHEDULE: by Judge Bernard A. Friedman scheduling conference set for 10:00 2/19/98 (cd) (Entered: 02/04/1998)
10 NOTICE by the court of scheduling conference (ls) (Entered: 02/05/1998)
SCHEDULING conference held − Judge Bernard A. Friedman (cd) (Entered: 02/20/1998)
11 MOTION by Kimberly James to file brief in excess of 20 pages with brief (PP) Modified on 05/27/1999 (Entered: 03/30/1998)
12 ORDER by Judge Bernard A. Friedman granting motion to file brief in excess of 20 pages by Kimberly James [11−1], with proof of mailing (PP) Modified on 05/27/1999 (Entered: 03/30/1998)
13 MOTION by Kimberly James to intervene as party defendant with brief, exhibits, notice of hearing and proof of mailing(PP) Modified on 05/27/1999 (Entered: 03/30/1998)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 12 of 33

04/03/1998 04/09/1998
04/09/1998 04/22/1998 04/23/1998 04/24/1998 04/29/1998 05/04/1998 05/18/1998 05/18/1998 05/28/1998 07/06/1998 07/10/1998 07/15/1998
07/20/1998 07/20/1998 07/23/1998 07/23/1998 07/29/1998

14 NOTICE of deadline for response to motion to intervene as party defendant by Kimberly James [13−1] (ld) Modified on 05/27/1999 (Entered: 04/06/1998)
15 PRETRIAL scheduling order by Judge Bernard A. Friedman − deadline for witness list set for 10/1/98 , deadline for discovery set for 12/15/98 , deadline for filing motions set for 2/26/98 , final pretrial conference set for 2:00 6/16/99 , civil jury trial set for 9:00 6/22/99 (lh) (Entered: 04/10/1998)
SCHEDULING conference held − Judge Bernard A. Friedman (cd) (Entered: 04/14/1998)
16 RESPONSE by plaintiff Barbara Grutter to motion to intervene as party defendant [13−1] (lh) Modified on 05/27/1999 (Entered: 04/23/1998)
18 RESPONSE by Dennis Shields, Jeffrey Lehman and Lee Bollinger to motion to intervene as party defendant [13−1] with proof of mailing (lt) Modified on 05/27/1999 (Entered: 04/27/1998)
17 PROOF of mailing of response to motion [16−1] (lt) Modified on 05/27/1999 (Entered: 04/27/1998)
19 NOTICE of substitution of attorney Kerry L. Morgan in place of attorney Patrick J. Wright for Barbara Grutter (lt) Modified on 05/27/1999 (Entered: 04/30/1998)
20 EXPARTE motion by movants to file a reply brief in excess of (5) pages with brief (ld) Modified on 05/27/1999 (Entered: 05/06/1998)
21 ORDER by Judge Bernard A. Friedman granting motion to file a reply brief in excess of (5) pages by movants [20−1] (bk) Modified on 05/27/1999 (Entered: 05/19/1998)
22 REPLY by movants to response to motion to intervene as party defendant [13−1] with proof of mailing (pd) (Entered: 05/27/1999)
23 PROTECTIVE order by Judge Bernard A. Friedman with stipulation regarding confidentiality (ls) Modified on 05/27/1999 (Entered: 05/29/1998)
24 MEMORANDUM opinion and order by Judge Bernard A. Friedman denying motion to intervene as party defendants by Kimberly James [13−1] (DT) Modified on 05/27/1999 (Entered: 07/07/1998)
25 NOTICE by plaintiff Barbara Grutter of taking deposition of Erica Munzel 6/1/98 @ 9:00 am with proof of mailing (lh) Modified on 05/27/1999 (Entered: 07/13/1998)
26 MOTION by Lee Bollinger, James J Duderstadt, Jeffrey Lehman, Dennis Shields and Regents of the Univ MI for reassignment or alternatively for designating actions as companion cases with brief and proof of mailing (lh) Modified on 05/27/1999 (Entered: 07/15/1998)
27 MOTION by Kimberly James for reconsideration of order [24−1] with brief and proof of mailing (ld) Modified on 05/27/1999 (Entered: 07/21/1998)
28 NOTICE by defendants of taking deposition of Jean Wong on 7/21/98 at 9:00am with proof of mailing (ld) (Entered: 07/21/1998)
30 ORDER by Judge Anna Diggs Taylor assigning motion for reassignment [26−1] to Judges John Feikens and Julian Able Cook, Jr. with proof of mailing (PP) Modified on 05/27/1999 (Entered: 07/28/1998)
29 RESPONSE by plaintiff Barbara Grutter to motion for reassignment [26−1] and for designating actions as companion cases [26−2] with affidavit and attachments (pd) (Entered: 05/27/1999)
REPLY by defendants Univ MI, Univ MI College Lit and James T. Duderstadt to response to motion for reassignment [26−1] and for designating actions as companion cases [26−2] with proof of mailing (pd) Modified on 05/27/1999 (Entered: 05/27/1999)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 13 of 33

07/31/1998
07/31/1998 08/04/1998 08/04/1998 08/04/1998 08/06/1998 08/06/1998
08/07/1998 08/10/1998 08/14/1998 08/14/1998 08/14/1998 08/14/1998 08/17/1998
08/21/1998 08/31/1998 08/31/1998 09/04/1998

MOTION hearing held on motion for reassignment [26−1] and for designating action as companion cases [26−2] − disposition: TAKEN UNDER ADVISEMENT − Judge John Feikens − Court Reporter: Mary Vozniak − Judge Julian Abele Cook also presided over this hearing (cc) Modified on 05/27/1999 (Entered: 08/03/1998)
31 MOTION by plaintiff to certify class and for bifurcation of liability and damage trials with brief, affidavit and proof of mailing (PP) Modified on 05/27/1999 (Entered: 08/04/1998)
32 TRANSCRIPT taken on 7/31/98 of motion hearing (lh) Modified on 05/27/1999 (Entered: 08/04/1998)
33 NOTICE scheduling hearing on motion to certify class and for bifurcation of liability and damage trials by Barbara Grutter [31−1] and requiring the filing of a response (lh) Modified on 05/27/1999 (Entered: 08/05/1998)
SCHEDULE: by Judge Bernard A. Friedman hearing on motion to certify class and for bifurcation of liability and damage trials by Barbara Grutter [31−1] set for 2:00 9/24/98 (cd) (Entered: 08/07/1998)
34 LETTER by counsel for plaintiff regarding submission of a formal legal brief in response to intervenors' motion for reconsideration of order [27−1] (ew) Modified on 05/27/1999 (Entered: 08/06/1998)
35 MEMORANDUM opinion and order by Judges John Feikens and Julian Abele Cook, Jr. concluding that Grutter and Gratz are COMPANION cases under provisions of 83.11(b)(7) [26−1] with proof of mailing (STRIKEN FROM THE DOCKET 8/17/98 − SEE DOCUMENT [42−1] (ew) Modified on 05/27/1999 (Entered: 08/07/1998)
36 MEMORANDUM opinion and order by Judge Bernard A. Friedman denying motion for reconsideration of order [27−1] (DT) Modified on 05/27/1999 (Entered: 08/10/1998)
37 LETTER by Kirk O. Kolbo to Judge Friedman regarding reassignment of cases (DT) Modified on 05/27/1999 (Entered: 08/10/1998)
38 NOTICE of taking deposition of Don Herzog on August 28,1998 at 9:00 a.m. (ls) (Entered: 08/17/1998)
39 NOTICE of taking deposition of Don Regan on August 27, 1998 at 9:00 a.m. (ls) (Entered: 08/17/1998)
40 NOTICE of taking deposition of Thomas Kauper on August 28, 1998 at 9:00 a.m. (ls) (Entered: 08/17/1998)
41 PROOF of mailing of notices of taking deposition (ls) Modified on 05/27/1999 (Entered: 08/17/1998)
42 MEMORANDUM opinion and order by Judge Bernard A. Friedman striking from the docket the 8/8/98 opinion by Judges Feikens and Cook [35−1] denying motion for designating as companion cases by Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger [26−2] with proof of mailing (ls) Modified on 05/27/1999 (Entered: 08/19/1998)
43 NOTICE by plaintiff of taking deposition of Mr. Thomas Kauper 9:00 on 9/3/98 with proof of mailing (ew) (Entered: 08/24/1998)
44 ORDER by Judge Bernard A. Friedman with stipulation, amending hearing date on motion for class certification and for bifurcation of liability and damage trials by Barbara Grutter [33−1] (bk) Modified on 05/27/1999 (Entered: 09/01/1998)
45 APPEAL by intervening defendants of order [36−1] to USCA − FEE: PAID − Receipt #: 367214 (do) Modified on 05/27/1999 (Entered: 09/04/1998)
46 PROOF of mailing of notice of appeal to USCA, Kerry Morgan, John Payton, Leonard Niehoff, Jane Sherburne, Miranda Massie and Mary Vozniak (do) (Entered: 09/04/1998)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 14 of 33

09/04/1998 09/10/1998 09/11/1998 09/15/1998 09/15/1998 09/21/1998 09/22/1998 09/24/1998 09/28/1998 09/28/1998 10/01/1998 10/01/1998 10/01/1998 10/02/1998 10/05/1998 10/09/1998 10/14/1998
10/22/1998
10/26/1998 10/26/1998

47 CERTIFIED copy of appeal notice by intervening defendants [45−1] and docket transmitted to USCA (do) Modified on 05/27/1999 (Entered: 09/04/1998)
48 EXPARTE motion by defendants Univ MI Law School, Univ MI, Dennis Shields, Jeffrey Lehman and Lee Bollinger to file brief in excess of 20 pages with brief (PP) Modified on 05/27/1999 (Entered: 09/14/1998)
49 NOTICE by plaintiff of taking deposition of Law School Admission Council, Inc 10/6/98 at 9:00 a.m. with exhibit A, and proof of mailing. (PP) (Entered: 09/14/1998)
50 ORDER by Judge Bernard A. Friedman granting motion to file brief in excess of 20 pages by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI and Univ MI Law School [48−1] (RH) Modified on 05/27/1999 (Entered: 09/16/1998)
51 RESPONSE by defendants to motion to certify class and for bifurcation of liability and damage trials [31−1] with exhibits A−F (pd) (Entered: 05/27/1999)
52 ACKNOWLEDGEMENT from USCA of receipt of appeal notice and docket [47−1][45−1] − appeal case # 98−2009 (DT) (Entered: 09/22/1998)
53 ORDER by Judge Bernard A. Friedman with stipulation amending briefing schedule (DT) (Entered: 09/23/1998)
54 RECORD of appeal notice by intervening defendants [45−1] consisting of: 2 volumes of pleadings; 1 transcript and 0 depositions transmitted to USCA − appeal case # 98−2009 (DT) Modified on 05/27/1999 (Entered: 09/24/1998)
55 ORDER by Judge Bernard A. Friedman and exparte motion for leave to file a reply in excess of 5 pages (lh) Modified on 05/27/1999 (Entered: 09/30/1998)
56 REPLY by plaintiff Barbara Grutter to defendants response to motion to certify class and for bifurcation of liability and damage trials [31−1] with exhibits and proof of mailing (lh) Modified on 05/27/1999 (Entered: 09/30/1998)
57 WITNESS list by plaintiff Barbara Grutter (lh) (Entered: 10/02/1998)
58 TRANSCRIPT order form filed by counsel for intervenor defendants regarding appeal [45−1] requesting transcript: (no hearings) − appeal case # 98−2009 (lh) Modified on 05/27/1999 (Entered: 10/02/1998)
59 REQUEST by plaintiff and defendants for modification of scheduling order (RH) Modified on 05/27/1999 (Entered: 10/05/1998)
60 WITNESS list by defendants with proof of mailing (ew) Modified on 05/27/1999 (Entered: 10/06/1998)
61 PROOF of mailing of [60−1] (ew) Modified on 05/27/1999 (Entered: 10/06/1998)
62 ACKNOWLEDGEMENT from USCA of receipt of appeal notice by intervening defendants [45−1] − appeal case # 98−2009 (ls) Modified on 05/27/1999 (Entered: 10/14/1998)
63 PRETRIAL scheduling order (amended) by Judge Bernard A. Friedman − deadline for witness list set for 12/15/98 , deadline for discovery set for 2/15/99 , deadline for filing motions set for 4/1/99 , final pretrial conference set for 2:00 on 6/16/99 , civil jury trial set for 9:00 on 6/22/99 (ls) Modified on 05/27/1999 (Entered: 10/19/1998)
MOTION hearing held on motion to certify class and for bifurcation of liability and damage trials by Barbara Grutter [31−1] − disposition: taken under advisement − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (cd) (Entered: 10/23/1998)
64 NOTICE by plaintiff Barbara Grutter of taking deposition of the Regents of the Univ of MI and the Unive of MI Law School on 10/29/98 at 1:00 pm with attachments (DT) (Entered: 10/27/1998)
65 NOTICE by plaintiff Barbara Grutter of taking deposition of Allan Stillwagon on 11/6/98 (DT) (Entered: 10/27/1998)

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10/26/1998 10/26/1998 10/29/1998 10/29/1998 11/09/1998 11/12/1998
12/03/1998 12/03/1998 12/04/1998 12/04/1998
12/16/1998 12/29/1998
01/07/1999 01/07/1999
01/14/1999
01/25/1999 01/28/1999
01/28/1999 02/01/1999 02/01/1999

66 NOTICE by plaintiff Barbara Grutter of taking deposition of Kristin Vandenburg on 10/29/98 at 9:30 am (DT) (Entered: 10/27/1998)
67 PROOF of mailing by plaintiff Barbara Grutter of notices of taking depositions (DT) Modified on 05/27/1999 (Entered: 10/27/1998)
68 NOTICE by plaintiff Barbara Grutter of taking deposition of Alissa Leonard on 11/2/98 at 10:30 am (DT) (Entered: 10/30/1998)
69 PROOF of mailing by plaintiff Barbara Grutter of subpoena duces tecum (DT) Modified on 05/27/1999 (Entered: 10/30/1998)
70 NOTICE by plaintiff of taking deposition of Richard O. Lempert 11/5/98 at 10:00 a.m. with proof of mailing. (PP) (Entered: 11/10/1998)
71 SUPPLEMENTAL brief by defendants to motion response [51−1], with attachments A−C and proof of mailing (PP) Modified on 05/27/1999 (Entered: 11/12/1998)
72 ORDER by Judge Bernard A. Friedman and exparte motion for leave to file supplemental memorandum (PP) Modified on 05/27/1999 (Entered: 12/04/1998)
73 SUPPLEMENTAL brief on class certification by plaintiff (PP) (Entered: 12/04/1998)
74 NOTICE by defendants of taking deposition of Dennis Shields 12/7/98 at 9:00 (RH) Modified on 05/27/1999 (Entered: 12/07/1998)
75 SUPPLEMENTAL brief (second) by defendants Univ MI Law School, Univ MI, Dennis Shields, Jeffrey Lehman, and Lee Bollinger in opposition to motion to certify class by Barbara Grutter [31−1] with exhibit and proof of mailing (bk) Modified on 05/27/1999 (Entered: 12/08/1998)
76 WITNESS list by plaintiff Barbara Grutter, with proof of service (RH) (Entered: 12/16/1998)
77 SUPPLEMENTAL record of appeal notice by intervening defendants [45−1] consisting of: 1 volume(s) of pleadings 0 transcript(s) 0 deposition(s) sent to USCA − appeal case # 98−2009 (pleadings 54−76) (RH) Modified on 05/27/1999 (Entered: 12/29/1998)
78 NOTICE by plaintiff Barbara Grutter of taking deposition of Jeffrey Lehman @ 9:00am on 01/20/99; NSI with proof of service (bk) (Entered: 01/07/1999)
79 MEMORANDUM opinion and order by Judge Bernard A. Friedman granting motion to certify class and for bifurcation of liability damage trials by Barbara Grutter [31−1] (bk) Modified on 05/27/1999 (Entered: 01/08/1999)
80 NOTICE (amended) by plaintiff of taking deposition of Jeffrey Lehman 1/21/99 at 9:00 a.m. with proof of mailing (PP) Modified on 05/27/1999 (Entered: 01/14/1999)
81 NOTICE by plaintiff Barbara Grutter of taking deposition of Derek Bok 01/28/99 @ 9:00 with proof of mailing (bk) Modified on 05/27/1999 (Entered: 01/26/1999)
82 NOTICE by plaintiff Barbara Grutter of taking deposition of Theodore M. Shaw @10:00am on 02/03/99 with proof of mailing(bk) Modified on 05/27/1999 (Entered: 01/29/1999)
83 WITNESS list by plaintiff Barbara Grutter with proof of mailing (bk) Modified on 05/27/1999 (Entered: 01/29/1999)
84 NOTICE by plaintiff Barbara Grutter of taking deposition of Lee Bollinger 2/9/99 at 9:00 with proof of mailing (RH) Modified on 05/27/1999 (Entered: 02/03/1999)
85 NOTICE by plaintiff Barbara Grutter of taking deposition of Patricia U. Gurin 2/12/99 at 9:00 with proof of mailing (RH) Modified on 05/27/1999 (Entered: 02/03/1999)

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02/05/1999 02/11/1999 02/17/1999 02/17/1999 02/18/1999
04/02/1999
04/02/1999
05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999
05/03/1999 05/03/1999 05/04/1999

86 NOTICE by Barbara Grutter of taking deposition of Marcea Metzler 2/5/99 @ 9:00 am with proof of mailing (lh) (Entered: 02/08/1999)
87 NOTICE by plaintiff of taking deposition of Olivia Birdsall on 2/11/99 at 2:00 pm with proof of mailing (DT) (Entered: 02/16/1999)
88 NOTICE by plaintiff Barbara Grutter of taking deposition of Edward Cooper at 11:00 am on 2/17/99 with proof of mailing (DT) (Entered: 02/18/1999)
STATUS conference held − Judge Bernard A. Friedman (cd) (Entered: 02/19/1999)
89 PRETRIAL scheduling order (amended) by Judge Bernard A. Friedman − setting deadline for discovery for 3/12/99 , setting deadline for filing motions for 5/3/99 , setting final pretrial conference for 3:00 8/23/99 , setting civil jury trial for 9:00 8/30/99 (DT) Modified on 05/27/1999 (Entered: 02/19/1999)
90 MOTION by defendants Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI and Univ MI Law School to amend case caption to provide that the proper defendants are named with proof of mailing (lt) Modified on 05/27/1999 (Entered: 04/06/1999)
91 ORDER by Judge Bernard A. Friedman granting motion to amend case caption to provide that the proper defendants are named by Univ MI Law School, Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger [90−1] (lt) Modified on 05/27/1999 (Entered: 04/06/1999)
92 MOTION by plaintiff to compel certain application files with brief and affidavit (ls) (Entered: 05/04/1999)
93 ORDER by Judge Bernard A. Friedman with ex parte motion, for leave to file a brief in excess of the 20 page limit (ls) (Entered: 05/04/1999)
94 MOTION by plaintiff for partial summary judgment on liability with brief (ls) (Entered: 05/04/1999)
95 AFFIDAVIT by Kirk O. Kolbo in support of motion for partial summary judgment on liability by Barbara Grutter [94−1] (ls) (Entered: 05/04/1999)
95 EXHIBITS filed by plaintiff in support of its motion for partial summary judgment on liability (ls) (Entered: 05/04/1999)
96 ORDER by Judge Bernard A. Friedman allowing brief in excess of 20 pages (ls) Modified on 05/04/1999 (Entered: 05/04/1999)
97 MOTION by defendants for summary judgment with brief and proof of mailing (ls) (Entered: 05/04/1999)
98 APPENDIX by defendants in support of their motion for summary judgment [97−1] Vol. 1 (ls) Modified on 05/04/1999 (Entered: 05/04/1999)
99 APPENDIX by defendants to motion for summary judgment [97−1] Vol. 2 (ls) (Entered: 05/04/1999)
100 APPENDIX by defendants to motion for summary judgment [97−1] (ls) (Entered: 05/04/1999)
101 MOTION by Assoc Amer Law, Natl Assoc St Univ, Land Grant College, Comm Inst Coop, Wayne State Univ for leave to file brief Amici Curiae with proof of mailing (ls) (Entered: 05/06/1999)
112 MOTION by movant USA for leave to file brief Amicus Curiae in excess of 20 pages with brief (ew) (Entered: 05/27/1999)
111 MOTION by movant Amer Cnsl Ed for leave to file a brief as Amici Curiae and, to file a brief in excess of 20 pages with brief (ew) (Entered: 05/27/1999)
102 MOTION by Student Affirmative Action Coalition of Univ of MI for extension of time to file Amicus brief with brief and attachments (ls) Modified on 05/27/1999 (Entered: 05/07/1999)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 17 of 33

05/04/1999 05/04/1999 05/07/1999 05/07/1999 05/07/1999 05/20/1999 05/21/1999 05/21/1999
05/21/1999 05/21/1999 05/21/1999 05/25/1999 05/25/1999 05/28/1999 05/28/1999 05/28/1999 06/01/1999 06/01/1999 06/02/1999 06/03/1999

103 NOTICE of setting hearing on motion for partial summary judgment on liability by Barbara Grutter [94−1] for 10:00 6/21/99 (ls) Modified on 05/27/1999 (Entered: 05/07/1999)
104 NOTICE of setting hearing on motion for summary judgment by Lee Bollinger, Jeffrey Lehman, Dennis Shields and Univ MI [97−1] for 10:00 6/21/99 (ls) Modified on 05/27/1999 (Entered: 05/07/1999)
105 PROOF of mailing motion for partial summary judgment [94−1] (lh) Modified on 05/27/1999 (Entered: 05/10/1999)
106 PROOF of mailing motion to compel [92−1] (lh) Modified on 05/27/1999 (Entered: 05/10/1999)
107 NOTICE setting hearing date on motion to compel certain application files by Barbara Grutter [92−1] for 6/9/99 (lh) Modified on 05/27/1999 (Entered: 05/11/1999)
108 RESPONSE by defendants to motion to compel certain application files [92−1] with exhibits A−F and proof of mailing (RH) Modified on 05/27/1999 (Entered: 05/21/1999)
109 ORDER by Judge Bernard A. Friedman granting motion for extension of time to file Amicus brief by Student Affirmative [102−1] (ew) Modified on 05/27/1999 (Entered: 05/24/1999)
110 ORDER by Judge Bernard A. Friedman granting motion for leave to file brief Amici Curiae by Wayne State Univ, Comm Inst Coop, Land Grant College, Natl Assoc St Univ, Assoc Amer Law [101−1] (ew) Modified on 05/27/1999 (Entered: 05/24/1999)
113 ORDER by Judge Bernard A. Friedman granting motion for leave to file a brief as Amici Curiae [111−1] and, granting motion to file a brief in excess of 20 pages by Amer Cnsl Ed [111−2] (ew) (Entered: 05/27/1999)
114 ORDER by Judge Bernard A. Friedman granting Ohio Attorney General's motion for leave to file a brief amicus curiae (motion not filed) (pd) (Entered: 05/27/1999)
115 ORDER by Judge Bernard A. Friedman granting motion for leave to file brief Amicus Curiae in excess of 20 pages by USA [112−1] (pd) (Entered: 05/27/1999)
116 AMICUS curiae brief by Amer Cnsl Ed with proof of mailing (pd) (Entered: 05/28/1999)
117 AMICUS curiae brief by USA with proof of mailing (pd) (Entered: 05/28/1999)
118 MOTION by movant OH St for leave to file brief amicus curiae with brief, and proof of mailing. (PP) Modified on 03/20/2000 (Entered: 06/01/1999)
119 AMICUS curiae brief by OH St in support of defendants', with proof of mailing. (PP) (Entered: 06/01/1999)
120 AMICUS curiae brief by Assoc Amer Law, Natl Assoc St Univ, Comm Inst Coop, Wayne State Univ in support of defendants', with attachments A−E. (PP) (Entered: 06/01/1999)
121 MEMORANDUM by plaintiff in opposition to motion for summary judgment by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [97−1] (PP) (Entered: 06/02/1999)
122 AFFIDAVIT of Kirk O. Kolbo and exhibits in support of motion response by Barbara Grutter [121−1] (PP) (Entered: 06/02/1999)
123 NOTICE of non−admission of attorneys' Martin Michaelson, Steven J. Routh, and Alexander E. Dreir (PP) (Entered: 06/03/1999)
126 PROOF of mailing by plaintiff Barbara Grutter of memorandum, affidavit and exhibits in opposition to defendant's motion for summary judgment and reply memorandum in support of plaintiffs' motion for partial summary judgment (Gratz) (RH) (Entered: 06/08/1999)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 18 of 33

06/07/1999 06/07/1999
06/08/1999
06/09/1999 06/18/1999 06/21/1999 08/13/1999 08/13/1999 08/16/1999 08/23/1999 08/26/1999 08/30/1999
09/03/1999 09/08/1999 09/15/1999 09/24/1999 09/27/1999

124 ORDER by Judge Bernard A. Friedman, for defendants to file a brief in support of opposition to motion for partial summary judgment in excess of the page limit (RH) (Entered: 06/08/1999)
125 RESPONSE by defendant Univ MI, defendant Dennis Shields, defendant Jeffrey Lehman, defendant Lee Bollinger to motion for partial summary judgment on liability by Barbara Grutter [94−1], with proof of mailing (RH) (Entered: 06/08/1999)
127 NON−CERTIFIED copy of order from USCA granting appellants' motions to supplement the record and stay district court proceedings on the motions for summary judgment pending disposition of this appeal [0−0] − appeal case # 98−2009 (RH) (Entered: 06/09/1999)
MOTION hearing held on motion to compel certain application files by Barbara Grutter [92−1] − disposition: deny − Judge Bernard A. Friedman − Court Reporter: Sherrie Ward (cd) (Entered: 06/11/1999)
128 COPY of orders [110−1] [109−1][115−1] [114−1][114−2] [113−1] mailed and returned as undeliverable as to Walter E. Dellinger, Esq., Crystal Nix, Esq and Jonathan D. Hacker, Esq. (DT) (Entered: 06/21/1999)
129 ORDER by Judge Bernard A. Friedman denying motion to compel certain application files by Barbara Grutter [92−1] [EOD Date 6/22/99] (DT) (Entered: 06/22/1999)
SLIP opinion from USCA reversing and remanding the case for further proceedings, etc. − appeal case # 98−2009/2248. (see #97−75231, document #102) (cf) (Entered: 08/17/1999)
NON−CERTIFIED copy of judgment from USCA reversing and remanding the case for further proceedings, etc. − appeal case # 98−2009/2248. (see #97−75231, document #103) (cf) (Entered: 08/17/1999)
130 ORDER by Judge Bernard A. Friedman granting motion to intervene as party defendant by Kimberly James [13−1] and setting scheduling conference for 1:00 pm on 8/26/99 [EOD Date 8/17/99] (DT) (Entered: 08/17/1999)
131 COPY of order setting scheduling conference for 1:00 pm on 8/26/99 [130−1] and returned as undeliverable as to David F. Kerr and Kirk Kolbo (LS) (Entered: 08/26/1999)
SCHEDULING conference held − Judge Bernard A. Friedman (cd) (Entered: 09/01/1999)
132 PRETRIAL scheduling order by Judge Bernard A. Friedman − setting deadline for witness list for 1/26/00 , setting deadline for discovery for 3/26/00 , setting deadline for filing motions for 4/26/00 , setting final pretrial conference for 2:00 8/24/00 , setting civil non−jury trial for 9:00 8/28/00 (PP) (Entered: 08/31/1999)
133 MOTION by movant College Board for leave to join brief of Wayne State Univ, Comm Inst Coop, Natl Assoc St Univ, Assoc Amer Law [120−1] with proof of mailing (ew) (Entered: 09/07/1999)
134 NON−CERTIFIED copy of order from USCA granting motion to vacate the court's order staying summary judgment proceedings in the district ccourt [0−0] − appeal case # 98−2009 (ew) (Entered: 09/09/1999)
135 MANDATE from USCA reversing and remanding the case for further proceedings − appeal case # 98−2009 (RH) (Entered: 09/22/1999)
136 RECORD of appeal record [54−1] returned from USCA − appeal case # 98−2009 (ew) (Entered: 09/27/1999)
137 ORDER by Judge Bernard A. Friedman granting motion for leave to join brief of Wayne State Univ, Comm Inst Coop, Natl Assoc St Univ, Assoc Amer Law [120−1] by College Entrance [133−1] [EOD Date 9/27/99] (ew) (Entered: 09/27/1999)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 19 of 33

01/26/2000 01/26/2000 01/26/2000 01/26/2000 02/02/2000 02/07/2000 02/07/2000 02/09/2000 02/11/2000 02/15/2000 02/16/2000 02/16/2000 02/18/2000
02/18/2000
02/22/2000

138 WITNESS list by intervening plaintiff Kimberly James with proof of mailing (ew) (Entered: 01/27/2000)
139 WITNESS list by plaintiff Barbara Grutter (ew) (Entered: 01/27/2000)
140 MOTION by intervening defendants for extension of time for filing discovery and other dates with brief and exhibits (ew) Modified on 02/25/2000 (Entered: 01/27/2000)
141 WITNESS list by defendants with proof of mailing (ew) (Entered: 01/31/2000)
142 PROOF of mailing of plaintiff's witness list (ls) (Entered: 02/03/2000)
143 MOTION by plaintiff Barbara Grutter to compel defendants to produce a limited number of applicants who enrolled in fall of 1999 with attachments and proof of mailing (lh) (Entered: 02/08/2000)
144 MOTION by defendants Univ MI, Lee Bollinger, Jeffrey Lehman and Dennis Shields for relief from order regarding class certification and bifurcation in light of subsequent authority with brief and proof of mailing (lh) Modified on 02/09/2000 (Entered: 02/09/2000)
145 RESPONSE by defendants Univ MI, Lee Bollinger, Jeffrey Lehman and Dennis Shields to motion for extension of time for filing discovery and other dates by Kimberly James [140−1] with proof of mailing (lh) (Entered: 02/11/2000)
146 RESPONSE memorandum by plaintiff Barbara Grutter in opposition to intervenors motion for extension of time for filing discovery and other dates [140−1] with affidavit, attachment and proof of mailing (DT) (Entered: 02/14/2000)
147 MOTION by plaintiff Barbara Grutter for relief from order of 6/21/99 [129−1] with brief, affidavit, attachments and proof of mailing (DT) (Entered: 02/16/2000)
148 NOTICE by court of setting hearing date on motion for relief from order of 6/21/99 [129−1] by Barbara Grutter [147−1] for 2:00 4/12/00 with proof of mailing (lh) (Entered: 02/17/2000)
149 NOTICE by court setting hearing date on motion to compel defendants to produce a limited number of applicants who enrolled in fall of 1999 by Barbara Grutter [143−1] for 2:00 4/12/00 with proof of mailing (lh) (Entered: 02/17/2000)
150 ANSWER by intervening defendants Law Students Aff, Coalition Defend Aff, Utd Equality Aff, Carol Scarlett, Oscar De La Torre, Melisa Resch, Winifred Kao, Meera Deo, Jasmine Abdel−Khalik, Russ Abrutyn, Scott Rowekamp, Norberto Salinas, Bernard Cooper, Kevin Pimentel, Julie Kerouac, Shannon Ewing, Jodi Marie Masley, Jaasi Munanka, Yolanda J. King, Paul Aleobua, Herbert Dowdell Jr., Mary Gibson, Karla Stephens−Dawson, Hoku Jeffrey, Vincent Kukua, Edward Vasquez, Arturo Vasquez, Gerald Ramos, Irami Osei−Frimpong, Nora Cecilia Melendez, Ronald Cruz, Ashwana Carlisle, Heather Bergman, James Huang, Jessica Curtin, Julie Fry, Diego Bernal, Shalamarel Kevin Killough, Dena Fernandez, Shabatayah Andrich, Raymond Michael Whitlow, Jeanette Haslett, Kimberly James, Farah Mongeau to complaint [1−1] with proof of mailing (DT) (Entered: 02/25/2000)
150 AFFIRMATIVE defenses by Law Students Aff, Coalition Defend Aff, Utd Equality Aff, Carol Scarlett, Oscar De La Torre, Melisa Resch, Winifred Kao, Meera Deo, Jasmine Abdel−Khalik, Russ Abrutyn, Scott Rowekamp, Norberto Salinas, Bernard Cooper, Kevin Pimentel, Julie Kerouac, Shannon Ewing, Jodi Marie Masley, Jaasi Munanka, Yolanda J. King, Paul Aleobua, Herbert Dowdell Jr., Mary Gibson, Karla Stephens−Dawson, Hoku Jeffrey, Vincent Kukua, Edward Vasquez, Arturo Vasquez, Gerald Ramos, Irami Osei−Frimpong, Nora Cecilia Melendez, Ronald Cruz, Ashwana Carlisle, Heather Bergman, James Huang, Jessica Curtin, Julie Fry, Diego Bernal, Shalamarel Kevin Killough, Dena Fernandez, Shabatayah Andrich, Raymond Michael Whitlow, Jeanette Haslett, Kimberly James, Farah Mongeau (DT) (Entered: 02/25/2000)
151 RESPONSE BRIEF by defendants Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger in opposition to plaintiff's motion for relief from order of 6/21/99 [129−1] [147−1] and motion to compel defendants to produce a limited number of

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 20 of 33

02/22/2000 02/22/2000 02/22/2000 02/24/2000 03/02/2000

applicants who enrolled in fall of 1999 [143−1] with proof of mailing (DT) Modified on 02/25/2000 (Entered: 02/25/2000)
152 RESPONSE by intervening defendants Law Students Aff, Coalition Defend Aff, Utd Equality Aff, Carol Scarlett, Oscar De La Torre, Melisa Resch, Winifred Kao, Meera Deo, Jasmine Abdel−Khalik, Russ Abrutyn, Scott Rowekamp, Norberto Salinas, Bernard Cooper, Kevin Pimentel, Julie Kerouac, Shannon Ewing, Jodi Marie Masley, Jaasi Munanka, Yolanda J. King, Paul Aleobua, Herbert Dowdell Jr., Mary Gibson, Karla Stephens−Dawson, Hoku Jeffrey, Vincent Kukua, Edward Vasquez, Arturo Vasquez, Gerald Ramos, Irami Osei−Frimpong, Nora Cecilia Melendez, Ronald Cruz, Ashwana Carlisle, Heather Bergman, James Huang, Jessica Curtin, Julie Fry, Diego Bernal, Shalamarel Kevin Killough, Dena Fernandez, Shabatayah Andrich, Raymond Michael Whitlow, Jeanette Haslett, Kimberly James, Farah Mongeau to defendants' motion for relief from order regarding class certification and bifurcation in light of subsequent authority [144−1] with brief and proof of mailing (DT) Modified on 02/25/2000 (Entered: 02/25/2000)
153 RESPONSE by intervening defendants Law Students Aff, Coalition Defend Aff, Utd Equality Aff, Carol Scarlett, Oscar De La Torre, Melisa Resch, Winifred Kao, Meera Deo, Jasmine Abdel−Khalik, Russ Abrutyn, Scott Rowekamp, Norberto Salinas, Bernard Cooper, Kevin Pimentel, Julie Kerouac, Shannon Ewing, Jodi Marie Masley, Jaasi Munanka, Yolanda J. King, Paul Aleobua, Herbert Dowdell Jr., Mary Gibson, Karla Stephens−Dawson, Hoku Jeffrey, Vincent Kukua, Edward Vasquez, Arturo Vasquez, Gerald Ramos, Irami Osei−Frimpong, Nora Cecilia Melendez, Ronald Cruz, Ashwana Carlisle, Heather Bergman, James Huang, Jessica Curtin, Julie Fry, Diego Bernal, Shalamarel Kevin Killough, Dena Fernandez, Shabatayah Andrich, Raymond Michael Whitlow, Jeanette Haslett, Kimberly James, Farah Mongeau to plaintiff's motion for relief from order of 6/21/99 [129−1][147−1] with brief and proof of mailing (DT) Modified on 02/25/2000 (Entered: 02/25/2000)
154 RESPONSE by intervening defendants Law Students Aff, Coalition Defend Aff, Utd Equality Aff, Carol Scarlett, Oscar De La Torre, Melisa Resch, Winifred Kao, Meera Deo, Jasmine Abdel−Khalik, Russ Abrutyn, Scott Rowekamp, Norberto Salinas, Bernard Cooper, Kevin Pimentel, Julie Kerouac, Shannon Ewing, Jodi Marie Masley, Jaasi Munanka, Yolanda J. King, Paul Aleobua, Herbert Dowdell Jr., Mary Gibson, Karla Stephens−Dawson, Hoku Jeffrey, Vincent Kukua, Edward Vasquez, Arturo Vasquez, Gerald Ramos, Irami Osei−Frimpong, Nora Cecilia Melendez, Ronald Cruz, Ashwana Carlisle, Heather Bergman, James Huang, Jessica Curtin, Julie Fry, Diego Bernal, Shalamarel Kevin Killough, Dena Fernandez, Shabatayah Andrich, Raymond Michael Whitlow, Jeanette Haslett, Kimberly James, Farah Mongeau to motion to compel defendants to produce a limited number of applicants who enrolled in fall of 1999 by Barbara Grutter [143−1] with brief and proof of mailing (DT) Modified on 02/25/2000 (Entered: 02/25/2000)
155 REPLY by intervening defendants Law Students Aff, Coalition Defend Aff, Utd Equality Aff, Carol Scarlett, Oscar De La Torre, Melisa Resch, Winifred Kao, Meera Deo, Jasmine Abdel−Khalik, Russ Abrutyn, Scott Rowekamp, Norberto Salinas, Bernard Cooper, Kevin Pimentel, Julie Kerouac, Shannon Ewing, Jodi Marie Masley, Jaasi Munanka, Yolanda J. King, Paul Aleobua, Herbert Dowdell Jr., Mary Gibson, Karla Stephens−Dawson, Hoku Jeffrey, Vincent Kukua, Edward Vasquez, Arturo Vasquez, Gerald Ramos, Irami Osei−Frimpong, Nora Cecilia Melendez, Ronald Cruz, Ashwana Carlisle, Heather Bergman, James Huang, Jessica Curtin, Julie Fry, Diego Bernal, Shalamarel Kevin Killough, Dena Fernandez, Shabatayah Andrich, Raymond Michael Whitlow, Jeanette Haslett, Kimberly James, Farah Mongeau to responses to intervening defendants' motion for extension of time for filing discovery and other dates [140−1] with proof of mailing (DT) (Entered: 02/25/2000)
156 RESPONSE by plaintiff Barbara Grutter to Motion for relief from Order regarding class certification and bifurcation in light of subsequent authority by Univ MI, Lee Bollinger, Jeffrey Lehman, Dennis Shields [144−1] with brief and proof of service (bk) (Entered: 03/03/2000)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 21 of 33

03/06/2000 03/07/2000 03/09/2000 03/09/2000 03/23/2000 03/28/2000 03/28/2000 03/31/2000
04/03/2000 04/12/2000 04/12/2000 04/12/2000 04/14/2000 04/19/2000 04/19/2000 05/01/2000

157 REPLY by plaintiff Barbara Grutter to responses to plaintiff's motion to compel defendants to produce a limited number of applicants who enrolled in fall of 1999 [143−1] with proof of mailing (DT) (Entered: 03/07/2000)
158 NOTICE of setting hearing on motion for relief from order regarding class certification and bifurcation in light of subsequent authority by Univ MI, Lee Bollinger, Jeffrey Lehman, Dennis Shields [144−1] for 2:00 4/12/00 (DT) (Entered: 03/08/2000)
159 OPINION and order by Judge Bernard A. Friedman denying defendant−intervenors' motion for extension of time for filing discovery and other dates [140−1] [EOD Date: 3/9/00] (DT) (Entered: 03/09/2000)
160 REPLY by defendants to response to motion for relief from order regarding class certification and bifurcation in light of subsequent authority by Univ MI, Lee Bollinger, Jeffrey Lehman, Dennis Shields [144−1] with proof of mailing (ew) (Entered: 03/13/2000)
161 MOTION by intervening defendant for reconsideration of order [159−1] with memorandum, and proof of mailing. (PP) (Entered: 03/24/2000)
STATUS conference held− regarding discovery issues − Judge Bernard A. Friedman (cd) (Entered: 03/28/2000)
162 ORDER by Judge Bernard A. Friedman, granting one day extension on intervening defendants' motion for reconsideration [EOD Date 3/29/00] (nh) (Entered: 03/29/2000)
163 ORDER by Judge Bernard A. Friedman GRANTING IN PART Motion for Reconsideration of order [159−1] by intervening defendants' [161−1], and setting deadline of 6/15/00 for all expert reports (except the undergraduate study) to be completed , setting 7/31/00 for deadline of the undergraduate study to be completed , setting deadline for discovery for 8/31/00 , setting deadline for filing for 10/15/00 , setting civil jury trial for 1/15/01 with proof of mailing [EOD Date 4/3/00] (bk) Modified on 04/03/2000 (Entered: 04/03/2000)
164 PROOF of mailing by intervening defendants' of First Amended Witness List, Supplemental Interrogatory Responses, Expert Reports of Frank Wu, John Hope Franklin, Richard Lempert, Marcus Feldman, David White, Jay Rosner, Gary Orfield, and Eugene Garcia (bk) (Entered: 04/04/2000)
MOTION hearing held on motion to compel defendants to produce a limited number of applicants who enrolled in fall of 1999 by Barbara Grutter [143−1] − disposition: grant − Judge Bernard A. Friedman − Court Reporter: Allen Burnham (cd) (Entered: 04/13/2000)
MOTION hearing held on motion for relief from order of 6/21/99 [129−1] by Barbara Grutter [147−1] − disposition: grant − Judge Bernard A. Friedman − Court Reporter: Allen Burnham (cd) (Entered: 04/13/2000)
MOTION hearing held on motion for relief from order regarding class certification and bifurcation in light of subsequent authority by Univ MI, Lee Bollinger, Jeffrey Lehman, Dennis Shields [144−1] − disposition: taken under advisement − Judge Bernard A. Friedman − Court Reporter: Allen Burnham (cd) (Entered: 04/13/2000)
165 MEMORANDUM by defendant in support of motion for relief from order regarding class certification and bifurcation in light of subsequent authority [144−1] with proof of mailing (dh) (Entered: 04/18/2000)
166 ORDER by Judge Bernard A. Friedman requiring the production of student files [EOD Date 4/20/00] (ls) (Entered: 04/20/2000)
167 OPINION and order by Judge Bernard A. Friedman denying motion for relief from order regarding class certification and bifurcation in light of subsequent authority by Univ MI, Lee Bollinger, Jeffrey Lehman, Dennis Shields [144−1] [EOD Date: 4/20/00] (ls) (Entered: 04/20/2000)
168 ORDER by Judge Bernard A. Friedman granting motion of the National Association of Social Workers, et al for leave to join breif of amicus curiae

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 22 of 33

05/08/2000
05/08/2000 06/05/2000
06/15/2000 06/15/2000 06/15/2000 06/15/2000 06/15/2000
06/15/2000
06/15/2000
06/22/2000 06/22/2000 06/23/2000
06/26/2000 06/27/2000 06/27/2000

Association of American Law Schools (not on docket) [EOD Date 5/2/00] (ls) (Entered: 05/02/2000)
169 MOTION of the Natl Assoc of Deans and Dir of Schools of Social Work (NADD) for joinder in Brief of Amicus Curiae of the Assoc Amer Law, Natl Assoc St Univ, Comm Inst Coop, Wayne State Univ [120−1] with proof of mailing (bk) Modified on 05/12/2000 (Entered: 05/09/2000)
170 ORDER by Judge Bernard A. Friedman GRANTING Motion joinder in Brief of Amicus Curiae of the Assoc Amer Law, Natl Assoc St Univ, Comm Inst Coop, Wayne State Univ [169−1] [EOD Date 5/12/00] (bk) (Entered: 05/12/2000)
171 NOTICES (4) by plaintiff Barbara Grutter of taking deposition of Eugene Garcia @ 10:00am on 06/08/00, David White @ 10:00am on 06/07/00; Marcus Feldman @ 10:00am on 06/06/00; Jay Rosner @ 10:00am on 06/05/00 with affidavit of service (bk) (Entered: 06/06/2000)
172 MOTION by Dennis Shields, Jeffrey Lehman, Lee Bollinger for leave to file brief in excess of 20 pages pages (ew) (Entered: 06/16/2000)
173 EX PARTE ORDER by Judge Bernard A. Friedman granting motion for leave to file brief in excess of 20 pages pages by Lee Bollinger, Jeffrey Lehman, Dennis Shields [172−1] [EOD 6/16/00] (ew) (Entered: 06/16/2000)
174 RE−NEWED motion by defendants Lee Bollinger, Jeffrey Lehman and Dennis Shields for summary judgment on grounds of qualified immunity (lh) Modified on 06/20/2000 (Entered: 06/20/2000)
175 MEMORANDUM of law by defendants Lee Bollinger, Jeffrey Lehman and Dennis Shields in support of renewed motion for summary judgment on grounds of qualified immunity [174−1] with proof of mailing (lh) (Entered: 06/20/2000)
176 APPENDIX by Lee Bollinger, Jeffrey Lehman and Dennis Shields to motion for summary judgment on grounds of qualified immunity by Dennis Shields, Jeffrey Lehman, Lee Bollinger (Volume 1: Documents and Materials) [174−1] (lh) Modified on 06/20/2000 (Entered: 06/20/2000)
177 APPENDIX by defendants Lee Bollinger, Jeffrey Lehman and Dennis Shields to motion for summary judgment on grounds of qualified immunity by Dennis Shields, Jeffrey Lehman, Lee Bollinger (Volume 2: Deposition Excerpts) [174−1] (lh) (Entered: 06/20/2000)
178 APPENDIX by Lee Bollinger, Jeffrey Lehman and Dennis Shields to motion for summary judgment on grounds of qualified immunity by Dennis Shields, Jeffrey Lehman, Lee Bollinger (Volume 3: Expert Witness Reports) [174−1] (lh) (Entered: 06/20/2000)
183 OBJECTIONS by Non Party Students to the production of their application files with proof of mailing (lh) (Entered: 06/29/2000)
183 EXPARTE motion by Non Part Students to stay pending request for evidentiary hearing with brief and proof of mailing (lh) Modified on 02/15/2001 (Entered: 06/29/2000)
179 RESPONSE by Dennis Shields, Jeffrey Lehman, Lee Bollinger to non−party students' objection to the production of their application files, request for evidentiary hearing and ex−parte motion for stay pending hearing, with proof of mailing (dh) (Entered: 06/27/2000)
180 TRANSCRIPT taken on 04/12/00 of defendant's motion for relief (dh) (Entered: 06/27/2000)
181 MEMORANDUM by plaintiff Barbara Grutter in opposition to non−party students' notice of objection to production of application files and exparte motion for stay (dh) (Entered: 06/27/2000)
182 ANSWER by intervening defendants' to answer by Lee Bollinger, Jeffrey Lehman, Dennis Shields [179−1], with proof of mailing. (PP) (Entered: 06/28/2000)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 23 of 33

07/07/2000
07/12/2000
07/12/2000
07/17/2000 07/17/2000 07/17/2000
07/19/2000 07/20/2000
07/20/2000
07/20/2000 07/20/2000 08/07/2000 08/07/2000 08/07/2000 08/11/2000
08/25/2000 08/25/2000 08/25/2000 08/25/2000 08/25/2000 08/25/2000 08/25/2000

184 NOTICE by intervening defendants' of concurrence in and adoption of motion for summary judgment on grounds of qualified immunity by Dennis Shields, Jeffrey Lehman, Lee Bollinger [174−1] with proof of mailing. (PP) (Entered: 07/10/2000)
185 PROOF of mailing of stipulated order extending time for serving and filing plaintiff's brief responding to defendants renewed motion for summary judgment on the grounds of qualified immunity (dh) (Entered: 07/13/2000)
186 ORDER by Judge Bernard A. Friedman with stipulation, setting deadline for response to motion for summary judgment on grounds of qualified immunity by Dennis Shields, Jeffrey Lehman, Lee Bollinger [174−1] for 7/19/00 [EOD Date: 7/13/00] (dh) (Entered: 07/13/2000)
187 MOTION by GM Corp to file excess pages of brief (dh) (Entered: 07/18/2000)
188 ORDER by Judge Bernard A. Friedman granting motion to file excess pages of brief by GM Corp [187−1] [EOD Date 7/18/00] (dh) (Entered: 07/18/2000)
189 MOTION by GM Corp for leave to file brief as amicus curiae in support of defendants with brief, proof of mailing (dh) Modified on 02/15/2001 (Entered: 07/18/2000)
190 EXPARTE motion by plaintiff to file brief in excess of 20 pages (PP) (Entered: 07/21/2000)
191 ORDER by Judge Bernard A. Friedman granting motion to file brief in excess of 20 pages by Barbara Grutter [190−1] [EOD Date 7/21/00] (PP) (Entered: 07/21/2000)
192 MEMORANDUM in opposition by plaintiff to motion for summary judgment on grounds of qualified immunity by Dennis Shields, Jeffrey Lehman, Lee Bollinger [174−1] (PP) (Entered: 07/21/2000)
193 AFFIDAVIT by plaintiff's attorney in support of motion response by Barbara Grutter [192−1], with exhibits A−Q. (PP) (Entered: 07/21/2000)
194 PROOF of mailing by plaintiff of [192−1], [193−1]. (PP) (Entered: 07/21/2000)
195 NOTICE by plaintiff of taking deposition duces tecum of Richard Lempert 10:00, 8/10/00 with attachment (ew) (Entered: 08/07/2000)
196 NOTICE by plaintiff of taking deposition duces tecum of Frank Wu 9:30, 8/11/00 with proof of mailing (ew) (Entered: 08/07/2000)
197 PROOF of mailing of documents 195 and 196 (ew) (Entered: 08/07/2000)
198 REPLY by defendants Dennis Shields, Jeffrey Lehman, Lee Bollinger in support of their motion for summary judgment on grounds of qualified immunity [174−1] with attachment and proof of mailing (ls) (Entered: 08/18/2000)
199 NOTICE by plaintiff of taking deposition of Kate Stenvig 8/25/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
200 NOTICE by plaintiff of taking deposition of Agnes Aleobua 8/25/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
201 NOTICE by plaintiff of taking deposition of Orehemetse Marang 8/25/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
202 NOTICE by plaintiff of taking deposition of Erika Dowdell 8/25/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
203 NOTICE by plaintiff of taking deposition of Kimberly James 8/25/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
204 NOTICE by plaintiff of taking deposition of Steve Conn 8/24/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
205 NOTICE by plaintiff of taking deposition of Raymond Jones 8/24/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 24 of 33

08/25/2000 08/25/2000 08/25/2000 08/25/2000
08/28/2000 09/05/2000 09/05/2000 09/14/2000 09/25/2000 10/03/2000 10/10/2000 10/10/2000 10/10/2000 10/10/2000 10/10/2000 10/10/2000 10/11/2000 10/12/2000 10/16/2000

206 NOTICE by plaintiff of taking deposition of Marcela Sancez 8/24/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
207 NOTICE by plaintiff of taking deposition of Susan Loveland 8/24/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
208 NOTICE by plaintiff of taking deposition of Jasmine Abdel−Khalik 8/24/00 at 10:00 a.m. (PP) (Entered: 08/28/2000)
209 PROOF of mailing by plaintiff of plaintiff's notice of taking depositions of Kate Stenvig, Agnes Aleobua, Orehemetse Marang, Erika Dowdell, Kimberly James, Steve Conn, Raymond Jones, Marcela Sanchez, Susan Loveland, and Jasmine Abdel−Khalik. (PP) (Entered: 08/28/2000)
210 NOTICE by plaintiff of taking deposition of Martin Shapiro 8/28/00 at 10:00 a.m. with proof of mailing. (PP) (Entered: 08/29/2000)
211 NOTICE by plaintiff Barbara Grutter of taking deposition of Daniel Solorzano 09/08/00 at 10:00 am with proof of mailing (dh) (Entered: 09/06/2000)
212 NOTICE by plaintiff Barbara Grutter of taking deposition of Walter Allen 09/07/00 at 10:00 am with proof of mailing (dh) (Entered: 09/06/2000)
213 NOTICE by plaintiff Barbara Grutter of taking deposition of Gary Orfield 9/14/00 @ 10:00 and taking deposition of Elizabeth Chambliss on 9/15/00 @ 10:00 with proof of mailing (lh) (Entered: 09/14/2000)
214 NOTICE by plaintiff of taking deposition of John Hope Franklin 11:00, 9/25/00 (ew) (Entered: 09/26/2000)
CERTIFIED copy of order from USCA denying petitions to appeal or alternatively for relief in mandamus − appeal case # 00−0107/0109 (see document 192 in 97−75231) (dp) Modified on 10/04/2000 (Entered: 10/04/2000)
215 ORDER by Judge Bernard A. Friedman with motion, for leave to file brief in excess of 20 pages [EOD Date: 10/10/00] (ew) (Entered: 10/10/2000)
216 MOTION by defendants for summary judgment with brief and proof of mailing (ew) (Entered: 10/10/2000)
217 APPENDIX (Volume 1) by defendants in support of motion for summary judgment by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [216−1] (ew) (Entered: 10/10/2000)
218 APPENDIX (Volume 2) by defendants to motion for summary judgment by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [216−1] (ew) (Entered: 10/10/2000)
219 APPENDIX (Volume 3) by defendants to motion for summary judgment by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [216−1] (ew) (Entered: 10/10/2000)
220 RENEWED MOTION by plaintiff Barbara Grutter for partial summary judgment on liability with brief, affidavit and proof of mailing (ew) (Entered: 10/10/2000)
221 MOTION by movant Natl Assoc Scholars for leave to file brief as Amicus Curiae in support of plaintiffs' motion for partial summary judgment with brief and proof of mailing (ew) (Entered: 10/12/2000)
222 ORDER by Judge Bernard A. Friedman granting motion for leave to file brief as Amicus Curiae in support of plaintiffs' motion for partial summary judgment by Natl Assoc Scholars [221−1] [EOD Date 10/13/00] (dh) (Entered: 10/13/2000)
223 MOTION for Steelcase Inc, 3M, Abbott Laboratories, Bank One Corporation, E.I. Du Pont De Nemours &Co., Inc., The Dow Chemical Company, Eastman Kodak Company, Eli Lilly &Company, General Mills, Inc., Intel Corporation, Johnson &Johnson, Kellogg Company, KPMG International, Lucent Technologies, Inc., Microsoft Corporation, PPG Industries, Inc., The Proctor &Gamble Company, Sara Lee Corporation, Texaco Inc., and TRW Inc. to file amicus brief, represented by Rabdall Mehrberg , with brief and proof of service (RH) (Entered: 10/17/2000)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 25 of 33

10/16/2000 10/24/2000
11/02/2000 11/02/2000 11/02/2000 11/03/2000 11/03/2000 11/06/2000 11/06/2000 11/06/2000 11/13/2000 11/13/2000 11/13/2000 11/16/2000 11/20/2000
11/21/2000 11/21/2000 11/21/2000 11/28/2000 11/28/2000

224 AMENDED NOTICE of taking deposition of Daniel Solorzano 10/21/00 at 10am , with proof of service (RH) Modified on 10/18/2000 (Entered: 10/18/2000)
225 ORDER by Judge Bernard A. Friedman granting motion for Steelcase Inc, 3M, Abbott Laboratories, Bank One Corporation, E.I. Du Pont De Nemours &Co., Inc., The Dow Chemical Company, Eastman Kodak Company, Eli Lilly &Company, General Mills, Inc., Intel Corporation, Johnson &Johnson, Kellogg Company, KPMG International, Lucent Technologies, Inc., Microsoft Corporation, PPG Industries, Inc., The Proctor &Gamble Company, Sara Lee Corporation, Texaco Inc., and TRW Inc. to file amicus brief, represented by Rabdall Mehrberg by Abbott Lab, Steelcase Inc, Steelcase Inc [223−1] [EOD Date 10/25/00] (dh) (Entered: 10/25/2000)
226 NOTICE by plaintiff of taking deposition of Marlen Whitley 11/2/00 at 9:30 a.m. (PP) Modified on 05/09/2001 (Entered: 11/02/2000)
227 NOTICE by plaintiff of taking deposition of Celia Balli 11/2/00 at 9:30 a.m. (PP) (Entered: 11/02/2000)
228 PROOF of mailing by plaintiff of notice of taking depositions of Marlen Whitley and Celia Balli. (PP) (Entered: 11/02/2000)
229 MEMORANDUM by plaintiff Barbara Grutter in opposition to motion for partial summary judgment on liability by Barbara Grutter [220−1] with proof of mailing (ew) (Entered: 11/03/2000)
230 AFFIDAVIT of Kirk O. Kolbo and exhibits memorandum in opposition by Barbara Grutter [229−1] (ew) (Entered: 11/03/2000)
231 MOTION by defendants to file excess pages (ew) (Entered: 11/07/2000)
232 ORDER by Judge Bernard A. Friedman granting motion to file excess pages by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [231−1] [EOD Date 11/7/00] (ew) (Entered: 11/07/2000)
233 MEMORANDUM by defendants in opposition to motion for partial summary judgment on liability by Barbara Grutter [220−1] with proof of mailing (ew) (Entered: 11/07/2000)
234 NOTICE by plaintiff Barbara Grutter of taking deposition of Margaret Montoya 11/15/00 @ 12:00 pm (lh) (Entered: 11/15/2000)
235 NOTICE by Barbara Grutter of taking deposition of Chrystal James 11/15/00 @ 4:00 pm (lh) (Entered: 11/15/2000)
236 NOTICE by plaintiff Barbara Grutter of taking deposition of Nancy Freeman 11/15/00 @ 5:00 with proof of mailing (lh) (Entered: 11/15/2000)
237 TRANSCRIPT taken on 4/12/00 of plaintiff's motion to compel plaintiff's motion for relief, and defendant's motion for relief (RH) (Entered: 11/20/2000)
238 NOTICE by plaintiff Barbara Grutter of taking depositions Eric Brooks at 1pm; Kevin Pimpental at 3:30 on 11/19/00; Mayor Willie L. Brown 11/20/00 at 10am; Marjorie Schultz on 11/21/00 at 1pm , with proof of service (RH) (Entered: 11/20/2000)
239 MOTION for Jennifer Granholm to file amicus brief, represented by Susan I. Leffler , with proof of service (RH) (Entered: 11/21/2000)
240 MEMORANDUM by intervening defendant in support of motion for summary judgment filed by defendants [216−1], with exhibits (RH) (Entered: 11/21/2000)
240 RESPONSE by intervening defendants' to motion for partial summary judgment on liability by Barbara Grutter [220−1] with exhibits (RH) (Entered: 11/21/2000)
241 PROOF of mailing of notices of taking depositions (ew) (Entered: 11/29/2000)
242 NOTICE by plaintiff of taking deposition of Alize Shilechter−Maldonado 5:00, 11/30/00 (ew) (Entered: 11/29/2000)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 26 of 33

11/28/2000 11/28/2000 11/29/2000 11/29/2000 12/01/2000 12/07/2000 12/07/2000 12/07/2000 12/07/2000 12/07/2000 12/08/2000 12/11/2000 12/11/2000 12/11/2000 12/11/2000
12/11/2000 12/19/2000 12/19/2000 12/19/2000

243 NOTICE by plaintiff of taking deposition of Marita Etcubanez 1:00, 11/30/00 (ew) (Entered: 11/29/2000)
244 NOTICE by plaintiff of taking deposition of Charles Lawrence 12:00, 11/27/00 (ew) (Entered: 11/29/2000)
245 ORDER by Judge Bernard A. Friedman granting motion for Jennifer Granholm to file amicus brief, represented by Susan I. Leffler [239−1] [EOD Date 11/30/00] (ew) (Entered: 11/30/2000)
246 BRIEF of the Attorney General Jennifer M. Granholm as amicus curiae (RH) (Entered: 12/07/2000)
258 PROOF of mailing by plaintiff Barbara Grutter of notice of taking depositon of Stephanie Wildman (RH) (Entered: 12/19/2000)
247 NOTICE by plaintiff of taking deposition of Doug Lenox 12/8/00 at 9:30 (DT) (Entered: 12/08/2000)
248 NOTICE by Barbara Grutter of taking deposition of Hoku Jeffrey 12/8/00 at 9:30 am (DT) (Entered: 12/08/2000)
249 NOTICE by plaintiff Barbara Grutter of taking deposition of Ronald Cruz 12/8/00 at 9:30 am (DT) (Entered: 12/08/2000)
250 NOTICE by plaintiff Barbara Grutter of taking deposition of Tania Kappner 12/8/00 at 9:30 am (DT) (Entered: 12/08/2000)
251 PROOF of mailing by plaintiff Barbara Grutter of notices of taking depostions (#247−250) (DT) (Entered: 12/08/2000)
252 PROOF of mailing of amended notice of taking deposition of Faith Smith, second amended notice of taking deposition of Margaret Montoya and Nancy Freeman (RH) (Entered: 12/11/2000)
253 APPENDIX (Volume I) by intervening defendants to brief in support of motion for summary judgment and [240−1] in opposition to the plaintiff's motion for summary judgment [240−1] (lh) (Entered: 12/13/2000)
254 APPENDIX (Volume II) by intervening defendants to brief in support of defendants' motion for summary judgment [240−1] and in opposition to the plaintiff's motion for summary judgment [240−1] (lh) (Entered: 12/13/2000)
255 APPENDIX (Volume III) by intervening defendants to brief in support of defendants' motion for summary judgment and [240−1] in opposition to plaintiff's motion for summary judgment [240−1] (lh) (Entered: 12/13/2000)
256 APPENDIX (Volume IV) by intervening defendants to brief in support of defendants' motion for summary judgment and [240−1] in opposition to the plaintiff's motion for summary judgment [240−1] (Filed Under Seal Pursuant to Protective Order) (lh) (Entered: 12/13/2000)
257 PROOF of mailing by intervening defendants of pleadings 253 thru 256 (lh) (Entered: 12/13/2000)
259 EX PARTE ORDER by Judge Bernard A. Friedman with motion, to file reply brief in excess of 5 page limit [EOD Date: 12/20/00] (PP) (Entered: 12/20/2000)
260 REPLY memorandum by plaintiff to response to motion for partial summary judgment on liability by Barbara Grutter [220−1], with proof of mailing. (PP) (Entered: 12/20/2000)
261 NOTICE by Judge Friedman's chambers of setting hearing on motion for partial summary judgment on liability by Barbara Grutter [220−1] for 10:00 12/22/00, motion for summary judgment by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [216−1] for 10:00 12/22/00, motion for summary judgment on grounds of qualified immunity by Dennis Shields, Jeffrey Lehman, Lee Bollinger [174−1] for 10:00 12/22/00, motion for summary judgment by Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger [97−1] for 10:00 12/22/00, motion for partial summary judgment on liability by Barbara Grutter [94−1] for 10:00 12/22/00 (PP)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 27 of 33

12/20/2000 12/20/2000 12/20/2000 12/20/2000 12/20/2000 12/21/2000 12/22/2000
12/28/2000
01/03/2001 01/04/2001 01/08/2001 01/08/2001 01/10/2001

(Entered: 12/20/2000)
262 APPENDIX − Volume V by intervening defendants' to brief in support of defendants motion for summary judgment and in opposition to the plaintiff's motion for summary judgment(not on docket). (PP) (Entered: 12/21/2000)
263 APPENDIX − Volume VI by intervening defendants' to brief in support(not on docket) of defendants' motion for summary judgment and in opposition to the plaintiff's motion for summary judgment (PP) (Entered: 12/21/2000)
264 APPENDIX − Volume VII by intervening defendants' to brief in support(not on docket) of defendants' motion for summary judgment and in opposition to the plaintiff's motion for summary judgment. (PP) (Entered: 12/21/2000)
265 APPENDIX − Volume VIII by intervening defendants' to brief in support(not on docket) of defendants' motion for summary judgment and in opposition to the plaintiff's motion for summary judgment. (PP) (Entered: 12/21/2000)
266 PROOF of mailing by intervening defendants' of appendices to brief in support of defendants' motion for summary judgment and in opposition to the plaintiff's motion for summary judgment. (PP) (Entered: 12/21/2000)
267 MOTION by plaintiff in limine to strike any testimony or expert opinions(including of Derek Bok) based on a consideration of the College and Beyond Database) with memorandum, attorney affidavit, attachments A−E, and proof of mailing. (PP) Modified on 06/22/2001 (Entered: 12/22/2000)
MOTION hearing held on motion for partial summary judgment on liability by Barbara Grutter [220−1], motion for summary judgment by Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger [216−1], motion for summary judgment on grounds of qualified immunity by Lee Bollinger, Jeffrey Lehman, Dennis Shields [174−1], motion for summary judgment by Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger [97−1], motion for partial summary judgment on liability by Barbara Grutter [94−1] − disposition: taken under advisement − Judge Bernard A. Friedman − Court Reporter: Janice Coleman (cd) Modified on 01/02/2001 (Entered: 01/02/2001)
268 ORDER by Judge Bernard A. Friedman taking motion for partial summary judgment on liability by Barbara Grutter [220−1] under advisement, taking motion for summary judgment by Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger [216−1] under advisement, taking motion for summary judgment on grounds of qualified immunity by Lee Bollinger, Jeffrey Lehman, Dennis Shields [174−1] under advisement, taking motion for summary judgment by Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger [97−1] under advisement, taking motion for partial summary judgment on liability by Barbara Grutter [94−1] under advisement, setting civil non−jury trial for 9:00 1/16/01 [EOD Date 12/28/00] (ew) (Entered: 12/28/2000)
269 MOTION to withdraw attorney Patrick Wright , with brief (RH) (Entered: 01/04/2001)
270 ORDER by Judge Bernard A. Friedman granting motion to withdraw attorney Patrick Wright by Barbara Grutter [269−1] [EOD Date 1/4/01] (RH) (Entered: 01/04/2001)
271 OPPOSITION by defendants to motion in limine to strike any testimony or expert opinions(including of Derek Bok) based on a consideration of the College and Beyond Database) by Barbara Grutter [267−1] with proof of mailing (dh) (Entered: 01/10/2001)
272 EXHIBITS filed by defendants in support of motion response by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI, Univ MI Law School [271−1] (dh) (Entered: 01/10/2001)
273 MOTION by plaintiff Barbara Grutter in limine to exclude defendants' experts Derek Bok, Claude M. Steele and kent D. Syverud from testifying at trial with brief (dh) Modified on 02/15/2001 (Entered: 01/11/2001)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 28 of 33

01/10/2001 01/10/2001 01/10/2001 01/12/2001
01/12/2001
01/12/2001 01/15/2001 01/16/2001 01/16/2001 01/16/2001
01/16/2001 01/16/2001 01/16/2001 01/16/2001 01/17/2001 01/17/2001
01/17/2001 01/17/2001 01/18/2001

274 AFFIDAVIT by plaintiff Barbara Grutter regarding motion in limine to exclude defendants' experts Derek Bok, Claude M. Steele and kent D. Syverud from testifying at trial by Barbara Grutter [273−1] (dh) (Entered: 01/11/2001)
275 AMENDED PROOF of mailing of defendants opposition to plaintiff's motion in limine to strike any testimony or expert opinions (dh) (Entered: 01/11/2001)
CIVIL non−jury trial begun and continued to 9:00 1/16/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (pd) (Entered: 11/15/2002)
276 MOTION by Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger in limine to exclude the proposed testimony of plaintiff's witnesses Allan Stillwagon and Barbara Grutter with attachments and proof of mailing (DT) Modified on 02/15/2001 (Entered: 01/16/2001)
277 MEMORANDUM OF LAW by Lee Bollinger, Univ MI, Dennis Shields, Jeffrey Lehman in opposition to plaintiff's motion in limine to exclude defendants' experts Derek Bok, Claude M. Steele and kent D. Syverud from testifying at trial [273−1] with attachments and proof of mailing (DT) (Entered: 01/16/2001)
283 JOINT FINAL pretrial order (unsigned by the Judge) See # 282 (DT) (Entered: 01/16/2001)
CIVIL jury trial not held − Judge Bernard A. Friedman (pd) (Entered: 11/15/2002)
278 MOTION by plaintiff Barbara Grutter in limine to exclude intervenors' witnesses with memorandum of law and proof of mailing (DT) Modified on 02/15/2001 (Entered: 01/16/2001)
279 DECLARATION of Kai H. Richter in support of plaintiff's motion in limine to exclude certain intervenors' witnesses with exhibit A (DT) (Entered: 01/16/2001)
280 MEMORANDUM OF LAW by plaintiff Barbara Grutter in opposition to defedants' motion in limine to exclude the proposed testimony of plaintiff's witnesses Allan Stillwagon and Barbara Grutter [276−1] with proof of mailing (DT) (Entered: 01/16/2001)
281 DECLARATION of Kai H. Richter in support of plaintiff's memorandum of law in opposition to defendants' motion in limine with attachments (DT) (Entered: 01/16/2001)
282 JOINT FINAL pretrial order by Judge Bernard A. Friedman (DT) (Entered: 01/16/2001)
CIVIL non−jury trial held and continued − Judge Bernard A. Friedman (pd) (Entered: 11/15/2002)
CIVIL non−jury trial held and continued to 9:00 1/17/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan, Mary Wisneski and Debra Nash (pd) (Entered: 11/15/2002)
CIVIL non−jury trial held and continued to 8:30 1/18/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan, Mary Wisneski, Debra Nash (cd) (Entered: 01/18/2001)
284 NOTICE by defendants of filing under seal a CD−ROM and/or ZIP disk containing data relating to the classes that applied for admission in the U of M Law School classes that enrolled from 1995−2000 with proof of mailing (DT) (Entered: 01/18/2001)
285 SUPPLEMENT TO JOINT FINAL pretrial order by Judge Bernard A. Friedman (DT) (Entered: 01/18/2001)
CIVIL non−jury trial held − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (pd) (Entered: 11/15/2002)
286 RESPONSE by defendants to motion in limine to exclude intervenors' witnesses by Barbara Grutter [278−1] with proof of mailing (DT) (Entered: 01/18/2001)

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01/18/2001 01/18/2001 01/18/2001 01/19/2001 01/21/2001 01/22/2001 01/23/2001 01/24/2001 01/24/2001 02/01/2001 02/02/2001 02/02/2001
02/05/2001 02/05/2001 02/06/2001 02/06/2001 02/06/2001 02/07/2001 02/08/2001 02/09/2001

287 NOTICE by defendants of filing Professor Patricia Gurin's supplemental report dated 1/11/01 with attachment and proof of mailing (DT) (Entered: 01/18/2001)
288 RESPONSE BRIEF by intervening defendants in opposition to motion in limine to exclude intervenors' witnesses by Barbara Grutter [278−1] with proof of mailing (DT) (Entered: 01/18/2001)
CIVIL non−jury trial held and continued to 9:00 1/19/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan , Debra Nash &Mary Wisneski (cd) (Entered: 01/19/2001)
CIVIL non−jury trial held and continued to 9:00 1/22/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan , Debra Nash &Mary Wisneski. (cd) (Entered: 01/19/2001)
290 TRANSCRIPT taken on 12/22/00 of hearing on plaintiff's motion for summary judgment (ew) (Entered: 02/01/2001)
CIVIL non−jury trial held and continued to 9:00 1/23/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan, Debra Nash (cd) (Entered: 01/23/2001)
CIVIL non−jury trial held and continued to 9:00 1/24/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan, Debra Nash (cd) (Entered: 01/23/2001)
289 MOTION by defendants' to clarify the record with proof of mailing (PP) Modified on 06/22/2001 (Entered: 01/25/2001)
CIVIL non−jury trial held and continued to 9:00 2/6/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan, Debra Nash (cd) (Entered: 01/25/2001)
291 MEMORANDUM by plaintiff Barbara Grutter in opposition to motion to clarify the record by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [289−1] with attachments (ew) (Entered: 02/02/2001)
292 RESPONSE and brief by intervening defendants to motion to clarify the record by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [289−1] with proof of mailing (lh) (Entered: 02/05/2001)
294 REPLY by Univ MI, Lee Bollinger, Jeffrey Lehman and Dennis Shields to plaintiff's response to motion to clarify the record by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [289−1] with proof of mailing (lh) (Entered: 02/05/2001)
293 EMERGENCY motion by intervening defendants to compel compliance with the joint pretrial order with brief and attachments (lh) (Entered: 02/05/2001)
295 PROOF of mailing by fax of plaintiff's second amended notice of taking deposition of Faith Smith (lh) (Entered: 02/06/2001)
296 RESPONSE by defendants Univ MI, Lee Bollinger, Jeffrey Lehman and Dennis Shields to motion to compel compliance with the joint pretrial order by intervening defendants [293−1] with proof of mailing (lh) (Entered: 02/06/2001)
CIVIL non−jury trial held and continued to 9:00 2/7/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (cd) (Entered: 02/07/2001)
MOTION hearing held on motion to compel compliance with the joint pretrial order by intervening defendants' [293−1] − disposition: deny − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (cd) (Entered: 02/07/2001)
CIVIL non−jury trial held and continued to 9:00 2/8/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (cd) (Entered: 02/12/2001)
CIVIL non−jury trial held and continued to 9:00 2/9/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (cd) (Entered: 02/12/2001)
CIVIL non−jury trial held and continued to 8:30 2/10/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (cd) Modified on 11/15/2002 (Entered: 02/12/2001)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 30 of 33

02/09/2001
02/10/2001 02/12/2001 02/14/2001
02/14/2001 02/15/2001
02/15/2001
02/16/2001
02/16/2001 02/21/2001
02/21/2001 02/27/2001
02/27/2001 02/28/2001 02/28/2001 02/28/2001 02/28/2001
03/06/2001 03/27/2001 03/28/2001 03/30/2001

297 MOTION by defendant Dennis Shields, defendant Jeffrey Lehman, defendant Lee Bollinger in limine to exclude proposed expert testimony of plaintiff's , with brief, attachments and proof of service (RH) Modified on 06/22/2001 (Entered: 02/12/2001)
CIVIL non−jury trial held − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (pd) (Entered: 11/15/2002)
CIVIL non−jury trial held and continued to 9:00 1/15/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (cd) (Entered: 02/13/2001)
299 MEMORANDUM by defendants regarding rule 32 objections to deposition designations and evidentiary objections to proposed trial exhibits with proof of mailing (dh) (Entered: 02/16/2001)
300 JOINT NOTICE regarding trial exhibits and deposition designations (dh) (Entered: 02/16/2001)
298 OBJECTIONS by intervening defendants to plaintiff's deposition designations and response to the objections to depositions designated by the defendant intervenors with proof of mailing (dh) (Entered: 02/16/2001)
CIVIL non−jury trial held and continued to 9:00 2/16/01 − Judge Bernard A. Friedman − Court Reporter: Joan Morgan (ls) Modified on 12/06/2002 (Entered: 02/20/2001)
302 MEMORANDUM by plaintiff Barbara Grutter in opposition to defendants' mtoion to exclude plaintiff's agreed upon deposition designations, with exhibits, declaration of Kirk O. Kolbo and proof of service (RH) (Entered: 02/21/2001)
CIVIL non−jury trial held and concluded − Judge Bernard A. Friedman Court Reporter: Joan Morgan (KG) (Entered: 12/06/2002)
301 DEPOSITION designations of Eric Brooks, Sumi Cho, ronald Cruz, Hoku Jeffrey, Charles Lawrence, Margaret Montoya, Marjorie Shultz, Theodore Shaw, Claude Steele and Marlen Whitley to be used at trial (RH) (Entered: 02/21/2001)
303 OBJECTIONS by defendants' to certain deposition designations of Professor Edward H. Cooper, with exhibits and proof of service (RH) (Entered: 02/22/2001)
304 DEFENDANTS' POST−TRIAL memorandum respecting proposed findings of fact and conclusions of law by defendant with proof of mailing (DT) (Entered: 02/27/2001)
305 APPENDICES to defendants' post−trial memorandum respecting proposed findings of fact and conclusions of law [304−1] (DT) (Entered: 02/27/2001)
306 PLAINTIFF'S DEPOSITION designations (see document) (DT) (Entered: 03/01/2001)
307 MEMORANDUM of law by plaintiff in opposition to defendants' objection to certain deposition designations [303−1] [298−1] (DT) (Entered: 03/01/2001)
308 POST−TRIAL brief by plaintiff (DT) (Entered: 03/01/2001)
309 PROOF of mailing by plaintiff of post−trial brief and memorandum of law in opposition to defendants' objection to certain deposition designations (DT) (Entered: 03/01/2001)
310 POST−TRIAL brief by intervening defendant (RH) (Entered: 03/07/2001)
311 FINDINGS of fact and conclusions of law by Judge Bernard A. Friedman (pd) (Entered: 11/13/2002)
312 MOTION by defendant to stay injunction with brief, attachments, proof of mailing (dh) (Entered: 03/29/2001)
313 ORDER by Judge Bernard A. Friedman setting deadline for response to motion to stay injunction by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [312−1] for 12:00 pm on 4/3/01 [EOD Date 4/2/01] (DT) (Entered: 04/02/2001)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 31 of 33

03/30/2001
04/03/2001 04/03/2001
04/03/2001 04/03/2001 04/03/2001
04/10/2001 04/11/2001 04/13/2001 04/16/2001 04/16/2001 04/17/2001 04/19/2001
04/25/2001 04/26/2001
04/27/2001 04/27/2001 05/16/2001 05/16/2001 05/16/2001 05/16/2001 05/16/2001 05/16/2001

314 APPEAL by defendants Board of Regents of the Univ MI, Dennis Shields, Jeffrey Lehman, Lee Bollinger of order 311 to USCA with proof of mailing − FEE: paid − Receipt #: 200415629 (dh) (Entered: 04/02/2001)
315 PROOF of mailing of notice of appeal to USCA, counsel of record and court reporters (lb) (Entered: 04/03/2001)
316 CERTIFIED copy of appeal notice by Lee Bollinger, Jeffrey Lehman, Dennis Shields, Univ MI [314−1] and docket transmitted to USCA (lb) (Entered: 04/03/2001)
317 MEMORANDUM by plaintiff Barbara Grutter in opposition to defendants' motion to stay injunction [312−1] with proof of mailing (DT) (Entered: 04/03/2001)
318 OPINION AND ORDER by Judge Bernard A. Friedman denying defendants' motion to stay injunction [312−1] [EOD Date: 4/3/01] (DT) (Entered: 04/03/2001)
319 MOTION by intervening defendants for joinder in motion by intervening defendants [319−1] with proof of mailing (DT) Modified on 01/30/2002 (Entered: 04/04/2001)
320 MOTION by plaintiff Barbara Grutter for an interim award of attorney fees , with brief and proof of service (RH) (Entered: 04/11/2001)
322 APPEAL by intervening defendants of order [311−1] to USCA with proof of service − FEE: PAID − Receipt #: 416242 (do) (Entered: 04/16/2001)
321 NON−CERTIFIED copy of order from USCA granting motion to stay injunction pending appeal [0−0] − appeal case # 01−1447 (PP) (Entered: 04/16/2001)
323 PROOF of mailing of notice of appeal to USCA and all counsel of record (do) (Entered: 04/16/2001)
324 CERTIFIED copy of appeal notice by intervening defendants [322−1] and docket transmitted to USCA (do) (Entered: 04/16/2001)
325 ACKNOWLEDGEMENT from USCA of receipt of appeal notice of appeal &docket [316−1] − appeal case # 01−1447 (PP) (Entered: 04/18/2001)
326 TRANSCRIPT order form by defendant regarding appeal notice by defendants requesting transcript(s) of: 12/22/00, 1/16/01−2/16/01 −appeal case # 01−1447 (PP) Modified on 05/09/2001 (Entered: 04/20/2001)
327 MEMORANDUM by defendant in opposition to motion for an interim award of attorney fees by Barbara Grutter [320−1] (ew) (Entered: 04/27/2001)
328 OPINION and order by Judge Bernard A. Friedman denying motion for an interim award of attorney fees by Barbara Grutter [320−1] [EOD Date: 4/27/01] (ew) (Entered: 04/27/2001)
329 ACKNOWLEDGEMENT from USCA of receipt of appeal notice by intervening defendants [322−1] − appeal case # 01−1516 (lh) (Entered: 04/30/2001)
330 TRANSCRIPT of hearing on plaintiff's motion for summary judgment on 12/22/00 (lh) Modified on 05/09/2001 (Entered: 04/30/2001)
331 TRANSCRIPT taken on 1/16/01 of bench trial − Vol. 1 (DT) (Entered: 05/16/2001)
332 TRANSCRIPT taken on 1/17/01 of bench trial Vol. 2 (DT) (Entered: 05/16/2001)
333 TRANSCRIPT taken on 1/18/01 of bench trial − Vol. 3 (DT) (Entered: 05/16/2001)
334 TRANSCRIPT taken on 1/19/01 of bench trial Vol. IV (DT) (Entered: 05/16/2001)
335 TRANSCRIPT taken on 1/22/01 of bench trial Vol. 5 (DT) (Entered: 05/16/2001)
336 TRANSCRIPT taken on 1/23/01 of bench trial Vol. 6 (DT) (Entered: 05/16/2001)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 32 of 33

05/16/2001 05/16/2001 05/16/2001 05/16/2001 05/16/2001 05/16/2001 05/16/2001 05/16/2001 05/16/2001 06/15/2001 06/20/2001
06/22/2001 08/02/2001
08/13/2001 05/16/2002
06/10/2002 06/11/2002 06/11/2002 06/20/2002 06/20/2002 09/16/2002 12/11/2002 01/28/2003
02/11/2003
07/08/2003 09/08/2003

337 TRANSCRIPT taken on 1/24/01 of bench trial Vol. 7 (DT) (Entered: 05/16/2001)
338 TRANSCRIPT taken on 2/6/01 of bench trial Vol. 8 (DT) (Entered: 05/16/2001)
339 TRANSCRIPT taken on 2/7/01 of bench trial Vol. 9 (DT) (Entered: 05/16/2001)
340 TRANSCRIPT taken on 2/8/01 of bench trial Vol. 10 (DT) (Entered: 05/16/2001)
341 TRANSCRIPT taken on 2/9/01 of bench trial Vol. 11 (DT) (Entered: 05/16/2001)
342 TRANSCRIPT taken on 2/10/01 of bench trial Vol. 12 (DT) (Entered: 05/16/2001)
343 TRANSCRIPT taken on 2/12/01 of bench trial Vol. 13 (DT) (Entered: 05/16/2001)
344 TRANSCRIPT taken on 2/15/01 of bench trial Vol. 14 (DT) (Entered: 05/16/2001)
345 TRANSCRIPT taken on 2/16/01 of bench trial Vol. 15 (DT) (Entered: 05/16/2001)
346 STIPULATION by the parties regarding trial exhibits with attachments and proof of mailing [EOD Date: 6/18/01] (dh) (Entered: 06/18/2001)
347 TRANSCRIPT taken on 01/16/01, 01/17/01, 01/18/01, 01/19/01, 01/22/01, 01/23/01, 01/24/01, 02/06/01, 02/07/01, 02/08/01, 02/09/01, 02/12/01, 02/15/01, 02/16/01, of transcript corrections (dh) (Entered: 06/22/2001)
348 NOTICE by plaintiff's counsel of change of address with proof of mailing (DT) (Entered: 06/25/2001)
349 RECORD of appeal notice by intervening defendants [322−1] consisting of: 40 volume(s) of pleadings 17 transcript(s) 0 deposition(s) transmitted to USCA − appeal case # 01−1447, 01−1516 (ew) (Entered: 08/02/2001)
350 ACKNOWLEDGEMENT from USCA of receipt of appeal record [349−1] − appeal case # 01−1447, 01−1516 (DT) (Entered: 08/14/2001)
351 NON−CERTIFIED COPY OF JUDGMENT from USCA reversing and vacating − appeal case # 01−1447/1516 with attachment of opinion (dh) (Entered: 05/17/2002)
352 ERRATA for appeal order [351−1] (ew) (Entered: 06/11/2002)
353 MANDATE from USCA reversing/vacating case [0−0] − appeal case # 01−1447 (ew) (Entered: 06/12/2002)
354 MANDATE from USCA reversing/vacating case [0−0] − appeal case # 01−1516 (ew) (Entered: 06/12/2002)
355 RECORD of appeal record [349−1] returned from USCA − appeal case # 01−1447 (dh) (Entered: 06/21/2002)
356 RECORD of appeal record [349−1] returned from USCA − appeal case # 01−1516 (dh) (Entered: 06/21/2002)
357 NOTICE that petition for a writ of certiorari was filed and placed on docket (ew) (Entered: 09/17/2002)
358 ORDER from the U.S.Supreme Court granting writ of certiorari regarding [EOD Date 12/12/02] 01−1447/1516 (DT) (Entered: 12/12/2002)
359 REQUEST (letter form) by Denise McNerney, Merits Cases Clerk at the U.S. Supreme Court that the entire case record be sent to their office (DT) (Entered: 02/11/2003)
360 RECORD consisting of: 26 volumes of pleadings; 21 transcripts and 2 depositions transmitted to Supreme Court − appeal case # 02−241, USCA 01−1447/1516 (DT) (Entered: 02/11/2003)
361 CERTIFIED copy of order from US Supreme Court affirming the decision of the Sixth Circuit Court of Appels − appeal case # 02−241 (RH) (Entered: 07/09/2003)
362 CERTIFIED copy of order from SC affirming the decision of the U.S. Court of Appeals − appeal case # 02−241, 01−1447/1516 (dh) (Entered: 09/09/2003)

Case: 2:97-cv-75928 As of: 09/19/2012 07:28 PM EDT 33 of 33

09/15/2003 10/10/2003 03/17/2004

363 ORDER from the U.S. Supreme Court denying writ of certiorari regarding petion for rehearing − appeal case # 01−1447/1516 [EOD Date: 9/17/03] (PP) (Entered: 09/17/2003)
364 RECORD of appeal record [360−1] returned from SC − appeal case # 02−241 (dh) (Entered: 10/15/2003)
365 ORDER directing clerk to close case Signed by Judge Bernard A Friedman. (PPaul, ) (Entered: 03/22/2004)

 
 123 S.Ct. 617 Supreme Court of the United States
Barbara GRUTTER, petitioner, v.
Lee BOLLINGER, et al.
No. 02-241. | Dec. 2, 2002.
Case below, 288 F.3d 732.

Opinion *618 Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit granted.
Parallel Citations 123 S.Ct. 617 (Mem), 154 L.Ed.2d 514, 71 USLW 3154, 71 USLW 3387, 71 USLW 3379, 171 Ed. Law Rep. 717, 02 Cal. Daily Op. Serv. 11,546

 
 288 F.3d 732 United States Court of Appeals,
Sixth Circuit.
Barbara GRUTTER, Plaintiff-Appellee, v.
Lee BOLLINGER, et al., Defendants-Appellants (01-1447),
Kimberly James, et al., Intervening Defendants-Appellants (01-1516).
Nos. 01-1447, 01-1516. | Argued: Dec. 6, 2001 | Decided and Filed: May 14, 2002
Regents of state university and its law school appealed from a decision of the United States District Court for the Eastern District of Michigan, Bernard A. Friedman, J., 137 F.Supp.2d 821, which determined that the law school’s consideration of race and ethnicity in its admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act. The Court of Appeals, Boyce F. Martin, Jr., Chief Judge, held that law school’s admissions policy admissions policy was narrowly tailored to serve its compelling interest in achieving a diverse student body, and therefore its policy was valid.
Reversed.
Moore, Circuit Judge, filed concurring opinion.
Clay, Circuit Judge, filed concurring opinion.
Boggs, Circuit Judge, filed dissenting opinion.
Siler, Circuit Judge, filed dissenting opinion.
Batchelder, Circuit Judge, dissented.
Gilman, Circuit Judge, filed dissenting opinion.
Attorneys and Law Firms
*733 David F. Herr (briefed), Kirk O. Kolbo (argued and briefed), R. Lawrence Purdy (briefed), Michael C. McCarthy (briefed), Kai H. Richter (briefed), Maslon, Edelman, Borman & Brand, Minneapolis, MN, Michael E. Rosman (briefed), Center for Individual Rights, Washington, DC, for Barbara Grutter, Nos. 01-1447, 01-1516.
Lawrence R. Velvel, Peter M. Malaguti, Andover, MA,

for Massachusetts School of Law, Nos. 01-1447, 01-1516.
Philip J. Kessler (briefed), Butzel Long, Detroit, MI, John Payton (argued and briefed), John H. Pickering (briefed), Craig Goldblatt (briefed), Anne Harkavy, Brigida Benitez, Stuart F. Delery (briefed), Robin A. Lenhardt (briefed), *734 Tonya T. Robinson, Wilmer, Cutler & Pickering, Washington, DC, Leonard M. Niehoff (briefed), Butzel Long, Ann Arbor, MI, Philip J. Kessler, Butzel Long, Ann Arbor, MI, for Lee Bollinger, Jeffrey Lehman, Dennis Shields, University of Michigan, Board of Regents, Nos. 01-1447, 01-1516.
Rowan D. Wilson (briefed), Paul M. Dodyk (briefed), Charles J. Ha (briefed), Farah S. Brelvi (briefed), Alexandra S. Wald (briefed), Kenneth E. Lee (briefed), Cravath, Swaine & Morre, New York City, Martha W. Barnett (briefed), President American Bar Association, Chicago, IL, for American Bar Association, No. 01-1447.
Kumiki Gibson (briefed), Williams & Connolly, Washington, DC, Neal K. Katyal (briefed), Georgetown University of Law Center, Washington, DC, for Judith Areen, No. 01-1447.
Martin Michaelson (briefed), Hogan & Hartson, Washington, DC, for American Council on Education et al., No. 01-1447.
Thomas J. Henderson (briefed), Lawyers’ Committee for Civil Rights under Law, Washington, DC, John S. Skilton (briefed), Heller, Ehrman, White & McAuliffe, Washington, DC, for Lawyers’ Committee for Civil Rights, No. 01-1447.
Kenneth S. Geller (briefed), Eileen Penner (briefed), Mayer, Brown & Platt, Washington, DC, for General Motors Corp., No. 01-1447.
Martha F. Davis (briefed), Spenta R. Cama, NOW Legal Defense and Education Fund, New York City, for NOW Legal Defense Fund, No. 01-1447.
Susan I. Leffler, Asst. Attorney Gen. (briefed), Office of the Attorney General Appellate Div., Lansing, MI, for State of Michigan, No. 01-1447.
Fred G. Pressley, Jr. (briefed), Porter, Wright, Morris & Arthur, Columbus, OH, for Ohio State University, No. 01-1447.
Jeffrey S. Silver (briefed), Jenner & Block, Chicago, IL, Deanne E. Maynard (briefed), Shilpa S. Satoskar (briefed), David W. DeBruin (briefed), Daniel Mach (briefed), Jenner & Block, Washington, DC, for 3M et al., No. 01-1447.

Yong Lee (briefed), Cameron & Hornbostel, Washington, DC, for National Asian Pacific American Bar Association, et al., No. 01-1447.
Daniel W. Sherrick (briefed), Catherine J. Trafton (briefed), Associate General Counsel International Union, UAW, Detroit, MI, for International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), No. 01-1447.
George B. Washington (briefed), Miranda K.S. Massie (argued and briefed), Jodi-Marie Masley (briefed), Scheff & Washington, Detroit, MI, for Kimberly James, Jeanette Haslett, Raymond Michael Whitlow, Shabatayah Andrich, Dena Fernandez, Shalamarel Kevin Killough, Diego Bernal, Julie Fry, Jessica Curtin, James Huang, Heather Bergman, Ashwana Carlisle, Ronald Cruz, Nora Cecilia Melendez, Irami Osei-Frimpong, Gerald Ramos, Arturo Vasquez, Edward Vasquez, Vincent Kukua, Hoku Jeffrey, Karla Stephens-Dawson, Gibson Yolanda, Mary Gibson, Herbert Dowdell, Jr., Agnes Aleobua, Cassandra Young, Yolanda J. King, Jaasi Munanka, Jodi-Marie Masley, Shannon Ewing, Julie Kerouac, Kevin Pimentel, Bernard Cooper, Norberto Salinas, Scott Rowekamp, Russ Abrutyn, Jasmine Abdel-Khalik, Meera Deo, Winifred Kao, Melisa Resch, Oscar De La Torre, Carol Scarlett, United for Equality and Affirmative Action, Coalition to Defend Affirmative Action By Any Means Necessary, Law Students for Affirmative Action, Nos. 01-1447, 01-1516.
*735 John H. Findley (briefed), Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation, No. 01-1447.
Brice M. Clagett (briefed), Keith A. Noreika (briefed), Covington & Burling, Washington, DC, for National Association of Scholars, American Civil Rights Institute, Independent Women’s Forum, No. 01-1447.
Michael K. Lee (briefed), Amberg, Firestone & Lee, Southfield, MI, for Michigan Education Association, No. 01-1447.
Before: MARTIN, Chief Circuit Judge; BOGGS, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.
Opinion
MARTIN, C.J., delivered the opinion of the court, in which, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined. MOORE, J. (pp. 752-758), delivered a separate concurring opinion, in which DAUGHTREY, COLE, and

CLAY, JJ., joined. CLAY, J. (pp. 758-773), delivered a separate concurring opinion, in which DAUGHTREY, MOORE, and COLE, JJ., joined. BOGGS, J. (pp. 773-815), delivered a separate dissent, in which SILER, J., joined in part, and BATCHELDER, J., joined. SILER, J. (p. 815), BATCHELDER, J. (p. 815), and GILMAN, (pp. 815-818), also delivered separate dissenting opinions.
OPINION
BOYCE F. MARTIN, Jr., Chief Judge.
Lee Bollinger, Jeffrey Lehman, Dennis Shields, the Regents of the University of Michigan and the University of Michigan Law School appeal the district court’s determination that the Law School’s consideration of race and ethnicity in its admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.1 The Law School contends that its interest in achieving a diverse student body is compelling under Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and that its admissions policy is narrowly tailored to serve that interest. On appeal, the Law School is joined by the Intervenors: forty-one individuals and three student groups, United for Equality and Affirmative Action, the Coalition to Defend Affirmative Action By Any Means Necessary, and Law Students for Affirmative Action. The Intervenors offer an additional justification for the Law School’s consideration of race and ethnicity-remedying past discrimination. Barbara Grutter, an unsuccessful applicant to the Law School, on behalf of herself and others similarly situated, urges us to affirm the district court’s decision. For the reasons set forth below, we REVERSE the judgment of the district court.2
I.
The Law School drafted its admissions policy to comply with the Supreme Court’s opinion in Bakke. Adopted by the full faculty in 1992, the policy states that the Law School’s “goal is to admit a group of *736 students who individually and collectively are among the most capable students applying to American law schools in a given year.” It further provides that the Law School “seek[s] a mix of students with varying backgrounds and experiences who will respect and learn from each other.” As part of the Law School’s policy of evaluating each applicant individually, its officials read each application

and factor all of the accompanying information into their decision.
In identifying applicants who can be expected to succeed academically, the Law School evaluates a composite of the applicant’s Law School Admissions Test and undergraduate grade-point average. This composite can be visualized as a grid with standardized test scores on the horizontal axis and grade-point average on the vertical axis. Every combination of standardized test score and undergraduate grade-point average is shown in a cell on this grid. Each cell reports the number of applicants with that particular combination of numerical qualifications, as well as the number of offers of admission made to the applicants in that cell. Constructed in this manner, the highest combination of test scores and undergraduate grade-point averages are found in the grid’s upper right-hand corner. Thus, an applicant’s chance of being admitted generally increases as he or she moves into the grid’s upper right-hand corner. There is no combination of grades and test scores, however, below which an applicant will automatically be denied admission, or above which admission is guaranteed.
The Law School also considers “soft” variables like the enthusiasm of the recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, residency, leadership and work experience, unique talents or interests, and the areas and difficulty of undergraduate course selection. After taking these additional “soft” variables into account, the Law School sometimes admits students with relatively low index scores. Its admissions policy describes two general varieties of students who may be admitted with such scores-(1) “students for whom [there is] good reason to be skeptical of an index score based prediction” (e.g., a student with a track record of poor standardized test performance, but who has an outstanding academic record) and (2) students who “may help achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.”
The Law School’s admissions policy explains that “[t]here are many possible bases for diversity admissions.” For example, the policy states that particular weight might be given to “an Olympic gold medal, a Ph.D. in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person.” The policy also offers three examples of actual diversity admissions. One student was born in Bangladesh, graduated from Harvard with a 2.67 grade-point average, received “outstanding references” from his professors, had an “exceptional record of extracurricular activity,” and had Law School Admission Test scores at the 46th percentile and 52nd

percentile. Another was an Argentinian single mother with extensive business experience, who graduated summa cum laude from the University of Cincinnati, who was fluent in four languages, and scored at the 52nd percentile on the Law School Admission Test. The third applicant had a 3.99 grade-point average from the University of Florida, a Law School Admission Test score at the 90th percentile, and as the daughter of Greek immigrants was “immersed in a significantly ethnic home life,” and fluent in three languages.
*737 Reflecting the Law School’s goal of enrolling a diverse class, its admissions policy describes “a commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” Students from such racial and ethnic groups “are particularly likely to have experiences and perspectives of special importance to our mission.” Professor Richard Lempert, the chair of the faculty committee that drafted the admissions policy, explained that the Law School’s commitment to such diversity was not intended as a remedy for past discrimination, but as a means of including students who may bring a different perspective to the Law School.
In considering race and ethnicity, the Law School does not set aside or reserve seats for under-represented minority students. As Dean Jeffrey Lehman testified: “We do not have a portion of the class that is set aside for a critical mass of under-represented minority students.” This testimony was echoed by Dennis Shields, the Law School’s former admissions director, and Erica Munzel, the current director of admissions, both of whom testified that the Law School does not strive to admit a particular percentage of under-represented minority students. The Law School does, however, consider the number of under-represented minority students, and ultimately seeks to enroll a meaningful number, or a “critical mass,” of under-represented minority students. According to Director Munzel, “critical mass” is a number sufficient to enable under-represented minority students to contribute to classroom dialogue without feeling isolated. Similarly, Dean Lehman equated “critical mass” with sufficient numbers to ensure under-represented minority students do not feel isolated or like spokespersons for their race, and do not feel uncomfortable discussing issues freely based on their personal experiences. Professor Lempert and Kent Syverud, the current dean of Vanderbilt Law School and a former Michigan Law School professor, offered similar definitions of “critical mass.” The Law School’s witnesses also testified that “critical mass” was not a set number or percentage. Director Munzel stated that there is no number or percentage, or range of numbers or

percentages, that constitute a “critical mass.” Likewise, Dean Lehman stated that “critical mass” could not be fixed in terms of number or percentage.
Both the Law School and the unsuccessful applicants presented expert testimony regarding the Law School’s use of race in admissions decisions. Analyzing grids of the Law School’s admissions data from 1995-2000, the unsuccessful applicants’ statistical expert testified that the relative odds of acceptance for Native American, African-American, Mexican-American and Puerto Rican applicants were many times greater than for Caucasian applicants and concluded that members of these groups were “given an extremely large allowance for admission.”
According to the Law School’s statistical expert, eliminating race as a factor in the admissions process would dramatically lower minority admissions. He predicted, for example, that if the Law School could not consider race, under-represented minority students would have constituted only 4% of the entering class in 2000, instead of the actual enrollment figure of 14.5%. Citing the experience of the University of California at Berkeley after the passage of Proposition 209, Dean Lehman echoed these predictions, testifying that he feared under-represented minority enrollment *738 would drop to “token” levels if race and ethnicity could not be considered.
II.
This Court reviews de novo the district court’s finding that the Law School’s efforts to achieve a diverse student body through the consideration of race and ethnic origin is unconstitutional and violates Title VI of the Civil Rights Act of 1964. Johnson v. Econ. Dev. Corp., 241 F.3d 501, 509 (6th Cir.2001); see also Women’s Med. Prof. Corp. v. Voinovich, 130 F.3d 187, 192 (6th Cir.1997) (“[A]n appellate court is to conduct an independent review of the record when constitutional facts are at issue.”). To survive constitutional review, the Law School’s consideration of race must (1) serve a compelling state interest and (2) be narrowly tailored to achieve that interest. See Adarand v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).3
A.
[1] To determine whether the Law School’s interest in achieving a diverse student body is compelling, we turn to Bakke. In Bakke, a fragmented Court determined that the

Medical School of the University of California at Davis, which justified its race-conscious admissions program, in part, as necessary to achieve a diverse student body, could not be permanently enjoined from considering its applicants’ race because “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.” Id. at 320, 98 S.Ct. 2733.
Two distinct opinions support Bakke ‘s judgment on this issue: Justice Powell’s opinion announcing the judgment of the Court, id. at 269-324, 98 S.Ct. 2733, and Justice Brennan’s opinion concurring in the judgment in part and dissenting in part, in which Justices White, Marshall, and Blackmun joined, id. at 324-79, 98 S.Ct. 2733.
Applying intermediate scrutiny, the Brennan concurrence found Davis could constitutionally justify its consideration of race as an effort to remedy the effects of societal discrimination. Id. at 362, 98 S.Ct. 2733. Applying strict scrutiny, Justice Powell found “the attainment of a diverse student body ... clearly is a constitutionally permissible goal for an institution of higher education.” Id. at 311-312, 98 S.Ct. 2733.
Justice Powell recognized that a diverse student body promotes an atmosphere of “speculation, experiment and creation” that is “essential to the quality of higher education.” Id. at 312, 98 S.Ct. 2733 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (Frankfurter, J. concurring)). Moreover, he noted that, by enriching students’ education with a variety of perspectives, experiences, and ideas, a university with a diverse student body helps equip its students to be productive members of society. Bakke, 438 U.S. at 313, 98 S.Ct. 2733 (“[I]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”) (quoting *739 Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)). Accordingly, he concluded “the interest of diversity is compelling in the context of a university’s admission program.” Id. at 314, 98 S.Ct. 2733.
Justice Powell’s recognition of the compelling nature of the state’s interest in a diverse student body was not limited to undergraduate admissions: “[E]ven at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial.” Id. Quoting Sweatt v. Painter, 339 U.S. 629, 634, 70 S.Ct. 848, 94 L.Ed. 1114 (1950), he observed: “The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts.”

Bakke, 438 U.S. at 314, 98 S.Ct. 2733.
The district court did not dispute the merits of student body diversity. Rather, it acknowledged “[t]he evidence defendants submitted ... demonstrated that the educational atmosphere at the law school is improved by the presence of students who represent the greatest possible variety of backgrounds and viewpoints.” Grutter v. Bollinger, 137 F.Supp.2d 821, 849 (E.D.Mich.2001). Nevertheless, it held that achieving a diverse student body is not a compelling state interest because (1) it was not bound by Justice Powell’s conclusion in Bakke, and (2) achieving a diverse student body cannot be a compelling state interest because the Supreme Court has suggested that the only such interest is remedying specific instances of discrimination. See id. at 847-48.
Because Justice Powell’s opinion is binding on this court under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), and because Bakke remains the law until the Supreme Court instructs otherwise, we reject the district court’s conclusion and find that the Law School has a compelling interest in achieving a diverse student body.4
1.
[2] “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks, 430 U.S. at 193, 97 S.Ct. 990 (citation and internal punctuation omitted). In Marks, the Court interpreted its fragmented decision in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), reversing the Massachusetts Supreme Court’s holding that a book depicting a prostitute’s life was suppressible obscenity. Three distinct rationales supported Memoirs ‘s judgment, each representing a different view as to the scope of First Amendment protection afforded sexually explicit expression: (1) Justices Brennan and Fortas and the Chief Justice found the book was not suppressible obscenity because it was not “utterly without redeeming social value,” see id. at 419, 86 S.Ct. 975; (2) Justice Stewart found the book was not suppressible obscenity because it was not hardcore pornography, see id. at 421, 86 S.Ct. 975; and (3) Justices Black and Douglas did not reach the issue of whether the book was suppressible obscenity because they believed the First Amendment provides an absolute shield against government regulation of expression, see id. at 421, 424-28, 86 S.Ct. 975 (opinions of Black, J. and Douglas, J.). See also Marks, 430 U.S. at

194, 97 S.Ct. 990. The Marks Court determined that the Brennan plurality opinion, which provided the most *740 limited First Amendment protection, “constituted the holding of the [Memoirs ] Court and provided the governing standards” because it was the narrowest rationale for the Memoirs judgment.5 Id. at 193-94, 97 S.Ct. 990.
The district court declined to apply the Marks analysis to Bakke because Justice Powell’s rationale was not “subsumed” in that of the Brennan concurrence. See Grutter, 137 F.Supp.2d at 847 (“There is simply no overlap between the two rationales”). Accordingly, it found that “Justice Powell’s discussion of the diversity rationale is not among the governing standards to be gleaned from Bakke.” Id.
The MarksCourt’s treatment of the divergent Memoirsrationales, however, demonstrates that the rationales supporting the Court’s judgment need not overlap on essential points in order to provide a holding that binds lower courts. Indeed, if the Justices agreed on essential points, the Marks analysis would be unnecessary. Cf. Alexander v. Sandoval, 532 U.S. 275, 282, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (citing discrete portions of the opinions of Justice Powell and the Brennan concurrence for the proposition that the Bakke Court determined Title VI’s coverage is coextensive with that of the Equal Protection Clause).
The Marks Court adopted the “utterly without redeeming social value” test as the Memoirs holding even though, by rejecting the possibility of suppression, Justices *741 Black and Douglas rejected the possibility of any test for identifying suppressible obscenity. In contrast to Justices Black and Douglas in Memoirs, the Brennan concurrence did not assert that Davis’s admissions program was wholly insulated from review. In fact, the Brennan concurrence agreed with Justice Powell that Davis’s admissions program was subject to heightened scrutiny, see Bakke, 438 U.S. at 359, 98 S.Ct. 2733 (advocating intermediate scrutiny); it expressly disagreed only with his application of strict scrutiny. Because Bakke is, if anything, more susceptible to the Marks analysis than the case examined in Marks itself, we find the district court erred in failing to analyze Bakke under Marks.
The Bakke Court addressed the permissibility of racial classifications in academic admissions programs. Under the Brennan concurrence’s rationale, the more permissive intermediate scrutiny standard would apply to “benign” racial classifications. Id. Under Justice Powell’s rationale, strict scrutiny would apply to all racial classifications. Id. at 304-07, 98 S.Ct. 2733. Because the set of constitutionally permissible racial classifications under intermediate scrutiny by definition includes those

classifications constitutionally permissible under strict scrutiny, Justice Powell’s rationale would permit the most limited consideration of race; therefore, it is Bakke ‘s narrowest rationale. Accordingly, Justice Powell’s opinion constitutes Bakke ‘s holding and provides the governing standard here.6 See Marks, 430 U.S. at 193-94, 97 S.Ct. 990; see also Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir.1994) ( “While there is some awkwardness in attributing precedential value to an opinion of one Supreme Court *742 justice to which no justice adhered, it is the usual practice when that is the determinative opinion.”); Smith v. Univ. of Washington, 233 F.3d 1188, 1200 (9th Cir.2000).
Because this court is bound by Justice Powell’s Bakke opinion, we find that the Law School has a compelling state interest in achieving a diverse student body.

Cir.1996).
It is a mistake, however, to read the qualifying language as a rejection of any rationale. “[A]t least so long as” simply does not mean “only if.” Moreover, the qualifying language modifies when race may be used: ‘at least so long as ... necessitated by the lingering effects of past discrimination.’ It does not modify *743 why.8 This Court cannot ignore the distinction between a constitutionally permissible goal-‘achieving an integrated student body’-and a constitutionally permissible use of race to achieve that goal-‘so long as necessitated by the lingering effects of past discrimination.’ Therefore, we cannot read the Harvard footnote’s qualifying language to detract from the Brennan concurrence’s agreement with Justice Powell’s diversity conclusion.

2.
Our determination that Justice Powell’s diversity conclusion binds this court also finds some support in the Brennan concurrence’s qualified approval of the Harvard plan in the first footnote of its opinion: “We also agree with Mr. Justice POWELL that a plan like the ‘Harvard’ plan ... is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination.” Bakke, 438 U.S. at 326 n. 1, 98 S.Ct. 2733 (Brennan, J., concurring) (citation omitted) (emphasis added). Under the Harvard plan, Harvard College justified its race-conscious admissions policy solely on the basis of its efforts to achieve a diverse student body. See id. at 316, 98 S.Ct. 2733. Harvard’s consideration of race could not be constitutional if it did not further a constitutionally permissible goal; therefore, by indicating that the Harvard plan could be constitutional under its approach, the Brennan concurrence implicitly-but unequivocally-signaled its agreement with Justice Powell’s conclusion that achieving a diverse student body is a constitutionally permissible goal.7
Although there is no support-either within or without the footnote-for the contention that the Brennan concurrence believed that the desirability of an “integrated student body” turns on whether the consideration of race is necessary to achieve that integration, some courts have read the Harvard footnote’s qualifying language, “at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination,” to suggest that the Brennan concurrence implicitly rejected the goal of achieving student body diversity. See Hopwood v. Texas, 78 F.3d 932, 944 (5th

3.
The Court’s subsequent characterization of Bakke further supports our determination that Justice Powell’s conclusion is binding. See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), overruled on other grounds, Adarand, 515 U.S. at 227, 115 S.Ct. 2097. In Metro Broadcasting, Justice Brennan, speaking for the Court in an opinion joined by Justices White, Blackmun, Marshall, and Stevens, cited Bakke for the proposition that “ ‘a diverse student body’ contributing to a ‘robust exchange of ideas’ is a ‘constitutionally permissible goal’ on which race-conscious university admissions program may be predicated.” Metro Broadcasting, 497 U.S. at 568, 110 S.Ct. 2997 (quoting Bakke, 438 U.S. at 311-13, 98 S.Ct. 2733 (Opinion of Powell, J.)). Metro Broadcasting ‘s insight into Bakke ‘s holding is persuasive authority, which this court may not ignore. See Wright v. Morris, 111 F.3d 414, 419 (6th Cir.1997).
4.
Relying on Adarand and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), the district court found that “racial classifications are unconstitutional unless they are intended to remedy carefully documented effects of past discrimination” and therefore concluded that the Law School’s interest in achieving a diverse student body “is not a compelling state interest because it is not a remedy for past discrimination.” See Grutter, 137 F.Supp.2d at 849. Because the Supreme Court alone retains the ability to overrule its decisions, we reject the district court’s

conclusion.
In Bakke, the Supreme Court determined that Davis-an institution that did not purport to justify its race-conscious admissions program as necessary to remedy specific past discrimination-could consider its applicants’ race. See Bakke, 438 U.S. at 320, 98 S.Ct. 2733. Thus, if the only constitutionally permissible reason to consider race is remedying specific past discrimination, Bakke ‘s judgment is no longer good law. In other words, adopting the district court’s conclusion that the Law School could only justify race-conscious admissions decisions as a remedy for specific past discrimination would necessitate a finding that the Supreme Court has implicitly overruled Bakke.
[3] The Supreme Court, however, has explicitly prohibited just such a finding. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). Rather, “[i]f a precedent of [the] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, *744 leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Id.(quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)).
Moreover, given that (1) Bakke ‘s judgment suggests that remedying specific past discrimination cannot be the only constitutional justification for a race-conscious admissions program, and (2) institutions of higher education have been relying on Bakke for more than twenty years, see, e.g., Kenneth L. Karst & Harold W. Horowitz, The Bakke Opinions and Equal Protection Doctrine, 14 Harv. C.R.-C.L. L.Rev. 7, 7 (1979) (noting that Bakke provides a “how-to-do-it manual for the admission of minority applicants to professional schools”), we are unwilling to infer an intent to overrule Bakke-implicitly or otherwise-into the Court’s Adarand decision. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 855, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (noting that the Court must consider “the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application” and suggesting that stare decisis precludes overruling a decision that cannot be overruled “without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it”); see also Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
B.

[4] Although he found that achieving a diverse student body was a compelling interest, Justice Powell declared Davis’s admissions system unconstitutional because it was not narrowly tailored. Bakke, 438 U.S. at 319-20, 98 S.Ct. 2733. Davis operated a dual-track admissions system featuring a separate admissions committee and separate review process for minority applicants. Id. at 273-74, 98 S.Ct. 2733. Davis also established a quota for minority students-for example, in 1974, Davis reserved sixteen spots for minority applicants. Id. at 275, 98 S.Ct. 2733. According to Justice Powell, the critical defect in Davis’s program was that non-minority students were “totally excluded from a specific percentage of seats in an entering class.” Id. at 319, 98 S.Ct. 2733.
As an example of a constitutionally permissible admissions plan, Justice Powell advanced the Harvard plan in which race or ethnicity was deemed a “plus,” but did not insulate a minority applicant from comparison with other applicants. Id. at 316, 98 S.Ct. 2733. Under the Harvard plan, an institution could consider the race and ethnicity of applicants, but race and ethnicity alone were not the exclusive components of academic diversity. Id. at 317, 98 S.Ct. 2733. Thus, a black applicant could be “examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with ... an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism.” Id. According to Justice Powell, such qualities included “exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important.” Id. The Harvard plan was “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Id. Race could “tip the balance” in an applicant’s favor, but so could other factors like “geographic origin or a life *745 spent on a farm.” Id. at 316, 98 S.Ct. 2733.
Above all, the Harvard plan “treat[ed] each applicant as an individual in the admissions process.” Id. at 318, 98 S.Ct. 2733. “The applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname.” Id. Rather, his denied admission “would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant.” Id.
In endorsing the Harvard plan, Justice Powell accepted

that a university could not provide “a truly heterogen[e]ous environment ... without some attention to numbers.” Id. at 323, 98 S.Ct. 2733. As the Harvard plan detailed:

10 or 20 black students could not

begin to bring to their classmates

and to each other the variety of

points of view, backgrounds and

experiences of blacks in the United

States. Their small numbers might

also create a sense of isolation

among the black students

themselves and thus make it more

difficult for them to develop and

achieve

their

potential.

Consequently, when making its

decisions, the Committee on

Admissions is aware that there is

some relationship between numbers

and achieving the benefits to be

derived from a diverse student

body, and between numbers and

providing

a

reasonable

environment for those students

admitted. But that awareness does

not mean that the Committee sets a

minimum number of blacks or of

people from west of the Mississippi

who are to be admitted. It means

only that in choosing among

thousands of applicants who are not

only ‘admissible’ academically but

have other strong qualities, the

Committee, with a number of

criteria in mind, pays some

attention to distribution among

many types and categories of

students.

Id. at 323-24, 98 S.Ct. 2733.

Justice Powell rejected Justice Brennan’s contention that the distinction between a quota and a program that considered race and ethnicity as a potential “plus” was largely illusory. In Justice Powell’s view, a “plus” program-unlike a quota-lacked a “facial intent to discriminate.” Id. at 318, 98 S.Ct. 2733. Emphasizing that the fine distinction between a “plus” and quota system was both discernible and constitutionally significant, Justice Powell recalled Justice Frankfurter’s declaration that “ ‘[a] boundary line is none the worse for being narrow.’ ” Id.(quoting McLeod v. Dilworth, 322 U.S. 327, 329, 64 S.Ct. 1023, 88 L.Ed. 1304 (1944)). Justice Powell added that “a court would not assume that a university, professing to employ a facially nondiscriminatory

admissions policy, would operate it as a cover for the functional equivalent of a quota system.” Id.; see also Johnson v. Transp. Agency, 480 U.S. 616, 656, 107 S.Ct. 1442, 94 L.E.2d 615 (1987) (O’Connor, J., concurring) (approving gender-conscious promotion where defendant “tried to look at the whole picture, the combination of [her] qualifications and [plaintiff’s] qualifications, their test scores, their experience, their background, [and] affirmative action matters”).
In summary, Justice Powell’s opinion sets forth two guidelines regarding race-conscious admissions policies-(1) segregated, dual-track admissions systems utilizing quotas for under-represented minorities are unconstitutional; and (2) an admissions policy modeled on the Harvard plan, where race and ethnicity are considered a “plus,” does not offend the Equal *746 Protection Clause. Neither party questions the applicability of Justice Powell’s opinion regarding the narrowly tailored component of strict scrutiny, and it is our view that whether the Law School’s admissions policy passes constitutional muster turns on Justice Powell’s opinion.9
1.
Drafted to comply with Bakke, the Law School’s consideration of race and ethnicity does not use quotas and closely tracks the Harvard plan. Race and ethnicity, along with a range of other factors, are potential “plus” factors in a particular applicant’s file, but they do not insulate an under-represented minority applicant from competition or act to foreclose competition from non-minority applicants. As part of its policy of evaluating each applicant individually, the Law School’s officials read each application and factor all of the accompanying information into their decision. The Law School, like Harvard, attends to the numbers and distribution of under-represented minority applicants in an effort to ensure all of its students obtain the benefits of an academically diverse student body.
The record demonstrates that the Law School does not employ a quota for under-represented minority students. The Law School’s witnesses, including the current and former admissions directors, all testified that the Law School does not reserve or set aside seats. For example, Dean Lehman testified: “We do not have a portion of the class that is set aside for a critical mass of under-represented minority students.” Moreover, the Law School operates a single admissions system; there is no separate track for minority applicants insulating them from comparison with non-minority applicants. Thus, the

Law School’s admissions policy avoids the critical defect of the Davis admissions program.
The Law School’s competitive consideration of the race and ethnicity of African-Americans, Hispanics and Native Americans closely tracks the Harvard plan. In its admission policy, quoted in Bakke, Harvard details that race is a “factor in some admissions decisions” and that “the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases.” Id. at 316, 98 S.Ct. 2733. Explaining the rationale behind this policy, Harvard highlighted that a “black student can usually bring something [to Harvard] that a white person cannot offer.” Id. The Law School considers an applicant’s race and ethnicity as a potential “plus” factor, or as Professor Lempert testified, as one element among other elements. Because race and ethnicity are a “plus,” they undoubtedly “tip the balance” in some applicants’ favor. Importantly, however, the Law School’s consideration of race and ethnicity does not operate to insulate any prospective student from competition with any other applicants. The Law School’s explanation for its consideration of race and ethnicity also mirrors the Harvard plan. According to the Law School, students from these groups “are particularly likely to have experiences *747 and perspectives of special importance to [the Law School’s] mission.”
In seeking an academically diverse class, the record indicates that the Law School considers more than an applicant’s race and ethnicity. In Bakke, Justice Powell stressed factors in addition to race and ethnicity that could contribute to academic diversity. See id. at 317, 98 S.Ct. 2733. He cited “exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important.” Id. Mirroring Justice Powell’s discussion, the Law School’s admissions policy states that “[t]here are many possible bases for diversity admissions” and that in evaluating “soft” variables, it considers a range of factors such as leadership, work experience, unique talents or interests and the enthusiasm of an applicant’s letters of recommendation. Illustrating this range, the policy provides that particular weight might be given to “an Olympic gold medal, a Ph. D in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person.”
The Law School’s pursuit of a “critical mass” of under-represented minority students also tracks the Harvard plan’s pursuit of a class with meaningful numbers of minority students. Explaining its attention to the numbers and distribution of minority students, Harvard emphasized that “10 or 20 black students could

not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States.” Id. at 323, 98 S.Ct. 2733. Moreover, “[t]heir small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential.” Id. In defining the term “critical mass,” the Law School’s witnesses voiced virtually identical concerns. Director Munzel testified that “critical mass” is a number sufficient so that under-represented minority students can contribute to classroom dialogue and not feel isolated. Dean Lehman similarly equated “critical mass” with sufficient numbers to ensure under-represented minority students do not feel isolated or like spokespersons for their race, and feel comfortable discussing issues freely based on their personal experiences. Professor Lempert and Kent Syverud, the current dean of Vanderbilt Law School and a former Michigan Law School professor, offered similar explanations for the Law School’s pursuit of a “critical mass” of under-represented minority students. Essentially, both the Law School’s admission policy and the Harvard plan attend to the numbers of under-represented minority students to ensure that all students-minority and majority alike-will be able to enjoy the educational benefits of an academically diverse student body.
In light of the foregoing, we find that the Law School’s consideration of race and ethnicity is virtually indistinguishable from the Harvard plan Justice Powell approved in Bakke.
2.
The unsuccessful applicants focus principally on the effects of the Law School’s policy, contending first that the Law School’s pursuit of a “critical mass” is the functional equivalent of a quota because it has resulted in a range of under-represented minority enrollment from 10%-17%. As a matter of definition, we are satisfied that the Law School’s “critical mass” is not the equivalent of a quota, because unlike Davis’s reservation of sixteen spots for *748 minority candidates, the Law School has no fixed goal or target. That the Law School’s pursuit of a “critical mass” has resulted in an approximate range of under-represented minority enrollment does not transform “critical mass” into a quota. Because Bakke allows institutions of higher education to pay some attention to the numbers and distribution of under-represented minority students, see id. at 316-17, 98 S.Ct. 2733, over time, reliance on Bakke will always produce some percentage range of minority enrollment. And that range will always have a bottom, which, of course, can be

labeled the “minimum.” These results are the logical consequence of reliance on Bakke and establishment of an admissions policy, like the Harvard plan, that attends to the numbers and distribution of under-represented minority students. As such, they cannot serve as the basis for a charge that the Law School’s admissions policy is unconstitutional.
In analyzing actual admissions data, the dissent tries out a variation of the unsuccessful applicants’ contention and focuses only on the years 1995 through 1998. Dissenting Op. at 802 (Boggs, J.). Based on this grouping, the tightest four-year range available, the dissent concludes that the Law School seeks a “critical mass” of forty-four to forty-seven under-represented minorities per class, or “around 13.5%.” But as the dissent confesses in a footnote, the rest of the picture “deviate[s] a bit.” Id. at 802 n. 29. From 1987 to 1994, under-represented minority enrollment was 12.3%, 13.6%, 14.3%, 13.4%, 19.1%, 19.8%, 14.5%, 20.1%, respectively. More importantly for present purposes, if we examine under-represented minority enrollment from 1993 until 1998, we see that the Law School’s under-represented minority enrollment ranged from 13.5% to 20.1%. In light of (1) the overwhelming testimony by Law School professors, admissions counselors and deans that the Law School does not employ a quota or otherwise reserve seats for under-represented minority applicants and (2) Justice Powell’s instruction that lower courts presume that academic institutions act in good faith in operating their “plus” programs, we simply cannot conclude that the Law School is using the “functional equivalent” of the Davis Medical School quota struck down in Bakke.
Relying on statistical evidence that under-represented minority students are admitted to the Law School with comparatively lower undergraduate grade-point averages and standardized test scores, the unsuccessful applicants also argue that the Law School considers race and ethnicity too much.10 Although they concede that all admitted students are qualified, the unsuccessful applicants contend that this disparity evidences an unconstitutional double standard for admission of under-represented minority applicants and non-minority applicants. Upon inspection, however, the unsuccessful applicants’ statistical evidence demonstrates just what one would expect a plan like the Harvard plan to demonstrate-that race and ethnicity, as “plus” factors, play an important role in some admissions decisions. As the logical result of reliance on the Harvard plan, the unsuccessful applicants’ statistical evidence accordingly cannot sustain their contention that the Law School’s admissions policy is unconstitutional.
In advancing the Harvard plan, Justice Powell, unfortunately, did not define or discuss a permissible

“plus” with respect *749 to the test scores and high school grades of under-represented minority Harvard applicants. And Harvard did not append a statistical comparison of minority and non-minority standardized test scores and/or grades to its admissions plan. Perhaps Harvard, in enrolling meaningful numbers of under-represented minority students, could select under-represented minority applicants with test scores or high school grades equivalent to their non-minority counterparts. And then again, perhaps Harvard grappled with some of the same admissions challenges as the Law School does today. Of course, such admissions statistics are neither in the record before us nor explicitly incorporated into Justice Powell’s opinion. Under these circumstances, we cannot hold that the Law School’s admissions program, which is virtually identical to the Harvard plan, would nevertheless fail Justice Powell’s test for constitutionality. Without some indication that Justice Powell specifically meant to limit the consideration of race or ethnicity-as a “plus,” to “tip the balance,” or as a “factor in some admissions decisions”-to instances where standardized test scores or high school grade-point averages were equivalent, we cannot adopt the limited definition of “plus” urged by the dissenting opinions. See Dissenting Op. at 798-800 (Boggs, J.); Dissenting Op. at 817 (Gilman, J.). And thus, we cannot conclude that the difference, on average, between the standardized test scores and/or undergraduate grades of qualified under-represented minority students and qualified non-minority students renders the Law School’s admissions policy unconstitutional.
3.
The district court relied on five factors in concluding that the Law School’s consideration of race and ethnicity was not narrowly tailored: (1) the Law School did not define “critical mass” with sufficient clarity; (2) the apparent lack of a time limit on the Law School’s consideration of race and ethnicity; (3) the admissions policy was “practically indistinguishable” from a quota system; (4) the Law School did not have a logical basis for considering the race and ethnicity of African-Americans, Native Americans and Puerto Ricans; (5) the Law School did not “investigate alternative means for increasing minority enrollment.” Grutter, 137 F.Supp.2d at 850-52. As a initial matter, we have serious reservations regarding the district court’s consideration of five factors not found in Bakke, which, as we have stated, is the only Supreme Court case to directly address the consideration of race and ethnicity in academic admissions. Nevertheless, we are satisfied that the remaining factors relied on by the district court cannot sustain its holding.

Although not addressed in Bakke, subsequent Supreme Court opinions suggest consideration of race-neutral means is necessary to satisfy the narrowly tailored component of strict scrutiny. E.g., Croson, 488 U.S. at 507, 109 S.Ct. 706 (“In determining whether race-conscious remedies are appropriate, we look to several factors, including the efficacy of alternative remedies.”) (quoting United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987)). Although the Law School’s consideration of race and ethnicity differs from the racial classifications at issue in Croson, and the context of higher education differs materially from the government contracting context, see, e.g., Hopwood, 78 F.3d at 965 n. 21 (Wiener, J., concurring) (“This unique context, first identified by Justice Powell, differs from the employment context, differs from the minority business set aside context, and differs from the re-districting context; it comprises only the public education context and implicates the uneasy marriage of *750 the First and Fourteenth Amendments.”), we nevertheless assess whether the Law School adequately considered race-neutral alternatives.
The district court acknowledged that the Law School introduced evidence indicating that under-represented minority students could not be enrolled in significant numbers without explicit consideration of race and ethnicity, but ruled that the Law School “fail[ed] to investigate alternative means for increasing minority enrollment.” 137 F.Supp.2d at 852. Upon examination, however, the record does indicate the Law School considered and ultimately rejected various race-neutral alternatives to the consideration of race and ethnicity. Director Munzel, former Director Shields and Dean Lehman all testified that the Law School engaged in both pre- and postadmission recruiting activities but that such activities were not enough to enroll a “critical mass” of under-represented minority students. Additionally, Professor Lempert testified regarding the lottery system, in which the Law School would lower its admissions standards, establish a numerical cut-off for “qualified” applicants, and then select randomly from among those applicants. According to Professor Lempert, such a system would admit greater numbers of non-minority students, but would not yield meaningful racial and ethnic diversity. Given the Law School’s consideration of race-neutral alternatives and the evidence that “under-represented minority students cannot be enrolled in significant numbers unless their race is explicitly considered in the admissions process,” we find that the Law School has adequately considered race-neutral alternatives.
The dissent proposes the Law School pursue “experiential diversity in a race-neutral manner” and characterizes such an approach as a superior alternative to the Law School’s

current admissions system. Dissenting Op. at 806-807 (Boggs, J.). In effect, then, the dissent proposes that the Law School only focus on its race-neutral bases of diversity admissions. But as the dissent essentially acknowledges, this proposed alternative could not possibly achieve the same robust academic diversity currently sought and obtained by the Law School. The dissent says that it is “fully willing to stipulate that race does matter in American society, and that, on average, it matters more negatively for some, if not all, of the groups favored by the Law School than it does for some, if not all disfavored by the Law School.” Id. at 808. As to the impact of income, the dissent also offers to “stipulate that such impact or disadvantage is not strictly limited by present income or status.” Id. Yet the dissent nevertheless proposes that the Law School ignore the influence of race and ethnicity in pursuing a broad “pluralism of ideas and experiences” and, at the same time, reassures us that the pursuit of race-neutral diversity will still somehow produce the broadest “pluralism of ideas and experiences.” Id. at 807. In reality, by reducing the range of experiences the Law School can consider-namely, the experience of being an African-American, Hispanic or Native American in a society where race matters-the dissent proposes only a narrowed and inferior version of the academic diversity currently sought by the Law School.
Lastly, we note that we do not read Bakke and the Supreme Court’s subsequent decisions to require the Law School to choose between meaningful racial and ethnic diversity and academic selectivity. An institution of higher education must consider race-neutral alternatives, but it need not abandon its academic mission to achieve absolute racial and ethnic neutrality. Thus, in applying strict scrutiny we cannot ignore the educational judgment *751 and expertise of the Law School’s faculty and admissions personnel regarding the efficacy of race-neutral alternatives. We are ill-equipped to ascertain which race-neutral alternatives merit which degree of consideration or which alternatives will allow an institution such as the Law School to assemble both a highly qualified and richly diverse academic class. See Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 226, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (noting that a federal court is ill-suited “to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public education institutions-decisions that require an expert evaluation of cumulative information and are not readily adapted to the procedural tools of judicial or administrative decisionmaking.”) (citations and internal punctuation omitted). Mindful of both our constitutional obligations and our practical limitations, we also assume-along the lines suggested by Justice Powell-that the Law School acts in good faith in exercising its educational judgment

and expertise. See Bakke, 438 U.S. at 318-19, 98 S.Ct. 2733.
4.
We are not persuaded by the remaining factors that the district court relied on to invalidate the Law School’s admissions policy. First, the district court’s conclusion that the term “critical mass” is not sufficiently defined is at odds with the extensive record in this case, and the district court’s own characterization of “critical mass” as the functional equivalent of a quota. See Grutter, 137 F.Supp.2d at 850. Numerous law school witnesses testified regarding the meaning of the term “critical mass.” For example, Dean Lehman equated “critical mass” with sufficient numbers such that under-represented minority students do not feel isolated or like spokespersons for their race, and do not feel uncomfortable discussing issues freely based on their personal experiences. We also emphasize the considerable tension between the district court’s findings that “critical mass” is both insufficiently defined and the functional equivalent of a quota. In any event, the district court’s apparent insistence that “critical mass” correspond with a more definite percentage is also fatally at odds with Bakke ‘s prohibition of fixed quotas. See Bakke, 438 U.S. at 319, 98 S.Ct. 2733.
Second, the district court’s statement that “there is no logical basis for the law school to have chosen the particular groups which receive special attention under the admissions policy,” Grutter, 137 F.Supp.2d at 851-52, ignores both the Harvard plan and the Law School’s admissions policy. The Harvard plan specifically identified “blacks and Chicanos and other minority students” among the under-represented groups that Harvard sought to enroll through its admissions policy. Bakke, 438 U.S. at 322, 98 S.Ct. 2733. The Law School’s similar reference to African-Americans, Hispanics and Native Americans accordingly cannot be faulted in this respect. Moreover, the policy itself supplies the logical basis for considering the race and ethnicity of these groups-without such consideration, they would probably not be represented in the Law School’s student body in “meaningful numbers.” As with the formulation and consideration of race-neutral alternatives, some degree of deference must be accorded to the educational judgment of the Law School in its determination of which groups to target. See Ewing, 474 U.S. at 226, 106 S.Ct. 507.
Finally, the district court’s determination that the Law School’s consideration of race and ethnicity lacks a definite stopping point also does not render the

admissions policy unconstitutional. See Grutter, 137 F.Supp.2d at 851. Although the district *752 court correctly recited Adarand ‘s directive that a race-conscious remedial program must be limited so that it “will not last longer than the discriminatory effects it is designed to eliminate,” this directive does not neatly transfer to an institution of higher education’s non-remedial consideration of race and ethnicity. Unlike a remedial interest, an interest in academic diversity does not have a self-contained stopping point. Indeed, an interest in academic diversity exists independently of a race-conscious admissions policy. Nevertheless, even if we were to apply a durational constraint, we are satisfied that the Law School’s admissions policy sets appropriate limits on the competitive consideration of race and ethnicity. The record indicates that the Law School intends to consider race and ethnicity to achieve a diverse and robust student body only until it becomes possible to enroll a “critical mass” of under-represented minority students through race-neutral means. Thus, we are satisfied that the admissions policy is “sensit[ive] to the possibility that [it] might someday have satisfied its purpose.” See Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 737 (6th Cir.2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001).
III.
For the foregoing reasons, we REVERSE the judgment of the district court and VACATE its injunction prohibiting the Law School from considering race and ethnicity in its admissions decisions.
MOORE, Circuit Judge, concurring.
I write separately both to note my disapproval of Judge Boggs’s decision to include a “Procedural Appendix” as part of his dissenting opinion and to provide an accurate account of how this case came to be argued before the present en banc court.
I.
In publishing their “Procedural Appendix,” I believe that Judge Boggs and those joining his opinion have done a grave harm not only to themselves, but to this court and even to the Nation as a whole. A court’s opinions state the reasons for its holdings and provide the public with the principled justifications for them. Dissenting opinions typically present principled disagreements with the

majority’s holding. Such disagreements over principle are perfectly legitimate and do not undermine public confidence in our ability as judges to do what we have sworn to do because, as a culture, we have long recognized that disagreements over principle are unavoidable. Given this cultural backdrop, disagreements over principle can be phrased in strong terms without damaging the court’s ability to function as a decision-making institution in a democratic society. Judges criticize their colleagues’ reasoning all the time, and, if they are to carry out their oaths of office, they must do so. This robust exchange of ideas sharpens the focus and improves our analysis of the legal issues.
In the present case, Judge Boggs has written a lengthy and strongly worded critique of the substance of the majority’s holding in the present case. Although I disagree with his analysis and conclusions, I acknowledge his abilities as a jurist.
The final section of Judge Boggs’s dissent, labeled “Procedural Appendix,” however, publicizes disagreements over the internal workings of the court, which, as my colleague states, “do not directly affect the legal principles discussed in this case.” Given that these procedural matters are, at best, peripheral to the matter at hand, the only reason that “it is important that *753 they be placed in the record” is to declare publicly the dissent’s unfounded assertion that the majority’s decision today is the result of political maneuvering and manipulation. The baseless argument of the “Procedural Appendix” is that the decisions of this court are not grounded in principle and reasoned argument, but in power,1 and that the judges of this court manipulate and ignore the rules in order to advance political agendas. I am saddened that Judge Boggs and those joining his opinion believe these things. But, more importantly, I am concerned that my dissenting colleagues’ actions will severely undermine public confidence in this court. Cf. Memphis Planned Parenthood, Inc. v. Sundquist, 184 F.3d 600, 608 (6th Cir.1999) (Batchelder, J., separate statement on denial of rehearing en banc) (“Our dissenting colleague’s own purposes may be furthered by publicly impugning the integrity of his colleagues. Collegiality, cooperation and the court’s decision-making process clearly are not. And public confidence in the judicial system and in this court clearly are not.”).
Because we judges are unelected and serve during good behavior, our only source of democratic legitimacy is the perception that we engage in principled decision-making. See Planned Parenthood v. Casey, 505 U.S. 833, 865-66, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). This perception is based both in the reality of our practice-I believe that my colleagues, all of them, strive to decide cases in a principled manner-and in the presentation of our decisions

to the public in written opinions.
The decisions of this court are not self-executing but instead must be carried into practice by other actors. They will do so only as long as they regard us as legitimate, as we possess neither the purse nor the sword, but only judgment. For this reason, we are often described as the weakest branch, but a court without purse, sword, or legitimacy would be weaker still. This is not to argue that protecting the relative strength of the judicial branch should be our primary concern. Indeed, we have all sworn to uphold the Constitution, and the Nation needs a strong judiciary to check the occasional excesses of the other branches and, more importantly, to preserve the rule of law.
Our ability to perform these crucial tasks is imperiled when members of this court take it upon themselves to “expose to public view” disagreements over procedure. The damage done by such exposés is, at least in part, the responsibility of those who report them, despite the efforts of Judge Boggs and those joining his opinion to disclaim responsibility for their own conduct. It is understandable, however, that they do so, as their conduct in the present case is nothing short of shameful.
II.
With great reluctance, I find myself forced to respond to Judge Boggs’s inaccurate and misleading account of the procedural facts underlying the present case.2 *754 As discussed in Part I of this opinion, I firmly believe that matters of internal court procedure should not be exposed to public view. But when one is attacked in the way that the members of the majority have been attacked, it is necessary to present an accurate account of the events in question; to fail to do so would create the impression that Judge Boggs’s assertions are, in fact, correct.
Judge Boggs and those joining his opinion have numerous complaints regarding the procedures that were followed in the present case. In the end, however, their chief complaint is that the present case has been decided by a nine-judge en banc court (“the particular decision-making body that has ... decided [the case]”) rather than an eleven-judge en banc court, and that the members of the hearing panel originally assigned this case (Chief Judge Martin, Judge Daughtrey, and myself) purposefully engineered this result. A number of Judge Boggs’s unfounded assertions involve the May 14, 2001 petition for initial en banc hearing filed by Barbara Grutter. Judge Boggs repeatedly asserts that the “preselected” hearing panel withheld this petition from the other members of the

court until after Judges Norris and Suhrheinrich took senior status, on July 1 and August 15, 2001, respectively.
The Sixth Circuit’s private docket, however, indicates that the May 14 petition for hearing en banc was first referred to the hearing panel on August 23, 2001, and it was not received by the panel until several days thereafter.3 By August 23, both Judges Norris and Suhrheinrich had taken senior status. Even if the hearing panel had taken immediate action to circulate the en banc petition to the whole court on that date, the case would have been heard by the same en banc court that in fact heard it on December 6, 2001. The record simply does not support any other conclusion on this point. Similarly, the June 4, 2001 order holding the en banc petition in abeyance was also referred to the hearing panel in August 2001. Thus, Judge Boggs’s claim that the June 4 order was not circulated to the en banc court, on June 4, is true, as far as it goes, but misleading, because that order was not circulated to any judges at that time, including the hearing panel. This ministerial order was signed by the clerk of the court and was not issued as a result of any action by the hearing panel.
In addition, Judge Boggs’s assertion that the hearing panel violated the rules or internal operating procedures of the Sixth Circuit in not circulating the en banc petition to the entire court after August 23 but prior to October 15, 2001, is simply incorrect.4 On December 5, 2000, months before the filing of the petition in the present case, Chief Judge Martin instituted a policy regarding the treatment of petitions for initial hearing en banc. This change in policy was spurred by the increasing frequency of such petitions, especially in pro se appeals. In the letter detailing the policy, the chief judge instructed that, when such a petition is filed, the clerk of the court should enter an order, such as that issued in the present case, holding the petition in abeyance until the completion of *755 briefing, and then refer the petition to the hearing panel assigned the cases. This procedure was followed in the present case. In each case, the assigned hearing panel would then decide, as an initial matter, whether to deny the petition and proceed with the scheduled panel consideration or, if the petition raised a legitimate ground for initial hearing en banc, to circulate the petition to the rest of the court. To my knowledge, no one raised any objection to this policy when it was circulated to the court for comment and instituted in December 2000. Pursuant to this policy, the hearing panel in the present case decided, in September 2001, not to circulate the en banc petition to the entire court. Whatever the prior practice of the Sixth Circuit with respect to the circulation of petitions for initial hearing en banc, see Dissenting Op. at 811 n.43 (discussing petitions filed in the year 2000), the hearing panel in the present case was not required to circulate the May 14 en banc petition under the policy in effect in

September 2001.
As Judge Boggs indicates in his dissent, an initial hearing of a case en banc is an extremely rare occurrence. See Dissenting Op. at 814 (“I have been on the court for [sixteen] years, and I do not recall an initial hearing en banc in my tenure.”). Thus, the hearing panel’s decision not to circulate the petition for an initial hearing en banc in the present case-prior to the events discussed infra-is perfectly understandable. Indeed, if the members of the hearing panel had circulated the May 14 petition in September 2001, the other members of the court would have likely voted not to hear the case initially en banc, since Judge Boggs cannot recall any other instance of such a petition having been granted in the past sixteen years. In light of this consideration, however, I do not see how the hearing panel can be faulted for not circulating the petition.
Judge Boggs also objects to the treatment of the present case as a “must panel” case, the composition of the “preselected” hearing panel, and the handling of all actions and motions related to this appeal by the “preselected” hearing panel. These objections are relatively minor, given the subsequent decision to hear the case initially en banc.5 Indeed, this court’s decision to hear the present case en banc was motivated by the concerns related to the composition of the hearing panel. These concerns were raised by Senior Circuit Judge Ralph Guy in a letter to Chief Judge Martin, which was dated October 15, 2001. The poll letter, issued by the hearing panel to the en banc court that very day, stated the following rationale for circulating the petition for hearing en banc:
Re: Petition for Initial Hearing En Banc; Request for a Poll
Plaintiffs Gratz and Grutter have filed a petition for initial hearing en banc in these two cases concerning the admissions policies of the University of Michigan and its law school. Pursuant to the usual court policy, this petition for initial hearing en banc was referred to the panel hearing the case. The reasons stated for initial hearing en banc were the “exceptional importance” of the case, the “inevitable conflict” with another federal circuit’s opinion in view of the already conflicting decisions of the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir.1996), and 236 F.3d 256 (5th Cir.2000), and the Ninth Circuit in Smith v. University of Washington Law *756 Sch., 233 F.3d 1188 (9th Cir.2000), and the need for expedited resolution.
The panel that was assigned this case is Chief Judge Martin, Judge Daughtrey, and Judge Moore. The panel believed that the usual court policy referring a petition

for initial hearing en banc should be followed, and that the reasons set forth for initial hearing en banc did not warrant such an initial hearing. The panel already had expedited the appeal process, the conflict between the circuits already existed, and we had not heard en banc any number of other exceptionally important cases.
Because of a question that has been raised regarding the composition of the panel, the panel believes that the en banc court should vote on the petition for initial hearing en banc. Hence the petition is attached for a vote. Since the case is scheduled to be heard by the panel on Wednesday, October 23, time is of the essence in deciding whether to proceed initially en banc.
Judges Daughtrey and Moore were on the initial panel in 1999 considering questions of intervention. Grutter v. Bollinger, 188 F.3d 394 (6th Cir.1999). The third judge was Judge Stafford, a Senior District Judge from the Northern District of Florida. Pursuant to our “must panel” practice, Judges Daughtrey and Moore have continued on this case. Chief Judge Martin was substituted for Judge Stafford.
The panel requests that the en banc court be polled regarding the petition for initial hearing en banc.
The vote for hearing en banc was seven in favor-Chief Judge Martin, Judges Siler, Daughtrey, Moore, Cole, Clay, and Gilman-with no votes cast against hearing en banc. Neither Judge Boggs nor Judge Batchelder voted in this matter, but, pursuant to our rules, their non-votes were in effect votes against the en banc hearing of the present case.
This court voted to hear the present case en banc in order to resolve the concerns of certain members of the court about the composition of the hearing panel. Judge Boggs and those joining his opinion now complain about the composition of the en banc court. But, as I have demonstrated supra, these complaints are without merit. Moreover, even if the “preselected” hearing panel had acted as Judge Boggs claims, which it did not, it is important to note that this did not deprive Judge Boggs and the other dissenters of the opportunity to call for initial hearing en banc on their own initiative at any time.
The internal operating procedures of this court permit any active judge to request a poll for hearing a case initially en banc, regardless of whether a party has filed a petition for hearing en banc. See 6 Cir. I.O.P. 35(c). If, then, Judges Boggs and others were concerned with the selection of the hearing panel in the present case at some point prior to October 15, 2001, there was an internal procedure by which they could have addressed those concerns. As the present appeal was filed on April 2,

2001, prompt action by Judges Boggs and the other dissenters would have resulted in an en banc hearing before a different en banc court-or, in other words, Judge Boggs and the other dissenters could have called for an en banc hearing before the eleven-judge en banc court they now argue was deprived of this opportunity.
The simple fact of the matter is that the present case was treated as a “must panel” case as early as July 2000. In Grutter v. Bollinger, 188 F.3d 394 (6th Cir.1999), a panel consisting of Judge Daughtrey, myself, and Judge William H. Stafford, a senior district judge from the Northern District of Florida, reversed district court *757 orders denying the motions of prospective intervenors to intervene in the present case and in its companion case, Gratz v. Bollinger. The opinion in the intervenors’ case was issued on August 10, 1999. Subsequent to that decision, the defendants requested permission to appeal the district courts’ certification of plaintiff classes in Grutter and Gratz, pursuant to Federal Rule of Civil Procedure 23(f). On July 10, 2000, the clerk of the court contacted Judge Daughtrey and me regarding whether those appeals (Sixth Circuit docket numbers 00-0107 and 00-0109), which were consolidated for purposes of appeal, represented a “must panel” situation. We decided that these cases did represent a “must panel” situation, where subsequent matters should be returned to the original panel due to their interrelatedness with the original matter, and these cases were transferred to a motions panel including Judge Daughtrey and myself.
At that time, Chief Judge Martin was substituted for Judge Stafford on the motions panel. Sixth Circuit rules give the active members of a panel the option of recalling the district judge or senior circuit judge from another circuit who sat on the panel previously or replacing that judge with a third Sixth Circuit judge. See 6 Cir. I.O.P. 34(b)(2). Although that rule states that the third Sixth Circuit judge should be drawn at random, Chief Judge Martin has frequently substituted himself in a variety of matters, of varying degrees of importance, throughout his tenure as chief judge, in order to avoid inconveniencing other circuit judges. Thus, it was not unusual for him to place himself on the panel in July 2000. To my knowledge, no one has objected before to Chief Judge Martin’s filling of vacancies in other cases, even though his practice of doing so is a matter of common knowledge among the judges of this court.
This motions panel denied the defendants’ request for permission to appeal the class certification decisions on September 26, 2000. The same motions panel also granted the parties’ request for permission to file interlocutory appeals in Gratz, pursuant to 28 U.S.C. § 1292(b), on March 26, 2001 (Sixth Circuit docket numbers 01-0102 and 01-0104).

When the appeal in the present case was filed, the defendants moved this court to stay the district court’s order enjoining the Law School from considering race as a factor in admissions. The panel of Chief Judge Martin, Judge Daughtrey, and myself granted this stay in a published order on April 5, 2001 (Sixth Circuit docket number 01-1447). See Grutter v. Bollinger, 247 F.3d 631 (6th Cir.2001). On that same date, the chief judge ordered that the appeals in Grutter and Gratz be expedited, setting August 1, 2001, as the deadline for the filing of briefs and appendices. Oral argument was set for the court’s October term.
Thus, it should have been clear to the other members of the court, as of the published order of April 5, 2001, if not sooner, that the present case was being treated as a “must panel” case and that the hearing panel would consist of Chief Judge Martin, Judge Daughtrey, and myself. At any point thereafter, Judge Boggs or any other member of the en banc court-including Judges Norris and Suhrheinrich, before they took senior status-could have called for a poll to determine whether the case should be heard initially en banc. If there were questions regarding the composition of the hearing panel, then Judge Boggs and those joining his dissent could have raised those questions through this means at any time.
Judge Boggs and those joining his dissent did not raise these concerns in this manner, however. In fact, the dissenters *758 themselves did not raise any complaints with the composition of the en banc court when the en banc petition was circulated, when the case was argued before the en banc court, or even in the first circulated draft of Judge Boggs’s dissent. The lateness of their complaints suggests that their primary complaint is with the outcome of the present case rather than with the procedures that were followed in arriving at that outcome. But unhappiness over the outcome of the case cannot justify the dissenters’ “Procedural Appendix.” Judge Boggs’s opinion marks a new low point in the history of the Sixth Circuit. It will irreparably damage the already strained working relationships among the judges of this court, and, as discussed in Part I supra, serve to undermine public confidence in our ability to perform our important role in American democracy. And for what reason? What purpose does the “Procedural Appendix” serve? Its author does not defend its inclusion, except to suggest that by placing his version of events in the record, some “remediation” may be “possible.” Dissenting Op. at 814 n. 49. Whatever “remediation” Judge Boggs may envision is properly the subject of a court meeting, but not the basis for an unprecedented “Procedural Appendix.”
CLAY, Circuit Judge, concurring.

I concur in Chief Judge Martin’s majority opinion, finding it correct and insightful in all respects. I write separately, however, for the purpose of speaking to the misrepresentations made by Judge Boggs in his dissenting opinion which unjustifiably distort and seek to cast doubt upon the majority opinion.1
A. Justice Powell’s Opinion in Bakke remains “the Law of the Land”
The dissent’s many fallacies begin with its attempt to undermine the majority’s holding that Justice Powell’s opinion in Bakke is controlling. Indeed, now Supreme Court Justice Scalia once described Justice Powell’s opinion as “the law of the land.” See Antonin Scalia, Commentary, The Disease as Cure: “In order to get beyond racism, we must first take account of race.”, 1979 WASH. U.L.Q.. 147, 148 (1979) (speaking then as Professor Scalia on Justice Powell’s opinion in Bakke ). And significantly, since Bakke the Supreme Court has done nothing to render this description of Justice Powell’s opinion any different. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (reaffirming that “ ‘[i]f a precedent of this Court has direct application in a case, ... the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions’ ”) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)); see also Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir.1998) (recognizing that absent a clear holding from the Supreme Court, the precedential value of Justice Powell’s opinion in Bakke, that diversity is a sufficiently compelling governmental interest to justify a race-based classification, should not be disturbed, especially where various individual justices have “from time to time ... written approvingly of ethnic diversity in comparable settings”); Mark R. Killenbeck, Pushing Things Up to Their First Principles: Reflections on the Values of Affirmative Action, *759 87 CAL. L. REV. 1299, 1352 (1999) (illustrating why Justice Powell’s opinion in Bakke is controlling, and why any other conclusion elevates form over substance inasmuch as Justice Brennan’s opinion cannot be distinguished from Justice Powell’s opinion on the basis of the level of scrutiny applied, or on any other basis) (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (O’Connor, J., concurring) (finding that “[a]lthough Justice Powell’s formulation may be viewed as more stringent than that suggested by Justices Brennan, White, Marshall, and Blackmun, the disparities between the two tests do not preclude a fair measure of consensus [,]” particularly where “the distinction between a

‘compelling’ and an ‘important’ governmental purpose may be a negligible one”); Bush v. Vera, 517 U.S. 952, 1010, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (Stevens, J., dissenting) (noting that “all equal protection jurisprudence might be described as a form of rational basis scrutiny; we apply ‘strict scrutiny’ more to describe the likelihood of success than the character of the test to be applied”); United States v. Virginia, 518 U.S. 515, 567, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (Scalia, J., dissenting) (contending that “[t]hese tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case”)). One should therefore not be taken in by the dissent’s many contortions to convolute and undermine the majority’s holding that diversity in a student body is a recognized compelling governmental interest pursuant to Justice Powell’s controlling opinion in Bakke.2
B. The Evidence Supports Diversity as a Compelling Governmental Interest
Likewise, one should not be led astray by the dissent’s contention that, Justice Powell’s opinion aside, developing a diverse student body cannot serve as a compelling state interest. While criticizing the majority and implying that it is simply huddling behind Justice Powell’s opinion, the dissent claims that “the majority has given us no argument as to why the engineering of a diverse student body should be a compelling state interest sufficient to satisfy strict scrutiny.” In an apparent attempt to elevate itself over the majority opinion, the dissent goes on to claim that it, on the other hand, considers “the arguments on both sides of this question ... and conclude[s] that constructing a diverse educational environment is not a compelling state interest.” The dissent’s claim that it considers the arguments on both sides is suspect because conspicuously absent from its consideration of the benefits of a diverse student body is any meaningful recognition of the wealth of legal scholarship-including a study involving students at the University of Michigan-speaking of, as well as documenting through empirical data, the positive impact of diversity in education, not just for the student throughout the educational journey but for years after the educational process is completed. Although the dissent criticizes this study on various points, the fact remains that the study has been hailed on many fronts.
Specifically, the major study conducted by University of Michigan Professor of Psychology and Women’s Studies Patricia Gurin, encompassed a wide scale analysis of the effects of a diverse learning environment, *760 particularly that at the University of Michigan, on a

student’s overall development, and included data from the Michigan Student Study, the study of Intergroup Relations, Conflict, and Community Program at the University of Michigan, and the 4-year and 9-year data on a large national sample of institutions and students from the Cooperative Institutional Research Program. See Patricia Gurin, Reports submitted on behalf of the University of Michigan: The Compelling Need for Diversity in Higher Education, 5 MICH. J. RACE & LAW 363, 364 (1999); see also Steven A. Holmes, A New Turn in Defense of Affirmative Action, N.Y. TIMES, May 11, 1999, at A1 (citing Professor Gurin’s report and concluding that “the marshaling of statistical evidence of the benefits of racial diversity” distinguished the present case involving the University of Michigan from similar cases involving Universities in California and Texas inasmuch as these institutions defended their affirmative action policies with only “anecdotal evidence”).
Professor Gurin’s studies, and resulting statistical data, led her to conclude as follows:
A racially and ethnically diverse university student body has far-ranging and significant benefits for all students, non-minorities and minorities alike. Students learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting. In fact, patterns of racial segregation and separation historically rooted in our national life can be broken by diversity experiences in higher education. This Report describes the strong evidence supporting these conclusions derived from three parallel empirical analyses of university students, as well as from existing social science theory and research.
Students come to universities at a critical stage of their development, a time during which they define themselves in relation to others and experiment with different social roles before making permanent commitments to occupations, social groups, and intimate personal relationships. In addition, for many students college is the first sustained exposure to an environment other than their communities. Higher education is especially influential when its social milieu is different from the community background from which the students come, and when it is diverse enough and complex enough to encourage intellectual experimentation....
Students learn more and think deeper, more complex ways in a diverse educational environment. Extensive research in social psychology demonstrates that active engagement in learning cannot be taken for granted.... Complex thinking occurs when people encounter a novel situation for which, by definition, they have no

script, or when the environment demands more than their current scripts provide. Racial diversity in a college or university student body provides the very features that research has determined are central to producing the conscious mode of thought educators demand from their students. This is particularly true at the University of Michigan, because most of the University’s students come to Ann Arbor from segregated backgrounds. For most students, then, Michigan’s social diversity is new and unfamiliar, a source or multiple and different perspectives, and likely to produce contradictory expectations. Social diversity is especially likely to increase effortful, active thinking when institutions of *761 higher education capitalize on these conditions in the classroom and provide a climate in which students from diverse backgrounds frequently interact with each other.
Gurin, supra at 364-65. Professor Gurin backed these conclusions with “one of the most broad and extensive series of empirical analyses conducted on college students in relation to diversity.” Id. at 365. For example, Professor Gurin examined “multi-institutional national data, the results of an extensive survey of students at the University of Michigan, and data drawn from a specific classroom program at the University of Michigan.” Id. All of these studies clearly indicated that interaction with peers from diverse racial backgrounds, both in the classroom and informally, positively led to what Professor Gurin referred to as “learning outcomes.” That is, “[s]tudents who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills.” Id.
Professor Gurin’s study also indicated that the benefits of a racially diverse student body were seen in a second major area, that being preparing students for a meaningful role in a democratic society, or what Professor Gurin called positive “democracy outcomes.” Id. at 365-66. “Students educated in diverse settings are more motivated and better able to participate in an increasingly heterogeneous and complex democracy.” Id. at 366. The results of Professor Gurin’s empirical analysis indicated that these diversity experiences during college “had impressive effects on the extent to which graduates in the national study were living racially and ethnically integrated lives in the post-college world. Students with the most diversity experiences during college had the most cross-racial interactions five years after leaving college.” Id. The analysis also indicated that “[t]he long-term pattern of racial separation noted by many social scientists can be broken by diversity experiences in higher education.” Id.

Counsel for Plaintiffs in these underlying actions have been critical of Professor Gurin’s study and conclusions, claiming that they do nothing to refute the contention that race plays a predominate role in the admissions process. As one legal commentator has replied to this criticism,
[t]he critical question is not, however, whether or not race, or any other arguably ‘suspect’ group characteristic, plays a ‘predominate role’ in the admissions process. It is, rather, whether there is a compelling educational justification for allowing that characteristic to enter the decision-making mix, and it is in that specific context that the Gurin study makes a contribution.
Killenbeck, supra at 1328. Professor Gurin possibly best illustrated the significance of her findings as to whether seeking a diverse student body may be considered a compelling state interest when she concluded that,
[i]n the face of this research evidence, one can only remain unconvinced about the impact of diversity if one believes that students are “empty vessels” to be filled with specific content knowledge. Much to our chagrin as educators, we are compelled to understand that students’ hearts and minds may be impacted the most by what they learn from their peers. This is precisely why the diversity of the student body is essential to fulfilling higher education’s mission to enhance learning and encourage democratic outcomes and values.
Gurin, supra at 422. In light of Gurin’s study and, perhaps more importantly, the *762 data and empirical evidence backing her findings on the value of a diverse student body, those who like the dissent are skeptical of characterizing diversity as a compelling governmental interest because “diversity” is not defined or because they believe it to be a nebulous concept based on anecdotal evidence, find themselves standing on ill footings. See John Friedl, Making a Compelling Case for Diversity in College Admissions, 61 U. PITT. L. REV.. 1, 29-32 (1999) (noting that “[t]o date, almost all of the evidence in support of diversity in higher education is anecdotal in nature [,]” while discussing the lack of concrete, empirical evidence substantiating the value of a diverse student

body as a compelling state interest); see also Wessmann, 160 F.3d at 797 (“[A]ny proponent of any notion of diversity could recite a ... litany of virtues. Hence, an inquiring court cannot content itself with abstractions.”).
Professor Gurin’s empirical evidence supports what Justice Powell found to be true in Bakke regarding diversity’s place as a compelling state interest. That is, regardless of whether one agrees that Justice Powell’s opinion in Bakke is controlling, the fact remains that Justice Powell recognized that a diverse student body is a compelling interest because it promotes the atmosphere of higher education to which our nation is committed inasmuch as it allows the students to train in an environment embodied with ideas and mores “as diverse as this Nation of many peoples.” See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 312-313, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Powell, J.) (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)). And, along the lines of Professor Gurin’s study, it was expressly noted by Justice Powell that it is the student learning from the other student that makes a diverse student body a compelling need. See id. at 313 n. 48, 98 S.Ct. 2733. Specifically, Justice Powell noted and embraced the comments of the president of Princeton University as follows:
“[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, ‘People do not learn very much when they are surrounded only the by the likes of themselves.’ ”
* * *
“In the nature of things, it is hard to know how, and when, and even if, this informal ‘learning through diversity’ actually occurs. It does not occur for everyone. For many, however, the unplanned, casual encounters with roommates, fellow sufferers in an organic chemistry class, student workers in the library, teammates on a basketball squad, or other participants in class affairs or student government can be subtle and yet powerful sources of improved understanding and personal growth.”

Id.(quoting William Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly 7, 9 (Sept. 26, 1977)). Justice Powell then expressly found that the benefits derived from a diverse student body apply with substantial force at the graduate level as well as the undergraduate level. See id. Relying on *763 Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950), he reiterated that the Court made a similar point with specific reference to legal education: “ ‘Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.’ ” Bakke, 438 U.S. at 313-14, 98 S.Ct. 2733 (quoting Sweatt, 339 U.S. at 634, 70 S.Ct. 848). In addition to the proffered, and indeed statistically proven, benefits of a diverse student body in order to fulfill higher education’s mission to enhance learning and encourage democratic outcomes and values, other reasons for justifying state imposed diversity in the educational realm have also been proposed. For example, supporters of diversity in the university setting have argued that seeking a diverse student body is consistent with this country’s historical commitment to absolute equality in education. See Association of American Universities, On the Importance of Diversity in University Admissions, N.Y. TIMES, April 24, 1997, at A17; see also Brown v. Bd. of Educ., 347 U.S. 483, 494-95, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (rejecting the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), while recognizing and rejecting the past practices of making it illegal to educate African Americans, or educating them in inferior surroundings). The law school’s concern with the impact of racial isolation and stigmatization when only a few “token” minorities are allowed to attend echos this point.
It has also been argued that designing a system that takes into account factors other than traditional notions of merit is nothing new, inasmuch as the very reason affirmative action arose was because for years some groups-particularly white males-were provided an advantage over others. See Killenbeck, supra at 1320. In fact, as indicated in a detailed study conducted by Professor Linda F. Wightman, who at the time of her research served as Vice President for Testing, Operations, and Research, Law School Admission Council, Inc., on the realities of affirmative action-“perhaps the most compelling finding to emerge is not the extent to which affirmative action has opened the doors of legal education to African Americans and other minorities. Instead, it is the extent to which white law school applicants routinely benefit from the exceptions to the merit principle.” See id. at 1321 (citing Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in

Law School Admission Decisions, 72 N.Y.U. L. REV. 1, 16 tbl.2 (1997)). Killenbeck explains that “[d]ata in [table 2 of Wightman’s study] indicate that 14.9% of accepted white applicants would not have been predicted as suitable for acceptance based on the combination of their undergraduate grade point average and LSAT score. That is, if the purportedly objective merit criteria embraced by opponents of affirmative action were in fact dispositive, nearly one in every six white applicants actually accepted were arguably not ‘qualified’ in the traditional sense.” See id. at 1321 n. 100. Accordingly, for these white applicants, something more than merit was considered in the admissions process, just as something more is considered in a program designed to promote diversity. See id.; see also Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CALIF. L.REV. 953, 968-80 (1996) (criticizing the use of standardized test scores as an indicator of candidates’ suitability for admission).
In short, the legal scholarship has indicated that a diverse student body serves to promote our nation’s deep commitment to *764 educational equality, provides significant benefits to all students-minorities and non-minorities alike, and does so using a system which is not foreign to the admissions process, but which allows for the benefit of all and not just some. Thus, although the majority does base its holding that diversity is a compelling governmental interest on Justice Powell’s opinion in Bakke, it is clear that contrary to the dissent’s criticism, this holding is not without foundation even when standing alone. On the other hand, the dissent’s conclusion that diversity cannot serve as a compelling state interest for purposes of surviving constitutional muster under the Equal Protection Clause, is supported by neither legal scholarship nor empirical evidence.
For example, the dissent questions why race is at all relevant to promoting a student body rich in diversity of experience. Statistics have shown, however, that using factors other than race such as socioeconomic status, failed to produce the highly qualified, ethnically diverse student body achieved when race was also factored into the admissions process. See Wightman, supra at 39-45. The dissent’s position simply misses that point advanced by Defendants in this case at oral argument; that is, that a comparably-situated white applicant is a “different person” from the black applicant. This is obvious when one considers the dissent’s criticism that the University would give diversity preference to a “conventionally liberal” black student who is the child of “lawyer parents living in Grosse Pointe” (typically thought of as one of Michigan’s more affluent suburbs).3 Notwithstanding the fact that the black applicant may be similarly situated financially to the affluent white candidates, this black applicant may very well bring to the student body life

experiences rich in the African-American traditions emulating the struggle the black race has endured in order for the black applicant even to have the opportunities and privileges to learn. See A. LEON HIGGINBOTHAM, JR., SHADES OF FREEDOM, 195-96, 203 (Oxford University Press 1996) (formulating ten precepts of American slavery jurisprudence, with the seventh precept being the historical denial of any education to blacks and making it a crime to teach those who were slaves how to read and write); see also Frederick Douglass, What to the Slave is the Fourth of July? (1852) (addressing Rochester Ladies’ Anti-Slavery Society, and noting that “[i]t is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write”).
It is insulting to African Americans, or to any race or ethnicity that has known oppression and discrimination the likes of which slavery embodies, to think that a generation enjoying the end product of a life of affluence has forgotten or cannot relate the enormous personal sacrifice made by their family members and ancestors not all that long ago in order to make the end possible. Indeed, we in this country are only a generation or so removed from the legally enforced segregation which was used to discriminatorily deny African Americans and other minorities access to education, as well as employment, housing, health care and even basic public facilities. In addition, it is naive to believe that because an African American lives in an affluent neighborhood, he or she *765 has not known or been the victim of discrimination such that he or she cannot relate the same life experiences as the impoverished black person. A well dressed black woman of wealthy means shopping at Neiman Marcus or in an affluent shopping center may very well be treated with the same suspect eye and bigotry as the poorly dressed black woman of limited means shopping at Target. See Elise O’Shaughnessy, Shopping While Black, Good Housekeeping, Nov. 2001, at 129 (recounting Oprah Winphrey’s experience of being turned away from an affluent store while she was shopping with a black female companion, even though white customers were allowed admittance, allegedly on the premise that the store employees were of the belief that Oprah and her friend were the black transsexuals who had previously tried to rob the store; also recounting the discrimination other successful black females such as Congresswoman Maxine Waters have experienced while shopping).
Thus, the dissent’s arguments as to why diversity cannot serve as a compelling state interest constitute nothing more than myopic, baseless conclusions that ignore the daily affairs and interactions of society today which very well may be experienced by all. And the dissent’s offer to “stipulate” to the fact that race continues to play a

negative role in the lives of minorities is nothing more than a mere expression of words made in an attempt to minimize the force of the many benefits of diversity as illustrated above. Anyone who has read the entire dissent quickly realizes that the dissent’s offer to stipulate that “race does matter,” constitutes a thinly-veiled offer of dubious sincerity, to say the least.
This is evident by the dissent’s contention that the arguments made in favor of diversity merely address societal ills that should not be confused with individual rights.4 The “societal ills” as characterized by the dissent are in fact borne out of the denial of individual rights such that the two cannot be separated. Indeed, history tells us that the Equal Protection Clause was enacted in an attempt to cure the “societal ills” that had denied African Americans the individual rights to which they were entitled, such as the right to an education. See ALBERT P. BLAUSTEIN & CLARENCE CLYDE FERGUSON, JR., DESEGREGATION AND THE LAW-THE MEANING AND EFFECT OF THE SCHOOL SEGREGATION CASES 59-67 (Rutgers University Press 1985) (1957). It has been recognized that “the evil to remedied by this clause” was the “gross injustice and hardship” faced by the “newly emancipated Negroes” as a class. See In re Slaughter-House Cases, 16 Wall. 36, 81, 21 L.Ed. 394 (1873). And it has been further recognized that the justifications for the Fourteenth Amendment’s ratification “retain their validity in modern times, for 114 years after the close of the War Between the States, ... racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole.” See Vasquez v. Hillery, 474 U.S. 254, 264, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). Accordingly, for the dissent to claim that “people like Barbara Grutter” are being denied equal *766 treatment under the law school’s admission policy such that the Equal Protection Clause is being “ignored,” particularly while irreverently invoking the name of Abraham Lincoln, is completely unfounded. The law school’s goal of creating a diverse student body, which has not existed previously and would not otherwise exist without its admissions policy, rests in the very heart of the Equal Protection Clause.
Moreover, contrary to the dissent’s assertion, there is nothing to indicate that the law school’s admission’s policy has “taken” anything “from the Barbara Grutters of our society.” As one legal scholar has recently illustrated, the idea that an admissions policy which provides minority applicants with an advantage does so at the expense of white applicants is simply a myth. See Goodwin Liu, The Myth & Math of Affirmative Action, The Washington Post, April 14, 2002, at B01 (citing excerpts from his article “The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions” which is to be published in the upcoming edition of the

Michigan Law Review). As Liu makes note,
[f]or many Americans, the success of Bakke’s lawsuit has long highlighted what is unfair about affirmative action: Giving minority applicants a significant advantage causes deserving white applicants to lose out. But to draw such an inference in Bakke’s case-or in the case of the vast majority of rejected white applicants-is to indulge in ... “the causation fallacy.”
There’s no doubt, based on test scores and grades, that Bakke was a highly qualified applicant. Justice Lewis Powell, who authored the decisive opinion in the case, observed that Bakke’s Medical College Admission Test (MCAT) scores placed him in the top tier of test-takers, whereas the average scores of the quota beneficiaries in 1974 placed them in the bottom third. Likewise, his science grade point average was 3.44 on a 4.0 scale, compared with at 2.42 average for the special admittees, and his overall GPA was similarly superior. Given these numbers, the only reason for Bakke’s rejection was the school’s need to make room for less qualified minority applicants, right?
Wrong. Although Justice Powell pointed out that minority applicants were admitted with grades and test scores much lower than Bakke’s, he did not discuss what I found to be the most striking data that appeared in his opinion: Bakke’s grades and scores were significantly higher than the average for the regular admittees. In other words, his academic qualifications were better than those of the majority of applicants admitted outside the racial quota. So why didn’t he earn one of the 84 regular places?
It is clear that the medical school admitted students not only on the basis of grades and test scores, but on other factors relevant to the study and practice of medicine, such as compassion, communication skills and commitment to research. Justice Powell’s opinion does not tell us exactly what qualities the regular admittees had that Bakke lacked. But it notes that the head of the admissions committee, who interviewed Bakke, found him “rather limited in approach” to medical problems and thought he had “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.”
Whatever Bakke’s weaknesses were, there were several reasons, apart from affirmative action, that might have led the medical school to reject his application. *767 Grades and test scores do not tell us the whole story.
Id.
Liu went on to recognize that although affirmative action did lower Bakke’s chance of admission to the medical

school, what was significant and most telling is “by how much?” Id. Setting forth the statistical data Liu then observed:
One way to answer this question is to compare Bakke’s chance of admission had he competed for all 100 seats in the class with his chance of admission competing for the 84 seats outside of the racial quota. To simplify, let’s assume none of the special applicants would have been admitted ahead of any regular candidate.
In 1974, Bakke was one of 3,109 regular applicants to the medical school. With the racial quota, the average likelihood of admission for regular applicants was 2.7 percent (84 divided by 3,109). With no racial quota, the average likelihood of admission would have been 3.2 percent (100 divided by 3,109). So the quota increased the average likelihood of rejection from 96.8 percent to 97.3 percent.
To be sure, Bakke was not an average applicant. Only one-sixth of regular applicants (roughly 520) received an interview. But even among these highly qualified applicants, eliminating the racial quota would have increased the average rate of admission from 16 percent (84 divided by 520) to only 19 percent (100 divided by 520). Certainly a few more regular applicants would have been admitted were it not for affirmative action. But Bakke, upon receiving his rejection letter, had no reason to believe he would have been among the lucky few.
In fact, Bakke applied in both 1973 and 1974 and, according to evidence in the lawsuit, he did not even make the waiting list in either year.
The statistical pattern in Bakke’s case is not an anomaly. It occurs in any selection process in which the applicants who do not benefit from affirmative action greatly outnumber those who do.
Recent research confirms this point. Using 1989 data from a representative sample of selective schools, former university presidents William Bowen and Derek Bok showed in their 1998 book, “The Shape of the River,” that eliminating racial preferences would have increased the likelihood of admission for white undergraduate applicants from 25 percent to only 26.5 percent.
The Mellon Foundation, which sponsored the study, provided me with additional data to calculate admission rates by SAT score. If the schools in the Bowen/Bok sample had admitted applicants with similar SAT scores at the same rate regardless of race, the chance of admission for white applicants would have increased by one percentage point or less at scores 1300 and

above, by three to four percentage points at scores from 1150 to 1299, and by four to seven percentage points at scores below 1150.
It is true that black applicants were admitted at much higher rates than white applicants with similar grades and test scores. But that fact does not prove that affirmative action imposes a substantial disadvantage on white applicants. The extent of the disadvantage depends on the number of blacks and whites in the applicant pool. Because the number of black applicants to selective institutions is relatively small, admitting them a higher rates does not significantly lower the chance of admission *768 for the average individual in the relatively large sea of white applicants.
Id. (emphasis added).
Liu provided further statistical data to back this conclusion as follows:
In the Bowen/Bok study, for example, 60 percent of black applicants scoring 1200-1249 on the SAT were admitted, compared with 19 percent of whites. In the 1250-1299 range, 74 percent of blacks were admitted, compared with 23 percent of whites. These data indicate-more so than proponents of affirmative action typically acknowledge-that racial preferences give minority applicants a substantial advantage. But eliminating affirmative action would have increased the admission rate for whites from 19 percent to only 21 percent in the 1200-1249 range, and from 23 percent to only 24 percent in the 1250-1299 range.
These figures show that rejected white applicants have every reason not to blame their misfortune on affirmative action. In selective admissions, the competition is so intense that even without affirmative action, the overwhelming majority of rejected white applicants still wouldn’t get in.
Id. (emphasis added). And so, contrary to the dissent’s assertion, “the Barbara Grutters of our society” have no reason to claim that anything has been “taken” from them by virtue of the law school’s admission policy. In purporting otherwise, the dissent is simply advancing “the causation fallacy” which Liu exposes for the myth that it is.
The dissent also contends that one cannot consider the remedial qualities of correcting past-or for that matter present-discrimination as a way of supporting the law school’s admissions policy because past discrimination is not the basis upon which the school claims that its admissions policy is operating. Once again, the dissent’s narrow-mindedness misses the point. While it is true that the law school’s policy is based upon its desire to achieve

a diverse student body, the very reason that the law school is in need of a program to create a diverse environment is because the discrimination faced by African Americans and other minorities throughout the educational process has not produced a diverse student body in the normal course of things. Diversity in education, at its base, is the desegregation of a historically segregated population and, as the intervenors essentially argue, Bakke and Brownmust therefore be read together so as to allow a school to consider race or ethnicity in its admissions for many reasons, including to remedy past discrimination or present racial bias in the educational system. See Trevor W. Coleman, A well-deserved honor for a lifelong legal barrier breaker, The Detroit Free Press, April 26, 2002, at 10A (chronicling the life of the Honorable William McClain, the University of Michigan’s oldest living African-American law graduate, and describing how, as the only black law student in his class at the University, McClain was “fed humiliation nearly every day,” was forbidden from living in the law quad, and was “prevented from joining study groups which are essential to a legal education”).
In summary, the dissent’s attempt to cast the law school’s interest in achieving a diverse student body as anything but compelling simply cannot carry the day, and its claim that white applicants are being denied equal protection under the law as a result of the school’s attempt to achieve a diverse student body is fallacious. As next illustrated, the dissent’s arguments as to why the school’s admissions policy is not narrowly tailored to achieve this compelling interest are just as ill-conceived.
*769 C. The Law School’s Policy is Narrowly Tailored
The dissent quarters its argument as to why the law school’s admissions policy is not narrowly tailored to achieve the compelling interest of diversity. Each of the four subparts bear arguments that are unfounded and inflammatory. For example, in first discussing what the dissent characterizes as the true magnitude of the law school’s policy, the dissent focuses on LSAT and UGPA data. It then advances the outrageous contention that the law school’s policy allows for a minority applicant to put forth less effort than the otherwise similarly situated white applicant, and that somehow the minority will therefore use his race to compensate for his lack of effort. There is nothing whatsoever in the record to support the allegation that the law school’s admissions policy would be manipulated in this fashion by people of color or ethnicity.
Similarly, the dissent’s assertion that the law schools treatment of numerical credentials (UGPA and LSAT

scores) for purposes of admission is “shocking,” ignores the scholarly writings showing no correlation between these numerical credentials and success in law school or bar passage rates. See Wightman, supra at 1-2 (explaining that while a “numbers only” policy resulted in a sharp decline in the number of minority students who would have been admitted to law school, there were no significant differences in the graduation rates and bar passage rates between those minority students who would have been admitted and those who would not have been admitted, thus leading to the conclusion that a “numbers only” policy would deny a legal education to many minority students who were fully capable of the rigors of a legal education and of entering the legal profession); Sturm & Guinier, supra at 968-80 (explaining standardized test scores’ lack of predictive value with respect to students’ future performance). The law school’s effort to insure that its admissions process is inclusionary and is not substantively unfair should be viewed as an effort to advance the cause of both educational excellence and diversity, not as a counterpoint to a “merit” plan as suggested by the dissent. The case has not been convincingly made that conventional admissions plans which equate to higher socio-economic status persuasively correlate to consideration of “merit.” See id. at 992-96.
The dissent barely conceals its disbelief in the truth of the law school’s assertion that its admissions officer reads every applicant’s file and makes an individualized determination regarding the applicant’s suitability for admission. Accepting the dissent’s argument requires, in part, rejecting the law school’s description of the manner in which its admissions program is administered without any adequate justifiable basis for doing so. The dissent goes so far as to claim the above-referenced criticisms of using standardized test scores such as the LSAT and numerical credentials as means to admission should be directed to the law school and not to the dissent inasmuch as the law school chooses to consider such credentials in its admission policy. However, the dissent’s claim in this regard misses the point, and is an example of the misrepresentations made by the dissent in an apparent attempt to reframe the issues. Criticism of the use of numerical credentials such as LSAT scores is made in this opinion to support the law school’s use of other criteria in its admission policy-one of which is race or ethnicity. And, contrary to the dissent’s inflammatory assertion, the law school relies upon many factors in addition to LSAT scores, UGPAs, and race in its admission process. Although this assertion undoubtedly bolsters the dissent’s position, it is *770 unfounded and flies in the face of the record before us.
The dissent next calls into question the law school’s designation of a “critical mass” of minority students in its

student body. Claiming that the term “critical mass” is simply a phrase used to disguise what is actually an impermissible quota system, the dissent relies heavily upon the fact that the numbers of minorities admitted over the years has varied only sightly. There may be any number of likely benign explanations for the numerical configurations, including a consistency in the quality of minority applications for a few successive years and/or the application of a uniformity of perspective in evaluating the applications resulting from having the same evaluators read all the applications for admissions. Even idiosyncratic explanations for a relatively narrow numerical range for a number of years would be constitutionally acceptable in the absence of a quota or other invidious motivation on the part of the law school. The point is that on the record of this case, there are at least as many reasons to presume that there is not a quota as there are to presume that there is one, and the balance certainly tips in favor of the law school’s representation that it does not employ a quota in the absence of any evidence to the contrary.5
Typically, the purpose of the narrow tailoring inquiry involves an evaluation of the fit between the compelling interest and the policy adopted to advance that interest. See Recent Cases, 115 HARV. L.REV.. 1239, 1244-45 (2002) (criticizing the Eleventh Circuit’s decision that found the University of Georgia’s race-conscious admissions policy unconstitutional, while noting that the court’s opinion “reveals both overt and covert hostility toward affirmative action policies” and that “[b]y introducing its own substantive agenda under the guise of a narrow tailoring analysis, the court strayed from the purpose of the narrow tailoring inquiry”). Here, the dissent claims that the link between the law school’s “critical mass” and the values of diversity is lacking. Oddly, the dissent cites the report from Professor Gurin, the same report that others have hailed as showing documented evidence for the benefits of a diverse student body, claiming that the results indicate just the opposite of how Professor Gurin reports them. This contention, regardless of its accuracy, appears to be in criticism of the concept of diversity itself, and not of the process to achieve that end.
Next, the dissent criticizes the relationship between diversity and the means to promote this interest as being dependent upon the psychological makeup of the people involved. The dissent refers to historical black leaders such as Frederick Douglass and Dr. Martin Luther King, Jr., opining that these men would have said their piece without regard to whether others thought them to be “representative.” Apparently, by using these black leaders to make its point, the dissent is claiming that the process employed by the law school is not necessary because if an African American, or other minority group member, has

the “psychological” make-up to be a leader, he will be so regardless of whether he is one among ten or one among one hundred. Such an allegation misses the point of the many beneficial aspects of diversity in education to minorities and non-minorities alike, is an affront to the sacrifices and contributions made by these black leaders, and does nothing to show why the law school’s policy is not narrowly tailored. In fact, *771 the dissent appears to be doing nothing more than “introducing its own substantive agenda under the guise of a narrow tailoring analysis” in making its arguments here. See Recent Cases, supra at 1239.
Finally, the dissent claims that because race-neutral means are available to achieve academic diversity, the law school’s program does not pass constitutional muster. In reaching this conclusion, the dissent completely ignores the evidence provided by the law school and its efforts to formulate a viable race-neutral policy. The dissent strongly suggests that it simply does not believe the law school’s representation that it considered and rejected as unworkable or impractical other admissions policies and procedures, either because the available alternatives would not result in the sort of competitive student body pursued by the law school overall, or because the number of qualified minority students attracted to the law school would be inadequate. The law school’s premise, which the dissent fails to convincingly dispute, is that the number of minority law students admitted would be inconsequential in the absence of the school’s current admissions program.
Indeed, one of the dissent’s proposals as a “race-neutral” means of admission, using a lottery for all students above certain threshold figures for their GPA and LSAT, is in no way “race-neutral” as reflected in the record. For example, the record indicates (through the testimony of Jay Rosner, Martin Shapiro, and David White among others) that performance on tests such as the LSAT and the SAT correlates with an applicant’s race and gender. In other words, the record indicates that LSAT scores are neither race-neutral or gender-neutral criteria for admissions decisions. Consequently, the dissent’s proposal of using a lottery based upon scores resulting from these tests in order to achieve a race-neutral means of admission is inherently flawed, and would in no way reflect race-neutral merit. Instead, such a proposal would reflect a combination of subtle preferences based on race, gender, and even class, see Sturm & Guinier, supra at 992-96; see also supra text accompanying Part B, and are of limited utility for predicting meaningful success across racial lines.
At its core, in purporting to suggest race-neutral methodologies, the dissent simply engages in an impermissible exercise of substituting its judgment in this

regard for that of the educators who are the custodians and guardians of the law school’s mission and academic standards. See Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985); see generally Susan Stefan, Leaving Civil Rights to the “Experts”: From Deference to Abdication Under the Professional Judgment Standard, 102 YALE L.J. 639 (1992) (providing a summary of the general doctrine of the rule of deference and the situations to which it has been applied). Indeed, on the record before us, any purportedly race-neutral policy could result in a de facto segregated law school, the deleterious results of which have long been known by society and rejected by the Court. See, e.g., Sweatt, 339 U.S. at 634-36, 70 S.Ct. 848.
D. Summary
Chief Judge Martin’s majority opinion reversing the district court and finding the law school’s admissions policy constitutional under the Equal Protection Clause of the Fourteenth Amendment provides a clear understanding and resolution of the issues involved. The dissent’s attempt to turn the majority opinion on its head and to reframe the issues does nothing to advance *772 the jurisprudence on this very significant matter.
E. Response to the Dissent’s “Procedural Appendix”
Although the dissent’s substantive attack, which is grounded in neither fact nor law, is disturbing, the dissent’s procedural attack, as set forth in its “Procedural Appendix,” constitutes an embarrassing and incomprehensible attack on the integrity of the Chief Judge and this Court as a whole. Apparently, the dissent’s strategy in this regard is that if its substantive basis for disagreement with the majority opinion is not convincing, then questioning the procedural posture of this case will be enough to forever cast doubt upon the outcome reached here today. This unfortunate tactic has no place in scholarly jurisprudence and certainly does not deserve to be dignified with a response. However, because of the magnitude of the issues involved, and because of the baseless nature of the allegations, this procedural attack cannot go unanswered.
The dissent questions the appropriateness of hearing this case en banc, the course by which this case came to be heard by the en banc court, and the composition of the en banc court itself. It should be noted at the outset that throughout the pendency of this appeal, the dissent remained silent on all of these questions until now, and its concerns should therefore be regarded as having been

waived or forfeited. It was not until the various opinions had been circulated throughout the Court and the votes cast by the panel members that the dissent revised its opinion by tacking on these complaints and allegations. And the dissent’s new-found allegations of impropriety as to the course this matter followed in reaching the en banc court simply defy belief. It is ludicrous to think that with our circuit operating with only one-half of the active judges’ positions filled, and with over 4000 cases reaching our Court each year, the Chief Judge or any members of this Court would single out any one particular case and maneuver the system for a particular outcome. None of the decisions made by the Chief Judge in regard to the scheduling of this case or in relation to administering the Court’s docket, differ in any significant way from the decisions the Chief Judge and the Court’s staff routinely and frequently make with respect to pending matters. Given the voluminous nature of the Court’s docket and the shortage of judicial resources, the case management tasks performed by the Chief Judge are both necessary and appropriate, and were not in any sense improperly performed in relation to the instant case.
Again, it is unfortunate that the dissent has chosen to stoop to such desperate and unfounded allegations which serve no useful purpose. The dissent’s claim that it is “legitimizing” the Court by revealing the procedural course of this matter is disingenuous, at best, when considering that the dissent (Judge Boggs) once scathingly attacked Judge Damon J. Keith for revealing the vote count in a case of major import wherein the denial for rehearing en banc was split seven-seven. See Memphis Planned Parenthood v. Sundquist, 184 F.3d 600, 605-07 (6th Cir.1999) (published order) (Boggs, J.). Judge Keith wrote in Memphis that he revealed the seven-seven vote tally because it supported his belief that the majority’s opinion was result driven, and to encourage the litigant to possibly seek further review. See id. at 601-02 (Keith, J.). Judge Keith emphasized that in making the vote tally known, he had “not violated any rule of internal policy ...; nor [had he] divulged any internal confidential communications[,]” and found “reprehensible” the “practices of secrecy and concealment advocated by Judge *773 Boggs.” Id. at 605. In response, Judge Boggs noted “with regret, [Judge Keith’s alleged ] breach of the long-standing custom of this court that actions by a member of the court with respect to petitions for rehearing of en banc matters are matters of internal court procedure and are not made public by other judges.” Id. (Boggs, J.) (emphasis added). Judge Boggs went so far as to question the accuracy of Judge Keith’s conveyance of the vote tally by writing that “our court, of course, makes no warranties as to the accuracy of the assertions made in statements by judges (including, of course, this one).” Id. at 605.

Despite his one-time “regret” for a fellow jurist’s decision to make the vote tally known in an en banc case, Judge Boggs now characterizes his flagrant disregard for the Court’s procedural measures with respect to this case as a form of “legitimacy.” Judge Boggs has revealed internal procedural matters to the public, particularly when he speaks of Senior Judge Ralph Guy’s internal communication to Chief Judge Martin in footnote 46 of his dissent. Furthermore, the remaining members of this Court have no way of responding to any inaccuracies by Judge Boggs regarding Judge Guy’s communication-or Judge Boggs’ characterization thereof-without themselves resorting to discussing the Court’s internal communications. Like many of the assertions made in his dissent as a whole, Judge Boggs’ renouncement of secrecy and claim that his procedural appendix “legitimizes” the Court, are hollow, particularly in light of his position in Memphis. Indeed, it was “secrecy” for which Judge Boggs so vehemently argued in Memphis.
If anything, the fact that this significant matter was heard initially by the en banc court is a course of action advocated by justices of the United States Supreme Court. For example, in her letter to the White Commission, and several times in addressing the Ninth Circuit Judicial Conference, Justice O’Connor, circuit justice to the Ninth Circuit, has suggested that the courts of appeals sit en banc in matters they think are likely to reach the Supreme Court. See Stephen L. Wasby, How do Courts of Appeals En Banc Decisions Fare in the U.S. Supreme Court?, JUDICATURE, Jan. -Feb.2002, at 184 & n.6. Likewise, Justice Kennedy, himself a former member of the Ninth Circuit, suggested to the White Commission that “questions of exceptional importance” are not heard en banc nearly often enough. See id. at 184 & n. 7 (quoting Justice Anthony M. Kennedy, letter to Justice Bryon R. White, August 17, 1998).
Here, in this matter of exceptional importance which may likely reach the Supreme Court, we as an en banc court have properly and carefully considered the issues involved. Chief Judge Martin’s thorough majority opinion in every regard reflects that careful consideration, such that the outcome reached today is one based upon nothing other than sound and scholarly deliberation. Despite its unfortunate and desperate attempts to portray the majority opinion as anything less, the dissent’s substantive and procedural attacks remain unpersuasive.
BOGGS, Circuit Judge, dissenting.
This case involves a straightforward instance of racial discrimination by a state institution. Other than in the highly charged context of discrimination in educational

decisions in favor of “underrepresented minorities,” the constitutional justifications offered for this practice would not pass even the slightest scrutiny. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 491, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (Burger, concurring) (“Any preference *774 based on racial or ethnic criteria must necessarily receive a most searching examination.”); Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Powell, concurring) (“Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.”); Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ( “[T]his Court has consistently repudiated distinctions between citizens solely because of their ancestry as being odious to a free people whose institutions are founded upon the doctrine of equality.” (internal quotations omitted)); McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (invalidating a Florida state law against interracial cohabitation as “an exercise of the state police power which trenches upon the constitutionally protected freedom from invidious official discrimination based on race”). In our case, the intent of the framers of the policy, the statistics as to its impact and effect, and the history of its inception all point unmistakably to a denial of equal protection of the laws. I, therefore, dissent from our court’s decision today finding this discrimination to be constitutional.
In tracing the intricacies of the argument presented by the court and by the Law School, we must be aware that the definitions and precise connotations of words are of crucial importance. As I shall demonstrate, in many critical instances, key words are used in ways contrary to their normal grammatical meaning, or with very specific qualifications attached sub silentio. In the words of George Orwell, in his famous essay Politics and the English Language, “a mass of Latin words falls upon the facts like soft snow, blurring the outline and covering up all the details.” George Orwell, Politics and the English Language, in 4 THE COLLECTED ESSAYS, JOURNALISM AND LETTERS OF GEORGE ORWELL: IN FRONT OF YOUR NOSE, 1945-1950 127 (Sonia Orwell and Ian Angus, eds., Harcourt, Brace 1968).
A very revealing example of this is the use of the term “affirmative action” to refer to the policies in question. See Majority Op. at 735 (discussing intervening student groups, including “United for Equality and Affirmative Action, the Coalition to Defend Affirmative Action By Any Means Necessary, and Law Students for Affirmative Action”). Standing alone, the term “affirmative action” might mean anything from affirmative action to study harder to affirmative action to exclude minorities. However, as used in the context of our society’s struggle

against racial discrimination, the term first enters the public print and the national vocabulary in Executive Order 10925, issued by President John F. Kennedy on March 6, 1961 and subsequently incorporated into a wide variety of statutes and regulations. It ordered government contractors to “take affirmative action, to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin” Ibid. (emphasis added). It is thus clear that whatever else Michigan’s policy may be, it is not “affirmative action.”1
*775 The Law School absolutely insists that it does not consider applicants “without regard to” their race. See, e.g., Admissions Policies, University of Michigan Law School, April 22, 1992, at 12 (noting “a commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against ... [and] who without this commitment might not be represented in our student body in meaningful numbers”). Instead, as is discussed by the majority and will be discussed at length below, Michigan considers all applicants with exquisite regard for their race and national origin. As I put it to the counsel for the Law School in oral argument, if Heman Sweatt, the plaintiff in the famous case of Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950), had been able to ask the Dean of the University of Texas Law School, “Dean, would you let me in if I were white?,” the dean, if he were honest, would surely have said “Yes.” I then asked counsel, “If Barbara Grutter walked in to whoever the current Dean of the Law School is and said, ‘Dean, would you let me in if I were black?’ wouldn’t he have to honestly say either ‘Yes’ or ‘pretty darn almost certain[ly]’?” Counsel agreed, but responded that “a black woman who had otherwise an application that looked like Barbara Grutter, that would be a different person.” Tr. at 38 (emphasis added).
That answer puts starkly the policy of discrimination practiced throughout the ages.
Throughout this discussion, my quarrel is with the constitutionality of the policy, not its proponents. In a related context, ROBERT’S RULES OF ORDER gives a good rule for public disputation: those engaged in a debate “can condemn the nature or likely consequences of the proposed measure in strong terms, but ... under no circumstances ... attack or question the motives of another.” General Henry M. Robert, Robert’s Rules of Order 380 (10th ed.2000). I have no doubt that the proponents of this discriminatory policy act with the most tender of motives. However, the noble motives of those propounding unconstitutional policies should not save those policies, just as some segregationists’ genuine belief that segregated education provided better education for

both races was inadequate to justify those policies.
Finally, I do not doubt that there are strong policy arguments for what Michigan has done. There is a plausible (though perhaps not a sound) policy argument that government should arrange social outcomes proportionally according to the race or ethnicity of its citizens, remedying, where it can, any pervasively unequal distribution of wealth, education, or status. There are many countries-India, Malaysia, and Serbia, to name a few-where such a policy is practiced. For more on “affirmative action” worldwide, see Thomas *776 Sowell, RACE AND CULTURE: A WORLD VIEW 126-29 (Basic 1994). However, so long as the Equal Protection Clause is a part of the United States Constitution, the United States is not one of those countries. The fact that some might think this society would be a better one if more governmental benefits were allocated, because of their racial or ethnic status, to blacks, Hispanics, or Native Americans and less to whites, Asians, or Jews, or vice-versa, does not make those policies permissible under our Constitution.
Instead, the framers of the Fourteenth Amendment decided that our government should abstain from social engineering through explicit racial classifications. Thus, we subject every state racial classification to “strict scrutiny,” requiring that the state show both that the classification furthers a “compelling state interest” and that it is “narrowly tailored” to achieve that interest. Adarand Constructors v. Pena, 515 U.S. 200, 235, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). The Law School’s admissions scheme simply cannot withstand the scrutiny that the Constitution demands.
My discussion of the reasons for that conclusion falls into two parts below. First, I examine why the majority’s reading of Bakke is erroneous. Read correctly, Bakke remains good law, but does not conclusively resolve the questions before this court. More recent decisions of the Supreme Court, contrary to Grutter’s argument and what the district court in this case held, place these questions in no greater relief.
We are therefore faced with resolving for ourselves the constitutionality of the Law School’s admissions scheme. Our inquiry must address at least one open question of law: can achieving diversity be a compelling state interest? On this open question, I have no argument to which to respond, as the majority never explains why “diversity” should be a compelling state interest, except to say that the conclusion is demanded by Bakke.2 After considering the arguments on both sides, I conclude that the state’s interest in a diverse student body, at least as articulated by the Law School, cannot constitute a compelling state interest sufficient to satisfy strict

scrutiny.
Second, much like Justice Powell’s in Bakke, my answer to whether the engineering of a racially diverse student body is a compelling state interest is not necessary to the resolution of the case before this court. Even if student diversity were a compelling state interest, the Law School’s admissions scheme could not be considered narrowly tailored to that interest. Even a cursory glance at the Law School’s admissions data reveals the staggering magnitude of the Law School’s racial preference. Its admissions officers have swapped tailor’s shears for a chainsaw.
I. The State of the Current Law
A. Bakke in a Nutshell
The Law School and the majority of this court argue that the constitutionality of the Law School’s policy is mandated by Supreme Court precedent, engaging in a painstaking analysis of the Supreme Court’s decision in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and the instructions given in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), for attempting to discern a “holding” from decisions in which *777 the Court is splintered. I will engage in an equally detailed counter-analysis; however, I begin with what is obvious from the face of the opinion.
In Bakke, the Supreme Court held that the particular type of massive racial discrimination engaged in by the University of California at Davis-setting aside a certain number of seats each year and utilizing a separate admissions system for minority applicants-was illegal and that Allan Bakke had a right not to be so discriminated against.3 (This fact is not revealed until page 12 of the majority’s decision, and then only obliquely). However, five members of the Court agreed that a blanket injunction that race could never be considered in admissions programs was at least premature, and one of those members went on to state that race could be used to promote diversity and proffered the race-conscious admissions program briefly described in an amicus brief by Harvard University as a model of such a plan.4
Unfortunately, no policy other than the specific one utilized by UC Davis was before the Court. Thus, no matter what analytical artillery is applied to deconstruct the various Bakke opinions, we cannot come up with a “holding” that is any more specific than that UC Davis’s plan (and all plans that absolutely reserve a specific

number of seats for the racially favored) was unconstitutional, and that some type of racial preference may be constitutional.
The majority in this case applies extremely subtle reasoning to come to the conclusion that Bakke should instead be read to hold that the use of race, no matter how extensive, is constitutional so long as it does not specify a number of seats to be reserved for minorities and so long as it arguably tracks the Harvard plan. The majority’s reasoning is problematic for several reasons.
Consider an exact analogy in the field of criminal law. Let us assume that state C has a policy that its prison guards may beat prisoners to within “half an inch of their lives” for any disciplinary infraction. When that policy is challenged in the Supreme Court, the Court’s holding is that the particular policy is unconstitutional, but that it will not issue an injunction against guards ever touching a prisoner for any infraction. Four members of the court believe that the policy is constitutional in its entirety, and therefore dissent from the portion of the opinion holding C’s policy unconstitutional. Four other Justices argue that guards should never be allowed to punish prisoners physically, and therefore dissent from the portion of the opinion refusing to issue an injunction against guards ever touching prisoners. A swing Justice strikes down the policy before him, but argues that at some time, in some manner, physical discipline might be appropriate. In particular, he speaks favorably of the plan of a particular state (call it the “H” plan) where, under some circumstances not specifically delineated, a *778 guard could administer some unspecified amount of physical chastisement.
Following this decision, another state, call it M, defends its policy on the grounds that it merely authorizes guards to beat prisoners within “an inch of their lives” (as opposed to “half an inch”), and that it is specifically modeled after the H plan. Under the majority’s logic, any lower court confronted with this policy would be required to find it constitutional.
It fails as a matter of simple logic to take a splintered result striking down one policy and essentially to glean from it a holding that any policy that falls short of the original policy is constitutional. Indeed, the Supreme Court has very recently warned courts of appeals against similar thinking. In United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Court rejected the Ninth Circuit’s reading of Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), a case in which the Court approved a certain search-and-seizure policy for certain probationers. The Court noted that the court of appeals had apparently read Griffin to stand for the proposition that “a warrantless

search of a probationer satisfies the Fourth Amendment only if it is just like the search at issue in Griffin.” See Knights, 122 S.Ct. at 590. In rejecting the Ninth Circuit’s gloss on Griffin, the Court called it “dubious logic-that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it.” Ibid. (emphasis added). In effect, the majority of this court today similarly holds incorrectly that an opinion denying the legality of a particular policy implicitly holds constitutional every policy that falls in the slightest degree short of the evils that were condemned in the first case.
The court does this by going past the general, and thus unhelpful, propositions actually agreed to by a majority of the Court in Bakke and adopting and even expanding as the holding of the case every nuance of the opinion written by Justice Powell. In Part IV-D of his opinion, Justice Powell stated that race can be used as a factor in admissions decisions in order to further the objective of diversity in an academic setting because the state has a compelling interest in achieving a diverse student body. No other Justice joined that Part. Bakke, 438 U.S. at 311-15, 98 S.Ct. 2733. In Part V-A of his opinion, Justice Powell set out as a model of a constitutional plan a race-based admissions plan utilized by Harvard University, in which race was utilized as a “plus” factor that could “tip the balance” in an applicant’s favor. No other Justice joined that Part. Id. at 315-20, 98 S.Ct. 2733. The majority of this court holds that these are the precedential holdings to be found in the case because, by reading Bakke through the-in this case easily manipulated-lens of Marks, the court has determined that a certain reading of the language of Justice Powell’s opinion represents the holding of the Bakke Court.
B. Bakke and Marks
1. Marks
Marks was an appeal from a conviction for transporting obscene materials in interstate commerce. The defendant challenged the use of a jury instruction defining obscene material that came from a Supreme Court case decided after the time of the defendant’s conduct, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The defendant alleged that the new definition expanded the scope of prohibited conduct, and therefore could not be applied in his case without violating his Due Process rights. The Court therefore needed to determine what *779 the operative definition of obscene material was before Miller.

The problem was that in the last obscenity case decided by the Court before Miller, Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), no opinion garnered a majority. In fact, the Court in Memoirs was deeply fragmented, and it was not facially clear that there was one definition for what constituted obscene material that could be derived from the various opinions. Two Justices expressed the view that all sexually explicit material was entitled to full First Amendment protection. Id. at 421, 86 S.Ct. 975 (Black, dissenting). One Justice believed that only “hard core pornography” was unprotected. Id. at 425, 86 S.Ct. 975 (Stewart, dissenting). Three Justices joining a plurality opinion opined most importantly that material must be “utterly without redeeming social value” before it will be stripped of First Amendment protection. Id. at 418, 86 S.Ct. 975. The remaining three Justices, writing in various dissents, would have set the bar lower for defining material as obscene. Id. at 443, 86 S.Ct. 975 (Clark, dissenting), 454-56, 86 S.Ct. 975 (Harlan, dissenting), 460-61, 86 S.Ct. 975 (White, dissenting).
The Court in Marks, viewing the divided landscape of Memoirs, stated famously that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Marks, 430 U.S. at 193, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). In Marks itself, it was clear that the Memoirs plurality decision represented the narrowest grounds for the holding, as the plurality would have struck down the fewest state and federal statutes defining materials as obscene.
Taken on its face, Marks might be read only for the limited proposition that a criminal defendant cannot be held liable for conduct that he did not have fair notice would be prohibited. Id. at 192-93, 97 S.Ct. 990. However, Marks has been read much more broadly, to provide a basis for discerning the holding of the Court in circumstances where a majority of the Justices agree on an outcome but not on a rationale for the outcome. See, e.g., O’Dell v. Netherland, 521 U.S. 151, 160, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (utilizing Marks analysis to discern a holding in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)); Coe v. Bell, 209 F.3d 815, 818 (6th Cir.2000) (using Marks to discern a holding from Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)).
2. The Problematic Application of Marks to Bakke

In applying Marks to the various opinions in Bakke, the majority contends that Justice Powell’s opinion is necessarily the holding of the Court, because he concurred in the judgment of the Court on the narrowest grounds. Powell, applying strict scrutiny, held that the UC Davis affirmative action program was unconstitutional, but also asserted that race could be taken into account in admissions decisions in certain circumstances, namely to promote diversity. Bakke, 438 U.S. at 314-15, 98 S.Ct. 2733. Justice Stevens, in an opinion joined by three other Justices, did not reach the constitutional issue but concurred in the judgment on the basis that race could never be used without violating Title VI. Id. at 408-21, 98 S.Ct. 2733. Justice Brennan, concurring in part and dissenting in part and joined by three other Justices, would have upheld UC Davis’s *780 program, subjecting it only to intermediate scrutiny. Id. at 362, 98 S.Ct. 2733. Justice Brennan wrote that race could be used in admissions programs “to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area.” Id. at 325, 98 S.Ct. 2733. As such, Justice Brennan and the three Justices joining his opinion concurred with Justice Powell’s judgment overturning the California Supreme Court’s ruling that race could never be used in admissions programs, but would have found UC Davis’s program constitutional on the basis that it sought to remedy past discrimination and so dissented from Justice Powell’s holding on that score.
Since Justice Brennan would have applied intermediate scrutiny to “benign” racial classifications, whereas Justice Powell would have applied strict scrutiny to all racial classifications, the majority holds that Justice Powell’s diversity rationale in Bakke is binding precedent. Specifically, they explain that “[b]ecause the set of constitutionally permissible racial classifications under intermediate scrutiny, by definition, includes those classifications constitutionally permissible under strict scrutiny, Justice Powell’s rationale would permit the most limited consideration of race; therefore, it is Bakke ‘s narrowest rationale.” Majority Op. at 742. In other words, the majority sees Justice Powell’s reasoning as a subset of Justice Brennan’s, and therefore reasons it to be the binding holding of Bakke, as Marks instructs us to glean it. There are, however, two fundamental problems with this argument.
First, the majority’s analysis inverts the concept of “narrowness” in Marks. In Marks, the Memoirs plurality opinion was “narrowest” because its interpretation of the First Amendment invalidated a smaller set of laws. Marks, 430 U.S. at 193, 97 S.Ct. 990. In other words, the “narrower” opinion was that which construed the constitutional provision in question less potently. In

Bakke, Justice Brennan’s opinion, by adopting intermediate scrutiny, would invalidate fewer racial preference policies than Justice Powell’s opinion which, through strict scrutiny, would invalidate more. Yet the majority applies its own concept of narrowness, with no grounding in Marks, and holds that the opinion that creates the more powerful Fourteenth Amendment is indeed the narrower.
Second, the fact that Justice Powell’s reasoning on standards (that strict scrutiny should be used to evaluate the constitutionality of all racial preferences) is a subset of Justice Brennan’s (applying merely intermediate scrutiny) tells us nothing about the first question before this court today: whether diversity is a compelling state interest. At most, it might tell us that if the question before this court were whether to apply intermediate scrutiny or strict scrutiny to our analysis of the Law School’s admissions program, the answer would be strict scrutiny. However, that question is not before this court, because it has been conclusively answered, in favor of strict scrutiny. In Adarand, 515 U.S. at 227, 115 S.Ct. 2097, the Supreme Court held that all racial classifications are subject to strict scrutiny.
In trying to divine a holding from Bakke supporting the use of race for diversity purposes, we are not able to apply Marks on a surface level, relying only on the fact that Justice Powell would have applied a stricter standard of scrutiny to race-based classifications than would have Justice Brennan. The unavailability of a “surface-level” application of Marks may itself be dispositive. After all, Marks is merely a tool with which to determine the collective *781 intent of a fractured court. Because the first-level Marks analysis has been displaced by intervening precedent, perhaps the application of Marks to the still-open questions raised by the Powell and Brennan opinions in Bakke can no longer serve its intended purpose of deriving the collective intent of the Court, as the assumptions of the Justices deciding Bakke no longer hold.
The application of Marks to Bakke is also inapt because (1) the separate opinions in Bakke do not constitute a coherent set and subset of each other and cannot be placed on a logical continuum; (2) the application of Marks really yields two Marks holdings from Bakke; and (3) the Supreme Court and other courts have recognized that Bakke does not yield a useful holding on the constitutionally permissible use of race and that Marks ought not be applied in the circumstances that obtain here.
a. No Set and Subset or Continuum Available in Bakke

Nevertheless, if we are still to use the Marks apparatus, we need to examine the specific rationales offered by Justices Powell and Brennan to determine whether it is possible, in this court’s words, to characterize one Justice’s rationale supporting the judgment as a “coherent subset of the principles articulated” by the other’s rationale. Triplett Grille v. City of Akron, 40 F.3d 129, 134 (6th Cir.1994).
There are potentially two judgments in Bakke. One struck down UC Davis’s admissions program. The second purported to overturn an injunction against all use of race, after discussing possible permissible bases for utilizing race in admissions decisions. With respect to the latter issue, the majority in its Marks analysis defines the judgment as stating that race can be used in certain circumstances by educational institutions.5 See Majority Op. at 738.
In order to view the rationale of Justice Powell’s concurrence as the narrowest grounds in support of this judgment, the court must read Justice Powell as embracing the use of race only for the limited purpose of promoting diversity, while Justice Brennan would have permitted the use of race more broadly, to promote diversity and to remedy past discrimination. On its face, Justice Brennan’s writing in Bakke does not support the use of race for both diversity and remedial purposes. Nowhere in Justice Brennan’s opinion does he mention the diversity rationale, and he explicitly did not join Part IV-D of Justice Powell’s opinion, discussing the diversity rationale. Further, as mentioned above, Justice Brennan clearly states that “the central meaning of today’s opinions” is that “[g]overnment may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.” Bakke, 438 U.S. at 325, 98 S.Ct. 2733 (emphasis added). Finally, in his now-famous first footnote, Justice Brennan, writing for himself and the three other Justices who joined his opinion, agrees that a plan like the Harvard plan set out as a model by Justice Powell would be “constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated *782 by the lingering effects of past discrimination.” Id. at 326 n. 1, 98 S.Ct. 2733 (emphasis added).6
If one reads Justice Brennan’s opinion as approving the use of race for remedial purposes, but not for diversity, one could make the argument that Justice Powell’s opinion, which accepts the general concept of a diversity rationale, is broader than Justice Brennan’s, which accepts only a more specific “past discrimination” rationale. Indeed, in a world permitting the use of race in admissions decisions when it is used to promote diversity, educational institutions would merely have to place a

label on their actions in order to pass constitutional muster. There is no facial limit on the use or the ends of a race-based admissions policy seeking “diversity.” The remedial rationale, on the other hand, would at least require some proof of past discrimination, and it would provide an obvious endpoint for the program, namely when that past discrimination has been remedied.
At the very least, however, since Justice Powell rejected the past discrimination rationale and Justice Brennan can be read to have implicitly rejected the diversity rationale, there is no continuum to be found in Bakke; instead of a broader holding and a narrower holding, what we might have are two different and non-comparable holdings. If such a reading is adopted, the “holding” that the majority of this court has divined from the Supreme Court’s Bakke decision is a rationale set out by one Justice and rejected by eight. See Cass R. Sunstein, Public Deliberation, Affirmative Action, and the Supreme Court, 84 Calif. L.Rev. 1179, 1185 (1996) (noting that the “rule” in Bakke represented the thought of just one Justice, while “[t]he other eight participating justices explicitly rejected that rule”). This hardly can be consistent with the letter or the spirit of Marks.7
*783 Viewing the rationales for the use of race put forth by the Bakke concurrences not as a continuum (or a set and subset), but as several distinct and unrelated justifications, is one of the ways one might argue that Marks simply does not apply to Bakke. Indeed, this is precisely what the district court held in the present case. See Grutter v. Bollinger, 137 F.Supp.2d 821, 847 (E.D.Mich.2001) (“The Marks framework cannot be applied to a case like Bakke, where the various Justices’ reasons for concurring in the judgment are not merely different by degree, as they were in Memoirs, but are so fundamentally different as to not be comparable in terms of ‘narrowness.’ ”).
b. The Potential for Two Marks Holdings
Even if one gets past the conceptual hurdle of treating as a continuum (or a set and subset) two rationales that are not clearly related in scope, it is not clear that a Marks analysis of the rationales in Bakke would produce the holding that the majority claims it does.
As mentioned, the majority defines the relevant judgment in Bakke abstractly, as holding that race can sometimes be used by educational institutions. Until now, we have assumed that the judgment in Bakke is as the majority defines it. Rather than adopting a broad statement providing no real guidance on when race can be used and for what purposes, we might look at what the two

opinions that concur on the possibility of a constitutional use of race have to say about each of the two potential rationales, namely remedying past discrimination and diversity. If we do this, we are essentially left with two holdings in Bakke on the permissible rationales for the use of race: one holding permitting the use of race for diversity purposes sometimes and one permitting it for remedial purposes sometimes.8 See generally Lackland H. Bloom, Jr., Hopwood, Bakke and the Future of the Diversity Justification, 29 Tex. Tech. L.Rev. 1, 30-32 (1998).
Justice Powell’s decision would be the narrowest grounds to support the holding that race can sometimes be used to remedy the effects of past discrimination. This is because the Brennan group would have allowed the use of race whenever there is a “sound basis for believing that the problem of underrepresentation of minorities ... [is] attributable to handicaps imposed on minority applicants by past and present *784 racial discrimination.” Bakke, 438 U.S. at 369, 98 S.Ct. 2733. On the other hand, Justice Powell expressed a more limited view of the permissible use of race in this regard in Section IV-B of his opinion. He agreed that “[t]he State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination.” Id. at 306, 98 S.Ct. 2733. However, Justice Powell would not have permitted simple reliance on general past discrimination, but instead would have required specific findings by a competent government body that the use of race is “responsive to identified discrimination” before race could be used remedially in admissions decisions. Id. at 310, 98 S.Ct. 2733.
However, with respect to the redefined holding discussing diversity, the one relevant in this case, Justice Brennan’s opinion facially is the narrower. Justice Powell wrote broadly in his Section IV-D that “[t]he attainment of a diverse student body clearly is a constitutionally permissible goal for an institution of higher education.” Id. at 312, 98 S.Ct. 2733. Later, Powell wrote again that “the interest of diversity is compelling in the context of a university’s admissions program.” Id. at 314, 98 S.Ct. 2733. Justice Brennan, on the other hand, specifically added a restriction to his expressed agreement. As discussed above, Justice Brennan would be willing to support the diversity rationale embodied in the Harvard diversity program set out by Justice Powell as a model, “at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination.” Bakke, 438 U.S. at 326 n. 1, 98 S.Ct. 2733. Since it put a limit on the utility of diversity as a rationale supporting the constitutionally permissible use of race in admissions programs where Justice Powell’s opinion expressed no limit, Justice Brennan’s opinion is narrower than Justice Powell’s on the use of race to

encourage diversity. So by merely redefining the relevant holding more accurately, I have reached a result opposite that of the majority-Justice Brennan’s rationale becomes the narrower and therefore becomes the Marks holding to be gleaned from Bakke on the diversity issue. This further shows the error in relying on Marks to answer the question before this court.
The above discussion is intended simply to illustrate that reasonable minds can and do differ on the holding, if any, to be found in Bakke with respect to the diversity rationale. Those holding different views on the subject could go back and forth endlessly, with no clear resolution. The reason for this-as almost all, wherever they stand on the argument, would agree-is that we are trying to divine a clear holding from a decidedly unclear decision.
In this circumstance, the better view is that Marks simply fails to extract from Bakke a holding on the constitutionality of the diversity rationale. Indeed, the very fact that one must struggle to find a way to fit the Court’s Bakke writings into the Marks mold counsels against finding such a holding in Bakke.
c. Subsequent Treatment of Bakke and Marks
It is apparent that the Supreme Court has doubted that Bakke provided a holding beyond the obvious one that UC Davis’s system was illegal.9 Though only writing *785 for four Justices, Justice Brennan wrote in the introduction to his Bakke concurrence that “[t]he difficulty of the issue presented ... and the mature consideration which each of our Brethren has brought to it have resulted in many opinions, no single one speaking for the Court.” 438 U.S. at 324, 98 S.Ct. 2733. Two years later, in the course of examining a minority business provision in the Public Works Employment Act of 1977, the Court expressly refused to adopt “the formulas of analysis” set out in Bakke and did not discuss any holding coming from the case, but instead set out to show that the challenged provision “would survive judicial review under either ‘test’ articulated in the several Bakke opinions.” Fullilove v. Klutznick, 448 U.S. 448, 492, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). After Marks was decided, the Supreme Court in Adarand again expressed doubt that there is a comprehensive holding to be found in Bakke. See Adarand, 515 U.S. at 218, 115 S.Ct. 2097 (noting that “Bakke did not produce an opinion for the Court”).
Further, there is Supreme Court precedent for the proposition that when it is so unclear what the Marks holding would be in a fractured court decision, there may

not be one. For example, in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), the Court re-examined its prior, splintered decision in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). After citing Marks and noting the varied possible holdings divined by different courts that had examined Baldasar, the Supreme Court declined to engage in a Marks analysis, stating:
We think it not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it. This degree of confusion following a splintered decision such as Baldasar is itself a reason for reexamining that decision.
Nichols, 511 U.S. at 745-46, 114 S.Ct. 1921. See also Johnson v. Board of Regents, 263 F.3d 1234, 1248 n. 12 (11th Cir.2001) (“The Supreme Court has not compelled us to find a ‘holding’ on each issue in each of its decisions. On the contrary, the Court has indicated that there may be situations where even the Marks inquiry does not yield any rule to be treated as binding in future cases.”). The fact that lower courts are unclear as to what holding-if any-can be garnered from Bakke on the diversity issue is clearly illustrated by the University of Michigan cases, where one district court at least found viable the argument that Justice Powell’s rationale represented Bakke ‘s holding regarding the diversity issue under Marks, while the other district court found Marks inapplicable.
C. The Dicta Problem
Lastly, I pause to point out that, even if the majority’s application of Marks were correct, it would not be clear that the various discussions of permissible rationales to be found in Justices Powell and Brennan’s opinions are anything more *786 than non-binding dicta. This is because there is an argument that Bakke does not have a “judgment” with respect to the permissible use of race in educational institutions’ admissions policies, so there would be no Marks holding on that issue.
In order to understand the argument, it needs to be noted again that there were potentially two issues in Bakke-(1) whether state universities could use race at all in their admissions decisions, and (2) whether the university’s particular use of race was permissible. Justice Powell’s opinion stated the judgment of the Court on the first issue, because he was joined by Brennan’s group of four to

make a majority for the proposition that state universities were not completely precluded from the use of race. Justice Powell’s opinion stated the judgment of the Court on the second issue, because he was joined by the other four Justices in finding that UC Davis’s particular system was impermissible.
In his Bakke concurrence and dissent, Justice Stevens argued that Justice Powell’s discussion of the first issue was merely dicta, as the California Supreme Court did nothing more than strike down UC Davis’s program and neither had before it nor decided the question of whether state universities could ever use race. See Bakke, 438 U.S. at 408, 98 S.Ct. 2733. See also Earl M. Maltz, A Bakke Primer, 32 Okla. L.Rev. 119, 130 n.91 (1979) (making this argument). Allan Bakke’s suit was not a class action; Bakke sought merely his own admission. Ibid. Therefore, once the Court ordered Bakke admitted, he no longer had any interest in UC Davis’s future admissions policy. Ibid. Accordingly, Justice Stevens argued that the only judgment of the Court was that UC Davis’s system was impermissible, and the narrowest grounds for holding that would seem to be Justice Stevens’s finding that the system was impermissible under Title VI (due to the long-standing rule, cited by Justice Stevens, that the Court avoids constitutional issues if a case can fairly be decided on a statutory ground). See Bakke, 438 U.S. at 411, 98 S.Ct. 2733. See also Johnson v. Board of Regents, 106 F.Supp.2d 1362, 1369 (S.D.Ga.2000) (same argument), aff’d, 263 F.3d 1234 (11th Cir.2001).
It is true that both Justice Powell and the Brennan group argued that the Court was issuing a judgment on the permissibility of the use of race, as they contended that the California Supreme Court did permanently enjoin any use of race. See Bakke, 438 U.S. at 271 n. 1, 98 S.Ct. 2733 (Powell, concurring), 325 (Brennan, concurring). Specifically, Justice Powell pointed out that the University had cross claimed in the trial court for a declaratory judgment that its program was constitutional, but that it had lost. See id. at 271 n. 1, 98 S.Ct. 2733. Presumably, then, Justice Powell was arguing that unlike Bakke, the University had an ongoing interest in the content of its future policies. Further, Justice Powell argued that the California Supreme Court effectively enjoined the University from ever using race. Justice Powell quoted language from the California Supreme Court to the effect that UC Davis’s admissions policy was constitutionally impermissible to the extent that it was “utilized in a racially discriminatory manner.” Ibid.,quoting 18 Cal.3d 34, 132 Cal.Rptr. 680, 553 P.2d 1152, 1166 (1976) (footnote omitted).
At least one commentator has challenged Justice Powell’s contention that the Bakke discussion on the more general use of race represents a holding. See Maltz, 32 Okla.

L.Rev. at 130 n.91 (arguing that this portion of the Bakke decision is merely dicta). Maltz points out that while it is true that UC Davis cross claimed, seeking a declaratory judgment that its policies were legal, it did not request that the court *787 in the alternative instruct it how to conform its policies to the law. Instead, according to Maltz, once the Court determined that UC Davis’s plan was infirm, it by implication disposed of the cross-claim and had fulfilled its function as a reviewing court. Ibid. Further, as Maltz points out, while the California Supreme Court did use the sweeping language cited by Justice Powell for the proposition that the court had enjoined any future use of race, the judgment of the California court was much narrower and included no such injunction. See 132 Cal.Rptr. 680, 553 P.2d at 1172.
More fundamentally, the holding/dicta distinction demands that we consider binding only that which was necessary to resolve the question before the Court. At most, the question before the Court in Bakke was whether race could ever be used in admissions decisions. To resolve that question, the Court only needed to answer that race could potentially be used. Any speculation regarding the circumstances under which race could be used was little more than an advisory opinion, as those circumstances were not before the court and need not be validated to overturn an injunction barring any use of race, to the extent one was in place.
So, if we admit that a Marks analysis simply does not provide a binding holding on the diversity issue, we are left with precedent striking down UC Davis’s admissions system and either binding precedent or persuasive support (depending on whether one agrees with Justice Stevens’s argument in Bakke that the entire rationale discussion was dicta) for the proposition embodied in Section V-C of Justice Powell’s opinion, to which a majority of the Justices did subscribe, 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.” 438 U.S. at 320, 98 S.Ct. 2733. Unfortunately, we are not reviewing the UC Davis program, and the fact that a state has a “substantial interest” that “may” be constitutionally served by admissions programs utilizing race does not help us. We must determine whether the state has a “compelling interest” rather than a “substantial interest” and the fact that an interest “may” be served by a race-based system does nothing to tell us “how” it may be.
D. Intervening Supreme Court Precedent
Having held that Marks does not compel a Bakke holding,

the district court in this case reviewed recent Supreme Court cases that have addressed racial classifications, and held that together they make clear that “racial classifications are unconstitutional unless they are intended to remedy carefully documented effects of past discrimination.” Grutter, 137 F.Supp.2d 821, 849 (E.D.Mich.2001). The court found this holding to be required by two Supreme Court cases. First, the court cited Adarand Constructors v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), where the Court held that all racial classifications are subject to strict scrutiny and overturned Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), to the extent that it applied intermediate scrutiny to a plan that used racial classifications in awarding broadcast licenses in order to enhance broadcast diversity. Second, the court noted that inRichmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), the Court stated that: “Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.”10
*788 Taking together the Court’s overturning of the standard used to uphold the use of race to encourage diversity in Metro Broadcasting (thereby calling into question the permissibility of using race for diversity purposes) and its statement in Croson that race should only be used for remedial settings, the district court held that the only permissible use of race under strict scrutiny is to “remedy carefully documented effects of past discrimination,” and that since the diversity rationale proffered by the Law School was not tied to remedying past discrimination, it is an impermissible basis for the use of race. Grutter, 137 F.Supp.2d at 849.
The majority, as it does in the rest of its opinion, disregards the district court’s analysis by adherence to the mantra of a Bakke holding that diversity is a permissible rationale for the use of race. Accordingly, the majority states that the later Supreme Court cases pointed to by the district court can not possibly stand for the proposition the court said they do because that would require a finding that the Supreme Court silently overturned its holding in Bakke. As the majority points out, the Court has instructed lower courts not to find that it has implicitly overruled itself, but to let it do its own overruling. Majority Op. at 744. See also Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). However, application of Agostini requires first that the Supreme Court have made a holding that a lower court is finding it to have implicitly overruled; in this case, Bakke provides no such holding.
While I find persuasive the district court’s attempt to derive from the Supreme Court’s Adarand and Croson

decisions a holding that diversity is not a permissible rationale, it would be somewhat disingenuous of me to fault the majority of this court for divining a firm and binding holding from Bakke while urging the court to do the same from Adarandand Croson. While the district court’s reading of these two cases is far from clearly wrong, it is also not required. In Adarand, the Court overturned Metro Broadcasting to the extent that it utilized intermediate scrutiny in reviewing a classification plan intended to promote diversity. However, the Court did not explicitly state that diversity would not withstand strict scrutiny. Further, in Croson, while a majority of the Court could be read to suggest that only remedial justifications would be permissible, a diversity rationale was not at issue in the case.
A better approach is simply to address the diversity rationale on the merits. Accordingly, I will seek to apply on the merits the rule on which we can all agree, as set forth by the Court in Adarand, and look to see (1) if the use of race in admissions for diversity purposes serves a compelling governmental interest, and (2) whether the Law School’s plan is narrowly tailored to achieve that interest. Adarand, 515 U.S. at 227, 115 S.Ct. 2097.
II. On the Merits
Symptomatic of its deference to the advisory opinion of one Justice of the United States Supreme Court, the majority has given us no argument as to why the engineering of a diverse student body should be a compelling state interest sufficient to satisfy strict scrutiny. I, however, consider the arguments on both sides of this question below and conclude that constructing a diverse educational environment *789 is not a compelling state interest. In explaining my conclusion below, I analyze why the nature and benefits of the experiential “diversity” that the Law School claims ultimately to seek is conceptually disconnected from the racial and ethnic diversity that it primarily seeks. I also demonstrate that the Law School’s concept of diversity permits no logical limitation and threatens to justify even more constitutionally unacceptable outcomes, counseling against recognizing its achievement as a compelling state purpose.
If I were deciding this case for a majority, I likely would not have resolved the question of whether developing a diverse student body is a compelling state interest. Even if a racial classification is designed to achieve a compelling state interest, it must be narrowly tailored to that interest. While I could conceive of racial preferences in admission that are narrowly tailored to achieve some diversity in education, the Law School’s plan is not among those. The

majority appears satisfied that the Law School’s program is narrowly tailored because the Law School has not articulated a precise numerical target for admitted minorities. By carefully avoiding the pernicious term “quota,” the Law School, for the majority, has withstood the constitutional strict scrutiny that we apply to racial preferences. For me, however, the Law School’s simple avoidance of an explicit numerical target does not meet the constitutional requirements of narrow tailoring. The Law School’s efforts to achieve a “critical mass” are functionally indistinguishable from a numerical quota.
Moreover, the constitutional inquiry into narrow tailoring is not merely one into the form of the racial preference. The sheer magnitude of the Law School’s racial preference, a feature left completely unexamined by the majority, is simply too large to be considered narrowly tailored. Even “the Harvard Plan,” which the majority remarkably considers constitutional merely because Justice Powell in Bakke speculated that it might be constitutional, does not validate the amount of the Law School’s racial preference.
I discuss the two parts of the strict scrutiny analysis-the existence of a compelling state interest and the employment of only those means narrowly tailored to that purpose-separately below.
A. Is Developing a Diverse Student Body a Compelling State Interest?
1. The Nature of “Diversity”
Holding that, generally speaking, “diversity in education” is a compelling state interest would not be terribly helpful. After all, it is not clear what the term means. From the outset therefore, it is crucial to be precise about the nature of the “diversity” that the Law School seeks to promote. Justice Powell discussed a diversity that would enrich the pedagogical activities of a school, a diversity of “experiences, outlooks, and ideas” that would challenge its students’ settled preconceptions and open them to new intellectual paradigms. Bakke, 438 U.S. at 314, 98 S.Ct. 2733. The Law School adopts this dialogic vision of diversity as the purpose behind its admissions program.
Some versions of diversity are clearly not included in the Law School’s vision. For example, the Law School does not seem to promote the potential for moral education in racial tolerance created by a more diverse student body. On this view, the mere presence of minority students may indeed be sufficient to enhance the educational experience. Similarly, the Law School does not seem to

rely on the promotion of post-graduation diversity in the legal profession.
Instead, the Law School rests its claim to the benefits of a diverse student body *790 on the unique experiences that students from under-represented groups will be able to share with their fellow students. Closely related, the Law School implies that a student body diverse with regard to race is one diverse with regard to viewpoint, experience, and opinion. Through the Socratic Method, the keystone of legal education, the students from groups otherwise “over-represented” will be pressed to consider new ideas as their previously under-represented minority colleagues discuss the legal questions at issue.
For all these educational benefits to diversity, the majority uses the shorthand “academic diversity.” Majority Op. at 747. From the implementation of the Law School’s program, however, it is perfectly clear that academics has nothing to do with the type of diversity sought. After listening to the Law School extoll the virtues of educational diversity, one might think that preference would be given across the board for “life experiences.” The Law School’s rhetoric implies that it is searching tirelessly for the applicant with the most unique of experiences: for example, the Mormon missionary in Uganda, the radical libertarian or Marxist, the child of subsistence farmers in Arkansas, or perhaps the professional jazz musician. The Law School, however, never claims that there is any similarity between the preference given to those with such unique experiences and that bestowed upon those it considers “under-represented” racial minorities.
Most poignantly, the Law School’s offering of non-racial exemplars for such non-racial diversity betrays the profound and experientially unrelated preference that the Law School places on race. Mentioning status as an under-represented minority in the same breath, the Law School generalizes, in the abstract, that it would also give a preference to an applicant with “an Olympic gold medal, a Ph.D in physics, the attainment of age 50 in a class otherwise lacking anyone over 30, or the experience of having been a Vietnamese boat person.” Admissions Policies, University of Michigan Law School, April 22, 1992, JA at 4240. Yet to equate bare racial status with the experiential gains of these generally remarkable (and exceedingly rare) achievements demonstrates that the Law School’s desired diversity is unrelated to the experiences of its applicants. After reading the description of its admissions criteria, a Michigan law student might yearn to meet the mere Olympian who failed to medal and was thus considered insufficiently interesting by the Law School.
The disjunction between the Law School’s preference for

the race of “under-represented minorities” and what happened to be those applicants’ experiences came through very clearly in an exchange at oral argument. Counsel for the Law School agreed that it was true that Ms. Grutter would have been admitted had she been of a different race, but strongly asserted that she would have then been “a different person.” Tr. at 38. Of course, in a trivial way, that is true of every change in any of us. Had she grown up in New York or had a mother or father who did or did not work outside the home, she would also have been a different person. However, none of those changes, all of which would have made her “diverse” in some different fashion, would have enhanced or determined her chances of admission. When I then asked counsel whether, if she were of a different race, she would have been admitted whether she had come of age in inner-city Detroit or in Grosse Pointe, he answered: “That’s probably right.” Id. at 39.
When it comes to a choice between admitting a conventionally liberal (or conventionally conservative) black student who is the child of lawyer parents living in Grosse *791 Pointe, just like the previous ten white admittees, the black student will be given a diversity preference that would not be given to a white or Asian student, her unique experiences notwithstanding.11 Similarly, it is not at all clear how true diversity is served by giving massive preference to a student whose parents or grandparents came from an upper-class suburb of Buenos Aires, over those whose grandparents immigrated from similar areas of Paris, Munich, or Tokyo or, indeed, over a person whose grandparents survived the labor camps of Hitler or Stalin or the conformity regime of Brezhnev’s Kazakhstan. Even Justice Powell in his Bakkeopinion recognized that an admissions program “focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.” Bakke, 438 U.S. at 315, 98 S.Ct. 2733 (Powell, concurring).
Perhaps the one unifying feature of the minority groups that the Law School heavily prefers in admissions is that they all, on average, have had some experience with being the object of racial discrimination. For law students, this might bring an understanding of the purposes behind the anti-discrimination laws that they might study. It is hard, however, to believe that the Law School’s admissions scheme is terribly sensitive to this interest. If the Law School were truly interested in those with profound experience with discrimination, it would be sensitive to differences within the affected groups. An African-American applicant who comes to the Law School by way of Choate and Harvard12 may well have quite a different experience of discrimination than one from a rural public school. Even if one were to believe that the Law School’s racial preference were carefully designed to add such experience to the Law School

mixing pot, one could wonder why an experience with discrimination would be so much more important than any other experience germane to other legal issues.
Indeed, one should wonder why race is at all relevant to the Law School if it only is concerned about the diversity of experience. It is likely that an admissions scheme that sought true experiential diversity, without regard to race, would provide some systematic advantage for racial or ethnic minorities. See also Part II.B.4 (discussing race-neutral means). Under-represented life experiences-primary or secondary education at an under-funded public school, struggling with relative poverty, a childhood spent in urban rather than suburban areas-may correlate to some degree with under-represented racial or ethnic minorities.13
Such a system of seeking experiential diversity would be unlikely to raise significant constitutional problems, unless it were clear that an institution manipulated these factors to admit members of a particular race. However, the Law School certainly does not seek to implement an experientially based admissions system or even to assert that if it did, the preference given for such factors could explain its current results. Instead, it is clear that the only type of diversity that is given more than modest, if any, weight is based *792 on assigned racial categories. The Law School cannot plausibly maintain that the system would be impractical, especially because, as they elsewhere remind us for purposes of distinguishing its preference from a quota, only one admissions officer reads all applications, makes all decisions, and therefore is capable of considering candidates individually. The possibility of an experientially based admissions system and the Law School’s apparent disinterest in such a system, indicate that the Law School grants preference to race, not as a proxy for a unique set of experiences, but as a proxy for race itself.
Accordingly, even if we were to consider binding on this court Justice Powell’s opinion in Bakke that the achievement of some form of diversity in education is a compelling state interest, we would not ipso facto find compelling the type of diversity that the Law School apparently seeks. For Justice Powell in Bakke, race or ethnicity was only “one element in a range of factors” that an educational institution may consider to develop an experientially heterogeneous environment. Bakke, 438 U.S. at 314, 98 S.Ct. 2733. The Law School’s consideration of race, for the sake of race, is not the type of pedagogical diversity thought potentially compelling in Powell’s opinion.
There are yet more fundamental problems with the broad-brush rationale of diversity. The fundamental premise of our society is that each person is equally

“diverse” exactly because of her equality before God and the law. The very words of the Declaration of Independence are: “All men are created equal ... and are endowed by their Creator with certain inalienable rights.” Thus, the starting basis is one of equality, not of separately assigned categories that are used to measure diversity. From that starting point, every person’s experiences are “diverse” from those of every other. The very measure of diversity as used by the University is to say that some of those differences do not count. Thus, to the Law School, ten under-represented-minority students, each a child of two-parent lawyer families, are considered to be diverse, while children whose parents are Chinese merchants, Japanese farmers, white steel workers, or any combinations of the above are all considered to be part of a homogeneous (and “over-represented”) mass. And, of course, that categorization then strongly determines the odds of admission. A child with one parent of Chinese ancestry and one of Chilean would find that his level of “diversity” depends wholly on whether the Law School chooses to assign him based on one parent or the other.14
The Law School gives no explanation of how it defines the groups to be favored. This means that ultimately it must make, on some basis, a decision on who is, and is not, an “African-American, Hispanic, or Native American.” See JA at 1957 (discussing the groups to be favored). Such judgments, of course, have a long and sordid history. The classic Southern Rule was that any African ancestry, or “one drop” of African blood, made one black.15 *793 The Nazi Nuremberg laws made the fatal decision turn on the number of Jewish grandparents.16 “Hispanic” background may, I suppose, depend on which side of a pass in the Pyrenees your great-grandfather came from. This Christmas, my wife and I received a card, containing a lovely picture of a friend and his spouse, their two children and their spouses, and four grandchildren. I asked a sample of people, in and out of my chambers, how many of the ten people in the picture should receive racial preference under Michigan’s policy. I received answers ranging from one to ten.
A moment’s contemplation of these examples shows another serious problem with Michigan’s policies. On the one hand, all the evidence is that race and ethnicity are considered on an “all or nothing” basis. But the actual experience, diverse or otherwise, of a person who is “one-half” or “one-quarter” of one ethnicity, is likely to be, on average, different from one whose ancestry is relatively uniform. On the other hand, to apply boldly a system of half- or quarter-credit for assigned status would reveal the racist nature of the system to a degree from which even its proponents would shrink.
Thus, even if we give full force to Justice Powell’s

discussion of “the virtues of diversity,” the Law School’s program provides the linguistic term, but not the substance.
2. No Logical Limitation
We are not completely at sea regarding how to discern a compelling state interest. The Supreme Court has consistently rejected those purposes that lack a “logical stopping point.” Croson, 488 U.S. at 498, 109 S.Ct. 706; Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion). Such vague and ill-defined purposes, if considered compelling, would eviscerate the constitutional protection that strict scrutiny provides. The two requirements of strict scrutiny-the identification of a compelling state interest and the use of only those means narrowly tailored to serve that interest-are designed to be independently meaningful rather than mere redundancies. Yet it is meaningless to require that a state narrowly tailor its suspect policies to a purpose that itself is poorly defined.
Requiring a well-defined purpose to be compelling reflects the Supreme Court’s judgment that racial classifications ought to be used sparingly. The Law School’s repeated incantation of “developing a diverse student body” suffers from this vice of vagueness. These same words, together with the discussion of promoting a more intriguing student body, could be used, and indeed have been used not invalidly on their face, to justify ethnic classifications that seem patently unconstitutional.
It may be instructive to compare the actual implementation of and articulated rationale behind the Michigan plan with another, possibly well-intentioned, attempt to manipulate admissions criteria to achieve a diverse student body. I refer to the “religious-conscious” policies, adopted by a number of Ivy League universities of which Harvard was the most notable, to give preference in admissions to Gentiles as opposed to Jews. The policies were also designed to produce a mixture of students in the school that was closer to the proportion that prevailed in society, and a proportion that was thought to be socially and educationally beneficial.
The reasons for the policy offered by then-President Lowell of Harvard are hauntingly similar to the rationale given *794 here. As Lowell explained, without the policies “Harvard would lose its character as a democratic national university drawing from all classes of the community and promoting a sympathetic understanding among them.” Letter from President Lowell, reprinted in Henry Aaron Yeomans, ABBOTT LAWRENCE LOWELL, 1856-1943 209 (Arno 1977). Lowell worried

that “race feeling would become intense” if numbers of students were not more proportional to the general population, and that if the numerical imbalance could be rectified, “it would eliminate race feeling among the students, and ‘as these students passed out into the world, eliminating it in the community.’ ” Nitza Rosovsky, THE JEWISH EXPERIENCE AT HARVARD AND RADCLIFFE 15 & n.2 (Harvard 1986) (quoting A. Lawrence Lowell Papers # 1056). Lowell also believed that his policy would be “in the interests of Jews, as well as of everyone else.” Ibid.
The weighted preference system at Harvard then worked much the same as Michigan’s. The “Harvard plan” of its day also considered each applicant individually. Some Jews were admitted, some were not. Their religion was only one factor among many that were considered. It was perfectly clear, in the words of Justice Powell, that “the applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat.” Bakke, 438 U.S. at 318, 98 S.Ct. 2733. Those who were not admitted could not be certain that their ethnicity had been decisive. All applicants admitted were certainly “qualified,” by the same standards as the Michigan plan.
Perhaps the crucial distinction comes from the notion that a true “plus” program would lack a “facial intent to discriminate.” Ibid. This could only be the case if the plus was in some fashion modest, and calibrated truly in connection with other comparable characteristics. The fact that the “Harvard plan” of the 1930’s basically cut Jewish numbers by half or more would belie the lack of a “facial intent to discriminate.” See generally Marcia Graham Synnott, THE HALF-OPENED DOOR 96, 108, 110, 115 (Greenwood 1979). The University of Michigan’s plan, which by its own calculations inflates the numbers of students from favored groups approximately three-to-four fold, similarly betrays a “facial intent to discriminate.” See JA at 6047.
It is thus important to note that the Michigan policy, though unintentionally, has an effect similar to that of the Harvard plan of old. The effect is similar, in my view, because a significant proportion of those persons who are excluded because of racial discrimination in favor of under-represented minorities are Jews. While no specific numbers have been given, a wide variety of sources indicate that Jewish representation in general in law schools is several multiples of the proportion of Jews in the general population. There is no reason to believe that as a proportion of those excluded by Michigan’s policies, the impact would be any different.
If policies like the Law School’s are permitted, the

adverse effect on “over-represented” minorities will only grow more grave because such policies inexorably drive toward a philosophy in which admissions are parceled out roughly in proportion to representation in the general population. The Law School may deny this, and argue that the policy is only for “under-represented” minorities. But, if suitably divided, any group can become a minority. If one distinguishes between denominations of Christianity, no religion is a majority in America. Using only the constitutionally protected classes of national origin, no ethnic background is a majority. Thus, by the rationale of Michigan’s policy, *795 every group suitably defined could be entitled to “a critical mass” of its members so that those students, too, should “not feel isolated or like spokespersons” nor “feel uncomfortable discussing issues freely based on their personal experiences.” Majority Op. at 15. And then, by the inexorable laws of mathematics, the existence of a critical mass or rough proportionality for each group so considered means that what is left for the remainder of the groups (those formerly “over-represented”) is no more than its own critical mass of “rough proportionality.” And there lies the rub. Being relegated to rough proportionality brings Jewish applicants full circle to their chances under Lowell’s “Harvard Plan,” or even worse, as Jews today constitute only 2-3% of the total population. The Law School and the court will certainly deny this, but that is where the figures unavoidably lead us.
These prospects for such uninhibited racial and ethnic discrimination are especially important because the Law School has declined to justify its policy as remedying past discrimination.17 There is no limiting principle preventing the Law School from employing ethnic or religious preferences to arrange its student body by critical mass. In short, the compelling state interest of developing a diverse student body would justify an infinite amount of engineering with respect to every racial, ethnic, and religious class.18
B. Is the Law School’s Admissions Policy Narrowly Tailored?
If pressed, however, it would be unnecessary to determine whether promoting diversity in education constitutes a compelling state interest because we, just as Justice Powell in Bakke, are not faced with an admissions scheme that is narrowly tailored to achieve the compelling state interest *796 of diversity in education. For the majority, the inquiry into narrow tailoring begins and ends with a determination that the Law School neither “sets aside” an exact number of seats for racial or ethnic minorities nor admits minorities with a specific quota of admittees in mind. The distinction of quotas from other preferences is

the dividing line between constitutional and unconstitutional admissions policies, on this view. For this position, the majority points to the Harvard plan, not of Lowell’s time, but the one of which Justice Powell, on the basis of no factual record but only a bland description appended to an amicus brief, spoke approvingly in Bakke. That plan, using race only as a “plus,” does not offend the Constitution according to the majority because of Powell’s advisory opinion on its constitutionality. Therefore, the majority would hold that all plans that merely use race as a “plus” are constitutional. Yet, the constitutional analysis of racial preferences appears to be binary for the majority in that a preference is either a forbidden quota or a permissible plus.
We must be, however, concerned about the magnitude of this preference. Even assuming, against all doubt, that Justice Powell’s opinion on the constitutionality of a plan not any part of the case or controversy before the Court could be a holding binding on this court, I cannot believe that a “plus” of any size, no matter how large, would be therefore constitutional. I believe that the Law School’s preference is just too large to be narrowly tailored.
My analysis of the narrow tailoring defects of the Law School admissions scheme falls into four parts. First, I detail the true magnitude of the Law School’s preference. Second, I explain why we cannot draw a meaningful distinction between the Law School’s attempts to achieve a “critical mass” of under-represented minorities and the quotas that the majority concedes to be unconstitutional. Third, I question whether a strong racial preference bears any demonstrable relationship to the claimed benefits of educational pluralism. Fourth and finally, I suggest some race-neutral means of achieving the Law School’s avowed ends that the Law School has not pursued.
1. The True Magnitude of the Law School’s Racial Preference
Because the majority has not laid out the magnitude of the discrimination revealed by the record, it is important to detail it here. An examination of the admissions data shows that even the most qualified majority19 students (those with an LSAT over 170 and a GPA over 3.75) do not achieve the perfect admissions percentages for under-represented minority students with a GPA nearly a point less and an LSAT score in the 164-66 range. More roughly speaking, under-represented minorities with a high C to low B undergraduate average are admitted at the same rate as majority applicants with an A average with roughly the same LSAT scores.20 Along a different axis, minority applicants with an A average and an LSAT score down to 156 (the 70th percentile nationally) are admitted

at roughly the same rate as majority applicants with an A average and an LSAT score over a 167 (the 96th percentile nationally).
The figures indicate that race is worth over one full grade point of college average or at least an 11-point and 20-percentile boost on the LSAT. In effect, the Law School admits students by giving very substantial additional weight to virtually every *797 candidate designated as an “under-represented minority” or, equivalently, by substantially discounting the credentials earned by every student who happens to fall outside the Law School’s minority designation.
For the potential applicant, the Law School’s system creates very different dilemmas depending on his race. If confronted a year before they applied to the Law School with the records of two students, whose non-racial credentials were equivalent, we might evaluate their prospects for admission as follows: Student A could work harder and raise her GPA by a full point. Student B could reveal the fact of his skin color or ethnicity, it being in one of the preferred categories.21 The Law School’s admissions officer, who before both changes would have rated the students equally, would now find the students equal, the effort of the one being counterbalanced by the background of the other.
More shocking is the comparison of the chances of admission for applicants with the same academic credentials (at least numerically). Taking a middle-range applicant with an LSAT score 164-66 and a GPA of 3.25-3.49, the chances of admission for a white or Asian applicant are around 22 percent. For an under-represented minority applicant, the chances of admission (100%) would be better called a guarantee of admission.
At some point, however, comparison of the admissions rates of white, Asian, and other unselected ethnic applicants and the minority groups designated for preference becomes impossible. The Law School simply stops meaningful consideration of non-minority candidates below certain grade point and LSAT figures,22 a practice demonstrated by admissions rates well below 10 percent, and often the absence of a single admitted student, in these credential categories. “Under-represented minorities,” on the other hand, not only continue to have respectable chances of admission in these categories, but in most cases enjoy rates of admission in excess of 80 percent.23 Far from receiving “competitive consideration,” majority applicants are all but summarily rejected with credentials, but not ethnicity, identical to their under-represented minority “competitors” who are virtually guaranteed admission. The Law School’s admissions practices betray its claim that it gives meaningful individual consideration to every applicant

notwithstanding their race.
The sharp threshold for admission that the Law School appears to establish for majority applicants reveals the emptiness of another purported justification for its racial preference. The Law School justifies *798 its stark preference, in part, by claiming that all the applicants admitted, even those admitted because of its preference, are “qualified.” If the Law School actually believed that all applicants, with combinations of credentials sufficient for admission for minorities, were truly “qualified,” it would likely be willing at least to consider admitting majority applicants who were equally “qualified.” Instead, the Law School reveals its true views regarding the necessary credentials for its law students through its clear line in its admission of majority candidates: students below the credential threshold either diminish the educational environment of the school or spare it only if kept to a small percentage of the class.
In the alternative, the Law School’s process designates as “qualified” virtually all who apply for admission. If the Law School is being honest, it considers every last under-represented minority admitted “qualified.” Indeed, the admissions data reveal that the Law School admits nearly every minority student who meets threshold credentials, as there appears to be a sharp cliff in rates of admission between extremely small variations in objective credentials.24 If the Law School considers everyone above this minority threshold “qualified,” it must also consider the 89 percent of the applicant pool above this threshold “qualified.” Yet it is clear that the Law School would not be comfortable with the random admission of any of the 89% of its applicant pool. The Law School does not truly consider majority applicants toward the bottom half of this 89% “qualified”-it admits almost none of them.
The Law School’s use of the term “qualified” reveals its slipperiness. The court majority reveals the Law School’s shift in usage when it explains the rejection of a more random selection method because the school seeks to assemble “both a highly qualified and richly diverse academic class.” Majority Op. at 751. The Law School appears to be all too cognizant of the difference between “highly qualified” and merely “qualified” applicants. Its two steep cliffs in the admissions rate, one for under-represented minority applicants and one for majority applicants, demonstrate that the Law School maintains a “two-track,” indeed separated, system for admissions. Using its under-represented minority threshold, the Law School fills its seats reserved for “qualified” candidates. Using its majority threshold, the Law School completes the balance of its class with “highly qualified” applicants. That the Law School merely seeks to insure that “all its students are qualified”

is an empty claim.
The Law School argues, however, that these overwhelming data are illusions produced through the smoke of litigation. These data, standing alone, the Law School seems to claim, could be produced by very small differences in actual qualifications. Taking certain hypothetical statistics, the Law School’s contention could certainly hold. For example, if for some reason every applicant had the same LSAT score, but every white had a GPA of 3.50 and every black had a GPA of 3.49, a “racial preference” would be required to obtain any admission of black students, but the degree of that preference would obviously be very small. The difference in chances of admission for the black and white applicants would still be very large, but the practical amount of preference would be very small.
*799 However, such are not the admissions statistics in this case. As the statistics show, the degree of preference can be characterized, in the benign words of Justice Powell and Harvard, as a “tip” only with some considerable violence to terminological exactitude.25 The term “tip” would convey to the average reasonable person something that overbalances a fairly closely divided or nearly evenly balanced choice. A seesaw with roughly equivalent children on either end can be “tipped” from one side to the other with a small weight. However, if a boulder must be placed on one side to shift the balance, the term “tip” would apply only if it were infinitely elastic. A common-sense view of a “tip” might be that in a zone where 80 or 90% of majority applicants are admitted, 100% of minorities would be favored. Or, in a zone where only 10 or 20% of majority applicants are admitted, 30 or 40% of minorities might be. If Justice Powell’s words are to be used as anything more than a subterfuge, that would be the kind of preference that a fair reading of his opinion might endorse.
The majority responds that there is no evidence in Bakke about how large the racial preference was in the Harvard plan of which Justice Powell spoke approvingly. Majority Op. at 756-757. As a result, it is impossible to know whether the Law School’s alleged “plus” was larger than Harvard’s. Majority Op. at 749. Immediately thereafter, the majority concludes that the Law School’s admission scheme is “virtually identical to the Harvard plan,” and that therefore the Law School’s system must be constitutional. Ibid. How does the majority know that the Law School’s system is “virtually identical” to Harvard’s? I am deeply puzzled regarding how the majority could place both its confession of ignorance regarding the details of the Harvard plan and its claim that the two plans are identical in the same paragraph. The majority’s argument, yet again, simply elides empirical premises necessary to sustain what it claims to be the

controlling analogy between the Law School and Harvard plans.
And indeed the majority’s recognition that there is no factual record regarding the Harvard plan in Bakke echoes the reason why federal courts do not issue advisory opinions on cases not before them and why we find binding only the holdings, but not the dicta, of prior cases. Without an actual case or controversy before it, a court is not able to develop a factual record and to determine which facts would be legally relevant. The absence of a factual record on the Harvard plan reinforces the reasons that Justice Powell’s thoughts regarding its potential constitutionality are not binding.
Even if we know nothing of the absolute magnitude of the Harvard plan other than its description as merely a “tip” or a “plus,” we have some evidence regarding its relative magnitude. As described in the amicus brief before the Court in Bakke, the Harvard plan provided that “the race of an applicant may tip the balance in his favor just as geographic origin or life spent on a farm may tip the balance in other candidates’ cases.” Landmark Briefs and Arguments, supra n. 1, at 736 (emphasis added). From the description, it would seem that Harvard’s racial preference would be similar in magnitude to the preference given other soft factors. We know, however, from the indisputable statistical evidence in this case and the Law School’s own admission that no other soft factor is even remotely as significant as race in its admission decisions. Additionally, there is nothing in the Harvard description that even hints that its preferences for race or others factors of diversity *800 are of the magnitude here, taking the chance of admission from near zero to near 100%, in many cases.
It is clear from the Law School’s statistics that under-represented minority students are nearly automatically admitted in zones where white or Asian students with the same credentials are nearly automatically rejected. Indeed, the Law School concedes that its racial preference is sufficiently heavy that 3 out of 4 under-represented minority students would not be admitted if all students were truly considered without regard to race. JA at 6047. The characterization of the Law School’s preference as only a “tip” or “plus” would eviscerate those words, and transform Powell’s thoughtful discussion into a carte blanche for adopting the UC Davis system with only a few cosmetic changes.
One might wonder why I focus so heavily on the LSAT and GPA admissions data provided by the Law School. Of course, the constitutional deficiencies of the Michigan policy have nothing to do with the question of how and whether universities should consider academic measures such as GPA and LSAT in their admissions policies.

Michigan is perfectly free to abandon or to restructure those measures. However, those are the standards it has chosen to distinguish among majority candidates, and to distinguish among minority candidates. Equal protection of the laws demands that the objective standards that the Law School chooses are applied with some modicum of equality, and they are not here.26
Michigan argues, with some justification, that it also considers a wide variety of “soft” factors. And nothing in this opinion denigrates the use of such factors, or even changing or increasing them, so long as they are applied equally. However, it is of the greatest importance to note that Michigan does not contend, in any way, that the consideration of those factors explains any advantage, systematic or otherwise, for minority candidates. It does not make that claim in its filings or briefs, and I specifically put the question in oral argument: “Do you assert that under-represented minorities systematically have stronger [soft factors] than non-minority students?” Counsel responded with a firm “no.” Tr. at 41. Thus, the issue is not the merits behind one combination of qualifications or another. The constitutional dilemma presented is the use, or at least the degree of use, of race to overcome qualifications, however defined.
2. Differentiating a “Critical Mass,” a “Plus” and a “Quota”
As I have just explained, the preference accorded minorities in the Law School’s admissions scheme is different in magnitude from the “plus” or the “tip” that Justice Powell thought might be permissible under certain conditions. The Law School’s racial preference, however, suffers from deeper problems-as it appears calibrated to admit a certain percentage of under-represented minority students. The Law School concedes that the preference is designed to admit a “critical mass” of under-represented minority students. Of *801 course, the term “critical mass” is intentionally vague. When pressed, the Law School will explain that a “critical mass” is that number of students necessary to enable “minority students [to] contribute to classroom dialogue and not feel isolated.” Majority Op. at 746. Pressed further, the Law School will not say that any particular number of minority students constitutes a critical mass. It seems obvious to me, however, that the Law School has an opinion as to what that number is and attempts to achieve it.27
The majority summarily dispenses with this problem, approvingly quoting the comforting reassurances of Dean Lehman (“We do not have a portion of the class that is set aside for a critical mass”) without noting that in fact a critical mass is always obtained. Majority Op. at 746. And

comforting those words must be, as a contrary response would have produced what appears to be the only manner in which a racial preference in admissions could be unconstitutional for the majority: a quota system. Yet Harvard in the 1930’s did not have to say that exactly 87 percent of the seats were set aside for Gentiles-it just had to apply an admissions system based on “character” that achieved roughly the same result.28
The results of the Law School’s system to produce a “critical mass ” reassure us that the Law School really seeks to enroll a critical number of minority students. Between 1995 and 1998, the last four years for which we have data, the Law School consistently enrolled a number of under-represented minorities constituting 13.5 to 13.7 percent of the class enrolled. The absolute numbers are just as consistent: 47 of 341 in 1998, 46 of 339 in 1997, 44 of 319 in 1996, and 46 of 340 in 1995. University of Michigan Law School’s Report to the ABA, JA at 643. The statistics demonstrate that the Law School was more successful at enrolling a precise number of under-represented minorities than a precise number of total students.29 It seems clear to me, at least, that the “critical mass” the Law School seeks to achieve is only vague and flexible for outsiders not looking at its enrollment statistics.30 The Law School’s “critical mass” of *802 designated minorities is 44-47 per class, or around 13.5%.
The majority and the Law School stress that minority enrollment numbers have varied, indicating that the Law School does not maintain a fixed target for minority admissions. The fact that there has been any variation (.2% over four years), trivial though it may be, in the percentage of students admitted who are minorities satisfies the majority that the Law School does not maintain a quota. After all, the majority instructs us, variation produces a range, and a range will always have a “minimum,” that might look like a number below which the Law School will not go. Majority Op. at 16. Such is the nature of a range, the majority says, almost suggesting that it was foolish to be concerned about the question. Ibid.
I am not concerned just with the bottom of the range, but also its top. The range, as I have demonstrated, is remarkably tight. Admittedly, it is not identical from year to year-but the lack of identity does not seem enough to demonstrate that the Law School does not have an exceedingly precise numerical target in mind when admitting its students. The fact that a quota is a range rather than one specific number certainly does not insulate a program from constitutional scrutiny. In Bakke, had UC Davis said “We’re going to reserve, oh, about 14 to 18 seats, maybe give or take a few,” for minority students-and then, indeed hit that range every year, I

doubt that anyone can seriously believe that the outcome of that case would have been different.
The majority’s reliance on such slight variations also ignores the imprecision involved in producing enrollment. A law school does not admit students with perfect information regarding its yield, that is the percentage of students that will accept offers of admission. The yield is radically dependent on the idiosyncratic preferences of the students admitted. Accordingly, in a given year, highly selective law schools may have ten percent variations in the overall sizes of their enrolled classes, much less any desired component part. The University of Michigan Law School is no exception, enrolling 341 students in 1998, 339 in 1997, 319 in 1996, 340 in 1995, 363 in 1994. Given these uncertainties, the quite narrow range of minority enrollment percentages that the Law School achieves is remarkable for its consistency, and it seems to me that the Law School is doing all it can to achieve a target number of minorities. I take no comfort in the statistically minor variations in minority enrollment.
Indeed, the record makes it clear that, to take a hypothetical example, if the Law School were to discover near the end of its process that a large number of its admitted minority students had all decided to attend other schools, thus leaving both a block of empty seats and a huge deficit in the sought-for “critical mass,” the Law School would bend every effort to fill those seats with minority students. Before all offers of admission are made, substantial numbers of applicants accept, clarifying the likely composition of each class. Law School officials testified that they vigorously monitor the acceptance data with regard to race on a daily basis, see Depo. of Dennis Shields, JA at 2219-20, perhaps to admit minorities that it otherwise would not have or perhaps to admit minorities on the waiting list. This, of course, is the practical equivalent of the “segregated waiting lists” condemned in other cases. See, e.g., Hopwood v. Texas, 78 F.3d 932, 938 (5th Cir.1996).
The combination of the Law School’s thinly veiled references to such a target, its “critical mass,” and relatively consistent results in achieving a particular enrollment percentage, should convince us that the Law School’s admissions scheme is functionally, *803 and even nominally, indistinguishable from a quota system. At the very least, however, the Law School’s admission plan seems far from employing the mere “plus” or “tip” that the majority characterizes its racial preference to be.
In order for the language of “plus” or “tip” to have real meaning, there would have to be some indication that the other, allegedly similar, plus factors were also of a strength that were anywhere near the potency of the

preference here. After all, Justice Powell himself contended that, to be only his “plus,” race would need to be just one among many factors. As Justice Powell wrote,
“The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important.”
Bakke, 438 U.S. at 317, 98 S.Ct. 2733 (Powell, concurring). The majority is content to accept the Law School’s claim that it considers some of these “soft” factors. Majority Op. at 747. I would ask whether any of them are remotely comparable in weight. While not every factor would be required to bear equal weight under the Powell view, it seems clear that at least some of these other factors would need to be capable of taking a student’s chances from virtual certainty of rejection to virtual certainty of admission. There is no such evidence as to any race-neutral factor, but there is repeated and consistent evidence of such a treatment of race and ethnicity.
3. Achieving the Benefits of a Diverse Educational Environment
Even if I were not convinced that the Law School’s pursuit of a “critical mass” of minority students is a constitutionally invalid means to achieve diversity, I would still find the empirical link between such “critical mass” and the values of diversity lacking.31 The Law School never provided any evidence that the existence of the “critical mass” would in fact contribute to classroom dialogue or would lessen feelings of isolation or alienation. The only evidence at all bearing on this is from the Gurin Report.
The Gurin report is questionable science, was created expressly for litigation, and its conclusions do not even

support the Law School’s case. The benefits of a diverse student body that the study purports to prove, essentially better learning32 and *804 increased democratic participation,33 are themselves vague to a degree that we would never accept to satisfy strict scrutiny in any other context. The concurring opinion34 contends that this opinion ignores the Gurin report in discussing diversity’s capacity to deliver its claimed benefits. Concurring Op. at 759 (Clay). The concurring opinion, however, does not even mention, much less analyze, the strength of Gurin’s proof. The “study” suffers from profound empirical and methodological defects that lead me to doubt its probative value. And certainly neither the trial court as finder of fact nor the majority opinion take the report’s conclusions as fact.
First, the report falls well short of making the Law School’s case, even if we simply accept it without scrutinizing its conclusions. The report takes no position on how much diversity is required to yield the claimed benefits, and thus does not even purport to substantiate the Law School’s claim that a “critical mass” of minorities is required to achieve the educational benefits of diversity.35
Second, the report’s aspirations to empiricism are undermined by the subjectivity of its data. After all, the report bases its claimed educational benefits on only the subjective self-reports of students.
Third and most importantly, the statistical regressions relied on by the report never examine the statistical link between having a more diverse student body and the benefits that it claims. Instead, the regressions investigate only the correlation between the claimed benefits and two proxy variables for diversity: “classroom diversity” and “informal interactional diversity.” See Gurin Report, JA at 2434, 2437, 2441, 2446. “Classroom diversity” is defined as the responding student having taken an ethnic studies class, and “informal interactional diversity” as a student having had social interaction with or about minorities in college. Ibid. Both of these variables, however, are independent of having a more racially or ethnically diverse student body, and appear to make the case for more ethnic studies classes or informational seminars about ethnic issues, instead of greater numbers of minority students. In fact, one wonders why Gurin did not directly correlate her benefits to the much less complex, but infinitely more relevant, variable of participation in a more diverse student body: I fear that Gurin used the proxies because a study of mere student body diversity either did not or would not produce the results that she sought.36 In *805 any event, we lack any even purportedly empirical evidence demonstrating a correlation between increasing the number of under-represented minorities enrolled and the vague benefits of diversity claimed by

the Law School.37
The Gurin Report aside, the link between the Law School’s diversity and its claimed benefits is conceptually flawed. The relationship between a “critical mass” and the values of diversity would depend on contingencies nearly impossible to predict. The Law School’s definition seems to depend wholly on the psychological makeup of the people involved, whether labeled as majority or minority. Certainly history is replete with examples of members of minority groups, from Frederick Douglass to Martin Luther King to Thomas Sowell, who have said their piece and stood for what they believed in without regard to whether others thought them to be a “representative.” Eleanor Roosevelt is quoted as having said that “no one can make you feel inferior without your consent.” The same is true of representativeness. Apparently, by this measure, if and as members of the under-represented group become psychologically stronger, and thus more able or willing to speak as individuals, the Law School needs less and less of them.
On the other hand, if the measurement is based on the attitudes of the “non-minority” students, there again is little concreteness to the measure. This would seem to mean that if those outside the minority groups were all paragons of tolerance, then there would be no need for any preference, because all students would uphold the precepts of the Constitution and major religions to treat each person as an individual. Conversely, if the majority student body stubbornly persisted (following the Law School’s lead) in attributing the experiences and opinions of their classmates to their racial identity, the critical mass would need to expand and expand, presumably until most or all of the recalcitrant majority students had been driven *806 from campus. In short, any sort of rationale-based definition of “critical mass” seems hopeless.
“Critical mass” also has difficulties if it is defined in a way divorced from some notion of the “proper” representation of the particular group. Since the Law School gives no principles, sociological or otherwise, by which the “non-representativeness” of individual group members can be judged, we would have to assume that a “critical mass” would be of approximately the same size for any designated group. Thus, Afghans, Orthodox Jews, Appalachian Celts, or fundamentalist Christians might also feel that their remarks were being taken as representative, rather than individually, unless they, too, had a “critical mass.” Then, the makeup of the entering class could be wholly determined by those groups that the Law School chose to classify as appropriate for worrying about their “under-represented status.” Indeed, the Law School does not appear to believe that the critical mass for Native Americans, for example, is nearly as large as it is for blacks and Hispanics. Thus, some measure of rough

proportionality inevitably creeps in as the measure of what is the “critical mass.” Although the Law School’s deponents tried very hard to avoid any specificity in their responses (“A mass of Latin words falls upon the facts like soft snow”), it was clear both in the trial record and at oral argument that a number that was only half or less of a group’s representation in some national measure of population would not be considered a “critical mass.”
Also problematic is how the Law School has selected the minorities entitled to a preference in terms of fostering a diverse educational environment. The Law School’s statement that its actions are justified because members of under-represented minorities are “particularly likely to have experiences and perspectives of special importance” raises the question of whether it can determine that other groups, such as Americans of Japanese or Welsh ancestry, are “particularly unlikely” to have such experiences and perspectives. In practical effect, that is what the Law School has decided, and without any specific basis. Either the experiences and perspectives are themselves valuable, in which case they could be judged on that basis without reference to skin color or parentage, or the Law School is assuming a heterogeneity among widely diversified groups.
4. Potential Race-Neutral Means
In order for its racial classifications to survive strict scrutiny, the state must first look to race-neutral means to achieve even compelling state interests. The Supreme Court has made clear that courts must determine whether a state’s racial classification is necessary with reference to the efficacy of race-neutral alternatives. See, e.g., Croson, 488 U.S. at 507, 109 S.Ct. 706; United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987); Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 736 (6th Cir.2000).
What is not crystal clear, however, is the nature of the consideration that reviewing courts must undertake. Yet only one tack makes analytical sense. In order to prevail under strict scrutiny, the state must demonstrate not only that its racial classification achieves compelling state benefits, but also that these benefits may only be obtained by the shift from a well-designed, race-neutral alternative. Put differently, the state must demonstrate that the marginal benefits gained from employing the racial classification over the next most efficacious race-neutral alternative are themselves compelling. Any other standard would make success under strict scrutiny a mere exercise in question framing. The *807 interest vindicated by a racial classification would look very large, perhaps even compelling, when compared to the benefits delivered by

some dismal alternative. Instead, we should require that before we find marginal benefits reflective of a compelling state interest, they must be those gained over the best race-neutral alternatives.
Consider some of the race-neutral alternatives available in this case. The gradient of benefits, along which the race-conscious and race-neutral means are judged, is “academic diversity,” or achieving a pluralism of experiences and ideas. SeePart III.A.1. Earlier in this opinion, I discussed the possibility of considering experiential diversity in a race-neutral manner. Swamped with the children of wealthy suburbanites, the Law School could seek out applicants who were raised amidst relative poverty, who attended under-funded or failing schools, who walked to school past warehouses instead of coffeehouses, who experienced but conquered extreme emotional trauma, like the loss of a parent, who prevailed over a profound childhood illness, who have dedicated years to helping the poor in the Jesuit Volunteer Corps, or, even less stirringly, who have a strong accounting background among a raft of history majors. If it really is a diversity of experiences and viewpoints that the Law School seeks, why cannot the Law School just seek those experiences and viewpoints?
Instead, the Law School searches for particular races and ethnicities as a means of securing a diversity of experience, and, so they say, for no other purpose. A well-functioning search for experiential diversity would certainly yield the greatest measure of it. After all, even the Law School would admit that race is an imperfect proxy for experiential diversity. Next-door neighbors in Grosse Pointe, separated only by 30 yards and the color of their skin, would not necessarily be significantly different from each other. In principle at least, the race-neutral means of seeking the experiences themselves would seem superior to the Law School’s race-conscious means, if its aim is as it professes. This is quite the opposite of the woeful inadequacy of race-neutral means that we generally require to consider a racial classification narrowly tailored.
In practice, the Law School could make all sorts of arguments about the inadequacy of merely seeking experience. For example, admissions officers would have to read (and seriously consider) more text in an application if it were seeking experience rather than race. The medium for communicating this quality, of course, lacks the efficient simplicity of the racial check-box. Yet, over and over again, the Law School has reassured us that its exquisitely meticulous admissions officers already consider each application individually and thoroughly. Such is the luxury, the Law School tells us, of so few applications and spots to fill. I am willing to take the Law School at its word, and believe that it is fully capable of

undertaking this searching review of individual experience.
Also, a system seeking experiential diversity might increase the risk of applicant fraud. It might be somewhat easier to verify that some individuals were truly of the right group than the details of their life stories. This comparative ease should not be overstated, however, as the distinctions between the Law School’s “under-represented minorities,” from various types of Hispanics to the marginally African-American, and the rest of society can be very subtle indeed. See Part III.B.2. Moreover, there are all sorts of readily identifiable indicia of experiential diversity. One’s home mailing address gives quite a bit away. Law schools already ask for detailed financial information to make financial *808 aid judgments, permitting a review of the relative poverty to which the applicant was subjected. If the Law School were interested in the student’s secondary education, and the experiences that it imparted, it would not be outrageous to ask for a high school transcript. Indeed, as a good portion of the Law School’s student body hails from Michigan, see JA at 1947, the Law School’s seasoned admissions officers could probably develop a pretty intimate understanding of the state’s high schools.
In short, the ready availability of seeking unique experiences themselves, rather than an imperfect proxy for them, demonstrates that the marginal benefits of the Law School using its suspect racial preference instead of the available race-neutral means are far from compelling. In fact, because it seems to me that selecting on the basis of race is actually a more poorly calibrated means of achieving the experiential diversity that it allegedly seeks, I doubt that the Law School is really interested in “academic diversity.” And this “academic diversity” is the only diversity that will satisfy the Powell opinion that the majority considers outcome-determinative. Instead, it is more likely that the Law School’s preference for certain races is an interest in race itself.
Another race-neutral alternative mentioned is conducting a lottery for all students above certain threshold figures for their GPA and LSAT. This would insure a student body as diverse as the “qualified” applicant pool itself. As demonstrated above, the Law School’s unwillingness to conduct a lottery among all those students that it considers “qualified” reveals that it really maintains a two-track admissions system, one for the “highly-qualified” students of all races that it generally seeks, and another for under-represented minorities who are only “qualified.”38
The availability of such race-neutral means, especially in dealing with the manageably small applicant pool of the Law School, reveals that the Law School’s talk of

desiring only “academic diversity” is only window dressing for sheer racial discrimination.
III
Many commentators have observed that America is still a society in which “race [as well as ethnicity, religion and other ancestral characteristics] matters.” But we can not simply suspend the Equal Protection Clause until race no longer matters. Nor has the Supreme Court authorized us to do so. One need not advocate literal “color-blindness,” where we neither notice nor appreciate the differing experiences and communities of others, to hold that our Constitution forbids the government from assigning massive advantages and disadvantages based on a naked assignment of racial labels.
A significant amount of the analysis at pages 764-765 of the concurring opinion is directed to the point that race continues to be a factor that operates in American society in many negative, as well as positive, ways. I do not deny that. I am fully willing to stipulate that race does matter in American society and that, on average, it matters more negatively for some, if not all, of the groups favored by the Law School than it does for some, if not all, of the groups disfavored by the Law School. And I will also stipulate that such impact or disadvantage is not strictly limited by *809 present income or status. But a defense of the Law School’s policies on the basis of remediating generalized past discrimination has several problems.
First, the Supreme Court has firmly rejected the remediation of general “societal ills” and past discrimination as a justification for racial classifications. Richmond v. J.A. Croson Co., 488 U.S. 469, 498, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Second, it is not the basis on which the Law School has stated that it operates, nor was the question litigated (except by intervenors), either at the trial level or the appellate level, or addressed in the majority opinion. More fundamentally, however, such an approach confuses societal ills, that may be addressed by societal means, with the rights of individuals. Julian Bond, certainly a person who has been knowledgeable and engaged in this issue for decades, wrote in the Gonzaga Law Review that policies like those in question here are the “just spoils of a righteous war.” Julian Bond, Lecture: A Call in Defense of Affirmative Action: Just Spoils of a Righteous War, 34 Gonz. L.Rev. 1, 9 (1998). The struggle for civil rights in America, going back well over a century, can certainly be characterized as a righteous war. However, the earlier set of just spoils from a righteous, actual war, the American Civil War, had two characteristics. First, they were

enshrined by changing the charter of our society, through the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. Second, the “spoils” embodied in those amendments were taken from slaveholders themselves, or from social and political structures in which the entire society (or the entire majority society) paid the bill.
In this case, the “spoils” that are involved are the individual rights to equal treatment of real people like Barbara Grutter. If, in the words of Abraham Lincoln, society chooses that “every drop of blood drawn by the lash shall be paid by another,”39 then that bill should be paid by the whole society, and by considered alteration of our Equal Protection Clause, not by ignoring it. Though the war may be righteous, such spoils taken from the Barbara Grutters of our society are not just.40
*810 It can hardly be doubted that, on average, those students who are admitted to Michigan Law School despite the policies in question will have been more favorably situated, economically and socially, than those such as the plaintiff whose chances of admission have been reduced or eliminated by those policies.
Similarly, because academic credentials are significantly correlated with parental income, social status, and education,41 the malign effects of discriminatory policies like the Law School’s will rarely fall upon the children of the educators who craft them or the judges who rule upon them. The statistical region where those policies really bite, and where people like Barbara Grutter are excluded from equal consideration based on their race, are areas likely to be more heavily populated by persons whose income, ethnicity, social standing, and religious preferences are not those of the academic, legislative, and judicial decision-makers who support those policies. Thus Michigan’s policy can not be seen simply as a good-hearted effort by one group to forego opportunities for itself for the greater good.
Michigan’s plan does not seek diversity for education’s sake. It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration. It is a long road from Heman Sweatt to Barbara Grutter. But they both ended up outside a door that a government’s use of racial considerations denied them a fair chance to enter. I therefore respectfully dissent from the court’s legitimation of this unconstitutional policy.
PROCEDURAL APPENDIX

Although the following procedural matters do not directly affect the legal principles discussed in this case, it is important that they be placed in the record as an explanation of the manner in which this case came before the particular decision-making body that has now decided it. Since a person reading these opinions in sequential order will have read a variety of complicated responses attempting to defend what happened procedurally in this case, it may be well to begin with the plainest possible statement of undisputed primary facts. The panel that considered *811 this case prior to, and certainly following, the filing of the present appeals was not constituted in conformity with 6th Cir. I.O.P. 34(b)(2) of this court’s rules, or any other rule. A motion that counsel made on May 14, 2001, for initial hearing en banc was not transmitted to most members of the court for five months, and was not treated as stated in the court’s order of June 4, 2001. These facts speak for themselves, however each of us may choose to characterize them.
The appeals regarding the Law School’s admissions program that we have today decided were filed as follows: case number 01-1447 on April 2, 2001, and case number 01-1516 on April 18, 2001.
Under this court’s rules, these cases generally would have been assigned to a panel chosen at random. See 6th Cir. I.O.P. 34(b)(1). This was not done. Instead, as a result of a series of decisions in contravention of our rules and policies, we arrived at the present configuration.
In August 1999, a panel of this court, consisting of Circuit Judges Daughtrey and Moore and visiting Senior District Judge Stafford, in case number 98-2009, decided an appeal concerning the rights of certain parties to intervene in the district court case underlying the current appeal, but did not address the merits of the case. See Grutter v. Bollinger, 188 F.3d 394 (6th Cir.1999).
Upon the filing of the instant appeals, a question could have arisen regarding whether these appeals, seeking review of cases already returned to the district court by a panel of this court, were “must panel” cases. See 6th Cir. I.O.P. 34(b)(2). It is absolutely clear that the applicable procedures for potential “must panel” cases were not followed to determine whether and how these cases should be heard as a “must panel.”
If a panel has “returned a case to the district court for further proceedings” and another appeal has been taken from those further proceedings, the original panel “determine[s] whether the second appeal should be submitted to it for decision, or assigned to a panel at random.” Ibid. If a district judge, as in this case, was on the original panel, the remaining two circuit judges from the original panel are required to decide whether the

district judge should be recalled for the panel or whether a third circuit judge “should be drawn to fill out the panel; provided that, if oral argument is scheduled, the draw shall be made from the judges of this Court scheduled to sit at that time.” Ibid. These procedures were not followed in this case.
While these cases were before the district court, several interlocutory motions were, in the usual course of our policies, referred to a weekly motions panel chosen at random. However, even though no second appeal had been filed, the motions were then redirected to the earlier panel, which had been augmented, at the direction of the Chief Judge, by the addition of the Chief Judge, not a randomly chosen judge.42 Following the filing of the current appeals, all further actions regarding those appeals, including a motion to stay the district court’s order, were handled by this preselected panel.
This was the situation when, on May 14, 2001, counsel petitioned the entire court, pursuant to Fed. R.App. P. 35(b)(1)(B), asking that the cases be heard by the en banc court in the first instance. At this point, the en banc court consisted of eleven active judges: the nine judges who ultimately heard this case plus then-active Judges Norris and Suhrheinrich. The petition *812 was not circulated to the entire court.
Instead, on June 4, 2001, an order was issued, at the direction of the Chief Judge and in the name of the court, stating that the motion “c[ame] before the court,” but holding the petition for hearing en banc in abeyance “until such time as the briefs of the parties have been filed, after which the court will make a determination on whether the cases should be submitted to a three-judge panel for adjudication or be referred to the en banc court.” (emphasis added). This order was also not circulated to the en banc court. The Appellee’s proof brief was filed on June 18, 2001.43 The petition was still not circulated to the court. On July 1, Judge Norris took senior status. All briefing in the case was certainly completed by July 30, 2001. Even still, the petition was not circulated to the court. On August 15, Judge Suhrheinrich took senior status.44 The petition was still not circulated to the court. On August 23, 2001, according to our internal docket, the petition was “referred” to the specially constituted panel. I have no reason to doubt that Judges Moore and Daughtrey had not known of the petition prior to that time. The special panel still did not circulate the petition for an en banc hearing to the full court.45
*813 Rather than circulating the still pending petition, the special panel scheduled the case for oral argument before itself, and again not a normally selected panel. According to the order, issued August 27, oral argument was to be

held on October 23, fifty-seven days away. Forty-nine of those fifty-seven days passed, with no action being taken to circulate the still pending petition for hearing en banc, even though all briefing certainly had been completed. Suddenly, with the panel hearing just eight days away, a decision was made finally to circulate the pending petition to the nine active judges of our court.46 The petition was circulated without any explanation for the delay, and without even any notation that a delay had occurred. In addition, the statement accompanying the circulation neither recommended an en banc hearing nor indicated why the issue was raised, at that time, as opposed to a time more proximate to the filing of the petition, though it did state that the full court was being advised because “a question ... has been raised regarding the composition of the panel.”47 In any event, sufficient members of the active court voted to have the case heard en banc, and an order was issued on October 19, 2001, canceling the panel hearing scheduled to occur in only four days and instituting an en banc hearing before the now-reduced court.48
Judge Moore’s concurrence makes several remarkable points. She first notes that the irregular constitution of the panel can be excused because “Chief Judge Martin has frequently substituted himself in a variety of matters, of varying degrees of *814 importance, throughout his tenure as chief judge, in order to avoid inconveniencing other circuit judges.” Concurring Op. at 757 (Moore). But, of course, the very point is that such a practice, to the extent it exists, was unknown to the other members of the court, who had every reason to believe that the panel had been regularly constituted. There was no reason to know of the unusual handling of the motions in 2000. There was no reason to know that there was any relation between the constitution of the “must panel” in 2001 and the activities in 2000. And there was no reason to know that anything was going on that was not in strict conformity with 6th Cir. I.O.P. 34(b)(2). Thus, there was no reason to take any unusual action in response, whether before or after “April 5, 2001.” Concurring Op. at 758.
Judge Moore also contends that the Chief Judge regularly fills “vacancies in other cases,” that no one has previously objected to his practice, and that his practice has become “a matter of common knowledge among the judges of this court.” Concurring Op. at 757. I absolutely deny that this judge has had any “knowledge” of, or that the Chief Judge has announced or admitted to, any such practice of inserting himself onto panels without a random draw.
The notion that other members of the court were in some way derelict in not sua sponte calling for an initial hearing en banc as soon as the appeal was filed is both remarkable and misses the point. Concurring Op. at 756-757, 758. There would be no particular reason for an initial hearing

en banc unless there were some extraordinary circumstance, as the document Judge Moore has quoted obliquely indicates. Concurring Op. at 755-756.
I have been on the court for 16 years, and I do not recall an initial hearing en banc in my tenure. The concatenation of the irregular panel, the withholding, by whatever mechanism, of the motion addressed to the court, and the later granting of that motion in haste, are matters for which the other members of the court are certainly not responsible.
Judge Moore suggests that my objections to the composition of the three-judge panel are “minor” because the decisions regarding the composition did not “actually change[ ] the outcome of the present case.” Concurring Op. at 755 n.5 (Moore). But as I have always made clear, it is difficult to know what body would have decided this case if the rules had been correctly implemented. Further, to the extent that the Judge Moore claims that the irregularities in the hearing panel’s composition were the only reason for granting the en banc petition, those irregularities existed at the time the petition was filed, and thus it is difficult also to argue that they did not affect the composition of the panel that ultimately decided this case. Most importantly, however, the rights of litigants and the members of this court to scrupulous compliance with the rules are not dependent on the likely-or even certain-substantive outcomes of particular matters before the court.
Contrary to Judge Moore’s concurring opinion, I do not contend that the legal opinions of any member of this court do not represent that judge’s principled judgment in this case. Concurring Op. at 752-753 (Moore). However, under these circumstances, it is impossible to say what the result would have been had this case been handled in accordance with our long-established rules. The case might have been heard before a different panel, or before a different en banc court.49
*815 SILER, Circuit Judge, dissenting.
I concur in the dissent by Judge Boggs on the merits. I write separately for the reason that I do not concur in the addition of the procedural appendix, not because I question its accuracy, but because I feel that it is unnecessary for the resolution of this case. If the procedural appendix were not filed, then the responses filed in the concurrences by Judges Moore and Clay would also have been unnecessary.

BATCHELDER, Circuit Judge, dissenting.
I concur in Judge Boggs’s careful and scholarly dissent. I write separately to say that I concur in all of that dissent, including the exposition of the procedural history of the case. In her separate concurrence, Judge Moore expresses her belief that by revealing that history, Judge Boggs-and I, by concurring-undermine the legitimacy of the court and do harm to ourselves, this court and the nation. I believe that exactly the opposite is true. Public confidence in this court or any other is premised on the certainty that the court follows the rules in every case, regardless of the question that a particular case presents. Unless we expose to public view our failures to follow the court’s established procedures, our claim to legitimacy is illegitimate.
GILMAN, Circuit Judge, dissenting.
Both the majority opinion and Judge Boggs’s dissent address the two key issues in this case: (1) whether diversity in higher *816 education, including racial and ethnic diversity, is a compelling government interest, and (2) whether the University of Michigan Law School’s admissions policy is narrowly tailored to further that goal. There is much to be said for each viewpoint, but there are aspects of both opinions with which I do not agree. The majority opinion, in particular, reaches what I believe to be an erroneous conclusion regarding the narrow-tailoring challenge to the Law School’s admissions policy. Judge Boggs’s dissent, on the other hand, includes arguments in support of his position that the Law School’s admissions policy is not narrowly tailored that I find troublesome. Specifically, I am unpersuaded by his critique that no empirical link exists between a critical mass of minority students and the perceived educational benefits or his belief that race-neutral factors would be more likely to achieve the desired diversity of experience than reliance on an applicant’s race. I therefore feel compelled to write a separate dissenting opinion.
The facts of the present case, in my opinion, eliminate the need to decide whether or not this court is bound by Justice Powell’s conclusion in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), that educational diversity is a compelling government interest. Indeed, the principled disagreement between the majority opinion and Judge Boggs’s dissent as to the proper resolution of this issue underscores the confusion created by the various opinions in Bakke. No one disputes, however, that Bakke stands for the proposition that an admissions policy designed to further the interest of educational diversity is not narrowly tailored if it creates a two-track system for evaluating

prospective students, where minorities are effectively insulated from competition with other applicants. Id. at 319-20, 98 S.Ct. 2733 (holding that the University of California’s admissions system, which reserved a fixed number of places specifically for minority students, violated the Equal Protection Clause of the Fourteenth Amendment).
The Law School’s admissions policy, in my view, creates such an impermissible system. I therefore believe that this court should assume, without deciding, that educational diversity-as defined by Justice Powell in Bakke-is a compelling government interest. Lyng v. Northwest Indian Cemetery Prot. Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”). Several of our sister circuits have taken a similar approach. Johnson v. Bd. of Regents of Univ. of Georgia, 263 F.3d 1234, 1251 (11th Cir.2001) (assuming that educational diversity is a compelling interest, but holding that the school’s admissions policy was not narrowly tailored); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 705 (4th Cir.1999) (per curiam) (same); Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir.1998) (same).
The primary problem with the Law School’s admissions policy is that the “critical mass” of minority students that it seeks to enroll is functionally indistinguishable from a quota. Whether viewed as a percentage or as an absolute number, the consistency in the minority student enrollment demonstrates that the Law School has for all practical purposes set aside a certain number of seats for minority students. See Judge Boggs’s discussion in Part II.B.2. of his dissent. The “critical mass” therefore appears to be a euphemism for the quota system that Bakke explicitly prohibits.
I believe that the Law School’s pursuit of a critical mass of minority students has *817 led to the creation of a two-track admissions system, not only in the sense that a minimum percentage of seats is set aside for under-represented minorities, but also because the Law School gives grossly disproportionate weight to race and ethnicity in order to achieve this critical mass. Judge Boggs’s discussion of the vastly divergent admissions rates for minority students as compared to all other applicants to the Law School, a divergence that cannot be ascribed to any factor other than their race or ethnicity, demonstrates this reality. In my view, Justice Powell’s opinion in Bakke unequivocally prohibits such a de facto dual admission system that applies one standard for minorities and another for all other students. Bakke, 438 U.S. at 317, 98 S.Ct. 2733 (indicating approval of Harvard’s admissions plan, where “race or ethnic

background may be deemed a ‘plus’ in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats”).
Moreover, like Judge Boggs, I believe that the record establishes that race-neutral factors are nowhere near as significant in determining admissions as whether the applicant is an under-represented minority. The Law School’s policy of achieving a critical mass of minority students without giving comparable consideration to other aspects of diversity is irreconcilable with Justice Powell’s explanation of why a quota system represents an impermissible use of race in the admissions process:
In a most fundamental sense the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admission program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.
Id. at 315, 98 S.Ct. 2733 (Powell, J.) (emphasis omitted). In my view, this compels the conclusion that the Law School’s admissions policy is not narrowly tailored to serve the presumptively compelling government interest in a diverse student body. Simply put, an applicant’s race or ethnicity, even if not the only factor (other than LSAT scores and GPAs) that is taken into account, receives such grossly disproportionate weight as to violate the Equal Protection Clause.
The Law School, as the preceding discussion suggests, attempts to equate attaining a “critical mass” of minority students with the goal of achieving a diverse student body. But because the Law School’s goal of achieving a critical mass results in a two-track system that is functionally equivalent to a quota, its admissions policy is prohibited by Bakke. This is a quandry that admits of no

easy solution.
Is there any way, then, that race or ethnicity can ever be taken into account in a narrowly tailored manner that would survive strict scrutiny? Surely the answer is “Yes.” For example, in differentiating between two applicants with essentially equal LSAT scores and GPAs, where one is Caucasian and the other African-American, I have little doubt that favoring the under-represented African-American applicant would pass constitutional muster if educational diversity is recognized as a compelling government interest. This would clearly fall within the scope of what I believe Justice Powell had in mind when *818 discussing the appropriate use of a “plus” for diversity in Bakke.
The problem, according to the Law School, is that limiting the conscious favoritism of minorities to situations where the factor is a “plus among equals” would not likely produce the critical mass that it earnestly believes is essential to achieve a truly diverse student body. On the other hand, such an admissions policy would presumably avoid the animosities stirred up by the common perception that admitted minority students are less qualified than their nonminority peers. See Bakke, 438 U.S. at 298, 98 S.Ct. 2733 (Powell, J.) (“[P]referential programs may only reinforce common

stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.”) (citing DeFunis v. Odegaard, 416 U.S. 312, 343, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (Douglass, J., dissenting)).
But these competing considerations are matters that need not, and cannot, be resolved by the case before us. Based on the record presented, I am convinced that the Law School’s admissions policy that results in a de facto quota in favor of minority students is far closer to the rigid set-aside squarely prohibited by Bakke than it is to the “plus among equals” that I believe would be clearly constitutional. How close the Law School would have to come to the latter end of the spectrum in order for its admissions policy to survive the strict-scrutiny test should, in my opinion, await another day, a day when a more narrowly tailored policy is formulated and presented for resolution. In the meantime, I respectfully dissent.
Parallel Citations
164 Ed. Law Rep. 610, 2002 Fed.App. 0170P

Footnotes

1

Until recently, Lee Bollinger was the president of the University of Michigan. Prior to his presidency, he was dean of the Law

School. His successor as dean was Jeffrey Lehman. Dennis Shields was the director of the Law School’s admission program until

1998.

2

Our decision only pertains to the case involving the Law School. We will address the challenge to the University of Michigan’s

admissions policy, Gratz v. Bollinger, Nos. 01-1333, 01-1416, 01-1418, 01-1438, in a forthcoming opinion.

3

Because Title VI, which prohibits racial discrimination in programs receiving federal funds, proscribes only those racial

classifications that would violate the Equal Protection Clause, this court need only address whether the Law School’s admissions

program is constitutional. See Alexander v. Sandoval, 532 U.S. 275, 282, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).

4

Because we hold that the Law School has a compelling interest in achieving a diverse student body, we do not address whether the

Intervenors’ proffered interest-an interest in remedying past discrimination-is sufficiently compelling for equal protection

purposes.

5

Because the Marks Court identified the Memoirs opinion with the most limited scope of First Amendment protection as the

“narrowest,” the dissent suggests that the most narrow opinion under Marks must invariably be “that which construe[s] the

constitutional provision in question less potently.” Dissenting Op. at 780 (Boggs, J.). Application of the dissent’s cookie-cutter

conception of Marks narrowness would preclude consideration of a given decision’s actual gravamen. Moreover, the dissent’s

narrowness conception conflicts with both Supreme Court precedent, see City of Lakewood v. Plain Dealer Co., 486 U.S. 750,

764-65 n. 9, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), and our own, see Simmons-Harris v. Zelman, 234 F.3d 945, 956-57 (6th

Cir.2000).

In Lakewood, the Court examined Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). In Kovacs, a plurality of

the Court found that an ordinance flatly prohibiting the use of sound trucks was constitutional. Id. at 82-85, 89, 69 S.Ct. 448

(plurality opinion of Reed, J.). Two Justices agreed that the flat-prohibition ordinance was constitutional, but reasoned that an

ordinance giving a licensing official unfettered discretion to prohibit the use of sound trucks-that is, an ordinance that would be

more conducive to content-based censorship-would also be constitutional. Id. at 89-90, 98, 69 S.Ct. 448 (opinions of Frankfurter,

J. and Jackson, J.). Because the plurality would find discretionary-prohibition statutes unconstitutional but would permit

flat-prohibition statutes and the concurring Justices would find both statutes constitutional, the concurring opinions would be

“narrower” under the dissent’s conception of Marks. The Supreme Court applied Marks differently: “Clearly, in Kovacs, the

plurality opinion puts forth the narrowest rationale for the Court’s judgment.” Lakewood, 486 U.S. at 764 n. 9, 108 S.Ct. 2138; see also Zelman, 234 F.3d at 956-57 (examining Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000), and concluding that Justice O’Connor’s concurrence-which would require more than a showing of neutrality to find government aid to religious schools constitutional-was narrower than the plurality opinion-which would apparently find that neutrality alone renders such aid constitutional); cf. Discovery Network, Inc. v. City of Cincinnati, 946 F.2d 464, 470 n. 9 (6th Cir.1991) (examining Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981)), and citing Lakewoodand Marksfor the proposition that this court is not bound by the Metromedia plurality’s reasoning that an ordinance, which unconstitutionally regulated non-commercial speech, would be constitutional as applied to commercial speech because the concurrence argued that the ordinance was unconstitutional as applied to both commercial and non-commercial speech.

6

The “narrowest” rationale of a case under Marks must be one capable of supporting the Court’s judgment in that case. See Marks,

430 U.S. at 193, 97 S.Ct. 990 (“[T]he holding of the Court may be viewed as that position taken by those Members who concurred

in the judgments on the narrowest grounds.”) (emphasis added) (citation and internal punctuation omitted); see also Triplett Grille,

40 F.3d at 133-34 (noting that the articulated standard must “necessarily produce results with which a majority of the Court from

that case would agree”). Therefore, we reject the Eleventh Circuit’s suggestion in Johnson v. Board of Regents of the University of

Georgia, 263 F.3d 1234, 1247 (11th Cir.2001), that “the narrowest-i.e, less far-reaching-common ground of the Brennan and

Powell opinions on the specific subject of student body diversity is that diversity is [only] an ‘important’ interest,” because

application of an “important interest” rationale to Bakke ‘s facts would produce a judgment contrary to that actually reached by the

Bakke Court. If student body diversity were only an “important” interest, Justice Powell could not join in the Court’s decision to

permit “the competitive consideration of race and ethnicity” because a plan serving a merely important interest would not survive

strict scrutiny.

Moreover, under Marks, this court must follow the reasoning of the concurring opinion with the narrowest line of reasoning on

the issue of why the California Supreme Court could not permanently enjoin Davis from considering race, not-as the dissent

suggests-the narrowest line of reasoning capable of being gleaned from a conglomeration of the opinions. DLS, Inc. v. City of

Chattanooga, 107 F.3d 403, 408-09 n. 4 (6th Cir.1997) ( noting that “with respect to a particular issue, [this court] must follow

the reasoning of the concurring opinion with the narrowest line of reasoning on that issue”) (emphasis added). Because Justice

Powell’s opinion provides the narrowest support for Bakke ‘s judgment, we are bound by his reasoning in that opinion; we

cannot cobble together a holding from various rationales in the discrete Bakkeopinions. Id. (noting that “we do not have the

freedom to pick and choose which premises and conclusions we will follow”). Accordingly, we cannot accept the dissent’s

invitation to extract two holdings from Bakke by merging analogous portions of the opinions of Justice Powell and the Brennan

concurrence. See Dissenting Op. at 783-784 (Boggs, J.).

7

Unless one assumes that the Brennan concurrence would have approved the use of race to further an unconstitutional goal, the

dissent’s aprioristic assertion that the Brennan concurrence “certainly did not endorse [Justice Powell’s diversity rationale]” flouts

logic. See Dissenting Op. at 781 n.6 (Boggs, J.). The operative syllogism is uncomplicated: (1) Under no circumstances may race

be used to further unconstitutional goals. (2) The Brennan concurrence agrees, at least under certain circumstances, that Harvard

may use race to further its goal. Thus, the Brennan concurrence agrees that Harvard’s goal, ‘achieving an integrated student body,’

is constitutional.

In fact, just as the Supreme Court was bound by statements from discrete Bakke opinions indicating that Title VI’s coverage

mirrors that of the Equal Protection Clause, see, e.g., Guardians Ass’n v. Civil Service Comm. of New York City, 463 U.S. 582,

610, 612, 642, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) and Alexander v. Sandoval, 532 U.S. 275, 282, 121 S.Ct. 1511, 149

L.Ed.2d 517 (2001), this court would be bound by five Bakke Justices’ agreement that Harvard’s diversity goal is constitutional,

but for the-unclear-distinction between an “important interest” under intermediate scrutiny and a “compelling interest” under

strict scrutiny.

8

Hopwood ‘s reading is akin to construing the sentence “we agree that automobile drivers may drive with their lights on, at least so

long as the use of lights to see the road is necessitated by the effects of nightfall” to suggest seeing the road is a permissible goal

only at night. Just as whether or not it is night does not qualify the permissibility of trying to see the road, whether or not the use of

race is necessitated by past discrimination does not qualify the permissibility of seeking “an integrated student body.”

9

We recognize that the Eleventh Circuit dismissed Justice Powell’s endorsement of the Harvard plan as dicta. See Johnson, 263

F.3d at 1261. Even if this portion of Justice Powell’s opinion could be labeled dicta, it is nevertheless dicta from the determinative

opinion in the only Supreme Court case to address the consideration of race and ethnicity in academic admissions. Accordingly,

Justice Powell’s endorsement of the Harvard plan carries considerable persuasive authority and provides a more appropriate basis

for our opinion than any test we might fashion.

10 The district court credited plaintiffs’ statistical conclusions, but did not incorporate them into its discussion of whether the Law School’s admission policy was sufficiently narrowly tailored.

1

Judge Boggs responds in his dissent that he does “not contend that the legal opinions of any member of this court do not represent

that judge’s principled judgment in this case.” Dissenting Op. at 814. He does contend, however, that the result in the present case

represents unprincipled procedural maneuvering by members of this court. It is this contention to which I object.

2

This response is truly a recourse of last resort, as several members of this court have endeavored to persuade Judge Boggs to

withdraw the “Procedural Appendix.” He has steadfastly refused to do so. The three members of the hearing panel have also

personally assured Judge Boggs that we did not engage in the manipulation of which he has accused us, but he has refused to

accept our assurances.

3

My own records indicate that I first saw the May 14, 2001 petition on September 26, 2001, at which time I consulted with the other

members of the hearing panel about circulating the petition to the whole court.

4

Of course, given the composition of the court on August 23, 2001, it would not have made any difference to the outcome of the

case whether the en banc petition had been circulated on that date, or in September, or in early October 2001.

5

These objections are also minor in that Judge Boggs does not argue that any of the decisions with which he finds fault actually

changed the outcome of the present case.

1

Hereinafter, reference to “the dissent” shall be in regard to Judge Boggs’ dissent, while any reference to Judge Gilman’s dissent

shall be specifically addressed as such. Judge Batchelder’s dissent is not referenced in this opinion.

2

In this regard, Judge Gilman’s dissent which “assumes without deciding that educational diversity as defined by Justice Powell in

Bakke is a compelling governmental interest” is misguided as well.

3

The dissent originally characterized the black student as being “conventionally liberal.” Then, in response to the criticism that this

was in itself stereotypical, the dissent added the parenthetical “or conventionally conservative” to its opinion. This addition,

however, does nothing to change the fact that the dissent is engaging in stereotyping by labeling any minority group as

“conventionally” of certain views.

4

I bring to the fore the “societal ills”-as the dissent has couched it-of the past and present faced by minorities to illustrate that,

contrary to the dissent’s assertion, a minority member of wealthy means may bring to the educational environment the same “life

experiences” that a minority member of impoverished means may bring because the “societal ills” experienced by both transcend

economic status. Once again, the reader should not be led astray by the dissent’s attempt to ignore or reframe an issue. While it is

true that the Supreme Court has found that a generalized claim of past discrimination cannot serve as the basis for a remedial plan,

no such claim is being made in this case.

5

Inasmuch as Judge Gilman appears to rest his dissent on his belief that the law school’s policy results in an impermissible quota

system, his conclusion is fallacious as well.

1

I will occasionally use the phrases “race” and “racial” as a shorthand for the type of preference accorded by the Law School. In

fact, the groups chosen for preference are a melange of groupings that are socially defined:

by skin color (“black” or “African-American.” I note that the children of Boer or Berber immigrants are not conventionally

given the latter label, which would surely apply to them as a linguistic matter.);

by national origin (as the Census Bureau carefully notes, “Hispanics” can be of any race. Presumably, the children of the

former Peruvian president, Alberto Fujimori, though ethnographically purely Japanese, would be considered “Hispanic.”);

or by legal status (depending on whether Michigan limits “Native American” preference to legally enrolled tribal members, as

opposed to those with sufficient ancestry of “Indian” status that would qualify a person with comparable black or Hispanic

ancestry for those designations).

Any shorthand use of those terms in this opinion should be understood to have all the relevant qualifiers. For similar precision

by other universities with racial and ethnic preferences, see Brief of Amicus Curiae, Columbia Univ., Harvard Univ., Stanford

Univ., and the Univ. of Penn., in Regents of the Univ. of California v. Bakke, 99 LANDMARK BRIEFS AND ARGUMENTS

OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 1977 TERM SUPP. 689, 698 n.3

(Phillip B. Kurland & Gerhard Casper, eds., 1978).

2

The concurring opinion does present substantive arguments on this point, which are considered in Part II.A. Concurring Op. at

759-769 (Clay).

3

The judgment of the Court, affirming the judgment of the California Supreme Court and ordering UC Davis to admit Bakke, was

supported by the opinions of Justice Powell, Bakke, 438 U.S. at 320, 98 S.Ct. 2733, who would have held that UC Davis’s program

violated the Fourteenth Amendment, and Justice Stevens, Id. at 421, 98 S.Ct. 2733, who was joined by Chief Justice Burger and

Justices Stewart and Rehnquist in his argument that the program violated Title VI of the Civil Rights Act of 1964.

4

The description of the Harvard plan in this amicus brief was exceedingly short and undetailed, consisting of less than four pages.

For the description, see LANDMARK BRIEFS AND ARGUMENTS, supra n. 1, 735-38.

5

The majority quotes from Section V-C of Justice Powell’s opinion, which was joined by the Brennan group and which states:

In enjoining petitioner from ever considering the race of any applicant, however, 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. For this reason, so much of the California court’s judgment as enjoins

petitioner from any consideration of the race of any applicant must be reversed.

438 U.S. at 320, 98 S.Ct. 2733 (emphasis added).

6

A normal reading of this sentence would be that if the policy in question were necessitated by the lingering effects of past

discrimination, the Brennan group would hold it constitutional. Therefore, if the policy were not so necessitated, one might argue

by expressio unius that the Brennan group would hold it unconstitutional; at most one might argue that they would be wholly

agnostic on the constitutionality of such a policy. However, the majority’s grammatical deconstruction, arguing that the footnote

somehow provides affirmative support for the proposition that diversity is a compelling state interest, simply does not bear

examination. Majority Op. at 742. It is quite correct, as the majority points out, that “at least so long as” does not mean “only if.”

Ibid. However, it does mean “if,” which is all that is necessary to show that the Brennan concurrence-while not affirmatively

rejecting the Powell diversity rationale-certainly did not endorse it.

Further, the majority’s attempt to distinguish between the language modifying when race may be used and why it may be used

adds nothing, because a temporal qualifier at least hints at some reasoning related to that limitation. If I am told I can only buy

beer between the hours of nine and five, it may be because those are the hours when liquor stores are open, or it may be because

of state legislation limiting beer sales, or it may be because liquor store owners fear shoplifting at other hours; however, each of

these rationales is related in a causal way to the time limitation. In just the same way, it may be that Justice Brennan really meant

only that race could be used when “necessitated by the lingering effects of past discrimination,” but this is still a qualification on

the scope of Justice Powell’s diversity rationale.

7

Indeed, it is the rule in several of our sister circuits that Marks is simply inapplicable unless “one opinion is a logical subset of

other, broader opinions.” See King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc ). See also, e.g., Anker Energy Corp. v.

Consolidation Coal Co., 177 F.3d 161, 170 (3rd Cir.1999) (“the Marks rule is applicable only where one opinion can be

meaningfully regarded as narrower than another and can represent a common denominator of the Court’s reasoning.”); Homeward

Bound, Inc. v. Hissom Memorial Center, 963 F.2d 1352, 1359 (10th Cir.1992) (quoting approvingly of the reasoning in King ). Cf.

Dague v. Burlington, 935 F.2d 1343, 1360 (2d Cir.1991) (noting “the anomaly of the views of one justice, with whom no one

concurs, being the law of the land, where the Court is so divided on an issue and where there is no majority opinion at all”). The

District of Columbia Circuit explained well the reason for such a rule:

When, however, one opinion supporting the judgment does not fit entirely within a broader circle drawn by the others, Marks

is problematic. If applied in situations where the various opinions supporting the judgment are mutually exclusive, Marks will

turn a single opinion that lacks majority support into national law. When eight of nine Justices do not subscribe to a given

approach to a legal question, it surely cannot be proper to endow that approach with controlling force, no matter how

persuasive it may be.

King, 950 F.2d at 782.

8

The majority contends that by redefining the relevant judgment I impermissibly “cobble together a holding from various rationales

in the discrete Bakke opinions.” See Majority Op. at 741 n.6. However, the majority misunderstands my aim. I am not suggesting

we apply Marks to a given judgment and then pick and choose among the rationales to support that judgment. Instead, I am merely

suggesting an analytical tool whereby we more accurately define the relevant holding before applying Marks. By defining the

holding as stating that race can be used to promote diversity sometimes, I illustrate that Justice Brennan’s rationale is the narrowest

in support of that holding and in so doing call into question the premise that Marks provides an answer to the threshold question

facing this court.

9

The majority finds support for its proposition that diversity is a compelling state interest in the fact that Justice Brennan in Metro

Broadcasting cited Bakke for the proposition that “ ‘a diverse student body’ contributing to a ‘robust exchange of ideas’ is a

‘constitutionally permissible goal’ on which a race-conscious university admissions program may be predicated.” 497 U.S. 547,

568, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (quoting Bakke, 438 U.S. at 311-13, 98 S.Ct. 2733 (Powell, concurring)). Aside from

the fact that Justice Brennan was applying intermediate scrutiny in Metro Broadcasting and therefore his views on the

constitutionality of any policy or rationale would not speak to the present case where strict scrutiny is the standard, the statement

is-as the majority itself notes-merely dicta. The majority attempts to salvage the usefulness of the statement to their argument by

describing it is as “persuasive authority, which this court may not ignore.” Majority Op. at 743. Of course, this court ignores (or at

least does not rule in accordance with) persuasive authority all the time. In particular, an ex post exegesis written by a different

Justice of another Justice’s opinion that did not prevail on the point at issue is hardly the strongest type of persuasive authority.

10 Chief Justice Rehnquist, and Justices White and Kennedy joined this part of Justice O’Connor’s plurality opinion. Justice Scalia agreed that the use of race is only appropriate for remedial situations, but wrote separately to contend that it was appropriate only in a more limited set of situations than those approved by the plurality. See 488 U.S. at 735, 109 S.Ct. 858 (Scalia, concurring).

11 With respect to the concurring opinion’s criticism of this example, Concurring Op. at n.3 (Clay), see n.21 infra.

12 Indeed, it is likely such minorities-those who have been relatively well-educated at elite schools, but who have not performed terribly well there-that the Law School’s preference policy most benefits.
13 In fact, these factors may also correlate to unrealized academic ability, if the student has not had sufficient resources, educational or financial, to blossom intellectually. In this sense, an admissions system truly sensitive to experiential diversity may also select the more intellectually talented.
14 A personal observation makes clear for me the problematic nature of such definitions. My daughter has one grandparent who was a Cuban immigrant, two grandparents of Russian Jewish origin, and one grandparent who could be characterized as a Euro-American mixture. I would hate to think that her life chances were significantly altered, favorably or unfavorably, because a government body applied a “grandfather clause” that focused on one rather than another of her grandparents.
15 For more on the one-drop rule, see A. Leon Higginbotham, Jr. & F. Michael Higginbotham, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U.L.Rev. 1213, 1243 n.163 (1993).
16 See, e.g., Lucy S. Dawidowicz, THE WAR AGAINST THE JEWS: 1933-45 91 (Bantam 1975); Nora Levin, THE HOLOCAUST 69-70 (Schocken 1973).
17 The Law School’s disavowal is why I do not discuss whether the remediation of past discrimination is a compelling state interest that could justify the Law School’s actions. Not only must a state interest be compelling to satisfy strict scrutiny, but it must also be the interest that motivated the classification in the first instance. While we have been reluctant to determine what actually motivated legislative bodies, see, e.g., Federal Communications Comm’n v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), the Law School administration is the sole creator of the admissions policy at issue here and we can rely on its assurance (as compared to the statement of a particular legislator or an incomplete statutory preamble) that such remediation is not the purpose of its admissions policy.
18 Because of our society’s history of religious discrimination and religion’s continuing salience, I have at times recognized the analogy between religious preference and the racial and ethnic preference bestowed in this case. For example, at oral argument I questioned counsel about the constitutionality of engineering a critical mass of Southern Baptists at the Law School. Counsel for the Law School attempted to deflect this analogy by arguing that a religious preference of the same form as the Law School’s racial and ethnic preference would raise “special” constitutional problems of “getting entangled” with religion in violation of the “First Amendment.” Tr. at 16-17. In essence, counsel’s argument was that an admissions policy with religious preferences that would comport with the Equal Protection Clause could nevertheless violate the Establishment Clause. I could find no case or even analytic argument for the proposition that a policy, pursuing a compelling state interest and tailored narrowly to that interest, could violate the Establishment Clause. Cf. Droz v. CIR, 48 F.3d 1120, 1122 (9th Cir.1995) (noting the relevance of the strict scrutiny framework to the First Amendment inquiry). With as much justification as the Law School disclaims any invidious animus toward “over-represented” groups in its policy, comparable discrimination against “over-represented” religious groups could be said not to represent the establishment of all other religions or the irreligious. I am convinced that the analogy, and therefore the inevitable implications, of the Law School’s constitutional argument here, hold.
19 Meaning, for these purposes, those students who are not “under-represented minorities.”
20 JA at 603, 605. Comparison between students in the 167-169 LSAT range in 1997.
21 While it should not be necessary to make this point, the use of hypotheticals or examples that illustrate the effective impact of the policies under consideration is in no way a commentary on specific persons. If a policy has real effects that seem impolite or offensive, that is a result of the policy, not of those who point it out.
22 Majority applicants with an A average and LSAT over 164 enjoy admission rates over 40%. As their grades slide to a high B average and an LSAT over 164, their admission rates drop to around 20%. Below a 164, majority applicants are not admitted at a rate any more than 10%, regardless of their grade point average.
23 By comparison, designated minorities are not only considered, but admitted in rates over 60%, and usually over 80%, with LSAT scores down to 154 and grade point averages in the low B range. Even below these figures, designated minorities are still admitted at rates nearing 30% in many categories of LSAT and GPA. Not until the designated minorities’ LSAT drops below 150 (47 th percentile nationally) or a GPA of 2.5 do we see admission rates under 10% for designated minorities.
24 For example, there is a sharp drop in rates of admission between under-represented minority applicants with a 154 to a 155 LSAT score and those with a 151 to a 153. With a 154 to a 155, we see admission rates in excess of 60%. With a 151 to a 153, however, minorities are admitted at rates below 20%.

25 Cf. United States v. Allen, 211 F.3d 970, 976 (6th Cir.2000) (en banc ).
26 The concurring opinion criticizes this statistical analysis by noting scholarship suggesting no good link between “numerical credentials,” presumably meaning LSAT and GPA, and “success in Law School.” Concurring Op. at 768-769 (Clay). My only point here is that, notwithstanding the debate over more accurate measures of educational merit, the Law School undoubtedly thinks LSAT and GPA are most important. The only other credential that appears to be systematically important is race, and I think we should at least be candid about how much emphasis that the Law School places on race. To the extent that the concurrence mounts a more substantial attack on the use of numerical credentials generally, its quarrel is with the Law School, not with my position.
27 See, e.g., Tr. at 21-24, where counsel for the Law School admitted that 3-5% would not be enough and that “clearly we care about the number.”
28 The percentage of Harvard students who were Jewish varied between 1933-42, but was quite stable and well below the percentages in the 1920’s. In the 1920’s, the percentage consistently approached 30%. A glance at the 1933-42 Harvard figures, with percentages of 12.4, 9.9, 10.9, 14.8, 14.0, 15.4, 14.4, 16.0, 14.1, and 16.1, reveals a chart that looks very much like Michigan’s with respect to under-represented minorities. Synnott, THE HALF-OPENED DOOR at 115, Table 4.8 (1971).
29 Admittedly, these percentages did deviate a bit from this tight grouping in some years before 1995 being, respectively, 12%, 14%, 14%, 13%, 19%, 20%, 14%, 20%, for the years 1987-94. These deviations, however, do not muddle the extraordinarily tight grouping in the last four years and primarily show what may have been, in the Law School’s view, “excessive” percentages in three of the years. Nevertheless, the lowest percentage never falls below 12%, while the Law School acknowledges that three-fourths of that number is accounted for by the application of its preference policy. Of course, even these early numbers are consistent with the Law School’s maintaining a numerical target. Perhaps the Law School had a different target in those years. It is hard to know, because the Law School has failed to specify its view of “critical mass.” Perhaps the Law School simply got better at exactly achieving its target.
30 There is little solace in the Law School’s unwillingness to reveal its quota. I share Justice Brennan’s view: “there is no basis for preferring a particular preference program simply because in achieving the same goals [as a quota system], it proceeds in a manner that is not immediately apparent to the public.” Bakke, 438 U.S. at 379, 98 S.Ct. 2733.
31 This discussion highlights the overlapping nature of the two-step equal protection analysis. One might think that a discussion of the benefits of diversity would be better placed in the analysis of whether diversity in education is a compelling state interest. At this point, it is important to be precise. No one, not even the Law School or Justice Powell, claims that diversity for its own sake can constitute a compelling state interest. Instead, the claim is that diversity yields race-neutral benefits that are themselves compelling. More precisely speaking, diversity in education is a means of achieving the compelling state interest in the benefits of diversity.
32 The report claims that the educational benefits that positively correlate with diversity include “graduate degree aspirations,” “drive to succeed,” and “academic ability.” Gurin also notes, in passing, that the favorable outcomes for African-American students, with which she reports a correlation to her diversity measures, do not include actual learning as measured by grade point average. See JA at 2355; Patricia Gurin, The Compelling Need for Diversity in Higher Education, 5 Mich. J. of Race and L. 363, 391 (1999).
33 The democratic benefits include “influencing social values,” “helping others in difficulty,” and “being involved in environmental activities.”
34 Although there are two concurring opinions in this case, only Judge Clay’s addresses the substantive portion of this dissent. My references in the text to the “Concurring Opinion” refer to Judge Clay’s. I will make a more specific reference when referring to Judge Moore’s concurring opinion.
35 The relationship between diversity and these assorted educational benefits could be proportional, exponential, or stepwise. If it were merely proportional, there would appear to be no basis for the Law School’s attempts to achieve a “critical mass,” rather than each marginal “under-represented minority” bringing equal benefit.
36 I am not alone in questioning the conclusions of the Gurin Report and the poverty of the empirical evidence presented. A social scientist and supporter of affirmative action in education evaluating some of the same data that Gurin used, but also examining actual student body diversity, concluded that “academic outcomes are generally not affected” by student body diversity, and that the effects that are indicated are “very weak and indirect.” Alexander W. Astin, WHAT MATTERS IN COLLEGE? 362 (Jossey-Bass 1993). As we might expect from the vague list of claimed benefits, this researcher’s study concluded that “[t]he values, attitudes, and socioeconomic status of the peer group are much more important determinants of how the individual student will develop than are the peer group’s abilities, religious orientation, or racial composition.” Id. at 363, 98 S.Ct. 2733. Accordingly, a candid and empirically rigorous affirmative action supporter has admitted that a link between racial diversity and improved educational results has “yet to be convincingly demonstrated” and that “[t]he research still needs to be done that would

demonstrate the link.” Peter Schmidt, Debating the Benefits of Affirmative Action, CHRON. OF HIGHER EDUC.. A25 (May 18, 2001).
37 Even more fundamentally, social science data as to the efficacy, in the eyes of one or another researcher, of policies of discrimination are themselves of limited utility in resolving the ultimate constitutional issue. At the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), there were certainly researchers with academic degrees who argued that segregated education would provide greater educational benefits for both races. Does anyone think that a factual belief in such analyses would have, or should have, led to a different constitutional outcome in Brown? I very strongly doubt it. Similarly, research asserting that Jews and Gentiles in fact interacted more harmoniously under Lowell’s Harvard plan would not justify that policy either. I note that this question is not simply of academic or antiquarian interest. Questions have been raised as to the ability or desirability of school districts implementing all-black academies in order to improve educational performance. See Wil Haygood, Rethinking Integration: On Schools, Many Blacks Return to Roots, BOSTON GLOBE (Nov. 16, 1997). I sincerely doubt that the factual outcome of conflicts between social scientists as to varying studies of the educational effect of such policies would be dispositive of the constitutional question that might be raised. See Drew S. Days, III, Brown Blues: Rethinking the Integrative Ideal, in REDEFINING EQUALITY (Neal Deavins and Davison M. Douglas, eds., Oxford 1998) (noting, while discussing the possibility of all-black public educational institutions, that “[e]xpedience cannot legitimize racial segregation”).
38 The concurring opinion suggests that evidence of racial and gender bias in LSAT and GPA figures would render the lottery race-conscious. Concurring Op. at 771 (Clay). Of course, the lottery itself would be completely race-neutral. I do not see how using the Law School’s “qualification” threshold, with which no party or judge has heretofore quarreled, to restrict the lottery would make the lottery race-conscious.
39 Abraham Lincoln, Second Inaugural Address, March 4, 1865.
40 The concurring opinion responds that, in a world without affirmative action, applicants like Grutter will not be much better off. Concurring Op. at 766-768 (Clay). To make its point, the concurring opinion quotes at length the opinion, interlaced with some statistics, set forth in a recent Washington Post column. See Goodwin Liu, The Myth and Math of Affirmative Action, WASH. POSTT B1 (April 14, 2002). The concurring opinion asserts, on the basis of this evidence, that the idea that an admissions policy does so at the expense of white applicants is simply a myth. Concurring Op. at 766. The Liu analysis simply does not support the concurring opinions conclusion. First, the article explicitly states that its argument applies just as forcefully to Alan Bakke. But the Supreme Court certainly did not deny Bakke’s claim because he could not prove with mathematical certainty that he would have received one of the sixteen places improperly segregated from the general applicant pool. Second, the article gives the game away when it candidly states that its statistical conclusion “occurs in any selection process in which the applicants who do not benefit from affirmative action greatly outnumber those who do.” Liu, supra, at B1; Concurring Op. at 747 (emphasis added). It is true that there is a very real sense in which the wrong committed against a person absolutely barred from consideration for a governmental benefit is greater than the wrong committed against a person only deprived of a fair chance of consideration. But a wrong has still been committed. The concurring opinion and Liu may not characterize that wrong as a “substantial disadvantage,” ibid., but the deprivation of equal consideration is a wrong to which the Constitution is opposed. There may have been hundreds of Jews each year who were denied a fair chance for consideration by the Harvard quota plan, even though a far smaller number of actual seats were involved and most such applicants could not have been certain of admission. They would not have been comforted by the force of Liu’s arguments. To say that it is a matter of less importance that ten people are each deprived of a one-tenth chance of admission because of race than if one person is completely excluded from admission is to ignore both mathematics and our system of deciding cases and controversies. If Grutter’s rights have been violated, the degree of the violation and the proper remedy are matters for the district court to determine in the first instance. To say that Grutter’s claims are to be ignored because the whole system that she has challenged has a relatively small discriminatory impact or because the magnitude of the violation as to her is small is to say that she has no rights that this court is bound to respect. I decline to take that attitude.
41 See, e.g., R. Richard Banks, Meritocratic Values and Racial Outcomes: Defending Class-Based College Admissions, 79 N.C.L.Rev. 1029, 1062 (2001) (noting that “[a] variety of studies have demonstrated positive relationships between early academic achievement and parental income, education, and occupation.”); Tomiko Brown-Nagin, “Broad Ownership” of the Public Schools: An Analysis of the “T-Formation” Process Model for Achieving Educational Adequacy and Its Implications for Contemporary School Reform Efforts, 27 J.L. & Educ. 343, 385 (1998) (noting that “comparative indicia showing the relationship between socioeconomic background and academic performance continues to reveal a persistent gap in achievement between wealthier and poorer students”).
42 It is not clear that preliminary motions can be redirected from a randomly selected motions panel to a purported “must panel” when no appeal has been filed.

43 Petitions for initial hearing en banc were filed in nine cases in the year 2000. Two of the cases, both filed pro se, were disposed of without circulating the en banc petition to the court. See Docket Sheets in Naturalite v. Ciarlo, No. 00-2106, decided under Rule 34, 22 Fed.Appx. 506 (2001) and in Griffin v. Warren, No. 00-4552 (petition for certificate of appealability denied). In each of the other seven cases, the petition for initial hearing en banc was circulated to the court no later than two days after the appellee’s proof brief was filed. All were disposed of by the full court before the final briefs were filed.
44 The question of the circumstances under which Judge Norris and/or Judge Suhrheinrich could have sat on a potential en banc court hearing the case could be a matter of some contention. Under the circuit rule in place at the time, “any judge who had been in regular active service at the time a poll was requested on the petition” for an en banc hearing would be a member of the en banc court hearing the case. 6th Cir. I.O.P. 35(a) (1998) (emphasis added). As Judge Gilman discussed in his separate opinion in Popovich v. Cuyahoga Cty. Ct. of Common Pleas, 276 F.3d 808, 829 (6th Cir.2002) (en banc ), there is a substantial question regarding whether our rule in effect at the time was consistent with 28 U.S.C. § 46(c), governing the composition of courts of appeals en banc. Nevertheless, that was the rule we followed until October 31, 2001. We subsequently changed our rule to compose the en banc court of all judges in regular active service “at the time of oral argument en banc.” 6th Cir. I.O.P. 35(a) (2002). The old rule would have governed all the relevant en banc court composition issues that I have raised here. From Popovich, we know that this court’s precedent is, at least by permitting Judge Merritt to sit in that case, that our old Policy 35(a) is not statutorily invalid. Thus, both Judges Norris and Suhrheinrich could have sat on the en banc court if the petition had been circulated earlier. Judge Norris would have been a part of the en banc court in this case if a vote on the petition had been requested by July 1, over 45 days after the petition had been filed. Judge Suhrheinrich would have been a part of the court if a vote had been requested by August 15, over 90 days after the petition was filed and more than 15 days after the completion of briefing. The specially constituted panel’s withholding the petition from the court until October 15, 2001, 150 days after it had been filed and 75 days after the completion of briefing, had the effect of potentially keeping both judges off an en banc court.
45 Judge Moore’s reference to a December 5, 2000 policy imposed by the Chief Judge omits several important features of the policy. See Concurring Op. at 754-755. First, the policy states that it was prompted by petitions for initial hearing en banc from “pro se litigants, mainly prisoners,” not from counsel in important cases. It specifically states that it does not apply if the Chief Judge and clerk agree that “it is an unusual case.” I think we can all agree that this case was unusually important. Second, the policy authorized two and only two actions by the hearing panel to which the case and the petition is referred. The panel could either “deny the petition” and schedule the case for argument before the panel or “send the petition out to the en banc court.” Neither occurred here. The policy never authorized the panel to schedule argument and not to decide the petition. Third, the policy directed the panel to circulate the petition to the en banc court if it saw “some legitimate argument for hearing en banc.” It strains credulity to argue now, after the petition has been granted, that the petition contained no “legitimate argument” for its granting.
46 In early October, one senior judge of our court became concerned about the procedures that had been followed in this case, namely the specially constituted panel that had taken over this case. After that judge made several unsuccessful efforts to speak with the Chief Judge, on October 15 he faxed to the Chief Judge a letter setting forth his concerns as to whether court rules and policies had been followed in this case. He received no response or any other communication regarding this letter (and has not, to this day). However, on the same day that he sent that letter, with the hearing only eight days away, a decision was made to circulate the petition for an en banc hearing.
47 Judge Clay’s concurring opinion suggests that I “question [ ] the appropriateness of hearing this case en banc ” and then argues why hearing important cases en banc is good. Concurring Op. at 772, 773. I have no opinion on the substance of the decision to hear this case en banc, only the procedures used to dictate its timing.
48 There is precedent for the special administration of a high-profile case. In Mozert v. Hawkins Cty. Bd. of Educ., 827 F.2d 1058 (6th Cir.1987), then-Chief Judge Lively took the case out of the normal hearing schedule because of educational time constraints and its importance. Rather than personally constituting a special panel, the Chief Judge, after suggesting the procedure to all the active judges on the court, had the clerk conduct a random draw of circuit judges to constitute the panel. Pursuant to the drawing, the Chief Judge, as a matter of coincidence, was randomly selected. This process occurred in a matter of days, and never threatened to delay the case. If such a transparent process had been followed here, the procedural issues noted in this appendix probably would not have arisen.
49 Neither of the concurring opinions addressing this appendix disputes any of the factual circumstances described. Judge Clay argues that no negative conclusions regarding any member of this court can be drawn from the handling of this case. Concurring Op. at 773 (Clay). I draw no such conclusions in this appendix. It may be possible that each of these events occurred without conscious direction. Each reader can make an independent judgment from the apparently undisputed facts that I have laid out here. Frankly, I would have been most pleased if my statement of apparent facts had been proven wrong. Unfortunately, that has not occurred. Judge Moore correctly states that our “only source of democratic legitimacy is the perception that we engage in principled decision-making.” Concurring Op. at 753 (Moore). If actions are taken that may imperil that legitimacy, a member of this court who observes them is left with two alternatives, both unpalatable. One is to allow the actions to pass in silence, even after

explanations have been requested, but have not been produced. Silence simply allows those actions to continue and to be repeated, with real consequences for both the court and the litigants who appear before it. The other alternative is to place the actions on the record, for such remediation as may be possible. I have not revealed the substance of any internal communications on this case between members of our court, with the exception of the letter of one senior judge who asked me to do so. See n.46 supra. Compare Concurring Op. at 772 & 764 n.3 (Clay); Concurring Op. at 757 (Moore). As to Judge Clay’s discussion of my opinion in Memphis Planned Parenthood v. Sundquist, 184 F.3d 600, 605-07 (6th Cir.1999) (Boggs, concurring in the denial of rehearing en banc ), Concurring Op. at 772-773 (Clay), I will leave to the candid reader to consider the distinction between laying out very significant and obvious violations of rights of members of this court, and revealing, in contravention of long-honored custom, the internal votes of members of this court. Legitimacy protected only by our silence is fleeting. If any damage has been done to the court, it is the work of the actors, not the reporters.

 
 247 F.3d 631 United States Court of Appeals,
Sixth Circuit.
Barbara GRUTTER, for herself and all others similarly situated, Plaintiff-Appellee, v.
Lee BOLLINGER; Jeffrey Lehman; Dennis Shields; University of Michigan, Board of Regents,
Defendants-Appellants.
No. 01-1447. | April 5, 2001. | Initial Hearing En Banc Granted Oct. 19, 2001.
Applicants to state university law school sued university and its officials, claiming that admissions policy encouraging student body diversity violated equal protection and Title VI, prohibiting discrimination in programs receiving federal funding. The United States District Court for the Eastern District of Michigan, Bernard A. Friedman, J., 137 F.Supp.2d 821, entered judgment for applicants and enjoined use of race as factor in law school’s admissions decisions. Defendants moved for stay of injunction pending appeal. The District Court, 137 F.Supp.2d 874, denied motion. Defendants appealed and moved for stay. The Court of Appeals held that: (1) appellate jurisdiction existed, and (2) stay was warranted.
Stay granted.
*632 Before MARTIN, Chief Judge; DAUGHTREY and MOORE, Circuit Judges.
Opinion
ORDER
The defendants appeal the district court’s opinion and order enjoining its consideration of race as a factor in offering admission to the University of Michigan Law School. Having filed a notice of appeal, the defendants moved the district court for a stay of its injunction pending this appeal. The district court has denied that motion, and the defendants now move this court for a stay.
[1] The plaintiff argues in response that this court lacks appellate jurisdiction because the district court has yet to enter a judgment pursuant to Fed.R.Civ.P. 58, which directs that “[e]very judgment shall be set forth on a separate document.” That rule provides certainty as to the

timeliness of an appeal, but the purpose of the rule is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. Bankers Trust Co. v. Mallis, 435 U.S. 381, 385, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). This court has interpreted Rule 58 to facilitate rather than hinder appeals. Green v. Nevers, 196 F.3d 627, 631 n. 3 (6th Cir.1999).
In support of its jurisdictional argument, the plaintiff relies upon Beukema’s Petroleum Company v. Admiral Petroleum Company, 613 F.2d 626 (6th Cir.1979). In that case, the defendant appealed a district court opinion directing the grant of injunctive relief and moved for a stay pending appeal. The injunction itself had not been entered, however, and this court remanded to permit the district court to do so and to also address the issue of a security for the injunction. There, the court’s remand served a practical purpose. Such action was necessary because the district court had phrased its issuance of injunctive relief in the future tense. However, Beukema’s Petroleum does not compel a conclusion that this court lacks jurisdiction in the instant case. The district court’s decision clearly states the University “hereby is enjoined from using applicants’ race as a factor in its admissions decisions.” The effect is immediate, and the appeal is properly before this court.
[2] [3] [4] In denying a stay, the district court quoted at length from Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153-54 (6th Cir.1991). There this court discussed the process of weighing the familiar four factors that govern a stay pending appeal. Those factors are 1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; 2) the likelihood that the moving party will be irreparably harmed absent a stay; 3) the prospect that others will be harmed if the court grants the stay; and 4) the public interest in granting the stay. 945 F.2d at 153. *633 Michigan Coalition said that the success on the merits which must be demonstrated is inversely proportional to the harm. Id. More than a possibility of success must be shown, and “even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the [nonmoving party] if a stay is granted, he is still required to show, at a minimum, ‘serious questions going to the merits.’ ” Id. (citation omitted). We conclude that the standard is easily met in the instant case.
The injunction now in place irreparably harms the University of Michigan and disrupts the selection of the 2001-2002 first-year law school class. The district court suggests that compliance with the injunction is a simple matter, and that the University is obliged to merely extend the remaining offers of admission without a consideration

of the applicants’ race. However, attempts to comply with the district court’s injunction require the University to make decisions that may be subject to challenge. To create a new admissions policy in compliance with the injunction and to determine how many offers must be extended to fill the new class will take time. As they take this time to perform these tasks, defendants argue, the final decisions on applicants will be delayed. As a result, applicants are likely to accept admissions at other schools, thus diminishing the University’s ability to compete with other selective law schools for highly qualified applicants. This harm cannot be undone and therefore is irreparable.
Further, there can be no dispute that this appeal presents serious questions on the merits. The district court’s reading of Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), diverges from other interpretations of the case,

including that in Gratz v. Bollinger, No. 97-75231 (E.D.Mich.), now pending before this court on appeal. The challenge the defendants make to the district court’s decision is more than sufficient to support a stay pending this appeal.
Therefore, the defendants’ motion for a stay of the injunction pending appeal hereby is GRANTED. This appeal shall be expedited upon this court’s docket in accordance with an expedited briefing schedule that will be issued by the clerk forthwith.
Parallel Citations
153 Ed. Law Rep. 59, 2001 Fed.App. 0103P

 
 188 F.3d 394 United States Court of Appeals,
Sixth Circuit.
Barbara GRUTTER, for herself and all others similarly situated, Plaintiffs-Appellees, v. Lee BOLLINGER, et al., Defendants,
Kimberly James, et al., Proposed Intervening Defendants-Appellants,
Jennifer Gratz, Patrick Hamacher, and all others similarly situated, Plaintiffs-Appellees, v. Lee Bollinger, et al., Defendants,
Ebony Patterson, et al., Proposed Intervening Defendants-Appellants.
Nos. 98-2009, 98-2248. | Argued June 8, 1999. | Decided Aug. 10, 1999.
Plaintiffs filed separate complaints alleging that university’s admissions policy impermissibly utilized race as a factor in determining admissions. The United States District Court for the Eastern District of Michigan, Patrick J. Duggan, J., 183 F.R.D. 209, and Bernard A. Friedman, J., denied motions to intervene filed by prospective minority applicants for admission to university and non-profit organizations dedicated to preserving higher educational opportunities for minority students. Proposed intervenors appealed. On consolidated appeals, the Court of Appeals, Daughtrey, Circuit Judge, held that: (1) proposed interventors had a sufficient substantial legal interest to support intervention as of right; (2) proposed intervenors made sufficient showing that impairment of their substantial legal interest was possible if intervention was denied; and (3) proposed intervenors established possibility that university would not adequately represent their interest in underlying actions.
Reversed, remanded, and vacated.
Stafford, District Judge, sitting by designation, filed a dissenting opinion.
Attorneys and Law Firms
*396 Kerry L. Morgan (briefed), Taylor, MI, David F. Herr (argued and briefed), Kirk O. Kolbo (briefed), Maslon, Edelman, Borman & Brand, Minneapolis, MN, Michael E. Rosman (briefed), Center for Individual Rights, Washington, D.C., for Plaintiffs-Appellees.

Leonard M. Niehoff, Butzel Long, Detroit, MI, John Payton, Wilmer, Cutler & Pickering, Washington, DC, for Defendants-Appellees, Bollinger, Duderstadt, University of Michigan, University of Michigan College of Literature, Arts and Science in No. 98-2248.
Reginald M. Turner, Jr. (briefed), Sachs, Nunn, Kates, Kadushin, O’Hare, Helveston & Waldman, Detroit, MI, Philip J. Kessler, Butzel Long, Detroit, MI, Theodore M. Shaw (argued and briefed), Olatunde C.A. Johnson (briefed), NAACP Legal Defense & Educational Fund, New York, NY, Godfrey J. Dillard (briefed), Evans & Luptak, Detroit, MI, Christopher A. Hansen (briefed), American Civil Liberties Union Foundation, New York, NY, Leonard M. Niehoff, Butzel Long, Ann Arbor, MI, Milton R. Henry (briefed), Bloomfield Hills, MI, Brent E. Simmons (briefed), ACLU Fund of Michigan, Lansing, MI, Michael J. Steinberg (briefed), ACLU Fund of Michigan, Detroit, MI, Patricia Mendoza (briefed), Amalia S. Rioja, Mexican American Legal Defense and Educational Fund, Chicago, IL, for Proposed Intervening Defendants-Appellants.
Philip J. Kessler, Butzel Long, Detroit, MI, John Payton, Wilmer, Cutler & Pickering, Washington, DC, Leonard M. Niehoff, Butzel Long, Ann Arbor, MI, for Defendant Bollinger in No. 98-2009.
George B. Washington (briefed), Miranda K.S. Massie (argued and briefed), Scheff & Washington, Detroit, MI, for Movants-Appellants in No. 98-2009.
Before: DAUGHTREY and MOORE, Circuit Judges; STAFFORD,* District Judge.
Opinion
DAUGHTREY, J., delivered the opinion of the court, in which MOORE, J., joined. STAFFORD, D.J. (p. 401), delivered a separate dissenting opinion.
OPINION
DAUGHTREY, Circuit Judge.
Before us are two cases in which proposed defendant-intervenors were denied intervention under Federal Rule of Civil Procedure 24(a) and (b), in actions brought against the University of Michigan contesting the

use of an applicant’s race as a factor in determining admission. The appeals come from separate district courts but present similar, and in some instances the same, issues for our consideration. We have therefore consolidated the two cases for purposes of this opinion, and we find in both instances that the district courts erred in denying intervention under Rule 24(a).
PROCEDURAL AND FACTUAL BACKGROUND
In each of the cases before the court, a group of students and one or more coalitions appeal the denial of their motion to intervene in a lawsuit brought to challenge a race-conscious admissions policy at the University of Michigan. The named plaintiffs in Gratz v. Bollinger are two white applicants who were denied admission to the College of Literature, Arts and Science. *397 They allege that the College’s admissions policy violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq. The plaintiffs seek compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the College. The intervenors are 17 African-American and Latino/a individuals who have applied or intend to apply to the University, and the Citizens for Affirmative Action’s Preservation (CAAP), a nonprofit organization whose stated mission is to preserve opportunities in higher education for African-American and Latino/a students in Michigan. The intervenors claim that the resolution of this case directly threatens the access of qualified African-American and Latino/a students to public higher education and that the University will not adequately represent their interest in educational opportunity. The district court denied their motion for intervention as of right, holding that the plaintiffs did not have a substantial interest in the litigation and that the University could adequately represent the proposed intervenors’ interests. The district court also denied the proposed intervenors’ alternative motion for permissive intervention.
The named plaintiff in Grutter v. Bollinger is a white woman challenging the admissions policy of the University of Michigan Law School. Like the plaintiffs in Gratz, she alleges that the race-conscious admissions policy utilized by the law school violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq. Grutter seeks compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the law school. The proposed intervenors are 41 students and

three pro-affirmative action coalitions. As described by the district court:

[The] individual proposed

intervenors

include

21

undergraduate students of various

races who currently attend [various

undergraduate institutions], all of

whom plan to apply to the law

school for admission; five black

students who currently attend [local

high schools] and who also plan to

apply to the law school for

admission; 12 students of various

races who currently attend the law

school; a paralegal and a Latino

graduate student at the University

of Texas at Austin who intend to

apply to the law school for

admission; and a black graduate

student at the University of

Michigan who is a member of the

Defend Affirmative Action Party.

The plaintiff opposed the motion to intervene, but the defendants, various officials of the Law School and the University, did not oppose the motion. The district court denied the motion to intervene as of right on the basis that the intervenors failed to show that their interests would not be adequately represented by the University. The district court also denied the proposed intervenors’ alternative motion for permissive intervention.

DISCUSSION
[1] [2] The proposed intervenors in each of these cases contend principally that the district court erred by denying their motion to intervene as of right. Fed.R.Civ.P. 24 provides in pertinent part:
Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

In this circuit, proposed intervenors must establish four elements in order to be entitled to intervene as a matter of right: (1) that the motion to intervene was timely; *398 (2) that they have a substantial legal interest in the subject matter of the case; (3) that their ability to protect that interest may be impaired in the absence of intervention; and (4) that the parties already before the court may not adequately represent their interest. See Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir.1990). A district court’s denial of intervention as of right is reviewed de novo, except for the timeliness element, which is reviewed for an abuse of discretion. Id. The district court held in each of these cases that the motion for intervention was timely, and the plaintiffs do not contest this finding on appeal. We will therefore consider the motions timely and need address only the three remaining elements.
Substantial Legal Interest
[3] [4] The proposed intervenors must show that they have a substantial interest in the subject matter of this litigation. See Jansen, 904 F.2d at 341. However, in this circuit we subscribe to a “rather expansive notion of the interest sufficient to invoke intervention of right.” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997). For example, an intervenor need not have the same standing necessary to initiate a lawsuit. See id.; Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir.1991). We have also “cited with approval decisions of other courts ‘reject[ing] the notion that Rule 24(a)(2) requires a specific legal or equitable interest.’ ” Miller, 103 F.3d at 1245 (quoting Purnell, 925 F.2d at 948). “The inquiry into the substantiality of the claimed interest is necessarily fact-specific.” Id.
The proposed intervenors argue that their interest in maintaining the use of race as a factor in the University’s admissions program is a sufficient substantial legal interest to support intervention as of right. Specifically, they argue that they have a substantial legal interest in educational opportunity, which requires preserving access to the University for African-American and Latino/a students and preventing a decline in the enrollment of African-American and Latino/a students. The district court in Grutter “assumed without deciding” that the proposed intervenors do have a significant legal interest in this case and that their ability to protect that interest may be impaired by an adverse ruling in the underlying case. The district court in Gratz, however, determined that the proposed intervenors did not have a direct and substantial interest which is “legally protectable” and that they therefore failed to establish this required element. We conclude that Sixth Circuit precedent requires a finding to

the contrary.
In Jansen, 904 F.2d at 338-39, black applicants and employees of the city’s fire department sought to intervene in a reverse discrimination lawsuit challenging the department’s use of a quota system. We noted that the proposed intervenors were parties to an earlier consent decree setting goals for minority hiring and found that the proposed intervenors did have a significantly protectable interest in the affirmative action challenged in the lawsuit. See id. at 342. The district court in Gratz distinguished Jansen, as well as In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492 (11th Cir.1987), aff’d. sub. nom., Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), on which this court relied in Jansen, on the basis that the proposed intervenors in both Jansen and In re Birmingham had a legally protected interest only by virtue of their status as parties to a consent decree. As the proposed intervenors point out, however, neither Jansen nor In re Birmingham stands for the proposition that an interest must be protected by means of a consent decree or by any other particular means in order for the proposed intervenors to be able to establish that they have a substantial legal interest.
[5] The Gratz district court’s opinion relies heavily on the premise that the proposed intervenors do not have a significant *399 legal interest unless they have a “legally enforceable right to have the existing admissions policy construed.” We conclude that this interpretation results from a misreading of this circuit’s approach to the issue. As noted earlier, we have repeatedly “cited with approval decisions of other courts ‘reject[ing] the notion that Rule 24(a)(2) requires a specific legal or equitable interest.’ ” Miller, 103 F.3d at 1245; see also Purnell, 925 F.2d at 948. For example, in Miller, the Michigan Chamber of Commerce sought to intervene in a suit by labor unions challenging an amendment to Michigan’s Campaign Finance Act, Mich. Comp. Laws Ann. §§ 169.201-.282 (1996), which extended the application of statutory restrictions on corporate political expenditures so that they applied to unions as well as to corporations. See id. at 1243-44. The majority found that the Chamber of Commerce did have a substantial legal interest by virtue of its role in the political process that resulted in the adoption of the contested amendments. Id. at 1247. The Chamber of Commerce was therefore allowed to intervene as of right, although the Chamber had no legal “right” to the enactment of the challenged legislation. We believe that the district court’s attempt to distinguish Miller, as well as Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir.1993) (holding that voters and organizations were entitled to intervene in action by African-American and Latino citizens against the county for violation of Voting Rights Act) and Citizens for

Legislative Choice v. Miller, No. 97-CV-73777-DT (E.D.Mich. Oct. 15, 1997) (holding that organization was entitled to intervene in action challenging constitutionality of term limits provision for which it had lobbied), on the sole basis that those cases involved challenges to legislation, was misguided. The case law of this circuit does not limit the finding of a substantial interest to cases involving the legislative context, any more than it limits such a finding to cases involving a consent decree. Neither a legislative context nor the existence of a consent decree is dispositive as to whether proposed intervenors have shown that they have a significant interest in the subject matter of the underlying case. We find that the interest implicated in the case now before us is even more direct, substantial, and compelling than the general interest of an organization in vindicating legislation that it had previously supported. This case is, if anything, a significantly stronger case for intervention than Miller and many of the cases on which Miller relied.
[6] Even if it could be said that the question raised is a close one, “close cases should be resolved in favor of recognizing an interest under Rule 24(a).” Miller, 103 F.3d at 1247. The proposed intervenors have enunciated a specific interest in the subject matter of this case, namely their interest in gaining admission to the University, which is considerably more direct and substantial than the interest of the Chamber of Commerce in Miller-a much more general interest. We therefore hold that the district court erred in Gratz in failing to rule that the proposed intervenors have established that they have a substantial legal interest in the subject matter of this case.
Impairment
[7] [8] “To satisfy this element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal.” Miller, 103 F.3d at 1247 (citing Purnell, 925 F.2d at 948). As noted above, the district court in Grutter “assumed without deciding” that the proposed intervenors met this element. The district court in Gratz, however, determined that because “the proposed intervenors [ ] failed to articulate the existence of a substantial legal interest in the subject matter of the instant litigation, it necessarily follows that the proposed intervenors cannot demonstrate an impairment of any interest.” The proposed intervenors in Gratz continue to argue on appeal that a decision *400 in favor of the plaintiff will adversely affect their interest in educational opportunity by diminishing their likelihood of obtaining admission to the University and by reducing the number of African-American and Latino/a students at the

University.
As we have now decided, the district court erred in determining that the proposed intervenors did not have a substantial interest in the subject matter of this case. Consequently, we must likewise conclude that the district court erred in its analysis of the impairment element as well. There is little room for doubt that access to the University for African-American and Latino/a students will be impaired to some extent and that a substantial decline in the enrollment of these students may well result if the University is precluded from considering race as a factor in admissions. Recent experiences in California and Texas suggest such an outcome. The probability of similar effects in Michigan is more than sufficient to meet the minimal requirements of the impairment element.
Inadequate Representation
[9] [10] Finally, the prospective intervenors must show that the existing defendant, the University, may not adequately represent their interests. However, the proposed intervenors are “not required to show that the representation will in fact be inadequate.” Miller, 103 F.3d at 1247. Indeed, “[i]t may be enough to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor’s arguments.” Id.
As a preliminary matter, there is some dispute about the relevant standard for determining whether this element has been met when the existing defendant is a governmental entity. The district court in Gratz mentioned that the plaintiff relied on Hopwood v. State of Texas, 21 F.3d 603 (5th Cir.1994), for the proposition that a stronger showing of inadequacy is required when a governmental agency is involved as the existing defendant. On reconsideration, however, the district court made clear that it had simply noted the plaintiff’s argument in regard to the higher Hopwood standard but had not applied this higher standard. In Grutter, by contrast, the district court does appear to have applied the more demanding Hopwood standard. However, this circuit has declined to endorse a higher standard for inadequacy when a governmental entity in involved. For example, in Miller, where the defendants included the Secretary of State and the Attorney General, this court clearly stated that the proposed intervenors were required only to show that the representation might be inadequate. See Miller, 103 F.3d at 1247. The district court in Grutter therefore erred in applying the higher standard articulated by the Fifth Circuit in Hopwood.

The proposed intervenors insist that there is indeed a possibility that the University will inadequately represent their interests, because the University is subject to internal and external institutional pressures that may prevent it from articulating some of the defenses of affirmative action that the proposed intervenors intend to present. They also argue that the University is at less risk of harm than the applicants if it loses this case and, thus, that the University may not defend the case as vigorously as will the proposed intervenors. The district court in Gratz, however, found that the proposed intervenors did not identify any specific separate or additional defenses that they will present that the University will not present. The district court in Grutter also found that the proposed intervenors failed to show that the University would not adequately represent their interests.

district court’s decision in each of these cases denying the motion for intervention as of right cannot be sustained. While this determination renders moot the question of permissive intervention under Rule 24(b), we do not believe that the denial of intervention on a permissive basis was erroneous.
The order of the district court in each case denying intervention is REVERSED and the cases are REMANDED for entry of an order permitting intervention by the proposed defendant-intervenors under Rule 24(a). The order previously entered in this court staying proceedings in the district courts is hereby VACATED.

[11] We conclude that the district court erred in each of these cases. The Supreme Court has held, and we have reiterated, that the proposed intervenors’ burden in showing inadequacy is “minimal.” See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972); Linton v. Commissioner of Health & Env’t., 973 F.2d 1311, 1319 (6th Cir.1992). The proposed intervenors need show only that there is a potential for inadequate representation. *401 See id. The proposed intervenors in these two cases have presented legitimate and reasonable concerns about whether the University will present particular defenses of the contested race-conscious admissions policies. We find persuasive their argument that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy. We must therefore conclude that the proposed intervenors have articulated specific relevant defenses that the University may not present and, as a consequence, have established the possibility of inadequate representation.
CONCLUSION

STAFFORD, District Judge, dissenting.
I cannot agree that the proposed intervenors in these cases have established their right to intervene as of right. I do not believe, nor do I think Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir.1997), compels us to find, that the proposed intervenors’ subjective fears are sufficient to satisfy their burden, however minimal, of showing that the University of Michigan will not adequately represent the proposed intervenors’ interests in these two lawsuits. Unlike the State of Michigan in Miller, the University of Michigan here has in no way “demonstrated that it will not adequately represent and protect the interests held by the [proposed intervenors].” Miller, 103 F.3d at 1248. There is nothing in the record of either case to suggest that the University of Michigan will not zealously defend its voluntarily-adopted admissions policies, will not present all relevant evidence in support of its admissions policies, will not resist unspecified pressures that could temper its ability to defend its admissions policies, or will not raise all defenses or make all arguments that the prospective intervenors may raise or make. Because I do not think that we should substitute our judgment for the informed judgment of the two respective trial judges who determined that, based on the record before them, intervention was not merited, I must respectfully dissent.

For the reasons set out above, we find that the proposed intervenors have shown that they have a substantial legal interest in the subject matter of this matter, that this interest will be impaired by an adverse determination, and that the existing defendant, the University, may not adequately represent their interest. Hence, the proposed intervenors are entitled to intervene as of right and the

Parallel Citations
44 Fed.R.Serv.3d 452, 137 Ed. Law Rep. 907, 1999 Fed.App. 0295P

Footnotes

*

The Honorable William H. Stafford, United States District Judge for the Northern District of Florida, sitting by designation.

 
 309 F.3d 329 United States Court of Appeals,
Sixth Circuit.
Jennifer GRATZ and Patrick Hamacher, for themselves and all others similarly situated,
Plaintiffs—Appellants (Nos. 01–1333 and 01–1418) Plaintiffs—Appellees (No. 01–1416)
v. Lee BOLLINGER, et al., Defendants—Appellees
(Nos. 01–1333 and 01–1418) Defendants—Appellants (No. 01–1416) Ebony Patterson, et al., Defendants—Appellees (No. 01–1333) Intervening Defendants (No. 01–1416) Intervening Defendants–Appellees (No. 01–1418) Intervening Defendants–Appellants
(No. 01–1438) Barbara Grutter, Plaintiff—Appellee (Nos.
01–1447 and 01–1516) Lee Bollinger, et al. Defendants—Appellants (No.
01–1447) Kimberly James, et al., Intervening Defendants–Appellants (No. 01–1516)
Nos. 01–1333, 01–1416, 01–1418, 01–1438, 01–1447, 01–1516. | Nov. 16, 2001.
Before: MARTIN, Chief Circuit Judge; BOGGS, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.
Opinion
ORDER
These consolidated matters now come before the court upon the motion of Plaintiff–Appellee Grutter (Nos. 01–1447/1516) for an order terminating this court’s previously entered stay of the injunction issued by the district court, and upon the joint motion of the University defendants to expand the time allotted for oral argument. By order of October 19, 2001 the court had directed that these appeals be heard by the court sitting en banc.
On April 5, 2001 a panel of the court considered a motion of the University defendants in No. 01–1447 requesting a stay of the order of the district court. Having found that motion well taken, the court ordered the injunction stayed during the pendency of the appeal. The court has now

considered the instant motion to terminate that stay and the response filed in opposition to the motion. A majority of the judges in regular active service having voted against the motion,
IT IS ORDERED that the motion to terminate the stay be, and it hereby is, DENIED.
Upon consideration of the defendants’ motion to enlarge the time for oral argument and having considered as well the response to the motion, a majority of the judges in regular active service have voted that oral argument proceed as follows:
In Nos. 01–1333/1416/1418, Gratz, et al. v. Bollinger, et al.
Plaintiffs will have 20 minutes for argument
University defendants will have 15 minutes for argument
Intervening minority students will have 5 minutes for argument
In No. 01–1438, Gratz, et al. v. Bollinger, et al.
*330 Intervening minority students will have 15 minutes for argument (including any argument time ceded to the University defendants)
Gratz appellees will have 15 minutes for argument
In Nos. 01–1447/1516, Grutter v. Bollinger, et al.
University defendants will have 20 minutes for argument (including any argument time ceded to intervening minority students)
Plaintiff will have 20 minutes for argument
Oral argument will be held in Cincinnati, Ohio on Thursday, December 6, 2001, beginning at 1:30 P.M. The argument will be held in Room 403, Potter Stewart United States Courthouse. The cases will be called as shown above.
Parallel Citations
171 Ed. Law Rep. 727

 
 277 F.3d 803 United States Court of Appeals,
Sixth Circuit.
Jennifer GRATZ and Patrick Hamacher for Themselves and All Other Similarly Situated, Plaintiffs-Appellants (01-1333 and 01-1418),
Plaintiffs-Appellees (01-1416), v.
Lee BOLLINGER, et al., Defendants-Appellees (01-1333 and 01-1418) Defendants-Appellants
(01-1416), Ebony Patterson, et al., Defendants-Appellees (01-1333) Intervening Defendants (01-1416) Intervening Defendants-Appellees (01-1418) Intervening Defendants-Appellants (01-1438) Barbara Grutter, Plaintiff-Appellee (01-1447 and
01-1516), v.
Lee Bollinger, et al., Defendants-Appellants (01-1447), and
Kimberly James, et al., Intervening Defendants-Appellants (01-1516).
No. 01-1333, 01-1416, 01-1418, 01-1438, 01-1516. | Oct. 19, 2001.
Before: MARTIN, Chief Circuit Judge; BOGGS, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges. Prior Report: 247 F.3d 631

Opinion
ORDER
The plaintiffs in these consolidated appeals filed a petition seeking initial en banc review of the decisions of the two district courts before whom the cases were heard. The petition was referred to the three-judge panel to which the appeals had been assigned for oral argument on October 23, 2001.
The panel requested that all of the active judges of the court be polled to determine whether or not the petition should be granted and the appeals be presented in the first instance to the en banc court for argument and decision. A majority of the active judges voted to grant the petition; therefore
IT IS ORDERED that the petition for initial hearing en banc be, and it hereby is, GRANTED. It is FURTHER ORDERED the oral argument scheduled for October 23, 2001 is cancelled; oral argument *804 to the en banc court will be on Thursday, December 6, 2001, at 1:30 P.M., EST, in Cincinnati, Ohio.
Parallel Citations
160 Ed. Law Rep. 755

 
 539 U.S. 306 (2003)
GRUTTER v.
BOLLINGER et al.
No. 02-241.
Supreme Court of United States.
Argued April 1, 2003. Decided June 23, 2003. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
3017890 *307 *308 *309 *310 O'CONNOR, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined, and in which SCALIA and THOMAS, JJ., joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of THOMAS, J. GINSBURG, J., filed a concurring opinion, in which BREYER, J., joined, post, p. 344. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined, post, p. 346. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined as to Parts I-VII, post, p. 349. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined, post, p. 378. KENNEDY, J., filed a dissenting opinion, post, p. 387.
Kirk O. Kolbo argued the cause for petitioner. With him on the briefs were David F. Herr, R. Lawrence Purdy, Michael C. McCarthy, Michael E. Rosman, Hans Bader, and Kerry L. Morgan.
Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Boyd and Deputy Solicitor General Clement.
Maureen E. Mahoney argued the cause for respondent Bollinger et al. With her on the brief were John H. Pickering, John Payton, Brigida Benitez, Craig Goldblatt, Terry A. Maroney, Marvin Krislov, Jonathan Alger, Evan Caminker, Philip J. Kessler, and Leonard M. Niehoff.
Miranda K. S. Massie and George B. Washington filed a brief for respondent James et al.[*]
311 *311 JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful.
312 *312 I
A
313 The Law School ranks among the Nation's top law schools. It receives more than 3,500 applications each year for a class *313 of around 350 students. Seeking to "admit a group of students who individually and collectively are among the most capable," the Law School looks for individuals with "substantial
314 *314 promise for success in law school" and "a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others." App. 110. More broadly, the Law School seeks "a mix of students with varying backgrounds and experiences who will respect and learn from each other." Ibid. In 1992, the dean of the Law School charged a faculty committee with crafting a written admissions policy to implement these goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity complied with this Court's most recent ruling on the use of race in university
315 admissions. See Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). *315 Upon the unanimous adoption of the committee's report by the Law School faculty, it became the Law School's official admissions policy.
The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants' talents, experiences, and potential "to contribute to the learning of those around them." App. 111. The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. Id., at 83-84, 114-121. In reviewing an applicant's file, admissions officials must consider the applicant's undergraduate grade point average (GPA) and Law School Admission Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. Id., at 112. The policy stresses that "no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems." Id., at 111.
The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School. Id., at 113. Nor does a low score automatically disqualify an applicant. Ibid. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School's educational objectives. Id., at 114. So-called "`soft' variables" such as "the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection" are all brought to bear in assessing an "applicant's likely contributions to the intellectual and social life of the institution." Ibid.
The policy aspires to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of

316 its parts." Id., at 118. *316 The policy does not restrict the types of diversity contributions eligible for "substantial weight" in the admissions process, but instead recognizes "many possible bases for diversity admissions." Id., at 118, 120. The policy does, however, reaffirm the Law School's longstanding commitment to "one particular type of diversity," that is, "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." Id., at 120. By enrolling a "`critical mass' of [underrepresented] minority students," the Law School seeks to "ensur[e] their ability to make unique contributions to the character of the Law School." Id., at 120-121.
The policy does not define diversity "solely in terms of racial and ethnic status." Id., at 121. Nor is the policy "insensitive to the competition among all students for admission to the [L]aw [S]chool." Ibid. Rather, the policy seeks to guide admissions officers in "producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession." Ibid.
B
Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit in the United States District Court for the Eastern District of Michigan against the Law School, the Regents of the University of Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President of the University of Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis Shields (Director of Admissions at the Law 317 School from 1991 *317 until 1998). Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d; and Rev. Stat. § 1977, as amended, 42 U. S. C. § 1981.
Petitioner further alleged that her application was rejected because the Law School uses race as a "predominant" factor, giving applicants who belong to certain minority groups "a significantly greater chance of admission than students with similar credentials from disfavored racial groups." App. 33-34. Petitioner also alleged that respondents "had no compelling interest to justify their use of race in the admissions process." Id., at 34. Petitioner requested compensatory and punitive damages, an order requiring the Law School to offer her admission, and an injunction prohibiting the Law School from continuing to discriminate on the basis of race. Id., at 36. Petitioner clearly has standing to bring this lawsuit. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993).
The District Court granted petitioner's motion for class certification and for bifurcation of the trial into liability and damages phases. The class was defined as "`all persons who (A) applied for and were not granted admission to the University of Michigan Law School for the academic years since (and including) 1995 until the time that judgment is entered herein; and (B) were members of those racial or ethnic groups, including Caucasian, that Defendants treated less favorably in considering their applications for admission to the Law School.'" App. to Pet. for Cert. 191a-192a.
The District Court heard oral argument on the parties' cross-motions for summary judgment on December 22, 2000. Taking the motions under advisement, the District Court indicated that it would decide as a matter of law whether the Law School's asserted interest in obtaining the educational benefits that flow from a 318 diverse student body was compelling. *318 The District Court also indicated that it would conduct a bench trial on the extent to which race was a factor in the Law School's admissions decisions, and whether the Law School's consideration of race in admissions decisions constituted a race-based double standard.
During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School's use of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant's race along with all other factors. Id., at 206a. Shields testified that at the height of the admissions season, he would frequently consult the so-called "daily reports" that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). Id., at 207a. This was done, Shields testified, to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body. Ibid. Shields stressed, however, that he did not seek to admit any particular number or percentage of underrepresented minority students. Ibid.
Erica Munzel, who succeeded Shields as Director of Admissions, testified that "`critical mass'" means "`meaningful numbers'" or "`meaningful representation,'" which she understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated. Id., at 208a-209a. Munzel stated there is no number, percentage, or range of numbers or percentages that constitute critical mass. Id., at 209a. Munzel also asserted that she must consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores. Ibid.
319 The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses, Lehman did *319 not quantify critical mass in terms of numbers or percentages. Id., at 211a. He indicated that critical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race. Ibid. When asked about the extent to which race is considered in admissions, Lehman testified that it varies from one applicant to another. Ibid. In some cases, according to Lehman's testimony, an applicant's race may play no role, while in others it may be a "`determinative'" factor. Ibid.
The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with diverse interests and backgrounds to enhance classroom discussion and the educational experience both inside and outside the classroom. Id., at 213a. When asked about the policy's "`commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,'" Lempert explained that this language did not purport to remedy past discrimination, but rather to include students who may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination. Ibid. Lempert acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they

were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers. Ibid.
Kent Syverud was the final witness to testify about the Law School's use of race in admissions decisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted several expert reports 320 on the educational benefits of diversity. Syverud's testimony indicated that when a critical mass of underrepresented minority students is present, *320 racial stereotypes lose their force because nonminority students learn there is no "`minority viewpoint'" but rather a variety of viewpoints among minority students. Id., at 215a.
In an attempt to quantify the extent to which the Law School actually considers race in making admissions decisions, the parties introduced voluminous evidence at trial. Relying on data obtained from the Law School, petitioner's expert, Dr. Kinley Larntz, generated and analyzed "admissions grids" for the years in question (1995-2000). These grids show the number of applicants and the number of admittees for all combinations of GPAs and LSAT scores. Dr. Larntz made "`cell-by-cell'" comparisons between applicants of different races to determine whether a statistically significant relationship existed between race and admission rates. He concluded that membership in certain minority groups "`is an extremely strong factor in the decision for acceptance,'" and that applicants from these minority groups "`are given an extremely large allowance for admission'" as compared to applicants who are members of nonfavored groups. Id., at 218a-220a. Dr. Larntz conceded, however, that race is not the predominant factor in the Law School's admissions calculus. 12 Tr. 11-13 (Feb. 10, 2001).
Dr. Stephen Raudenbush, the Law School's expert, focused on the predicted effect of eliminating race as a factor in the Law School's admission process. In Dr. Raudenbush's view, a race-blind admissions system would have a "`very dramatic,'" negative effect on underrepresented minority admissions. App. to Pet. for Cert. 223a. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Ibid. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Ibid. Under this scenario, underrepresented minority students would have constituted 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent. Ibid.
321 *321 In the end, the District Court concluded that the Law School's use of race as a factor in admissions decisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School's asserted interest in assembling a diverse student body was not compelling because "the attainment of a racially diverse class . . . was not recognized as such by Bakke and it is not a remedy for past discrimination." Id., at 246a. The District Court went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of race to further that interest. The District Court granted petitioner's request for declaratory relief and enjoined the Law School from using race as a factor in its admissions decisions. The Court of Appeals entered a stay of the injunction pending appeal.
Sitting en banc, the Court of Appeals reversed the District Court's judgment and vacated the injunction. The Court of Appeals first held that Justice Powell's opinion in Bakke was binding precedent establishing diversity as a compelling state interest. According to the Court of Appeals, Justice Powell's opinion with respect to diversity constituted the controlling rationale for the judgment of this Court under the analysis set forth in Marks v. United States, 430 U. S. 188 (1977). The Court of Appeals also held that the Law School's use of race was narrowly tailored because race was merely a "potential `plus' factor" and because the Law School's program was "virtually identical" to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion. 288 F. 3d 732, 746, 749 (CA6 2002).
Four dissenting judges would have held the Law School's use of race unconstitutional. Three of the dissenters, rejecting the majority's Marks analysis, examined the Law School's interest in student body diversity on the merits and concluded it was not compelling. The fourth dissenter, writing separately, found 322 it unnecessary to decide whether diversity was a compelling interest because, like the other dissenters, *322 he believed that the Law School's use of race was not narrowly tailored to further that interest.
We granted certiorari, 537 U. S. 1043 (2002), to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Compare Hopwood v. Texas, 78 F. 3d 932 (CA5 1996) (Hopwood I) (holding that diversity is not a compelling state interest), with Smith v. University of Wash. Law School, 233 F. 3d 1188 (CA9 2000) (holding that it is).
II
A
We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. 438 U. S. 265 (1978). The decision produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to "remedy disadvantages cast on minorities by past racial prejudice." Id., at 325 (joint opinion of Brennan, White, Marshall, and Blackmun, concurring in judgment in part and dissenting in part). Four other Justices avoided the constitutional question altogether and struck down the program on statutory grounds. Id., at 408 (opinion of STEVENS, J., joined by Burger, C. J., and Stewart and REHNQUIST, JJ., concurring in judgment in part and dissenting in part). Justice Powell provided a fifth vote not only for invalidating the set-aside program, but also for reversing the state court's injunction against any use of race whatsoever. The only holding for the Court in Bakke was that a "State has a substantial interest that legitimately may be served by a 323 properly devised admissions program involving *323 the competitive consideration of race and ethnic origin." Id., at 320. Thus, we reversed that part of the lower court's judgment that enjoined the university "from any consideration of the race of any applicant." Ibid.
Since this Court's splintered decision in Bakke, Justice Powell's opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice

Powell's views on permissible race-conscious policies. See, e. g., Brief for Judith Areen et al. as Amici Curiae 12-13 (law school admissions programs employ "methods designed from and based on Justice Powell's opinion in Bakke"); Brief for Amherst College et al. as Amici Curiae 27 ("After Bakke, each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of Justice Powell's opinion . . . and set sail accordingly"). We therefore discuss Justice Powell's opinion in some detail.
Justice Powell began by stating that "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." Bakke, 438 U. S., at 289-290. In Justice Powell's view, when governmental decisions "touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest." Id., at 299. Under this exacting standard, only one of the interests asserted by the university survived Justice Powell's scrutiny.
First, Justice Powell rejected an interest in "`reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession' " 324 as an unlawful interest in racial balancing. Id., at 306-307. Second, Justice Powell rejected an interest in remedying societal discrimination *324 because such
measures would risk placing unnecessary burdens on innocent third parties "who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered." Id., at 310. Third, Justice Powell rejected an interest in "increasing the number of physicians who will practice in communities currently underserved," concluding that even if such an interest could be compelling in some circumstances the program under review was not "geared to promote that goal." Id., at 306, 310.
Justice Powell approved the university's use of race to further only one interest: "the attainment of a diverse student body." Id., at 311. With the important proviso that "constitutional limitations protecting individual rights may not be disregarded," Justice Powell grounded his analysis in the academic freedom that "long has been viewed as a special concern of the First Amendment." Id., at 312, 314. Justice Powell emphasized that nothing less than the "`nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." Id., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967)). In seeking the "right to select those students who will contribute the most to the `robust exchange of ideas,' " a university seeks "to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 U. S., at 313. Both "tradition and experience lend support to the view that the contribution of diversity is substantial." Ibid.
Justice Powell was, however, careful to emphasize that in his view race "is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." Id., at 314. For Justice Powell, "[i]t is not an interest in simple ethnic diversity, in which a specified 325 percentage of the student body is in effect guaranteed to be members of selected ethnic groups," that *325 can justify the use of race. Id., at 315. Rather, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Ibid.
In the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice Powell's diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent under Marks. In that case, we explained that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." 430 U. S., at 193 (internal quotation marks and citation omitted). As the divergent opinions of the lower courts demonstrate, however, "[t]his test is more easily stated than applied to the various opinions supporting the result in [Bakke]." Nichols v. United States, 511 U. S. 738, 745-746 (1994). Compare, e. g., Johnson v. Board of Regents of Univ. of Ga., 263 F. 3d 1234 (CA11 2001) (Justice Powell's diversity rationale was not the holding of the Court); Hopwood v. Texas, 236 F. 3d 256, 274-275 (CA5 2000) (Hopwood II) (same); Hopwood I, 78 F. 3d 932 (CA5 1996) (same), with Smith v. University of Wash. Law School, 233 F. 3d, at 1199 (Justice Powell's opinion, including the diversity rationale, is controlling under Marks).
We do not find it necessary to decide whether Justice Powell's opinion is binding under Marks. It does not seem "useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it." Nichols v. United States, supra, at 745-746. More important, for the reasons set out below, today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions.
326 *326 B
The Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U. S. Const., Amdt. 14, § 2. Because the Fourteenth Amendment "protect[s] persons, not groups," all "governmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed." Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995) (emphasis in original; internal quotation marks and citation omitted). We are a "free people whose institutions are founded upon the doctrine of equality." Loving v. Virginia, 388 U. S. 1, 11 (1967) (internal quotation marks and citation omitted). It follows from that principle that "government may treat people differently because of their race only for the most compelling reasons." Adarand Constructors, Inc. v. Peña, 515 U. S., at 227.
We have held that all racial classifications imposed by government "must be analyzed by a reviewing court under strict scrutiny." Ibid. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. "Absent searching judicial inquiry into the justification for such race-based measures," we have no way to determine what "classifications are `benign' or `remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to "`smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.
Strict scrutiny is not "strict in theory, but fatal in fact." Adarand Constructors, Inc. v. Peña, supra, at 237 (internal quotation marks and citation omitted).

327 Although all governmental *327 uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, "whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection." 515 U. S., at 229-230. But that observation "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny." Id., at 230. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.
Context matters when reviewing race-based governmental action under the Equal Protection Clause. See Gomillion v. Lightfoot, 364 U. S. 339, 343-344 (1960) (admonishing that, "in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts"). In Adarand Constructors, Inc. v. Peña, we made clear that strict scrutiny must take "`relevant differences' into account." 515 U. S., at 228. Indeed, as we explained, that is its "fundamental purpose." Ibid. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.
III
A
With these principles in mind, we turn to the question whether the Law School's use of race is justified by a compelling state interest. Before this Court, as they 328 have *328 throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining "the educational benefits
that flow from a diverse student body." Brief for Respondent Bollinger et al. i. In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity.
We first wish to dispel the notion that the Law School's argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e. g., Richmond v. J. A. Croson Co., supra, at 493 (plurality opinion) (stating that unless classifications based on race are "strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility"). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.
The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits. See Regents of Univ. of 329 Mich. v. Ewing, 474 U. S. 214, 225 (1985); Board of Curators of Univ. of Mo. *329 v. Horowitz, 435 U. S. 78, 96, n. 6 (1978); Bakke, 438 U. S., at 319, n. 53 (opinion of Powell, J.).
We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. See, e. g., Wieman v. Updegraff, 344 U. S. 183, 195 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957); Shelton v. Tucker, 364 U. S. 479, 487 (1960); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S., at 603. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: "The freedom of a university to make its own judgments as to education includes the selection of its student body." Bakke, supra, at 312. From this premise, Justice Powell reasoned that by claiming "the right to select those students who will contribute the most to the `robust exchange of ideas,'" a university "seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 U. S., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., supra, at 603). Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that "good faith" on the part of a university is "presumed" absent "a showing to the contrary." 438 U. S., at 318-319.
As part of its goal of "assembling a class that is both exceptionally academically qualified and broadly diverse," the Law School seeks to "enroll a `critical mass' of minority students." Brief for Respondent Bollinger et al. 13. The Law School's interest is not simply "to assure within its student body some specified 330 percentage of a particular group merely because of its race or ethnic origin." Bakke, 438 U. S., at *330 307 (opinion of Powell, J.). That would amount to outright racial balancing, which is patently unconstitutional. Ibid.; Freeman v. Pitts, 503 U. S. 467, 494 (1992) ("Racial balance is not to be achieved for its own sake"); Richmond v. J. A. Croson Co., 488 U. S., at 507. Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.
These benefits are substantial. As the District Court emphasized, the Law School's admissions policy promotes "cross-racial understanding," helps to break down racial stereotypes, and "enables [students] to better understand persons of different races." App. to Pet. for Cert. 246a. These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds." Id., at 246a, 244a.
The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." Brief for American Educational

Research Association et al. as Amici Curiae 3; see, e. g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003).
These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace 331 can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae *331 5; Brief for General
Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security." Brief for Julius W. Becton, Jr., et al. as Amici Curiae 5. The primary sources for the Nation's officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Ibid. At present, "the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies." Ibid. (emphasis in original). To fulfill its mission, the military "must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educational setting." Id., at 29 (emphasis in original). We agree that "[i]t requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective." Ibid.
We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage" with a fundamental role in maintaining the fabric of society. Plyler v. Doe, 457 U. S. 202, 221 (1982). This Court has long recognized that "education. . . is the very foundation of good citizenship." Brown v. Board of Education, 347 U. S. 483, 493 (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The 332 United States, as amicus curiae, affirms that "[e]nsuring that public institutions are open and available to all segments of American *332 society, including people of all races and ethnicities, represents a paramount government objective." Brief for United States as Amicus Curiae 13. And, "[n]owhere is the importance of such openness more acute than in the context of higher education." Ibid. Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.
Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders. Sweatt v. Painter, 339 U. S. 629, 634 (1950) (describing law school as a "proving ground for legal learning and practice"). Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. See Brief for Association of American Law Schools as Amicus Curiae 5-6. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. Id., at 6.
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools "cannot be effective in isolation from the individuals and institutions with which the law interacts." See Sweatt v. Painter, supra, at 634. Access to legal education (and thus the legal profession) must be inclusive of talented and 333 qualified individuals of every race and ethnicity, so that all members of our heterogeneous society *333 may participate in the educational institutions that provide the training and education necessary to succeed in America.
The Law School does not premise its need for critical mass on "any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue." Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a "critical mass" of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.
B
Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still "constrained in how it may pursue that end: [T]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose." Shaw v. Hunt, 517 U. S. 899, 908 (1996) (internal quotation marks and citation omitted). The purpose of the narrow tailoring requirement is to ensure that "the means chosen `fit' th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Richmond v. J. A. Croson Co., 488 U. S., at 493 (plurality opinion).
Since Bakke, we have had no occasion to define the contours of the narrow-tailoring inquiry with respect to race-conscious university admissions programs. 334 That inquiry *334 must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education. Contrary to
JUSTICE KENNEDY'S assertions, we do not "abando[n] strict scrutiny," see post, at 394 (dissenting opinion). Rather, as we have already explained, supra, at 327, we adhere to Adarand's teaching that the very purpose of strict scrutiny is to take such "relevant differences into account." 515 U. S., at 228 (internal quotation marks omitted).
To be narrowly tailored, a race-conscious admissions program cannot use a quota system—it cannot "insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants." Bakke, 438 U. S., at 315 (opinion of Powell, J.). Instead, a university may consider race or ethnicity only as a "`plus' in a particular applicant's file," without "insulat[ing] the individual from comparison with all other candidates for the available seats." Id., at 317. In other words, an admissions program must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications

of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Ibid.
We find that the Law School's admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. See id., at 315-316. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Ibid. Universities can, however, consider race or ethnicity more flexibly as a "plus" factor in the context of individualized consideration of each and every applicant. Ibid.
335 *335 We are satisfied that the Law School's admissions program, like the Harvard plan described by Justice Powell, does not operate as a quota. Properly understood, a "quota" is a program in which a certain fixed number or proportion of opportunities are "reserved exclusively for certain minority groups." Richmond v. J. A. Croson Co., supra, at 496 (plurality opinion). Quotas "`impose a fixed number or percentage which must be attained, or which cannot be exceeded,'" Sheet Metal Workers v. EEOC, 478 U. S. 421, 495 (1986) (O'CONNOR, J., concurring in part and dissenting in part), and "insulate the individual from comparison with all other candidates for the available seats," Bakke, supra, at 317 (opinion of Powell, J.). In contrast, "a permissible goal.. . require[s] only a good-faith effort . . . to come within a range demarcated by the goal itself," Sheet Metal Workers v. EEOC, supra, at 495, and permits consideration of race as a "plus" factor in any given case while still ensuring that each candidate "compete[s] with all other qualified applicants," Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 638 (1987).
Justice Powell's distinction between the medical school's rigid 16-seat quota and Harvard's flexible use of race as a "plus" factor is instructive. Harvard certainly had minimum goals for minority enrollment, even if it had no specific number firmly in mind. See Bakke, supra, at 323 (opinion of Powell, J.) ("10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States"). What is more, Justice Powell flatly rejected the argument that Harvard's program was "the functional equivalent of a quota" merely because it had some "`plus' " for race, or gave greater "weight" to race than to some other factors, in order to achieve student body diversity. 438 U. S., at 317-318.
336 The Law School's goal of attaining a critical mass of under-represented minority students does not transform its program *336 into a quota. As the Harvard plan described by Justice Powell recognized, there is of course "some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted." Id., at 323. "[S]ome attention to numbers," without more, does not transform a flexible admissions system into a rigid quota. Ibid. Nor, as JUSTICE KENNEDY posits, does the Law School's consultation of the "daily reports," which keep track of the racial and ethnic composition of the class (as well as of residency and gender), "sugges[t] there was no further attempt at individual review save for race itself" during the final stages of the admissions process. See post, at 392 (dissenting opinion). To the contrary, the Law School's admissions officers testified without contradiction that they never gave race any more or less weight based on the information contained in these reports. Brief for Respondent Bollinger et al. 43, n. 70 (citing App. in Nos. 01-1447 and 01-1516 (CA6), p. 7336). Moreover, as Justice Kennedy concedes, see post, at 390, between 1993 and 1998, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota.
THE CHIEF JUSTICE believes that the Law School's policy conceals an attempt to achieve racial balancing, and cites admissions data to contend that the Law School discriminates among different groups within the critical mass. Post, at 380-386 (dissenting opinion). But, as THE CHIEF JUSTICE concedes, the number of underrepresented minority students who ultimately enroll in the Law School differs substantially from their representation in the applicant pool and varies considerably for each group from year to year. See post, at 385 (dissenting opinion).
That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using 337 race as a "plus" *337 factor in university admissions, a university's admissions program must remain flexible enough to ensure that each applicant is evaluated
as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. See Bakke, 438 U. S., at 318, n. 52 (opinion of Powell, J.) (identifying the "denial... of th[e] right to individualized consideration" as the "principal evil" of the medical school's admissions program).
Here, the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single "soft" variable. Unlike the program at issue in Gratz v. Bollinger, ante, p. 244, the Law School awards no mechanical, predetermined diversity "bonuses" based on race or ethnicity. See ante, at 271-272 (distinguishing a race-conscious admissions program that automatically awards 20 points based on race from the Harvard plan, which considered race but "did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity"). Like the Harvard plan, the Law School's admissions policy "is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Bakke, supra, at 317 (opinion of Powell, J.).
We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School's race-conscious admissions program adequately ensures that all 338 factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect *338 to the use of race
itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences. See App. 120.
The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear "[t]here are many possible bases for diversity admissions," and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields. Id., at 118-119. The Law School seriously considers each "applicant's promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic—e. g., an unusual intellectual achievement,

employment experience, nonacademic performance, or personal background." Id., at 83-84. All applicants have the opportunity to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.
What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. See Brief for Respondent Bollinger et al. 10; App. 121-122. This shows that the Law School seriously weighs many other diversity factors besides race that can make a real and 339 dispositive difference for nonminority applicants as well. By this *339 flexible approach, the Law School sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body. JUSTICE KENNEDY speculates that "race is likely outcome determinative for many members of minority groups" who do not fall within the upper range of LSAT scores and grades. Post, at 389 (dissenting opinion). But the same could be said of the Harvard plan discussed approvingly by Justice Powell in Bakke, and indeed of any plan that uses race as one of many factors. See 438 U. S., at 316 ("`When the Committee on Admissions reviews the large middle group of applicants who are "admissible" and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor'").
Petitioner and the United States argue that the Law School's plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6 (1986) (alternatives must serve the interest "`about as well'"); Richmond v. J. A. Croson Co., 488 U. S., at 509-510 (plurality opinion) (city had a "whole array of race-neutral" alternatives because changing requirements "would have [had] little detrimental effect on the city's interests"). Narrow tailoring does, however, require serious, good faith consideration of workable raceneutral alternatives that will achieve the diversity the university seeks. See id., at 507 (set-aside plan not narrowly tailored where "there does not appear to 340 have been any consideration of the use of race-neutral means"); Wygant v. Jackson Bd. of Ed., supra, at 280, n. 6 (narrow tailoring *340 "require[s] consideration" of "lawful alternative and less restrictive means").
We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral alternatives. The District Court took the Law School to task for failing to consider race-neutral alternatives such as "using a lottery system" or "decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores." App. to Pet. for Cert. 251a. But these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.
The Law School's current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention every other kind of diversity. So too with the suggestion that the Law School simply lower admissions standards for all students, a drastic remedy that would require the Law School to become a much different institution and sacrifice a vital component of its educational mission. The United States advocates "percentage plans," recently adopted by public undergraduate institutions in Texas, Florida, and California, to guarantee admission to all students above a certain class-rank threshold in every high school in the State. Brief for United States as Amicus Curiae 14-18. The United States does not, however, explain how such plans could work for graduate and professional schools. Moreover, even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university. We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.
341 *341 We acknowledge that "there are serious problems of justice connected with the idea of preference itself." Bakke, 438 U. S., at 298 (opinion of Powell, J.). Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally "remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit." Id., at 308. To be narrowly tailored, a race-conscious admissions program must not "unduly burden individuals who are not members of the favored racial and ethnic groups." Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 630 (1990) (O'CONNOR, J., dissenting).
We are satisfied that the Law School's admissions program does not. Because the Law School considers "all pertinent elements of diversity," it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. See Bakke, supra, at 317 (opinion of Powell, J.). As Justice Powell recognized in Bakke, so long as a race-conscious admissions program uses race as a "plus" factor in the context of individualized consideration, a rejected applicant
"will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname.... His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment." 438 U. S., at 318.
We agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants.
We are mindful, however, that "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." 342 Palmore v. Sidoti, *342 466 U. S. 429, 432 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial
classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt raceconscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all "race-conscious programs must have reasonable durational limits." Brief for Respondent Bollinger et al. 32.

In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring) ("[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear").
The requirement that all race-conscious admissions programs have a termination point "assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." Richmond v. J. A. Croson Co., 488 U. S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 343 *343 58 Chicago Bar Rec. 282, 293 (May-June 1977) ("It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all").
We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondent Bollinger et al. 34; Bakke, supra, at 317-318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
IV
In summary, the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner's statutory claims based on Title VI and 42 U. S. C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) ("Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment"); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389-391 (1982) (the prohibition against 344 discrimination in § 1981 is co-extensive with the Equal Protection Clause). The judgment *344 of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.
It is so ordered.
JUSTICE GINSBURG, with whom JUSTICE BREYER joins, concurring.
The Court's observation that race-conscious programs "must have a logical end point," ante, at 342, accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, see State Dept., Treaties in Force 422-423 (June 1996), endorses "special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms." Annex to G. A. Res. 2106, 20 U. N. GAOR, 20th Sess., Res. Supp. (No. 14), p. 47, U. N. Doc. A/6014, Art. 2(2) (1965). But such measures, the Convention instructs, "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." Ibid.; see also Art. 1(4) (similarly providing for temporally limited affirmative action); Convention on the Elimination of All Forms of Discrimination against Women, Annex to G. A. Res. 34/180, 34 U. N. GAOR, 34th Sess., Res. Supp. (No. 46), p. 194, U. N. Doc. A/34/46, Art. 4(1) (1979) (authorizing "temporary special measures aimed at accelerating de facto equality" that "shall be discontinued when the objectives of equality of opportunity and treatment have been achieved").
The Court further observes that "[i]t has been 25 years since Justice Powell [in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978)] first approved the use 345 of race to further an interest in student body diversity in the context of public higher education." Ante, at 343. For at least part of that *345 time, however, the
law could not fairly be described as "settled," and in some regions of the Nation, overtly race-conscious admissions policies have been proscribed. See Hopwood v. Texas, 78 F. 3d 932 (CA5 1996); cf. Wessmann v. Gittens, 160 F. 3d 790 (CA1 1998); Tuttle v. Arlington Cty. School Bd., 195 F. 3d 698 (CA4 1999); Johnson v. Board of Regents of Univ. of Ga., 263 F. 3d 1234 (CA11 2001). Moreover, it was only 25 years before Bakke that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery. See Brown v. Board of Education, 347 U. S. 483 (1954); cf. Cooper v. Aaron, 358 U. S. 1 (1958).
It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals. See, e. g., Gratz v. Bollinger, ante, at 298-301 (GINSBURG, J., dissenting); Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 272274 (1995) (GINSBURG, J., dissenting); Krieger, Civil Rights Perestroika: Intergroup Relations after Affirmative Action, 86 Calif. L. Rev. 1251, 1276-1291, 1303 (1998). As to public education, data for the years 2000-2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. See E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? p. 4 (Jan. 2003), http://www.civilrightsproject.harvard.edu/research/ reseg03/AreWeLosingtheDream.pdf (as visited June 16, 2003, and available in Clerk of Court's case file). And schools in predominantly minority communities lag far behind others measured by the educational resources available to them. See id., at 11; Brief for National Urban League et al. as Amici Curiae 11-12 (citing General Accounting Office, Per-Pupil Spending Differences Between Selected Inner City and Suburban Schools Varied by Metropolitan Area 17 (2002)).
346 *346 However strong the public's desire for improved education systems may be, see P. Hart & R. Teeter, A National Priority: Americans Speak on Teacher

Quality 2, 11 (2002) (public opinion research conducted for Educational Testing Service); No Child Left Behind Act of 2001, Pub. L. 107-110, 115 Stat. 1806, 20 U. S. C. § 7231 (2000 ed., Supp. I), it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country's finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.[*]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and dissenting in part.

347 I join the opinion of THE CHIEF JUSTICE. As he demonstrates, the University of Michigan Law School's mystical *347 "critical mass" justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.

I also join Parts I through VII of JUSTICE THOMAS's opinion.[*] I find particularly unanswerable his central point: that the allegedly "compelling state interest" at issue here is not the incremental "educational benefit" that emanates from the fabled "critical mass" of minority students, but rather Michigan's interest in maintaining a "prestige" law school whose normal admissions standards disproportionately exclude blacks and other minorities. If that is a compelling state interest, everything is.

I add the following: The "educational benefit" that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of "`cross-racial understanding,'" ante, at 330, and "`better prepar[ation of] students for an increasingly diverse workforce and society,'" ibid., all of which is necessary not only for work, but also for good "citizenship," ante, at 331. This is not, of course, an "educational benefit" on which students will be graded on their law school transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and 20 years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an "educational benefit" at all, it is surely not one that is either uniquely relevant to law 348 school or uniquely "teachable" in a formal educational setting. And therefore: If it is appropriate for the University *348 of Michigan Law School to use racial discrimination for the purpose of putting together a "critical mass" that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate—indeed, particularly appropriate —for the civil service system of the State of Michigan to do so. There, also, those exposed to "critical masses" of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized—indeed, should be praised— if they also "teach" good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.

Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant "as an individual," ante, at 337, and sufficiently avoids "separate admissions tracks," ante, at 334, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a "`good-faith effort'" and has so zealously pursued its "critical mass" as to make it an unconstitutional de facto quota system, rather than merely "`a permissible goal.'" Ante, at 335 (quoting Sheet Metal Workers v. EEOC, 478 U. S. 421, 495 (1986) (O'CONNOR, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords "a degree of deference to a university's academic decisions," ante, at 328, 349 "deference does not imply *349 abandonment or abdication of judicial review," Miller-El v. Cockrell, 537 U. S. 322, 340 (2003).) Still other suits may challenge the bona fides of the institution's expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses—through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution's racial preferences have gone below or above the mystical Grutter-approved "critical mass." Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution's composition of its generic minority "critical mass." I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Parts I-VII, concurring in part and dissenting in part.

Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today's majority:

"[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro

is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with

us. . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do

350

nothing with us! If the apples will not remain on the tree of *350 their own strength, if they are worm-eaten at the core, if they are early ripe and

disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his

own legs! Let him alone! . . . [Y]our interference is doing him positive injury." What the Black Man Wants: An Address Delivered in Boston,

Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991)

(emphasis in original).

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such

devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of "strict scrutiny."
No one would argue that a university could set up a lower general admissions standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admissions standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.
The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the 351 cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only *351 one racial
classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. See ante, at 343 (stating that racial discrimination will no longer be narrowly tailored, or "necessary to further" a compelling state interest, in 25 years). I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months.
I
The majority agrees that the Law School's racial discrimination should be subjected to strict scrutiny. Ante, at 326. Before applying that standard to this case, I will briefly revisit the Court's treatment of racial classifications.
The strict scrutiny standard that the Court purports to apply in this case was first enunciated in Korematsu v. United States, 323 U. S. 214 (1944). There the Court held that "[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can." Id., at 216. This standard of "pressing public necessity" has more frequently been termed "compelling governmental interest,"[1] see, e. g., Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 299 (1978) (opinion of Powell, J.). A majority of the Court has validated only two circumstances where "pressing public necessity" or a "compelling state interest" can possibly justify racial discrimination by state actors. First, the lesson of Korematsu is that national security constitutes a "pressing public necessity," though the government's use of race to advance that objective must be narrowly tailored. Second, the Court has recognized as a 352 compelling state interest a government's effort to remedy *352 past discrimination for which it is responsible. Richmond v. J. A. Croson Co., 488 U. S. 469, 504 (1989).
The contours of "pressing public necessity" can be further discerned from those interests the Court has rejected as bases for racial discrimination. For example, Wygant v. Jackson Bd. of Ed., 476 U. S. 267 (1986), found unconstitutional a collective-bargaining agreement between a school board and a teachers' union that favored certain minority races. The school board defended the policy on the grounds that minority teachers provided "role models" for minority students and that a racially "diverse" faculty would improve the education of all students. See Brief for Respondents, O. T. 1984, No. 84-1340, pp. 2728; 476 U. S., at 315 (STEVENS, J., dissenting) ("[A]n integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty"). Nevertheless, the Court found that the use of race violated the Equal Protection Clause, deeming both asserted state interests insufficiently compelling. Id., at 275-276 (plurality opinion); id., at 295 (White, J., concurring in judgment) ("None of the interests asserted by the [school board] . . . justify this racially discriminatory layoff policy").[2]
An even greater governmental interest involves the sensitive role of courts in child custody determinations. In Palmore v. Sidoti, 466 U. S. 429 (1984), the Court held that even the best interests of a child did not constitute a compelling state interest that would allow a state court to award custody to the father 353 because the mother was in a mixed-race marriage. Id., at 433 (finding the interest "substantial" but *353 holding the custody decision could not be based on the race of the mother's new husband).
Finally, the Court has rejected an interest in remedying general societal discrimination as a justification for race discrimination. See Wygant, supra, at 276 (plurality opinion); Croson, 488 U. S., at 496-498 (plurality opinion); id., at 520-521 (SCALIA, J., concurring in judgment). "Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy" because a "court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future." Wygant, supra, at 276 (plurality opinion). But see Gratz v. Bollinger, ante, p. 298 (GINSBURG, J., dissenting).
Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a "pressing public necessity." Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra, at 521 (SCALIA, J., concurring in judgment) ("At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb . . . can justify [racial discrimination]").
The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. "Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that such classifications ultimately 354 have a destructive impact on the individual and our society." *354 Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 240 (1995) (THOMAS, J., concurring in part and concurring in judgment).
II
Unlike the majority, I seek to define with precision the interest being asserted by the Law School before determining whether that interest is so compelling as to

justify racial discrimination. The Law School maintains that it wishes to obtain "educational benefits that flow from student body diversity," Brief for Respondent Bollinger et al. 14. This statement must be evaluated carefully, because it implies that both "diversity" and "educational benefits" are components of the Law School's compelling state interest. Additionally, the Law School's refusal to entertain certain changes in its admissions process and status indicates that the compelling state interest it seeks to validate is actually broader than might appear at first glance.
Undoubtedly there are other ways to "better" the education of law students aside from ensuring that the student body contains a "critical mass" of 355 underrepresented minority students. Attaining "diversity," whatever it means,[3] is the *355 mechanism by which the Law School obtains educational benefits,
not an end of itself. The Law School, however, apparently believes that only a racially mixed student body can lead to the educational benefits it seeks. How, then, is the Law School's interest in these allegedly unique educational "benefits" not simply the forbidden interest in "racial balancing," ante, at 330, that the majority expressly rejects?
A distinction between these two ideas (unique educational benefits based on racial aesthetics and race for its own sake) is purely sophistic—so much so that the majority uses them interchangeably. Compare ante, at 328 ("[T]he Law School has a compelling interest in attaining a diverse student body"), with ante, at 333 (referring to the "compelling interest in securing the educational benefits of a diverse student body" (emphasis added)). The Law School's argument, as facile as it is, can only be understood in one way: Classroom aesthetics yields educational benefits, racially discriminatory admissions policies are required to achieve the right racial mix, and therefore the policies are required to achieve the educational benefits. It is the educational benefits that are the end, or allegedly compelling state interest, not "diversity." But see ante, at 332 (citing the need for "openness and integrity of the educational institutions that provide [legal] training" without reference to any consequential educational benefits).
One must also consider the Law School's refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce "academic selectivity," which would in turn "require the Law School to become a very different institution, and to sacrifice a core part of its educational mission." Brief for Respondent Bollinger et al. 33-36. In other words, the Law School 356 seeks to improve marginally the education it offers *356 without sacrificing too much of its exclusivity and elite status.[4]
The proffered interest that the majority vindicates today, then, is not simply "diversity." Instead the Court upholds the use of racial discrimination as a tool to advance the Law School's interest in offering a marginally superior education while maintaining an elite institution. Unless each constituent part of this state interest is of pressing public necessity, the Law School's use of race is unconstitutional. I find each of them to fall far short of this standard.
III
A
A close reading of the Court's opinion reveals that all of its legal work is done through one conclusory statement: The Law School has a "compelling interest in securing the educational benefits of a diverse student body." Ante, at 333. No serious effort is made to explain how these benefits fit with the state interests the Court has recognized (or rejected) as compelling, see Part I, supra, or to place any theoretical constraints on an enterprising court's desire to discover still more justifications for racial discrimination. In the absence of any explanation, one might expect the Court to fall back on the judicial policy of stare decisis. But the Court eschews even this weak defense of its holding, shunning an analysis of the extent to which Justice Powell's opinion in Regents of Univ. of Cal. v. 357 Bakke, 438 U. S. 265 (1978), *357 is binding, ante, at 325, in favor of an unfounded wholesale adoption of it.
Justice Powell's opinion in Bakke and the Court's decision today rest on the fundamentally flawed proposition that racial discrimination can be contextualized so that a goal, such as classroom aesthetics, can be compelling in one context but not in another. This "we know it when we see it" approach to evaluating state interests is not capable of judicial application. Today, the Court insists on radically expanding the range of permissible uses of race to something as trivial (by comparison) as the assembling of a law school class. I can only presume that the majority's failure to justify its decision by reference to any principle arises from the absence of any such principle. See Part VI, infra.
B
Under the proper standard, there is no pressing public necessity in maintaining a public law school at all and, it follows, certainly not an elite law school. Likewise, marginal improvements in legal education do not qualify as a compelling state interest.
1
While legal education at a public university may be good policy or otherwise laudable, it is obviously not a pressing public necessity when the correct legal standard is applied. Additionally, circumstantial evidence as to whether a state activity is of pressing public necessity can be obtained by asking whether all States feel compelled to engage in that activity. Evidence that States, in general, engage in a certain activity by no means demonstrates that the activity constitutes a pressing public necessity, given the expansive role of government in today's society. The fact that some fraction of the States reject a particular enterprise, however, creates a presumption that the enterprise itself is not a compelling state interest. In this sense, the absence of a public, American Bar 358 Association (ABA) accredited, law school in *358 Alaska, Delaware, Massachusetts, New Hampshire, and Rhode Island, see ABA-LSAC Official Guide to ABA-Approved Law Schools (W. Margolis, B. Gordon, J. Puskarz, & D. Rosenlieb eds. 2004) (hereinafter ABA-LSAC Guide), provides further evidence that Michigan's maintenance of the Law School does not constitute a compelling state interest.

2
As the foregoing makes clear, Michigan has no compelling interest in having a law school at all, much less an elite one. Still, even assuming that a State may, under appropriate circumstances, demonstrate a cognizable interest in having an elite law school, Michigan has failed to do so here.
This Court has limited the scope of equal protection review to interests and activities that occur within that State's jurisdiction. The Court held in Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938), that Missouri could not satisfy the demands of "separate but equal" by paying for legal training of blacks at neighboring state law schools, while maintaining a segregated law school within the State. The equal protection
"obligation is imposed by the Constitution upon the States severally as governmental entities,—each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system." Id., at 350 (emphasis added).
The Equal Protection Clause, as interpreted by the Court in Gaines, does not permit States to justify racial discrimination on the basis of what the rest of the 359 Nation "may do or fail to do." The only interests that can satisfy the Equal *359 Protection Clause's demands are those found within a State's jurisdiction.
The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State's citizens and the training of that State's lawyers. James Campbell's address at the opening of the Law Department at the University of Michigan on October 3, 1859, makes this clear:
"It not only concerns the State that every one should have all reasonable facilities for preparing himself for any honest position in life to which he may aspire, but it also concerns the community that the Law should be taught and understood. . . . There is not an office in the State in which serious legal inquiries may not frequently arise. . . . In all these matters, public and private rights are constantly involved and discussed, and ignorance of the Law has frequently led to results deplorable and alarming. . . . [I]n the history of this State, in more than one instance, that ignorance has led to unlawful violence, and the shedding of innocent blood." E. Brown, Legal Education at Michigan 1859-1959, pp. 404-406 (1959) (emphasis added).
The Law School today, however, does precious little training of those attorneys who will serve the citizens of Michigan. In 2002, graduates of the Law School made up less than 6% of applicants to the Michigan bar, Michigan Lawyers Weekly, available at http://www.michiganlawyersweekly.com/ barpassers0202.cfm,barpassers0702 .cfm (all Internet materials as visited June 13, 2003, and available in Clerk of Court's case file), even though the Law School's graduates constitute nearly 30% of all law students graduating in Michigan. Ibid. Less than 16% of the Law School's graduating class elects to stay in 360 Michigan after law school. ABA-LSAC Guide 427. Thus, while a mere 27% of the Law School's 2002 entering class is from Michigan, see University of *360 Michigan Law School Website, available at http://www.law. umich.edu/prospectivestudents/Admissions/index.htm, only half of these, it appears, will stay in Michigan.
In sum, the Law School trains few Michigan residents and overwhelmingly serves students, who, as lawyers, leave the State of Michigan. By contrast, Michigan's other public law school, Wayne State University Law School, sends 88% of its graduates on to serve the people of Michigan. ABA-LSAC Guide 775. It does not take a social scientist to conclude that it is precisely the Law School's status as an elite institution that causes it to be a waystation for the rest of the country's lawyers, rather than a training ground for those who will remain in Michigan. The Law School's decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan.
Again, the fact that few States choose to maintain elite law schools raises a strong inference that there is nothing compelling about elite status. Arguably, only the public law schools of the University of Texas, the University of California, Berkeley (Boalt Hall), and the University of Virginia maintain the same reputation for excellence as the Law School.[5] Two of these States, Texas and California, are so large that they could reasonably be expected to provide elite legal training at a separate law school to students who will, in fact, stay in the State and provide legal services to its citizens. And these two schools far outshine the Law School in producing in-state lawyers. The University of Texas, for example, sends over three-fourths of its graduates on to work in the State of Texas, vindicating the State's interest (compelling or not) in training Texas' lawyers. Id., at 691.
361 *361 3
Finally, even if the Law School's racial tinkering produces tangible educational benefits, a marginal improvement in legal education cannot justify racial discrimination where the Law School has no compelling interest either in its existence or in its current educational and admissions policies.
IV
The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions "standards" that, in turn, create the Law School's "need" to discriminate on the basis of race. The Court validates these admissions standards by concluding that alternatives that would require "a dramatic sacrifice of . . . the academic quality of all admitted students," ante, at 340, need not be considered before racial discrimination can be employed.[6] In the majority's view, such methods are not required by the "narrow tailoring" prong of strict scrutiny because that inquiry demands, in this context, that any raceneutral alternative work "`about as well.'" Ante, at 339 (quoting Wygant, 476 U. S., at 280, n. 6). The majority errs, however, because race-neutral alternatives must only be "workable," ante, at 339, and do "about as well" in vindicating the compelling state interest. The Court never explicitly holds that the Law School's desire to retain the status quo in "academic selectivity" is itself a compelling state interest, and, as I have demonstrated, it is not. See Part III-B, supra. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system—it cannot have it both ways.

362 With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications, *362 see Brief for United States as Amicus Curiae 13-14, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination. The Law School concedes this, but the Court holds, implicitly and under the guise of narrow tailoring, that the Law School has a compelling state interest in doing what it wants to do. I cannot agree. First, under strict scrutiny, the Law School's assessment of the benefits of racial discrimination and devotion to the admissions status quo are not entitled to any sort of deference, grounded in the First Amendment or anywhere else. Second, even if its "academic selectivity" must be maintained at all costs along with racial discrimination, the Court ignores the fact that other top law schools have succeeded in meeting their aesthetic demands without racial discrimination.
A
The Court bases its unprecedented deference to the Law School—a deference antithetical to strict scrutiny—on an idea of "educational autonomy" grounded in the First Amendment. Ante, at 329. In my view, there is no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause.
The constitutionalization of "academic freedom" began with the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire, 354 U. S. 234 (1957). Sweezy, a Marxist economist, was investigated by the Attorney General of New Hampshire on suspicion of being a subversive. The prosecution sought, inter alia, the contents of a lecture Sweezy had given at the University of New Hampshire. The Court held that the investigation violated due process. Id., at 254.
Justice Frankfurter went further, however, reasoning that the First Amendment created a right of academic freedom that prohibited the investigation. Id., at 256-267 (opinion concurring in result). Much of the rhetoric in Justice Frankfurter's opinion was devoted to the personal right of Sweezy to free speech. See, e. 363 g., id., at 265 ("For a citizen to be *363 made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling"). Still, claiming that the United States Reports "need not be burdened with proof," Justice Frankfurter also asserted that a "free society" depends on "free universities" and "[t]his means the exclusion of governmental intervention in the intellectual life of a university." Id., at 262. According to Justice Frankfurter: "It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail `the four essential freedoms' of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Id., at 263 (citation omitted).
In my view, "[i]t is the business" of this Court to explain itself when it cites provisions of the Constitution to invent new doctrines—including the idea that the First Amendment authorizes a public university to do what would otherwise violate the Equal Protection Clause. The majority fails in its summary effort to prove this point. The only source for the Court's conclusion that public universities are entitled to deference even within the confines of strict scrutiny is Justice Powell's opinion in Bakke. Justice Powell, for his part, relied only on Justice Frankfurter's opinion in Sweezy and the Court's decision in Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967), to support his view that the First Amendment somehow protected a public university's use of race in admissions. Bakke, 438 U. S., at 312. Keyishian provides no answer to the question whether the Fourteenth Amendment's restrictions are relaxed when applied to public universities. In that case, the Court held that state statutes and regulations designed to prevent the "appointment or retention of `subversive' persons in state employment," 385 U. S., at 592, violated the First Amendment for vagueness. The statutes covered all public employees and were not 364 invalidated only as applied to university *364 faculty members, although the Court appeared sympathetic to the notion of academic freedom, calling it a "special concern of the First Amendment." Id., at 603. Again, however, the Court did not relax any independent constitutional restrictions on public universities.
I doubt that when Justice Frankfurter spoke of governmental intrusions into the independence of universities, he was thinking of the Constitution's ban on racial discrimination. The majority's broad deference to both the Law School's judgment that racial aesthetics leads to educational benefits and its stubborn refusal to alter the status quo in admissions methods finds no basis in the Constitution or decisions of this Court.
B
1
The Court's deference to the Law School's conclusion that its racial experimentation leads to educational benefits will, if adhered to, have serious collateral consequences. The Court relies heavily on social science evidence to justify its deference. See ante, at 330-332; but see also Rothman, Lipset, & Nevitte, Racial Diversity Reconsidered, 151 Public Interest 25 (2003) (finding that the racial mix of a student body produced by racial discrimination of the type practiced by the Law School in fact hinders students' perception of academic quality). The Court never acknowledges, however, the growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students. See, e. g., Flowers & Pascarella, Cognitive Effects of College Racial Composition on African American Students After 3 Years of College, 40 J. of College Student Development 669, 674 (1999) (concluding that black students experience superior cognitive development at Historically Black Colleges (HBCs) and that, even among blacks, "a substantial diversity moderates the cognitive 365 effects of attending an HBC"); Allen, The Color of Success: African-American College Student *365 Outcomes at Predominantly White and Historically Black Public Colleges and Universities, 62 Harv. Educ. Rev. 26, 35 (1992) (finding that black students attending HBCs report higher academic achievement than those attending predominantly white colleges).
At oral argument in Gratz v. Bollinger, ante, p. 244, counsel for respondents stated that "most every single one of [the HBCs] do have diverse student bodies." Tr. of Oral Arg. in No. 02-516, p. 52. What precisely counsel meant by "diverse" is indeterminate, but it is reported that in 2000 at Morehouse College, one of the most distinguished HBCs in the Nation, only 0.1% of the student body was white, and only 0.2% was Hispanic. College Admissions Data Handbook 20022003, p. 613 (43d ed. 2002) (hereinafter College Admissions Data Handbook). And at Mississippi Valley State University, a public HBC, only 1.1% of the freshman class in 2001 was white. Id., at 603. If there is a "critical mass" of whites at these institutions, then "critical mass" is indeed a very small proportion.

The majority grants deference to the Law School's "assessment that diversity will, in fact, yield educational benefits," ante, at 328. It follows, therefore, that an HBC's assessment that racial homogeneity will yield educational benefits would similarly be given deference.[7] An HBC's rejection of white applicants in order to maintain racial homogeneity seems permissible, therefore, under the majority's view of the Equal Protection Clause. But see United States v. Fordice, 505 U. S. 717, 748 (1992) (THOMAS, J., concurring) ("Obviously, a State cannot maintain . . . traditions by closing particular institutions, historically white or 366 historically black, to particular racial groups"). Contained within today's majority opinion is the seed of a new constitutional *366 justification for a concept I thought long and rightly rejected—racial segregation.
2
Moreover one would think, in light of the Court's decision in United States v. Virginia, 518 U. S. 515 (1996), that before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character. In Virginia, a majority of the Court, without a word about academic freedom, accepted the all-male Virginia Military Institute's (VMI) representation that some changes in its "adversative" method of education would be required with the admission of women, id., at 540, but did not defer to VMI's judgment that these changes would be too great. Instead, the Court concluded that they were "manageable." Id., at 551, n. 19. That case involved sex discrimination, which is subjected to intermediate, not strict, scrutiny. Id., at 533; Craig v. Boren, 429 U. S. 190, 197 (1976). So in Virginia, where the standard of review dictated that greater flexibility be granted to VMI's educational policies than the Law School deserves here, this Court gave no deference. Apparently where the status quo being defended is that of the elite establishment—here the Law School—rather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard.
C
Virginia is also notable for the fact that the Court relied on the "experience" of formerly single-sex institutions, such as the service academies, to conclude that admission of women to VMI would be "manageable." 518 U. S., at 544-545. Today, however, the majority ignores the "experience" of those institutions that have been forced to abandon explicit racial discrimination in admissions.
367 *367 The sky has not fallen at Boalt Hall at the University of California, Berkeley, for example. Prior to Proposition 209's adoption of Cal. Const., Art. 1, § 31(a), which bars the State from "grant[ing] preferential treatment . . . on the basis of race . . . in the operation of . . . public education,"[8] Boalt Hall enrolled 20 blacks and 28 Hispanics in its first-year class for 1996. In 2002, without deploying express racial discrimination in admissions, Boalt's entering class enrolled 14 blacks and 36 Hispanics.[9] University of California Law and Medical School Enrollments, available at http://www.ucop.edu/ acadadv/datamgmt/lawmed/lawenrolls-eth2.html. Total underrepresented minority student enrollment at Boalt Hall now exceeds 1996 levels. Apparently the Law School cannot be counted on to be as resourceful. The Court is willfully blind to the very real experience in California and elsewhere, which raises the inference that institutions with "reputation[s] for excellence," ante, at 339, rivaling the Law School's have satisfied their sense of mission without resorting to prohibited racial discrimination.
V
Putting aside the absence of any legal support for the majority's reflexive deference, there is much to be said for the view that the use of tests and other measures to "predict" academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law. 368 The rallying cry that in the absence of racial discrimination in admissions there would be a true *368 meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to "merit." For example, in the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called "legacy" preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a "true" meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation's universities. The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot.[10] I will not twist the Constitution to invalidate legacy preferences or otherwise impose my vision of higher education admissions on the Nation. The majority should similarly stay its impulse to validate faddish racial discrimination the Constitution clearly forbids.
In any event, there is nothing ancient, honorable, or constitutionally protected about "selective" admissions. The University of Michigan should be well aware that alternative methods have historically been used for the admission of students, for it brought to this country the German certificate system in the late-19th century. See H. Wechsler, The Qualified Student 16-39 (1977) (hereinafter Qualified Student). Under this system, a secondary school was certified by a university so that any graduate who completed the course offered by the school was offered admission to the university. The certification regime 369 supplemented, and later virtually replaced (at least in the Midwest), the prior regime of rigorous *369 subject-matter entrance examinations. Id., at 57-58. The facially race-neutral "percent plans" now used in Texas, California, and Florida, see ante, at 340, are in many ways the descendents of the certificate system.
Certification was replaced by selective admissions in the beginning of the 20th century, as universities sought to exercise more control over the composition of their student bodies. Since its inception, selective admissions has been the vehicle for racial, ethnic, and religious tinkering and experimentation by university administrators. The initial driving force for the relocation of the selective function from the high school to the universities was the same desire to select racial winners and losers that the Law School exhibits today. Columbia, Harvard, and others infamously determined that they had "too many" Jews, just as today the Law School argues it would have "too many" whites if it could not discriminate in its admissions process. See Qualified Student 155-168 (Columbia); H. Broun & G. Britt, Christians Only: A Study in Prejudice 53-54 (1931) (Harvard).
Columbia employed intelligence tests precisely because Jewish applicants, who were predominantly immigrants, scored worse on such tests. Thus, Columbia

could claim (falsely) that "`[w]e have not eliminated boys because they were Jews and do not propose to do so. We have honestly attempted to eliminate the lowest grade of applicant [through the use of intelligence testing] and it turns out that a good many of the low grade men are New York City Jews.'" Letter from Herbert E. Hawkes, dean of Columbia College, to E. B. Wilson, June 16, 1922 (reprinted in Qualified Student 160-161). In other words, the tests were adopted with full knowledge of their disparate impact. Cf. DeFunis v. Odegaard, 416 U. S. 312, 335 (1974) (per curiam) (Douglas, J., dissenting).
Similarly no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admission Test (LSAT). 370 Nevertheless, law schools *370 continue to use the test and then attempt to "correct" for black underperformance by using racial discrimination in admissions
so as to obtain their aesthetic student body. The Law School's continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court. See Part IV, supra. The Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test. See App. 156-203 (showing that, between 1995 and 2000, the Law School admitted 37 students—27 of whom were black; 31 of whom were "underrepresented minorities"—with LSAT scores of 150 or lower). And the Law School's amici cannot seem to agree on the fundamental question whether the test itself is useful. Compare Brief for Law School Admission Council as Amicus Curiae 12 ("LSAT scores . . . are an effective predictor of students' performance in law school") with Brief for Harvard Black Law Students Association et al. as Amici Curiae 27 ("Whether [the LSAT] measure[s] objective merit . . . is certainly questionable").
Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination. An infinite variety of admissions methods are available to the Law School. Considering all of the radical thinking that has historically occurred at this country's universities, the Law School's intractable approach toward admissions is striking.
The Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution. And 371 the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes *371 rather than
principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination.
VI
The absence of any articulated legal principle supporting the majority's principal holding suggests another rationale. I believe what lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, see Adarand, 515 U. S., at 239 (SCALIA, J., concurring in part and concurring in judgment), and that racial discrimination is necessary to remedy general societal ills. This Court's precedents supposedly settled both issues, but clearly the majority still cannot commit to the principle that racial classifications are per se harmful and that almost no amount of benefit in the eye of the beholder can justify such classifications.
Putting aside what I take to be the Court's implicit rejection of Adarand's holding that beneficial and burdensome racial classifications are equally invalid, I must contest the notion that the Law School's discrimination benefits those admitted as a result of it. The Court spends considerable time discussing the impressive display of amicus support for the Law School in this case from all corners of society. Ante, at 330-331. But nowhere in any of the filings in this Court is any evidence that the purported "beneficiaries" of this racial discrimination prove themselves by performing at (or even near) the same level as those students who receive no preferences. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev. 1583, 1605-1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its "beneficiaries" are underperforming in the classroom).
The silence in this case is deafening to those of us who view higher education's purpose as imparting knowledge and skills to students, rather than a 372 communal, rubber-stamp, *372 credentialing process. The Law School is not looking for those students who, despite a lower LSAT score or undergraduate
grade point average, will succeed in the study of law. The Law School seeks only a facade—it is sufficient that the class looks right, even if it does not perform right.
The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. See T. Sowell, Race and Culture 176-177 (1994) ("Even if most minority students are able to meet the normal standards at the `average' range of colleges and universities, the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education"). Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue— in selection for the Michigan Law Review, see University of Michigan Law School Student Handbook 2002-2003, pp. 39-40 (noting the presence of a "diversity plan" for admission to the review), and in hiring at law firms and for judicial clerkships—until the "beneficiaries" are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less "elite" law school for which they were better prepared. And the aestheticists will never address the real problems facing "underrepresented minorities," [11] instead continuing their social experiments on other people's children.
373 *373 Beyond the harm the Law School's racial discrimination visits upon its test subjects, no social science has disproved the notion that this discrimination "engender[s] attitudes of superiority or, alternatively, provoke[s] resentment among those who believe that they have been wronged by the government's use of race." Adarand, 515 U. S., at 241 (THOMAS, J., concurring in part and concurring in judgment). "These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are `entitled' to preferences." Ibid.
It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. See Brief for Respondent Bollinger et al. 6. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the "beneficiaries" of racial discrimination. When blacks take positions in the highest places of government, industry, or

academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed "otherwise unqualified," or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by "visibly open"? Ante, at 332.
Finally, the Court's disturbing reference to the importance of the country's law schools as training grounds meant to cultivate "a set of leaders with legitimacy in 374 the eyes of the citizenry," ibid., through the use of racial discrimination deserves discussion. As noted earlier, the Court has soundly *374 rejected the
remedying of societal discrimination as a justification for governmental use of race. Wygant, 476 U. S., at 276 (plurality opinion); Croson, 488 U. S., at 497 (plurality opinion); id., at 520-521 (SCALIA, J., concurring in judgment). For those who believe that every racial disproportionality in our society is caused by some kind of racial discrimination, there can be no distinction between remedying societal discrimination and erasing racial disproportionalities in the country's leadership caste. And if the lack of proportional racial representation among our leaders is not caused by societal discrimination, then "fixing" it is even less of a pressing public necessity.
The Court's civics lesson presents yet another example of judicial selection of a theory of political representation based on skin color—an endeavor I have previously rejected. See Holder v. Hall, 512 U. S. 874, 899 (1994) (THOMAS, J., concurring in judgment). The majority appears to believe that broader utopian goals justify the Law School's use of race, but "[t]he Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized." DeFunis, 416 U. S., at 342 (Douglas, J., dissenting).
VII
As the foregoing makes clear, I believe the Court's opinion to be, in most respects, erroneous. I do, however, find two points on which I agree.
A
First, I note that the issue of unconstitutional racial discrimination among the groups the Law School prefers is not presented in this case, because petitioner has never argued that the Law School engages in such a practice, and the Law School maintains that it does not. See Brief for Respondent Bollinger et al. 32, 375 n. 50, and 6-7, n. 7. I join the Court's opinion insofar as it confirms that this type of racial discrimination remains unlawful. Ante, at 326-327. Under today's *375 decision, it is still the case that racial discrimination that does not help a university to enroll an unspecified number, or "critical mass," of underrepresented minority students is unconstitutional. Thus, the Law School may not discriminate in admissions between similarly situated blacks and Hispanics, or between whites and Asians. This is so because preferring black to Hispanic applicants, for instance, does nothing to further the interest recognized by the majority today.[12] Indeed, the majority describes such racial balancing as "patently unconstitutional." Ante, at 330. Like the Court, ante, at 336, I express no opinion as to whether the Law School's current admissions program runs afoul of this prohibition.
B
The Court also holds that racial discrimination in admissions should be given another 25 years before it is deemed no longer narrowly tailored to the Law School's fabricated compelling state interest. Ante, at 343. While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now. The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white 376 *376 students is shrinking or will be gone in that timeframe.[13] In recent years there has been virtually no change, for example, in the proportion of law school applicants with LSAT scores of 165 and higher who are black.[14] In 1993 blacks constituted 1.1% of law school applicants in that score range, though they represented 11.1% of all applicants. Law School Admission Council, National Statistical Report (1994) (hereinafter LSAC Statistical Report). In 2000 the comparable numbers were 1.0% and 11.3%. LSAC Statistical Report (2001). No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court's holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time.[15]
377 *377 Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant's LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker's behavior is responsive to the Law School's admissions policies.[16] Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance—just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society.
I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School's educational judgments 378 and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to "`eliminat[e] *378 the [perceived] need for
any racial or ethnic'" discrimination because the academic credentials gap will still be there. Ante, at 343 (quoting Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May-June 1977)). The Court defines this time limit in terms of narrow tailoring, see ante, at 343, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court.

* * *
For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to "[d]o nothing with us!" and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court's opinion and the judgment.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, dissenting.
I agree with the Court that, "in the limited circumstance when drawing racial distinctions is permissible," the government must ensure that its means are narrowly tailored to achieve a compelling state interest. Ante, at 333; see also Fullilove v. Klutznick, 448 U. S. 448, 498 (1980) (Powell, J., concurring) ("[E]ven if the government proffers a compelling interest to support reliance upon a suspect classification, the means selected must be narrowly drawn to fulfill the 379 governmental *379 purpose"). I do not believe, however, that the University of Michigan Law School's (Law School) means are narrowly tailored to the interest it asserts. The Law School claims it must take the steps it does to achieve a "`critical mass'" of underrepresented minority students. Brief for Respondent Bollinger et al. 13. But its actual program bears no relation to this asserted goal. Stripped of its "critical mass" veil, the Law School's program is revealed as a naked effort to achieve racial balancing.
As we have explained many times, "`"[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination."'" Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 223 (1995) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273 (1986) (plurality opinion of Powell, J.)). Our cases establish that, in order to withstand this demanding inquiry, respondents must demonstrate that their methods of using race "`fit'" a compelling state interest "with greater precision than any alternative means." Id., at 280, n. 6; Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 299 (1978) (opinion of Powell, J.) ("When [political judgments] touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest").
Before the Court's decision today, we consistently applied the same strict scrutiny analysis regardless of the government's purported reason for using race and regardless of the setting in which race was being used. We rejected calls to use more lenient review in the face of claims that race was being used in "good faith" because "`[m]ore than good motives should be required when government seeks to allocate its resources by way of an explicit racial classification system.'" Adarand, supra, at 226; Fullilove, supra, at 537 (STEVENS, J., dissenting) ("Racial classifications are simply too pernicious to permit any but the 380 most exact connection between justification and classification"). We likewise rejected *380 calls to apply more lenient review based on the particular setting in which race is being used. Indeed, even in the specific context of higher education, we emphasized that "constitutional limitations protecting individual rights may not be disregarded." Bakke, supra, at 314.
Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.
Respondents' asserted justification for the Law School's use of race in the admissions process is "obtaining `the educational benefits that flow from a diverse student body.'" Ante, at 328 (quoting Brief for Respondent Bollinger et al. i). They contend that a "critical mass" of underrepresented minorities is necessary to further that interest. Ante, at 330. Respondents and school administrators explain generally that "critical mass" means a sufficient number of underrepresented minority students to achieve several objectives: To ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. See App. to Pet. for Cert. 211a; Brief for Respondent Bollinger et al. 26. These objectives indicate that "critical mass" relates to the size of the student body. Id., at 5 (claiming that the Law School has enrolled "critical mass," or "enough minority students to provide meaningful integration of its classrooms and residence halls"). Respondents further claim that the Law School is achieving "critical mass." Id., at 4 (noting that the Law School's goals have been "greatly furthered by the presence of . . . a `critical mass' of" minority students in the student body).
In practice, the Law School's program bears little or no relation to its asserted goal of achieving "critical mass." Respondents explain that the Law School 381 seeks to accumulate a "critical mass" of each underrepresented minority *381 group. See, e. g., id., at 49, n. 79 ("The Law School's . . . current policy . . .
provide[s] a special commitment to enrolling a `critical mass' of `Hispanics'"). But the record demonstrates that the Law School's admissions practices with respect to these groups differ dramatically and cannot be defended under any consistent use of the term "critical mass."
From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-American, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve "critical mass," thereby preventing African-American students from feeling "isolated or like spokespersons for their race," one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case,[*] how can this possibly constitute a "critical mass" of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School's explanation of "critical mass," one would have to believe that the objectives of "critical mass" offered by respondents are achieved with only half the number of Hispanics and onesixth the number of Native Americans as compared to African-Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving "critical mass," without any explanation of why that concept is applied differently among the three underrepresented minority groups.
382 *382 These different numbers, moreover, come only as a result of substantially different treatment among the three under-represented minority groups, as is apparent in an example offered by the Law School and highlighted by the Court: The school asserts that it "frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected." Ante, at 338 (citing Brief for

Respondent Bollinger et al. 10). Specifically, the Law School states that "[s]ixty-nine minority applicants were rejected between 1995 and 2000 with at least a 3.5 [Grade Point Average (GPA)] and a [score of] 159 or higher on the [Law School Admission Test (LSAT)]" while a number of Caucasian and Asian-American applicants with similar or lower scores were admitted. Ibid.

Review of the record reveals only 67 such individuals. Of these 67 individuals, 56 were Hispanic, while only 6 were African-American, and only 5 were Native American. This discrepancy reflects a consistent practice. For example, in 2000, 12 Hispanics who scored between a 159-160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. App. 200-201. Meanwhile, 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted. Id., at 198. Likewise, that same year, 16 Hispanics who scored between a 151-153 on the LSAT and earned a 3.00 or higher applied for admission and only 1 of those applicants was admitted. Id., at 200-201. Twenty-three similarly qualified African-Americans applied for admission and 14 were admitted. Id., at 198.

These statistics have a significant bearing on petitioner's case. Respondents have never offered any race-specific arguments explaining why significantly more individuals from one underrepresented minority group are needed in order to achieve "critical mass" or further student body diversity. They certainly have not 383 explained why Hispanics, who they *383 have said are among "the groups most isolated by racial barriers in our country," should have their admission capped out in this manner. Brief for Respondent Bollinger et al. 50. True, petitioner is neither Hispanic nor Native American. But the Law School's disparate admissions practices with respect to these minority groups demonstrate that its alleged goal of "critical mass" is simply a sham. Petitioner may use these statistics to expose this sham, which is the basis for the Law School's admission of less qualified underrepresented minorities in preference to her. Surely strict scrutiny cannot permit these sorts of disparities without at least some explanation.

Only when the "critical mass" label is discarded does a likely explanation for these numbers emerge. The Court states that the Law School's goal of attaining a "critical mass" of underrepresented minority students is not an interest in merely "`assur[ing] within its student body some specified percentage of a particular group merely because of its race or ethnic origin.'" Ante, at 329 (quoting Bakke, 438 U. S., at 307 (opinion of Powell, J.)). The Court recognizes that such an interest "would amount to outright racial balancing, which is patently unconstitutional." Ante, at 330. The Court concludes, however, that the Law School's use of race in admissions, consistent with Justice Powell's opinion in Bakke, only pays "`[s]ome attention to numbers.'" Ante, at 336 (quoting Bakke, supra, at 323).

But the correlation between the percentage of the Law School's pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying "some attention to [the] numbers." As the tables below show, from 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school's applicant pool who were from the same groups.

384 *384

--------------------------------------------------------------------------------------------------------------

|

Table 1

|

|--------------------------------------------------------------------------------------------------------------|

|

|

|

|

|

|

| % of |

|

|

|

|

% of

| Number of | Number of | admitted |

|

|

| Number of | applicants | applicants | African- | applicants |

|

| Number of | African- | who were | admitted | American | who were |

|

| law school | American | African- | by the law | applicants | African- |

|

Year | applicants | applicants | American | school

| admitted | American |

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1995 | 4147

|

404

|

9.7%

| 1130

|

106

| 9.4%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1996 | 3677

|

342

|

9.3%

| 1170

|

108

| 9.2%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1997 | 3429

|

320

|

9.3%

| 1218

|

101

| 8.3%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1998 | 3537

|

304

|

8.6%

| 1310

|

103

| 7.9%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1999 | 3400

|

247

|

7.3%

| 1280

|

91

| 7.1%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

2000 | 3432

|

259

|

7.5%

| 1249

|

91

| 7.3%

|

--------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------

|

Table 2

|

|--------------------------------------------------------------------------------------------------------------|

|

|

|

|

| Number of |

| % of

|

|

|

|

|

% of

| applicants | Number of | admitted |

|

| Number of |

Number of | applicants | admitted | Hispanic | applicants |

|

| law school |

Hispanic | who were | by the law | applicants | who were |

|

Year | applicants |

applicants | Hispanic | school

| admitted | Hispanic |

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1995 | 4147

|

213

|

5.1%

| 1130

|

56

| 5.0%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1996 | 3677

|

186

|

5.1%

| 1170

|

54

| 4.6%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1997 | 3429

|

163

|

4.8%

| 1218

|

47

| 3.9%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1998 | 3537

|

150

|

4.2%

| 1310

|

55

| 4.2%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1999 | 3400

|

152

|

4.5%

| 1280

|

48

| 3.8%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

2000 | 3432

|

168

|

4.9%

| 1249

|

53

| 4.2%

|

--------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------

|

Table 3

|

|--------------------------------------------------------------------------------------------------------------|

|

|

|

|

|

|

| % of

|

|

|

|

|

% of

| Number of | Number of | admitted |

|

|

|

Number of | applicants | applicants | Native | applicants |

|

| Number of |

Native | who were | admitted | American | who were |

|

| law school |

American | Native

| by the law | applicants | Native |

|

Year | applicants |

applicants | American |

school

| admitted | American |

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1995 | 4147

|

45

|

1.1%

| 1130

|

14

| 1.2%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1996 | 3677

|

31

|

0.8%

| 1170

|

13

| 1.1%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1997 | 3429

|

37

|

1.1%

| 1218

|

19

| 1.6%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1998 | 3537

|

40

|

1.1%

| 1310

|

18

| 1.4%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

1999 | 3400

|

25

|

0.7%

| 1280

|

13

| 1.0%

|

|-----------------|--------------|----------------|---------------|----------------|--------------|------------|

|

2000 | 3432

|

35

|

1.0%

| 1249

|

14

| 1.1%

|

--------------------------------------------------------------------------------------------------------------

385 *385 For example, in 1995, when 9.7% of the applicant pool was African-American, 9.4% of the admitted class was African-American. By 2000, only 7.5% of the applicant pool was African-American, and 7.3% of the admitted class was African-American. This correlation is striking. Respondents themselves emphasize that the number of underrepresented minority students admitted to the Law School would be significantly smaller if the race of each applicant were not considered. See App. to Pet. for Cert. 223a; Brief for Respondent Bollinger et al. 6 (quoting App. to Pet. for Cert. 299a). But, as the examples above illustrate, the measure of the decrease would differ dramatically among the groups. The tight correlation between the percentage of applicants and admittees of a given race, therefore, must result from careful race based planning by the Law School. It suggests a formula for admission based on the aspirational assumption that all applicants are equally qualified academically, and therefore that the proportion of each group admitted should be the same as the proportion of that group in the applicant pool. See Brief for Respondent Bollinger et al. 43, n. 70 (discussing admissions officers' use of "periodic reports" to track "the racial composition of the developing class").

Not only do respondents fail to explain this phenomenon, they attempt to obscure it. See id., at 32, n. 50 ("The Law School's minority enrollment percentages . . . diverged from the percentages in the applicant pool by as much as 17.7% from 1995-2000"). But the divergence between the percentages of underrepresented minorities in the applicant pool and in the enrolled classes is not the only relevant comparison. In fact, it may not be the most relevant comparison. The Law School cannot precisely control which of its admitted applicants decide to attend the university. But it can and, as the numbers demonstrate, clearly does employ racial preferences in extending offers of admission. Indeed, the ostensibly flexible nature of the Law School's admissions 386 program *386 that the Court finds appealing, see ante, at 337-338, appears to be, in practice, a carefully managed program designed to ensure proportionate representation of applicants from selected minority groups.

I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a "critical mass," but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls "patently unconstitutional." Ante, at 330.

Finally, I believe that the Law School's program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School's use of race in admissions. We have emphasized that we will consider "the planned duration of the remedy" in determining whether a race-conscious program is constitutional. Fullilove, 448 U. S., at 510 (Powell, J., concurring); see also United States v. Paradise, 480 U. S. 149, 171 (1987) ("In determining whether raceconscious remedies are appropriate, we look to several factors, including the . . . duration of the relief"). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

The Court suggests a possible 25-year limitation on the Law School's current program. See ante, at 343. Respondents, on the other hand, remain more ambiguous, explaining that "[t]he Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School's resolve to cease considering race when genuine race-neutral alternatives become available." Brief for 387 Respondent Bollinger et al. 32. These discussions of a time *387 limit are the vaguest of assurances. In truth, they permit the Law School's use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny—that a program be limited in time—is casually subverted.
The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School's program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of "fit" between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.
JUSTICE KENNEDY, dissenting.
The separate opinion by Justice Powell in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 289-291, 315-318 (1978), is based on the principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary. This is a unitary formulation. If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way. The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.
Justice Powell's approval of the use of race in university admissions reflected a tradition, grounded in the First Amendment, of acknowledging a university's conception of its educational mission. Id., at 312-314; ante, at 329. Our precedents provide a basis for the Court's acceptance of a university's considered 388 judgment that racial diversity among *388 students can further its educational task, when supported by empirical evidence. Ante, at 329-331.
It is unfortunate, however, that the Court takes the first part of Justice Powell's rule but abandons the second. Having approved the use of race as a factor in the admissions process, the majority proceeds to nullify the essential safeguard Justice Powell insisted upon as the precondition of the approval. The safeguard was rigorous judicial review, with strict scrutiny as the controlling standard. Bakke, supra, at 291 ("Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination"). This Court has reaffirmed, subsequent to Bakke, the absolute necessity of strict scrutiny when the State uses race as an operative category. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995) ("[A]ny person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny"); Richmond v. J. A. Croson Co., 488 U. S. 469, 493-494 (1989); see id., at 519 (KENNEDY, J., concurring in part and concurring in judgment) ("[A]ny racial preference must face the most rigorous scrutiny by the courts"). The Court confuses deference to a university's definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued. Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality. The majority today refuses to be faithful to the settled principle of strict review designed to reflect these concerns.
389 The Court, in a review that is nothing short of perfunctory, accepts the University of Michigan Law School's (Law *389 School) assurances that its admissions process meets with constitutional requirements. The majority fails to confront the reality of how the Law School's admissions policy is implemented. The dissenting opinion by THE CHIEF JUSTICE, which I join in full, demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas. An effort to achieve racial balance among the minorities the school seeks to attract is, by the Court's own admission, "patently unconstitutional." Ante, at 330; see also Bakke, supra, at 307 (opinion of Powell, J.). It remains to point out how critical mass becomes inconsistent with individual consideration in some more specific aspects of the admissions process.
About 80% to 85% of the places in the entering class are given to applicants in the upper range of Law School Admissions Test scores and grades. An applicant with these credentials likely will be admitted without consideration of race or ethnicity. With respect to the remaining 15% to 20% of the seats, race is likely outcome determinative for many members of minority groups. That is where the competition becomes tight and where any given applicant's chance of admission is far smaller if he or she lacks minority status. At this point the numerical concept of critical mass has the real potential to compromise individual review.
The Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass. In fact the evidence shows otherwise. There was little deviation among admitted minority students during the years from 1995 to 1998. The percentage of enrolled minorities fluctuated only by 0.3%, from 13.5% to 13.8%. The number of minority students to whom offers were extended varied by just a slightly greater magnitude of 2.2%, from the high of 15.6% in 1995 to the low of 13.4% in 1998.
390 *390 The District Court relied on this uncontested fact to draw an inference that the Law School's pursuit of critical mass mutated into the equivalent of a quota. 137 F. Supp. 2d 821, 851 (ED Mich. 2001). Admittedly, there were greater fluctuations among enrolled minorities in the preceding years, 1987-1994, by as much as 5% or 6%. The percentage of minority offers, however, at no point fell below 12%, historically defined by the Law School as the bottom of its critical mass range. The greater variance during the earlier years, in any event, does not dispel suspicion that the school engaged in racial balancing. The data would be consistent with an inference that the Law School modified its target only twice, in 1991 (from 13% to 19%), and then again in 1995 (back from 20% to 13%). The intervening year, 1993, when the percentage dropped to 14.5%, could be an aberration, caused by the school's miscalculation as to how many applicants with offers would accept or by its redefinition, made in April 1992, of which minority groups were entitled to race-based preference. See Brief for Respondent Bollinger et al. 49, n. 79.

------------------------------------

|

| Percentage |

|

| of enrolled |

|

|

minority |

|

Year

|

students |

|------------------|-----------------|

|

1987

|

12.3%

|

|------------------|-----------------|

|

1988

|

13.6%

|

|------------------|-----------------|

|

1989

|

14.4%

|

|------------------|-----------------|

|

1990

|

13.4%

|

|------------------|-----------------|

|

1991

|

19.1%

|

|------------------|-----------------|

|

1992

|

19.8%

|

|------------------|-----------------|

|

1993

|

14.5%

|

|------------------|-----------------|

|

1994

|

20.1%

|

|------------------|-----------------|

|

1995

|

13.5%

|

|------------------|-----------------|

|

1996

|

13.8%

|

|------------------|-----------------|

|

1997

|

13.6%

|

|------------------|-----------------|

|

1998

|

13.8%

|

------------------------------------

391 The narrow fluctuation band raises an inference that the Law School subverted individual determination, and strict *391 scrutiny requires the Law School to overcome the inference. Whether the objective of critical mass "is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status," and so risks compromising individual assessment. Bakke, 438 U. S., at 289 (opinion of Powell, J.). In this respect the Law School program compares unfavorably with the experience of Little Ivy League colleges. Amicus Amherst College, for example, informs us that the offers it extended to students of African-American background during the period from 1993 to 2002 ranged between 81 and 125 out of 950 offers total, resulting in a fluctuation from 24 to 49 matriculated students in a class of about 425. See Brief for Amherst College et al. as Amici Curiae 10-11. The Law School insisted upon a much smaller fluctuation, both in the offers extended and in the students who eventually enrolled, despite having a comparable class size.

The Law School has the burden of proving, in conformance with the standard of strict scrutiny, that it did not utilize race in an unconstitutional way. Adarand Constructors, 515 U. S., at 224. At the very least, the constancy of admitted minority students and the close correlation between the racial breakdown of admitted minorities and the composition of the applicant pool, discussed by THE CHIEF JUSTICE, ante, at 380-386, require the Law School either to produce a convincing explanation or to show it has taken adequate steps to ensure individual assessment. The Law School does neither.

The obvious tension between the pursuit of critical mass and the requirement of individual review increased by the end of the admissions season. Most of the decisions where race may decide the outcome are made during this period. See supra, at 389. The admissions officers consulted the daily reports which indicated the composition of the incoming class along racial lines. As Dennis Shields, Director of Admissions from 1991 to 1996, stated, "the further [he] went 392 into the [admissions] season the more frequently [he] would *392 want to look at these [reports] and see the change from day-to-day." These reports would "track exactly where [the Law School] st[ood] at any given time in assembling the class," and so would tell the admissions personnel whether they were short of assembling a critical mass of minority students. Shields generated these reports because the Law School's admissions policy told him the racial makeup of the entering class was "something [he] need[ed] to be concerned about," and so he had "to find a way of tracking what's going on." Deposition of Dennis Shields in Civ. Action No. 97-75928, pp. 129-130, 141 (ED Mich., Dec. 7, 1998).

The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself. The admissions officers could use the reports to recalibrate the plus factor given to race depending on how close they were to achieving the Law School's goal of critical mass. The bonus factor of race would then become divorced from individual review; it would be premised instead on the numerical objective set by the Law School.

The Law School made no effort to guard against this danger. It provided no guidelines to its admissions personnel on how to reconcile individual assessment with the directive to admit a critical mass of minority students. The admissions program could have been structured to eliminate at least some of the risk that the promise of individual evaluation was not being kept. The daily consideration of racial breakdown of admitted students is not a feature of affirmative-action programs used by other institutions of higher learning. The Little Ivy League colleges, for instance, do not keep ongoing tallies of racial or ethnic composition of their entering students. See Brief for Amherst College et al. as Amici Curiae 10.

To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded 393 through the entire process. There is no constitutional objection to the goal of *393 considering race as one modest factor among many others to achieve
diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny.
The Court's refusal to apply meaningful strict scrutiny will lead to serious consequences. By deferring to the law schools' choice of minority admissions programs, the courts will lose the talents and resources of the faculties and administrators in devising new and fairer ways to ensure individual consideration. Constant and rigorous judicial review forces the law school faculties to undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution. Dean Allan Stillwagon, who directed the Law School's Office of Admissions from 1979 to 1990, explained the difficulties he encountered in defining racial groups entitled to benefit under the Law School's affirmative action policy. He testified that faculty members were "breathtakingly cynical" in deciding who would qualify as a member of underrepresented minorities. An example he offered was faculty debate as to whether Cubans should be counted as Hispanics: One professor objected on the grounds that Cubans were Republicans. Many academics at other law schools who are "affirmative action's more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds." Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U. Pa. J. Const. L. 573, 577-578 (2000); Rubenfeld, Affirmative Action, 107 Yale L. J. 427, 471 (1997)). This is not to suggest the faculty at Michigan or other law 394 schools do not pursue aspirations they consider laudable and consistent with our constitutional *394 traditions. It is but further evidence of the necessity for scrutiny that is real, not feigned, where the corrosive category of race is a factor in decisionmaking. Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation.
It is difficult to assess the Court's pronouncement that race-conscious admissions programs will be unnecessary 25 years from now. Ante, at 341-343. If it is intended to mitigate the damage the Court does to the concept of strict scrutiny, neither petitioner nor other rejected law school applicants will find solace in knowing the basic protection put in place by Justice Powell will be suspended for a full quarter of a century. Deference is antithetical to strict scrutiny, not consistent with it.
As to the interpretation that the opinion contains its own self-destruct mechanism, the majority's abandonment of strict scrutiny undermines this objective. Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School's profession of its own good faith. The majority admits as much: "We take the Law School at its word that it would `like nothing better than to find a race-neutral admissions formula' and will terminate its race-conscious admissions program as soon as practicable." Ante, at 343 (quoting Brief for Respondent Bollinger et al. 34).
If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of 395 race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in *395 bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.
It is regrettable the Court's important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.
[*] Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Charlie Crist, Attorney General of Florida, Christopher M. Kise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, and Daniel Woodring; for the Cato Institute by Robert A. Levy, Timothy Lynch, James L. Swanson, and Samuel Estreicher; for the Center for Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the Center for Individual Freedom by Renee L. Giachino; for the Center for New Black Leadership by Clint Bolick, William H. Mellor, and Richard D. Komer; for the Center for the Advancement of Capitalism by David Reed Burton; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Michigan Association of Scholars by William F. Mohrman; for the National Association of Scholars by William H. Allen, Oscar M. Garibaldi, and Keith A. Noreika; for the Pacific Legal Foundation by John H. Findley; for Law Professor Larry Alexander et al. by Erik S. Jaffe; and for the Reason Foundation by Martin S. Kaufman.
Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Andrew H. Baida, Solicitor General, Mark J. Davis and William F. Brockman, Assistant Attorneys General, Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pandya, Assistant Solicitors General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and Peggy A. Lautenschlager of Wisconsin; for the State of New Jersey by David Samson, Attorney General, Jeffrey Burstein, Assistant Attorney General, and Donna Arons and Anne Marie Kelly, Deputy Attorneys General; for New York City Council Speaker A. Gifford Miller et al. by Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia, Pennsylvania, et al. by Victor A. Bolden and Nelson A. Diaz; for the American Bar Association by Paul M. Dodyk and Rowan D. Wilson; for the American Educational Research Association et al. by Angelo N. Ancheta; for the American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jancik, Jeffrey P. Sinensky, Kara H. Stein, and Richard T. Foltin; for the American Law Deans Association by Samuel Issacharoff; for the American Psychological Association by Paul R. Friedman, William F. Sheehan, and Nathalie F. P. Gilfoyle; for the American Sociological Association et al. by Bill Lann Lee and Deborah J. Merritt; for Amherst College et al. by Charles S. Sims; for the Arizona State University College of Law by Ralph S. Spritzer and Paul Bender; for the Association of American Law Schools by Pamela S. Karlan; for the Association of American Medical Colleges et al. by Robert A. Burgoyne and Joseph A. Keyes, Jr.; for the Bay Mills Indian Community et al. by Vanya S. Hogen; for the Clinical Legal Education Association by Timothy A. Nelsen, Frances P. Kao, and Eric J. Gorman; for Columbia University et al. by Floyd Abrams and Susan Buckley; for the Graduate Management Admission Council et al. by Stephen M. McNabb; for the Harvard Black Law Students

Association et al. by George W. Jones, Jr., William J. Jefferson, Theodore V. Wells, Jr., and David W. Brown; for Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey, Beverly Ledbetter, Robert B. Donin, and Wendy S. White; for the Hispanic National Bar Association et al. by Gilbert Paul Carrasco; for Howard University by Janell M. Byrd; for Indiana University by James Fitzpatrick, Lauren K. Robel, and Jeffrey Evans Stake; for the King County Bar Association by John Warner Widell, John H. Chun, and Melissa O'Loughlin White; for the Law School Admission Council by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Lawyers' Committee for Civil Rights Under Law et al. by John S. Skilton, David E. Jones, Barbara R. Arnwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D. Greenberger, and Judith L. Lichtman; for the Leadership Conference on Civil Rights et al. by Robert N. Weiner and William L. Taylor; for the Mexican American Legal Defense and Educational Fund et al. by Antonia Hernandez; for the Michigan Black Law Alumni Society by Christopher J. Wright, Timothy J. Simeone, and Kathleen McCree Lewis; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Theodore M. Shaw, Norman J. Chachkin, Robert H. Stroup, Elise C. Boddie, and Christopher A. Hansen; for the National Center for Fair & Open Testing by John T. Affeldt and Mark Savage; for the National Coalition of Blacks for Reparations in America et al. by Kevin Outterson; for the National Education Association et al. by Robert H. Chanin, John M. West, Elliot Mincberg, Larry P. Weinberg, and John C. Dempsey; for the National Urban League et al. by William A. Norris and Michael C. Small; for the New America Alliance by Thomas R. Julin and D. Patricia Wallace; for the New Mexico Hispanic Bar Association et al. by Edward Benavidez; for the NOW Legal Defense and Educational Fund et al. by Wendy R. Weiser and Martha F. Davis; for the School of Law of the University of North Carolina by John Charles Boger, Julius L. Chambers, and Charles E. Daye; for the Society of American Law Teachers by Michael Selmi and Gabriel J. Chin; for the UCLA School of Law Students of Color by Sonia Mercado; for the United Negro College Fund et al. by Drew S. Days III and Beth S. Brinkmann; for the University of Michigan Asian Pacific American Law Students Association et al. by Jerome S. Hirsch; for the University of Pittsburgh et al. by David C. Frederick and Sean A. Lev; for Judith Areen et al. by Neal Katyal and Kumiki Gibson; for Lieutenant General Julius W. Becton, Jr., et al. by Virginia A. Seitz, Joseph R. Reeder, Robert P. Charrow, and Kevin E. Stern; for Hillary Browne et al. by Gregory Alan Berry; for Senator Thomas A. Daschle et al. by David T. Goldberg and Penny Shane; for the Hayden Family by Roy C. Howell; for Glenn C. Loury by Jeffrey F. Liss and James J. Halpert; and for 13,922 Current Law Students at Accredited American Law Schools by Julie R. O'Sullivan and Peter J. Rubin.
Briefs of amici curiae were filed for Michigan Governor Jennifer M. Granholm by John D. Pirich and Mark A. Goldsmith; for Members and Former Members of the Pennsylvania General Assembly et al. by Mark B. Cohen and Eric S. Fillman; for the American Council on Education et al. by Martin Michaelson, Alexander E. Dreier, and Sheldon E. Steinbach; for the American Federation of Labor and Congress of Industrial Organizations by Harold Craig Becker, David J. Strom, Jonathan P. Hiatt, and Daniel W. Sherrick; for the Anti-Defamation League by Martin E. Karlinsky and Steven M. Freeman; for the Asian American Legal Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for Banks Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers Association of Greater Chicago, Inc., by Sharon E. Jones; for the Boston Bar Association et al. by Thomas E. Dwyer, Jr., and Joseph L. Kociubes; for the Carnegie Mellon University et al. by W. Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan, and Edward N. Stoner II; for the Coalition for Economic Equity et al. by Eva J. Paterson and Eric K. Yamamoto; for the Committee of Concerned Black Graduates of ABA Accredited Law Schools et al. by Mary Mack Adu; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Equal Employment Advisory Council by Jeffrey A. Norris and Ann Elizabeth Reesman; for Exxon Mobil Corp. by Richard R. Brann; for General Motors Corp. by Kenneth S. Geller, Eileen Penner, and Thomas A. Gottschalk; for Human Rights Advocates et al. by Constance de la Vega; for the Massachusetts Institute of Technology et al. by Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and Stacey J. Mobley; for the Massachusetts School of Law by Lawrence R. Velvel; for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman, Karen K. Narasaki, Vincent A. Eng, and Trang Q. Tran; for the National School Boards Association et al. by Julie Underwood and Naomi Gittins; for the New York State Black and Puerto Rican Legislative Caucus by Victor Goode; for Veterans of the Southern Civil Rights Movement et al. by Mitchell Zimmerman; for 3M et al. by David W. DeBruin, Deanne E. Maynard, Daniel Mach, Russell W. Porter, Jr., Charles R. Wall, Martin J. Barrington, Deval L. Patrick, William J. O'Brien, Gary P. Van Graafeiland, Kathryn A. Oberly, Randall E. Mehrberg, Donald M. Remy, Ben W. Heineman, Jr., Brackett B. Denniston III, Elpidio Villarreal, Wayne A. Budd, J. Richard Smith, Stewart S. Hudnut, John A. Shutkin, Theodore L. Banks, Kenneth C. Frazier, David R. Andrews, Jeffrey B. Kinder, Teresa M. Holland, Charles W. Gerdts III, John L. Sander, Mark P. Klein, and Stephen P. Sawyer; for Ward Connerly by Manuel S. Klausner and Patrick J. Manshardt; for Representative John Conyers, Jr., et al. by Paul J. Lawrence and Anthony R. Miles; and for Representative Richard A. Gephardt et al. by Andrew L. Sandler and Mary L. Smith.
[*] As the Court explains, the admissions policy challenged here survives review under the standards stated in Adarand Constructors, Inc. v. Peña, 515 U. S. 200 (1995), Richmond v. J. A. Croson Co., 488 U. S. 469 (1989), and Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). This case therefore does not require the Court to revisit whether all governmental classifications by race, whether designed to benefit or to burden a historically disadvantaged group, should be subject to the same standard of judicial review. Cf. Gratz, ante, at 301-302 (GINSBURG, J., dissenting); Adarand, 515 U. S., at 274, n. 8 (GINSBURG, J., dissenting). Nor does this case necessitate reconsideration whether interests other than "student body diversity," ante, at 325, rank as sufficiently important to justify a race-conscious government program. Cf. Gratz, ante, at 301-302 (GINSBURG, J., dissenting); Adarand, 515 U. S., at 273-274 (GINSBURG, J., dissenting).
[*] Part VII of JUSTICE THOMAS's opinion describes those portions of the Court's opinion in which I concur. See post, at 374-378 (opinion concurring in part and dissenting in part).
[1] Throughout I will use the two phrases interchangeably.
[2] The Court's refusal to address Wygant's rejection of a state interest virtually indistinguishable from that presented by the Law School is perplexing. If the Court defers to the Law School's judgment that a racially mixed student body confers educational benefits to all, then why would the Wygant Court not defer to the school board's judgment with respect to the benefits a racially mixed faculty confers?
[3] "[D]iversity," for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one's skin constitutionally irrelevant to the Law School's mission, I refer to the Law School's interest as an "aesthetic." That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them.
I also use the term "aesthetic" because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. Cf. Orr v. Orr, 440 U. S. 268, 283 (1979) (noting that suspect classifications are especially impermissible when "the choice made by the State appears to redound . . . to the benefit of those without need for special solicitude"). It must be remembered that the Law School's racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation.
[4] The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of "diversity" are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School's reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.
[5] Cf. U. S. News & World Report, America's Best Graduate Schools 28 (2004 ed.) (placing these schools in the uppermost 15 in the Nation).
[6] The Court refers to this component of the Law School's compelling state interest variously as "academic quality," avoiding "sacrifice [of] a vital component of its educational mission," and "academic selectivity." Ante, at 340.
[7] For example, North Carolina A&T State University, which is currently 5.4% white, College Admissions Data Handbook 643, could seek to reduce the representation of

whites in order to gain additional educational benefits.
[8] Cal. Const., Art. 1, § 31(a), states in full:
"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (CA9 1997).
[9] Given the incredible deference the Law School receives from the Court, I think it appropriate to indulge in the presumption that Boalt Hall operates without violating California law.
[10] Were this Court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular —a possibility not lost, I am certain, on the elites(both individual and institutional)supporting the Law School in this case.
[11] For example, there is no recognition by the Law School in this case that even with their racial discrimination in place, black men are "underrepresented" at the Law School. See ABA-LSAC Guide 426 (reporting that the Law School has 46 black women and 28 black men). Why does the Law School not also discriminate in favor of black men over black women, given this underrepresentation? The answer is, again, that all the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance.
[12] That interest depends on enrolling a "critical mass" of underrepresented minority students, as the majority repeatedly states. Ante, at 316, 318, 319, 330, 333, 335, 340; cf. ante, at 333 (referring to the unique experience of being a "racial minority," as opposed to being black, or Native American); ante, at 335-336 (rejecting argument that the Law School maintains a disguised quota by referring to the total number of enrolled underrepresented minority students, not specific races). As it relates to the Law School's racial discrimination, the Court clearly approves of only one use of race—the distinction between underrepresented minority applicants and those of all other races. A relative preference awarded to a black applicant over, for example, a similarly situated Native American applicant, does not lead to the enrollment of even one more underrepresented minority student, but only balances the races within the "critical mass."
[13] I agree with JUSTICE GINSBURG that the Court's holding that racial discrimination in admissions will be illegal in 25 years is not based upon a "forecast," post, at 346 (concurring opinion). I do not agree with JUSTICE GINSBURG'S characterization of the Court's holding as an expression of "hope." Ibid.
[14] I use a score of 165 as the benchmark here because the Law School feels it is the relevant score range for applicant consideration (absent race discrimination). See Brief for Respondent Bollinger et al. 5; App. to Pet. for Cert. 309a (showing that the median LSAT score for all accepted applicants from 1995-1998 was 168); id., at 310a311a (showing the median LSAT score for accepted applicants was 167 for the years 1999 and 2000); University of Michigan Law School Website, available at http://www. law.umich.edu/prospectivestudents/Admissions/index.htm (showing that the median LSAT score for accepted applicants in 2002 was 166).
[15] The majority's non sequitur observation that since 1978 the number of blacks that have scored in these upper ranges on the LSAT has grown, ante, at 343, says nothing about current trends. First, black participation in the LSAT until the early 1990's lagged behind black representation in the general population. For instance, in 1984 only 7.3% of law school applicants were black, whereas in 2000 11.3% of law school applicants were black. See LSAC Statistical Reports (1984 and 2000). Today, however, unless blacks were to begin applying to law school in proportions greater than their representation in the general population, the growth in absolute numbers of high scoring blacks should be expected to plateau, and it has. In 1992, 63 black applicants to law school had LSAT scores above 165. In 2000, that number was 65. See LSAC Statistical Reports (1992 and 2000).
[16] I use the LSAT as an example, but the same incentive structure is in place for any admissions criteria, including undergraduate grades, on which minorities are consistently admitted at thresholds significantly lower than whites.
[*] Indeed, during this 5-year time period, enrollment of Native American students dropped to as low as three such students. Any assertion that such a small group constituted a "critical mass" of Native Americans is simply absurd.
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