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Amicus Brief in Communities for Equity v. Michigan High School Athletic Ass'n




This case presents the critical issue of whether institutions of higher education may consider the race of applicants as one of many factors in their admissions decisions in order to further the compelling educational goal of enrolling a diverse student body. Institutions such as the University of Michigan should have the flexibility to develop and implement admissions programs that consider an applicant's race or ethnic background as simply one element, weighed fairly with others, to achieve that result.(1)


The Department of Justice has significant responsibilities for the judicial enforcement of the Equal Protection Clause of the Fourteenth Amendment in the context of public education, see 42 U.S.C. § 2000c-6, including admission to public colleges and universities, and also has responsibility for the judicial enforcement of Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, which prohibits recipients of federal funds -- including institutions of higher education -- from discriminating on the basis of race, color, and national origin. The Department of Education has parallel responsibility for the administrative enforcement of Title VI. Department of Education regulations and policy guidance interpreting Title VI provide that educational institutions may take race into consideration for purposes of remedying past discrimination or enrolling a diverse student body. See 34 C.F.R. § 100.3(b)(6)(i); 59 Fed. Reg. 8756, 8759-8762 (1994). The United States thus has an interest in the orderly development of the law regarding the use of race in university admissions, particularly to obtain the educational benefits of diversity.(2)

The United States has participated as amicus curiae at the district court level on issues affecting education in a variety of contexts. See Powell v. Ridge, No. CIV A 98-1223, 1998 WL 804727 (E.D. Pa. Nov. 19, 1998) (educational funding); Podberesky v. Kirwan, 838 F. Supp. 1075 (D. Md. 1993) (scholarships), judgment vacated by, 38 F.3d 147 (4th Cir. 1994), amended by, 46 F.3d 5 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995); Liddell v. Bd. of Educ. of City of St. Louis, 469 F. Supp. 1304, 1311-1312 (E.D. Mo. 1979) (desegregation), rev'd on other grounds, sub nom. Adams v. United States, 620 F.2d 1277 (8th Cir. 1980); Larry P. v. Riles, 495 F. Supp. 926 (N.D. Cal. 1979) (classification based on test scores), aff'd in part and rev'd in part, 793 F.2d 969 (9th Cir. 1984). See also Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 747 (6th Cir. 1979) (noting United States participation as amicus curiae in district court remedy phase of school desegregation litigation).

For the purposes of this brief, the United States simply notes that the University of Michigan states that it considers race as one factor among many (3) that it weighs in determining which undergraduates receive offers of admission, for the purpose of achieving the educational benefits of diversity.



The University asserts that its interest in obtaining the educational benefits of a diverse student body supports an appropriately structured plan under which the University may take race into consideration as one of many factors in making its admissions decisions. We agree. While a state-sponsored program that gives consideration to race and national origin must be subjected to strict scrutiny to ensure that it is narrowly tailored to serve a compelling interest, see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); Richmond v. J.A. Croson Co., 488 U.S. 469, 493-496 (1989), it has also long been recognized that, in the context of higher education, obtaining the educational benefits of diversity constitutes such a compelling interest.

A. The University May Consider Race as a Factor In an Appropriately Structured Admissions Program.

1. Five Members of the Court in Bakke held that the use of race is not limited by proof that the educational institution engaged in prior discriminatory conduct.

Five members of the Supreme Court in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), held that it did not violate the Equal Protection clause for the University of California, Davis Medical School -- in the absence of any proof of a remedial interest because it had discriminated on the basis of race -- to take race into account in its admissions process.

In Bakke, the Supreme Court affirmed the judgment of the California Supreme Court holding unconstitutional a state medical school's use of a rigid race-based admissions quota. The Supreme Court, however, vacated the lower court's injunction and reversed that portion of the state court judgment holding that the school could not constitutionally consider race in any manner in its admissions process. Bakke, 438 U.S. at 320 (Powell, J.); 438 U.S. at 379 (Brennan, White, Marshall, Blackmun, JJ.) Even though the Court determined that the particular admissions program that denied Bakke was unconstitutional, it also determined that the California medical school would not be subject to a injunction precluding it from using race in the future. Id.

Five Justices joined in the Court's holding that the medical school, where appropriate, could constitutionally consider race under a "properly devised admissions program" involving the "competitive consideration of race and ethnic origin." Id. at 320 (Powell, J.); id. at 328 (Brennan, White, Marshall, Blackmun, JJ.).(4) And, despite the fact that the medical school had not asserted or demonstrated a need to remedy any present effects of discrimination at the school itself, see id. at 296 n.36 (opinion of Powell, J.), the majority of the Court expressly refused to prohibit consideration of race altogether.

a. Justice Powell's Opinion

Justice Powell, who announced the judgment of the Court, stated that a university may have a compelling interest in considering the race of applicants in its admissions process in order to increase diversity in its student body. The United States supports Justice Powell's opinion as a correct statement of law under the Constitution and Title VI, and it has long been generally regarded by lower federal and state courts as stating the applicable law.(5)

In Bakke, Justice Powell identified the medical school's interest in providing the educational benefits of a diverse student body as a constitutionally permissible basis for consideration of race in admissions. 438 U.S. at 311-315 (opinion of Powell, J.). Applying strict scrutiny, id. at 291,(6) Justice Powell found that "an otherwise qualified . . . student with a particular background -- whether it be ethnic, geographic, culturally advantaged or disadvantaged -- may bring to a professional school . . . experiences, outlooks and ideas that enrich the training of its student body and better equip its graduates." Id. at 314 (opinion of Powell, J.).(7) In addition to producing leaders trained through "wide exposure" to a "'robust exchange of ideas,'" Id. at 312 (opinion of Powell, J.) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)), a diverse student body promotes the "atmosphere of 'speculation, experiment and creation'" that is "so essential to the quality of higher education." Id. (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)).(8)

Justice Powell emphasized, however, that race is merely one of many aspects of diversity, and that a narrowly tailored admissions program should treat all applicants as individuals. 438 U.S. at 315-318 (opinion of Powell, J.). He approvingly cited to Harvard University's undergraduate admissions process (the "Harvard Plan"), which considers race as a "plus" in an applicant's file "without insulat[ing] the individual from comparison with all other candidates for the available seats." Id. at 317 (opinion of Powell, J.). Such a plan, he concluded, met constitutional standards because it weighed "all pertinent elements of diversity" in light of the particular qualifications of each applicant "fairly and competitively." Id. at 317-318 (opinion of Powell, J.); see also id. at 327, 363-364 (Brennan, White, Marshall, Blackmun, JJ.) (consideration of race may be necessary to assess applicants fairly and competitively). Competitive consideration does "not necessarily" require "according [each element] the same weight," however. Id. at 318 (opinion of Powell, J.). When reviewing a large pool of "admissible" applicants, an applicant's race "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 323 (opinion of Powell, J.).

b. The Brennan, White, Marshall and Blackmun Opinion

Consistent with Justice Powell's opinion concluding that an educational institution may consider race in admissions, Justices Brennan, White, Marshall, and Blackmun noted that:

[T]he 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 . . . .

Mr. Justice Powell agrees that some uses of race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future.

Id. at 325-326 (Brennan, White, Marshall, Blackmun, JJ.) (citation omitted). The four justices cited approvingly to "a plan like the 'Harvard' plan" described by Justice Powell, id. at 326 n.1, which, significantly, was not promulgated by the University in response to a perceived need for remediation. They conclude, moreover, that an educational institution should be able to adopt such a plan even absent any finding of past discrimination on its part. Id. at 364-369.

Accordingly, taking the Brennan opinion together with Justice Powell's, the last Supreme Court statement commanding a majority of the Court on the question presented here was that it is permissible for a university to consider race in admissions, even absent a history of discrimination by the university. This Court must follow that holding.(9) As the Supreme Court recently reaffirmed, only the Supreme Court has "'the prerogative of overruling its own decisions.'" Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).

B. Bakke Has Not Been Overruled.

Plaintiffs urge this court to ignore Supreme Court precedent and nearly 25 years of judicial reliance on the Bakke opinion and hold that remedying identifiable discrimination is the only interest sufficient to permit the University of Michigan to consider race in admissions. For this court to dismiss Bakke would be a sweeping conclusion not justified by principles of legal reasoning or stare decisis.

The Supreme Court has never disavowed Bakke, and indeed has uniformly assumed its continuing validity. In 1990, the Court 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." Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 (1990) (quoting Bakke, 438 U.S. at 311-313 (opinion of Powell, J.)), overruled in part on other grounds, Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).(10) The same Court also reaffirmed Justice O'Connor's earlier acknowledgment that, "although its precise contours are 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 use of racial considerations in furthering that interest." Metro Broadcasting, 497 U.S. at 568 n.15 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., concurring)). And most recently in Adarand, the Court expressly recognized that Justice Powell applied "'the most exacting judicial examination'" in reaching his conclusion in Bakke that diversity constitutes a compelling interest in the higher education context. Adarand, 515 U.S. at 218 (quoting Bakke, 438 U.S. at 291 (opinion of Powell, J.)).

1. Only one appellate court has held that Bakke is not controlling precedent, and that decision was wrong as a matter of law.

To be sure, one appellate court has ruled, in a divided opinion in the context of law school admissions, that diversity cannot be a compelling interest as a matter of law. Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996). The Hopwood panel majority held that Justice Powell's opinion in Bakke no longer represents the law with respect to use of affirmative action by educational institutions, and pointed to more recent Supreme Court opinions (including Adarand and Croson), which it interpreted as holding that remedying past discrimination is the only state interest that can support race-based classifications. 78 F.3d at 944-948.

We believe that Hopwood was wrongly decided as a matter of law.(11)In declaring Bakke's demise, the panel majority ignored the Supreme Court's repeated admonition that lower courts may not conclude that a Supreme Court decision has been overruled by implication. Agostini, 521 at 237 (reaffirming that "if a precedent of this 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, leaving to this Court the prerogative of overruling its own decisions") (internal quotations and citation omitted). See also State Oil Co. v. Kahn, 118 S. Ct. 275, 284 (1997) ("It is this Court's prerogative alone to overrule one of its precedents."). Lower courts, including the Sixth Circuit, have also consistently held that they remain bound by Supreme Court precedent, regardless of whether that precedent arguably may be in tension with later Supreme Court holdings. See, e.g., Montgomery v. Carr, 101 F.3d 1117, 1129 (6th Cir. 1996) (court of appeals "lacks the power to hold that a Supreme Court case has been overruled by implication"); Columbia Natural Resources v. Tatum, 58 F.3d 1101, 1107 n.3 (6th Cir. 1985), cert. denied, 516 U.S. 1158 (1996) ("While we understand that changes in Court personnel may alter the outcomes of Supreme Court cases, we do not sit as fortune tellers, attempting to discern the future by reading the tea leaves of Supreme Court alignments. Each case must be reviewed on its merits in light of precedent, not on speculation about what the Supreme Court might or might not do in the future, as a result of personnel shifts."); Hockenbury v. Sowders, 633 F.2d 443, 445 (6th Cir. 1980), cert. denied, 450 U.S. 933 (1981) ("This Court is not at liberty to construe Supreme Court cases so as to render them totally without effect."). See also Adams v. Department of Juvenile Justice, 143 F.3d 61, 65 (2d Cir. 1998) (court of appeals bound by Supreme Court precedent notwithstanding contention that rule set forth in the precedent would no longer command a majority of the Supreme Court); Engineering Contractor's Ass'n of South Florida v. Metropolitan Dade County, 122 F.3d 895, 908 (11th Cir. 1997) (Court of appeals is "not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.").

The Hopwood court also erred by ignoring the holding in Bakke that a university may consider race as a factor in an appropriately structured admissions program even if it has not itself discriminated. Indeed, in Hopwood itself, the panel's decision was met by a strong dissent when the full court took up the question of rehearing en banc. See Hopwood v. Texas, 84 F.3d 720, 722 (5th Cir. 1995) (opinion of C.J. Politz, dissenting from denial of rehearing en banc) (lower courts are not free to disregard directly controlling Supreme Court precedent). Cf. Wessmann v. Gittens, 160 F.3d 790, 795-796 (1st Cir. 1998) (noting that the sharply divided Hopwood court is the only appellate court to reject diversity as a compelling interest).(12)

2. Subsequent Supreme Court decisions, in other contexts, do not undermine Bakke.

Supreme Court decisions in other contexts, such as public employment and contracting, do not undermine Bakke. The Court's reasoning in cases such as Adarand and Croson, for example, has little if any bearing on whether universities have a compelling interest in selecting a diverse student body. Although dictum in Croson -- a case involving contracting set-asides -- suggests that racial classifications should be "strictly reserved for remedial settings," 488 U.S. at 493, the Court did not reject Bakke, and Croson (which predated the Court's apparently approving reference to Bakke in Metro Broadcasting) did not involve either the educational context or an affirmative action program based on the achievement of diversity. Indeed, as Justice Stevens pointed out, it is difficult to think of any valid purpose other than a remedial one for considering race in the public contracting context, which involves very different state or federal interests from those implicated in the educational context. See Croson, 488 U.S. at 512-513 (Stevens, J., concurring). The goal of educational diversity simply has no relevance to the awarding of construction contracts, and accordingly was not considered by the Court in Croson or Adarand.

The wisdom of this distinction is amply demonstrated by the unique function the Court traditionally has accorded schools. As the Court stated in Brown v. Board of Education, education is "the very foundation of good citizenship" and "a principal instrument in awakening the [student] to cultural values," preparing her for participation as a political equal in a pluralist democracy. Brown v. Board of Educ., 347 U.S. 483, 493 (1954); see also Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (linking "public education" to America's "democratic political system" and adding that such education should promote "tolerance of divergent political and religious views"); Ambach v. Norwick, 441 U.S. 68, 77 (1979) (opinion of the Court, per Powell, J.) (quoting Brown and then describing "public schools as an 'assimilative force' by which diverse and conflicting elements in our society are brought together on a broad but common ground . . . inculcating fundamental values necessary to the maintenance of a democratic political system" (quoting John Dewey, Democracy and Education 26 (1929))).

Moreover, neither Adarand nor Croson held that only a remedial purpose could constitute a compelling interest. Indeed, the question whether a non-remedial purpose may also satisfy strict scrutiny was not presented in either case. See Wessmann, 160 F.3d at 796. See also Adarand, 515 U.S. at 227; id. at 257-258 (Stevens, J., dissenting) ("The proposition that fostering diversity may provide a sufficient interest to justify such a program is not inconsistent with the Court's holding today -- indeed, the question is not remotely presented in this case"). Several lower courts have since reiterated that a non-remedial purpose may indeed satisfy strict scrutiny. Cf. Buchwald v. Univ. of New Mexico Sch. of Medicine, 159 F.3d 487, 498 (10th Cir. 1998) (identifying compelling interest in public health); Wittmer v. Peters, 87 F.3d 916, 918 (7th Cir. 1996), cert. denied, 117 S. Ct. 949 (1997) (identifying compelling interest in integrity of correctional facility's boot camp program); Hunter v. Regents of Univ. of Cal., 971 F. Supp. 1316, 1324-1327 (C.D. Cal. 1997) (identifying compelling interest in educational research), appeal pending,No. 97-55920(9th Cir.). In rejecting just such an argument that dicta in Croson conclusively limited consideration of race to remedial settings, the Seventh Circuit wrote "there is a reason that dicta are dicta and not holdings, that is, are not authoritative. A judge would be unreasonable to conclude that no other consideration except a history of discrimination could ever warrant a discriminatory measure unless every other consideration had been presented to and rejected by him." Wittmer, 87 F.3d at 919; cf. Wygant, 476 U.S. at 286 (1986); Detroit Police Officers' Ass'n v. Young, 608 F.2d 671 (6th Cir. 1979) (citing national studies and testimony of law enforcement officials in holding that operational needs of police department could justify racial preference in promotion of police officers), cert. denied, 452 U.S. 938 (1981).

As Justice Powell recognized and as discussed below in Part II, the consideration of race as a factor in university admissions can make a vital contribution to a school's educational mission by permitting the school to assure that it enrolls a truly diverse student body. Such diversity fosters a robust exchange of ideas, affirmatively promotes integration and understanding, and ultimately enriches both the students themselves and the broader community. See Part II, infra. Justice Powell's opinion properly recognized the unique characteristics and concerns of the educational environment as well as the fundamental state interest in providing all students with the best possible education, including the irreplaceable educational benefits afforded by a diverse student body.

Bakke also is entirely consistent with a long line of cases in which the Supreme Court has emphasized the unique role that race may play in education and the special competence of educators to determine what factors best foster an optimal learning environment. For example, in the public elementary and secondary school context, the Court has recognized that

[s]chool authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (emphasis added); North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45 (1971). Likewise, the Court has noted that "[a]ttending an ethnically diverse school may help accomplish" the goal of preparing minority children to function in a broader social environment "largely shaped by members of different racial and cultural groups," while also "teaching members of the racial majority 'to live in harmony and mutual respect' with children of minority heritage." Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 472-473 (1982) (quoting Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 485 n.5 (Powell, J., dissenting)).

Such considerations do not dissipate at the college or graduate level, but rather take on renewed importance as students prepare themselves for civic and professional responsibilities in a racially diverse society. See Bakke, 438 U.S. at 313-314 (opinion of Powell, J.); see also Neil L. Rudenstine, Harvard Univ., The President's Report 1993-1995: Diversity and Learning at 43 (1995) (diversity is important at graduate level "because education at that level so strongly affects a student's conception of professional vocation, as well as the capacity to work with a variety of fellow professionals"). Students preparing to enter a profession cannot effectively be trained in isolation from the members of other racial and ethnic groups with which they will subsequently be required to interact. See, e.g., Sweatt v. Painter, 339 U.S. 629, 634 (1950).

C. Justice Powell's Opinion Has Been Relied Upon By Lower Courts, Federal Agencies, and Institutions of Higher Education.

During the nearly two decades since Bakke was decided, Justice Powell's landmark opinion has guided the admissions policies of public and private educational institutions throughout the United States. On the authority of Justice Powell's opinion, most selective colleges and professional schools have continued to consider race in admitting students.(13) The Department of Education has relied on Justice Powell's opinion in advising educational institutions that narrowly tailored affirmative action for purposes of diversity does not violate the Constitution or Title VI.(14) The Department has concluded that race-conscious decision-making for purposes of achieving diversity in higher education does not violate Title VI, so long as the admissions plan meets applicable narrow tailoring standards.(15) See, e.g., 44 Fed. Reg. 58509, 58510-58511 (1979) (institution of higher education may consider race or national origin as a factor to attain a diverse student body); 59 Fed. Reg. 8756, 8760-8762 (1994) (race-targeted financial aid may be used to promote student body diversity).

Justice Powell's opinion also has been relied on by lower federal and state courts. See Eisenberg v. Montgomery County Pub. Sch., 19 F. Supp.2d 449, 453-454 (D. Md. 1998), appeal pending, No. 98-2503 (4th Cir.); Wessmann v. Boston Sch. Comm., 996 F. Supp. 120 (D. Mass. 1998), rev'd on other grounds, sub nom Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998); Davis v. Halpern, 768 F. Supp. 968, 975-976 (E.D.N.Y. 1991); DeRonde v. Regents of the Univ. of Cal., 28 Cal. 3d 875, 625 P.2d 220 (Cal.), cert. denied, 454 U.S. 832 (1981); McDonald v. Hogness, 598 P.2d 707, 712-713 & n.7 (Wash. 1979), cert. denied, 445 U.S. 962 (1980). Cf. Smith v. Univ. of Wash. Law Sch., 2 F. Supp.2d 1324, 1333-1334 (W.D. Wash. 1998); University and Comm. College System of Nevada v. Farmer, 930 P.2d 730, 734-735 (Nev. 1997) (accepting diversity rationale for purposes of faculty hiring), cert. denied, 118 S. Ct. 1186 (1998). For example, in Smith, although the court denied the University's motion for summary judgment in a law school admissions challenge, it accepted as binding authority for the anticipated trial Justice Powell's opinion in Bakke that "[t]he attainment of a diverse student body . . . is a compelling interest and constitutionally permissible goal for a university or graduate program." Smith, 2 F. Supp.2d at 1334, citing Bakke, 438 U.S. at 311-312. Cf. Smith v. Univ. of Wash. Law Sch., Order Denying Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment (W.D. Wash. Feb. 12, 1999) (same).(16) In Wessmann, the First Circuit understood that Justice Powell's opinion in Bakke remained good law and that "iterations of 'diversity' might be sufficiently compelling, in specific circumstances, to justify race-conscious actions." Wessmann, 160 F.3d at 796. In McDonald, the Washington State Supreme Court held that the use of race as a "positive factor" in admission to a state medical school, in part to attain a diverse student body, served a compelling state interest under the Fourteenth Amendment. 92 Wash.2d at 440-441, 598 P.2d at 713. Similarly, in DeRonde, the California State Supreme Court held that the use of race as "one of several competing factors" in admission to a state law school satisfied a compelling state interest under the Fourteenth Amendment to "assur[e] an academically beneficial diversity among the student body[.]" 28 Cal.3d at 884, 886, 625 P.2d at 225-226.


Since Bakke, most selective college and university presidents have come to agree that when an institution admits a diverse student body and intentionally facilitates interaction between Latino, African-American, Native-American and majority students, all students enjoy a richer educational experience and develop greater tolerance and racial understanding.(17) Here, the University of Michigan's commitment to maintaining a diverse student body is particularly important, as over half of the University's students are drawn from the metropolitan Detroit area, the second most racially segregated metropolitan area in the United States.(18) Since most of the students admitted to the University of Michigan have not attended racially integrated primary and secondary schools,(19) their University experience may present the only "opportunity to disrupt an insidious cycle of lifetime segregation."(20)

After studying racial and ethnic diversity at the University of Michigan, as well as other colleges and universities, social scientists have confirmed that diversity in the higher education context improves students' education, racial understanding, cultural awareness, cognitive development and leadership skills.(21) When students interact with others who have backgrounds and characteristics different from their own, they are more likely to think critically(22) and engage in the "'robust exchange of ideas'" that Justice Powell deemed an essential component of higher education. See Bakke, 312 U.S. at 438 (opinion of Powell, J.) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)). Classroom racial and ethnic diversity promotes substantive teaching and learning by exposing majority and minority students -- often for the first time(23) -- to other-race students who can challenge long-held perspectives and encourage intellectual exploration.(24)

For example, Alexander Astin, Director of the Higher Education Research Institute (HERI) at the University of California, Los Angeles, analyzed data from 217 institutions and 25,000 students who participated in the Cooperative Institutional Research Program's (CIRP) annual survey of college students.(25) Astin identified three factors: (1) "institutional diversity emphasis," including a commitment to increasing the number of minority faculty and students; (2) "multiculturalism" in the general education curriculum; and (3) "direct student experience with diversity," including taking ethnic studies courses, attending cultural awareness workshops, socializing with other-race students and discussing racial issues with peers. Based on his analysis of the CIRP data, Astin concluded that these three factors "are associated with [students'] greater self-reported gains in cognitive and affective development (especially increased cultural awareness), with increased satisfaction in most areas of the college experience, . . . with increased commitment to promoting racial understanding" and several other positive outcomes, including participation in cultural activities, leadership and citizenship.(26) Other social scientists analyzing the CIRP college student survey data have reached similar conclusions.(27)

Patricia Gurin analyzed data from the CIRP annual student survey, the Michigan Student Study and the Intergroup Relations, Conflict and Community Program at the University of Michigan.(28) Gurin, a Professor of Psychology and Women's Studies at the University of Michigan, explains that because many students enter the University of Michigan after graduating from racially isolated high schools, they initially find the University's racially integrated environment to be new, demanding and unfamiliar.(29) To adapt to the University's diverse educational environment, students must think in "deeper, more complex ways"(30) and learn to respond to perspectives quite different from their own. In her research, Gurin found that students' interaction with other-race peers in the classroom and informal settings is positively associated with several "learning outcomes,"(31) including growth in active thinking processes, increased engagement and motivation, augmented intellectual skills and post-graduation valuation of intellectual skills;(32) and "democracy outcomes,"(33) including post-graduation participation in political activities and community service, increased cultural awareness and racial tolerance, understanding of the potential constructive aspects of group conflict and belief that racial differences are not inevitably divisive.(34) Gurin concluded that higher education plays a central role in helping students to become active citizens and participants in a pluralistic democracy.(35)

In addition to its immediate benefits, Gurin reports that diversity significantly increases the likelihood that white students who grew up in predominantly white neighborhoods are more likely to live and work in integrated settings after graduating from colleges with diverse student populations. Similarly, minority students who grew up in predominantly minority neighborhoods, but attended colleges with diverse student populations, are more likely to secure desegregated employment and to work in white-collar and private-sector jobs.(41) Gurin concludes that if selective colleges and universities are able to bring together students from various ethnic and racial backgrounds at the critical time of late adolescence and early adulthood, they have the opportunity to create "dramatic long-term effects" on intergroup interaction patterns and the ethnic and racial integration of occupational and residential settings.(42)

Without consideration of racial or ethnic diversity in higher education admissions, it would not be uncommon to have college or university classrooms with few, if any, minority students. William G. Bowen and Derek Bok, former Presidents of Princeton and Harvard Universities, have estimated that, due to a number of complex factors, if selective colleges and universities no longer considered race in their admissions, the number of African-American students on the undergraduate campuses of selective colleges and universities would shrink from approximately 7% to 2%,(43) to less than one-third of current levels.

At least at this moment in our Nation's history, recognition of the fact that race-conscious decision making may be necessary to achieve classroom diversity does not open the door to impermissible stereotypes, nor affirm the perception that members of the same racial group -- regardless of their culture, education or economic status -- all think alike. Indeed, exposure to individuals of different racial and ethnic backgrounds may be the best way for students to learn that all people of a particular race do not think alike, nor have the same background. See Bowen & Bok, at 280 ("The black student with high grades from Andover may challenge the stereotypes of many classmates just as much as the black student from the South Bronx."). Moreover, the educational benefits of diversity are greatly magnified by the learning that takes place outside the classroom -- in dormitories, social settings, and extracurricular activities -- as students must learn to live and work with persons of other races and ethnic backgrounds.(44) The University should be free to develop and implement an appropriately structured admissions program that takes race into account to meet these objectives.


For the forgoing reasons, we urge the Court, in considering the motions for summary judgment, to find that the enrollment of a diverse student body is a compelling interest that may justify consideration of race as one of many factors in admissions.

Respectfully submitted,

United States Attorney

Acting Assistant Attorney General

Assistant U.S. Attorney
211 W. Fort Street
Suite 2001
Detroit, MI 48226-3211
(313) 226-9100
Fax: (313) 226-4609

U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section
P.O. Box 65958
Washington, DC 20035-5958
(202) 305-1582
Fax: (202) 514-8337


I hereby certify that on this the 30th of April, 1999, I served copies of the forgoing Motion of United States for Leave to File Brief Amicus Curiae in Excess of 20 Pages, accompanying Brief in Support, Brief of United States as Amicus Curiae, and Proposed Order, by first class mail, on the following counsel of record:

Patrick J. Wright
37781 Hollyhead
Farmington Hills, MI 48331

David F. Kerr, Esq.
Kirk Kolbo, Esq.
Maslon, Edelman, Borman & Brand
3300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402

Michael E. Rosman, Esq.
Michael P. McDonald, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, NW
Washington, DC 20036

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

Leonard M. Niehoff, Esq.
Butzel Long
350 South Main Street, Suite 300
Ann Arbor, MI 48104

Kathryn M. Woodruff


1. Indeed, should this Court not grant summary judgment in favor of the University on the question of whether diversity is a compelling interest, it should give the University an opportunity to present evidence on this issue.

2. The United States' participation is limited to responding to the question of whether the goal of achieving a diverse student body is a compelling interest. The parties in the case, and this court in its review of the evidence, are in the best position to determine whether the mechanics of the University of Michigan's admissions process are narrowly tailored to meet this interest, and we do not address this second prong of the strict scrutiny analysis.

3. Other factors include grades, test scores, quality of high school curriculum and institution, social or economic disadvantage, geographic factors, unusual circumstances, and alumni status.

4. The remaining four Justices declined to address the constitutionality of the admissions program, but rather would have held that Bakke's exclusion violated Title VI. Bakke, 438 U.S. at 408-409 (Stevens, J., concurring in the judgment in part and dissenting in part).

5. See, e.g., Eisenberg v. Montgomery County Pub. Sch., 19 F. Supp.2d 449, 453-454 (D. Md. 1998), appeal pending, No. 98-2503 (4th Cir.); Wessmann v. Boston Sch. Comm., 996 F. Supp. 120 (D. Mass. 1998), rev'd on other grounds, sub nom Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998); Davis v. Halpern, 768 F. Supp. 968, 975-976 (E.D.N.Y. 1991); DeRonde v. Regents of the Univ. of Cal., 28 Cal.3d 875, 625 P.2d 220 (Cal.), cert. denied, 454 U.S. 832 (1981); McDonald v. Hotness, 598 P.2d 707, 712-713 & n.7 (Wash. 1979), cert. denied, 445 U.S. 962 (1980). Cf. Smith v. Univ. of Wash. Law Sch., 2 F. Supp.2d 1324, 1333-1334 (W.D. Wash. 1998); University and Comm. College System of Nevada v. Farmer, 930 P.2d 730, 734-735 (Nev. 1997), cert. denied, 118 S. Ct. 1186 (1998). See Part I.C, infra.

6. See also Bakke, 438 U.S. at 314 (opinion of Powell, J.) ("As the interest of diversity is compelling in the context of a university's admissions program, the question remains whether the program's racial classification is necessary to promote this goal."); id. at 290-305 (opinion of Powell, J.) (rejecting petitioner's argument that "the court below erred in applying strict scrutiny").

7. In making this finding, Justice Powell relied upon the statements of several university officials, including William G. Bowen, then President of Princeton University:

[A] great deal of learning occurs informally[,] . . . 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.

Bakke, 438 U.S. at 312 n.48 (opinion of Powell, J.) (quoting William G. Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly at 7, 9 (Sept. 26, 1977)). Justice Powell also quoted from the Appendix to the Brief filed by Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae. Id. at 321 n.55 (opinion of Powell, J.).

8. Indeed, the Supreme Court has long recognized academic freedom -- "[t]he freedom of a university to make its own judgments as to education," including "the selection of its student body" -- as "a special concern of the First Amendment." Bakke, 438 U.S. at 312 (opinion of Powell, J.); Sweezy, 354 U.S. at 263 (Frankfurter, J., concurring) (noting that one of the "essential freedoms" of a university is to determine on academic grounds "who may be admitted to study"). In exercising that freedom, a university may consider whether and how to admit a diverse class.

9. In Marks v. United States, 430 U.S. 188, 193 (1977), the Supreme Court explained that "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 the position taken by those Members who concurred in the judgment on the narrowest grounds[.]'" Thus understood, Bakke's holding authorizes the "competitive consideration of race" in admissions programs that are not devised solely for the purpose of remedying prior discrimination by defendant educational institutions. E.g., Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 (1990), overruled in part on other grounds, Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., concurring). The Sixth Circuit recently has affirmed that lower courts must follow Marks in determining the applicable law. Reese v. City of Columbus, 71 F.3d 619, 625 (6th Cir. 1995), cert. denied, 117 S. Ct. 386 (1996); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 132 (6th Cir. 1994).

10. Although the Court's decision in Adarand overruled Metro Broadcasting on the separate issue of whether a lower level of constitutional scrutiny applies to racial preferences enacted by Congress, see 515 U.S. at 227-235, Adarand did not involve (and the Court did not reject) the question of whether institutions of higher education have a compelling interest in obtaining the educational benefits of a diverse student body. See id. at 257-258 (Stevens, J., dissenting).

11. In fact, Hopwood is again on appeal to the Fifth Circuit challenging the original panel's decision. Hopwood v. Texas, appeal filed, No. 98-50506 (5th Cir.). In this appeal, the University of Texas seeks en banc review of the district court's injunction, entered on remand from the original appeal, barring the University of Texas Law School from ever taking race into consideration in its admissions process. The United States is participating in the appeal as amicus curiae in support of the University.

12. The compelling interest in diversity is potentially different in the elementary and secondary context, where one of the goals may be to teach students to live in a pluralistic society, see Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971); Eisenberg v. Montgomery County Pub. Sch., 19 F. Supp.2d 449 (D. Md. 1998), appeal pending, No. 98-2503 (4th Cir.)(acknowledging elementary and secondary interest in pluralism and prevention of racial isolation), rather than in higher education where the focus is on the educational benefits that are discussed herein. Two lower courts have declined to recognize a Bakke-based diversity rationale in the elementary and secondary setting. See Brewer v. West Irondequoit Central Sch. Dist., 32 F. Supp.2d 619, 628-33 (W.D.N.Y. 1999) (granting preliminary injunction to plaintiff challenging race-restricted inter-district transfer program, and rejecting Justice Powell's Bakke opinion on diversity as of limited precedential value), appeal filed, No. 99-7186 (2d Cir.); Tuttle v. Arlington County Sch. Bd., Civil Action No. 98-418-A (E.D. Va. April 23, 1998) (rejecting Bakke and declaring that an educational institution's interest in diversity cannot support the use of race in elementary and secondary magnet school admissions), appeal pending, No. 98-1604 (4th Cir.). Appeals in both Brewer and Tuttle are pending. On appeal in Tuttle, the United States argued that the district court erred by refusing even to hear evidence on the question of whether student diversity can be a compelling interest justifying the use of race in elementary and secondary student assignments. In the Brewer appeal, the United States challenged the district court's conclusion that only a remedial interest justifies the use of race in determining student assignments.

13. See, e.g., William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions at 8, 252-253 (1998) (citing Association of American Universities' unanimous statement affirming the educational value of diversity).

14. 42 U.S.C. § 2000d.

15. While an educational institution may constitutionally consider race or national origin as a factor in admissions for purposes of educational diversity, it is essential that the means by which it does so be narrowly tailored so as not to reflect or promote racial stereotypes, see Croson, 488 U.S. at 493, or impose disproportionate harm on nonminority applicants, see Wygant, 476 U.S. at 287 (O'Connor, J., concurring).

16. By agreement of the parties and the court, the question of whether obtaining the educational benefits of diversity may constitute a compelling interest under the Fourteenth Amendment has been certified to the Ninth Circuit. Smith, Feb. 22, 1999 Order. On April 1, 1999, the Ninth Circuit agreed to hear the issue. Briefing is due to be completed by August 30, 1999.

17. See supranote 13.

18. See Expert Report of Thomas J. Sugrue, App. to Defs.' Mem. of Law in Supp. of Their Mot. for Summ. J., vol. 3, at 3, 22 (filed May 3, 1999) ("Sugrue").

19. See id. at 37-41. Thomas J. Sugrue, Associate Professor of History and Sociology at the University of Pennsylvania, explains that prior to admission, nearly two-thirds of the University of Michigan's students were in-state residents. See id. at 3. In the State of Michigan, 96% of African-Americans and 85% of Latinos live in eleven major metropolitan areas. Approximately one-half (42 of 83) of Michigan's counties have black populations of 0.5% or less, and approximately one-half (41 of 83) of Michigan's counties have Latino populations of 1% or less.

It is unlikely that even those white Michigan residents who live in the eleven major metropolitan areas have had significant contact with racial or ethnic minorities. See generally, id. at 39-40. As a result of current residential racial separation and past official policy, see Milliken v. Bradley, 418 U.S. 717, 748 (1974) (Milliken I) and Milliken v. Bradley, 433 U.S. 267, 270 n.1 (1977) (Milliken II), few Michigan primary and secondary schools have racially diverse student populations. In the Detroit area, 82% of black students attend schools in only three school districts, which are nearly all black. More than 90% of Detroit area whites attend schools in districts where the black student population is 10% or less. See id. at 39. And 83% of white University of Michigan freshmen report that they attended predominantly white high schools. See Expert Report of Patricia Gurin, App. to Defs.' Mem. of Law in Supp. of Their Mot. for Summ. J., vol. 3, App. E at 3 (filed May 3, 1999) ("Gurin"). Sugrue concludes that: "The vast majority of white primary and secondary school students have no significant contact with black, Hispanic, or American Indian students in the classroom. . . . For more than half a century, specialists on race relations have reminded us that racial separation fosters mutual suspicion and hostility. It allows stereotypes and myths to flourish, because students lack direct evidence to contradict their erroneous impressions. The racial and ethnic divisions in the United States are reinforced by the American educational system." Sugrue, at 44.

20. See Gurin, at 33.

21. See notes 22-37, infra.

22. See, e.g., Gurin, at 13-18.

23. See Sugrue, at 37-41.

24. See generally Note, An Evidentiary Framework for Diversity as a Compelling Interest in Higher Education, 109 Harv. L. Rev. 1357, 1369-1373 (1996) (discussing the findings of several studies demonstrating that campus diversity positively affects educational outcomes). See also Maurianne Adams & Linda S. Marchesani, Curricular Innovations: Social Diversity as Course Content, New Directions for Teaching 85, 87-91 (Winter 1992) (anecdotal evidence); Alexander W. Astin, Diversity and Multiculturalism on the Campus: How are Students Affected?, Change 44, 45 (March/April 1993) (survey research based in part on Cooperative Institutional Research Program (CIRP) data).

25. Astin, 44-45.

26. Astin, at 48.

27. See J.F. Milem, College, Students, and Racial Understanding, 29 Thought & Action 51-59 (1994) (concluding, on the basis of CIRP data, that white students' commitment to promoting racial understanding was increased by discussing racial/ethnic issues, socializing with other-race students, enrolling in ethnic studies courses and attending racial awareness workshops). See also Mitchell J. Chang, Racial Diversity in Higher Education: Does a Racially Mixed Student Population Affect Educational Outcomes? (1996) (unpublished Ph.D. dissertation, University of California, Los Angeles), cited in D. Smith & Associates, Diversity Works: The Emerging Picture of How Students Benefit 28, 78 (1997) (abstracting social science research). Using the 1985 and 1989 CIRP data, Chang studied 11,000 students on 300 campuses that he quantified by degree of racial diversity or opportunity for cross-racial interaction. Chang found that, in general, environmental and experiential components of campus diversity (e.g., socializing with other-race students and discussing racial/ethnic issues) have positive impacts on students' overall college satisfaction, graduation rates, undergraduate grade point average, intellectual self-concept and social self-concept. Id. at 78.

28. See Gurin, at 3.

29. See Gurin, at 4-5. For a similar discussion of college students' introduction to cultures different than their own, see Adams & Marchesani, at 86 ("[W]hether from mainstream or under-represented social groups, [University of Massachusetts students] come from more or less monocultural home and school communities that have not prepared them for the diverse populations they encounter on campus, the multicultural course content of some of their classes, and the range of cultural programs in the residence halls and elsewhere.").

30. See Gurin, at 4.

31. See Gurin, at 35.

32. See Gurin, at 35-38. For additional discussions on diversity and student cognitive development, see Maurianne Adams & Yu-hui Zhou-McGovern, The Sociomoral Development of Undergraduates in a "Social Diversity" Course (1994) (ERIC Report No. 380345) (paper presented at the April 1994 Annual Meeting of the American Educational Research Association) (tests administered to majority and minority students before and after participation in interracial social diversity course measured statistically significant, positive effects on students' cognitive development); Octavio Villalpando, Comparing the Effects of Multiculturalism and Diversity on Minority and White Students' Satisfaction with College (1994) (ERIC Report No. 375721) (paper presented at the November 1994 Annual Meeting of the Association for the Study of Higher Education) (finding that socializing with other-race students and discussing racial/ethnic issues positively impacts students' academic and personal development).

33. See Gurin, at 39.

34. Gurin explained that "[s]tudents who experienced diversity in classroom settings and in informal interactions showed the most engagement in various forms of citizenship, and the most engagement with people from different races/cultures. They were also the most likely to acknowledge that group differences are compatible with the interests of the broader community." Id.

35. See Gurin, at 39-40. In addition to promoting learning and enhancing civic values among minority and majority students, diversity-based admissions programs produce extremely positive educational outcomes for minority students.(36)

36. See Bowen & Bok, at 275-290. - " "(37)

37. See id. at xxv-xxxii. - " " - (38)

38. See id. at 256-258. - (39)

39. See S.N. Keith et al., Effects of Affirmative Action in Medical Schools: A Study of the Class of 1975, 313 N.E. J. of Medicine 1519-1525 (1985) (finding that Latino and African-American medical school graduates are significantly more likely to practice in under-served areas). See also Miriam Komaromy et al., The Role of Black and Hispanic Physicians in Providing Health Care for Under-served Populations, 334 N.E. J. of Medicine 1305, 1307 (1996) - - ' - - (40)

40. Bowen & Bok, at 116.

41. See Gurin, at 33.

42. See Gurin, at 32.

43. See Bowen & Bok, at 34 (extrapolating admissions data for five selective colleges and professional schools in the C&B database).

44. See notes 22-37, supra. See also Linmark Assoc., Inc. v. Township of Willingboro, 431 U.S. 85, 94-95 (1977) (recognizing "that substantial benefits flow to both whites and blacks from interracial association"). >

Updated June 15, 2023