*1 732 they if may have they Cir.1988), packages discussing severance (10th n. 5 1531 for the debtor. to work continue split.
circuit however, held, court bankruptcy court dem- Because, bankruptcy as for three rea- prevail Lasky cannot Bank- onstrated, of the plain reading no priori- wage First, general while sons. Lasky’s treating supports ruptcy Code clearly Bankruptcy Code of the ty section an ad- provision as prepetition severance treatment for priority limits specifies and judgments expense, ministrative 11 U.S.C. see payments, severance AF- courts are district bankruptcy and according 507(a)(3)(A), provision § FIRMED. to administrative first-priority status 507(a)(1) § 11 See U.S.C. claims does not. 503(b)(1)(A)). Congress’s
(incorporating adminis- pay from of severance
omission have therefore must status priority
trative Second, Lasky “earned”
been deliberate. into he entered pay when
his severance compensation contract, than as rather result, GRUTTER, Plaintiff-Appellee, As a rendered. Barbara past services would not cases Circuit even the Second v. Third, status. priority accord his claim al., BOLLINGER, Defendants- et Lee services represent did not Lasky’s claim (01-1447), Appellants the estate a benefit on that conferred priority garner administrative required to al., Intervening Kimberly James, et Indus., Ener- Inc. GHR NL status. See (01- Defendants-Appellants Cir.1991).1 (5th F.2d gy Corp., 940 1516). affirmed. The district court 01-1447, 01-1516. Nos. essentially agree with We In re: See reasoning. bankruptcy court’s Appeals, Court United States Inc., (Bkrtcy. All, B.R. 426 Phones for Circuit. Sixth N.D.Tex.2000). understand We 6, 2001 Dec. Argued: mean interpretation to statutory court’s agreement prepetition severance Filed: May Decided post-petition administrative not entitled to Circuit ex As the Tenth priority status. status, a severance such
plained, to attain a transaction
claim “must arisen have and must possession”
with the debtor debtor’s es on the confer benefit
then Ser Financial re: Commercial
tate. (10th Cir.
vices, Inc., F.3d provi
2001). statutory reading of the This claimants’ burden makes
sions clear the. post-petition renegotiate
reconfirm or 3- over the of severance prorate the amount alternatively held that bankruptcy court 1. The the debtor Lasky period worked weelt priority un- entitled Lasky’s were if claim 507(a)(1), post-petition. 503(b) court would §§ der *2 (briefed), David F. Herr Kirk Kolbo O. briefed), (argued Purdy R. Lawrence (briefed), (briefed), McCarthy Michael C. (briefed), Maslon, Kai H. Richter Edel- man, Brand, MN, Minneapolis, Borman & (briefed), George B. Washington Scheff & Detroit, MI, Washington, Michael E. Ros- (briefed), man Center Individual DC, Rights, Washington, for Barbara Grutter, 01-1447,01-1616. Nos. Velvel, R. Malaguti, Lawrence Peter M. Andover, MA, Masley, Marie Jodi Scheff & Detroit, MI, Washington, for Massachu- Law, 01-1447, setts School of Nos. 01-1516. (briefed), Philip Long, J. Kessler Butzel Detroit, MI, Payton (argued John briefed), (briefed), Pickering John H. (briefed), Craig Harkavy, Anne Goldblatt Benitez, Brígida Delery Stuart F. (briefed), (briefed), A. Lenhardt Robin (briefed), Porter, Robinson, Wilmer, Pressley, Fred Jr. & G. Cutler T. Tonya Columbus, OH, Arthur, Morris & Wright, DC, M. Washington, Leonard Pickering, 01-1447. University, No. for Ohio State Arbor, (briefed), Long, Ann Butzel Niehoff Kessler, Long, Ann MI, Butzel Philip J. (briefed), & Jeffrey Jenner S. Silver *3 MI, Jeffrey Leh- Arbor, Bollinger, IL, Lee Block, Maynard for E. Chicago, Deanne Shields, (briefed), University (briefed), of Michi- man, Shilpa S. Satoskar Dennis (briefed), Mach 01-1447, Daniel David W. DeBruin Nos. 01- Regents, Board of gan, Block, (briefed), Washington, & Jenner al„ DC, for 3M et No. 01-1447. (briefed), Paul M. Do- Rowan D. Wilson (briefed), & Horn- Lee Cameron Yong (briefed), (briefed), Fa- J. Ha dyk Charles DC, bostel, for National Washington, (briefed), Alexandra S. Wald rah Brelvi S. Association, Bar et Pacific American Asian (briefed), (briefed), E. Lee Cra- Kenneth al., 01-1447. No. Morre, City, vath, New York Swaine & (briefed), Catherine Daniel Sherrick W. (briefed), President Barnett Martha W. (briefed), Trafton Associate General J. IL, Association, for Chicago, American Bar Union, UAW, De- International Counsel Association, 01-1447. Bar No. American Union, troit, MI, United for International Automobile, Im- Aerospace Agricultural & (briefed), Williams & Kumiki Gibson (UAW), No. of America plement Workers DC, Katyal K. Connolly, Washington, Neal 01-1447. (briefed), Law Georgetown University of (briefed), Washington Mi- Areen, George B. DC, Center, for Judith Washington, briefed), (argued and randa K.S. Massie 01-1447. No. (briefed), & Masley Scheff Jodi-Marie (briefed), & Hogan Michaelson Martin Detroit, MI, Kimberly for Washington, DC, Hartson, for American Washington, Haslett, James, Raymond Mi- Jeanette al, et No. 01-1447. on Education Council Andrieh, Whitlow, Dena Shabatayah chael Fernandez, Di- Killough, Kevin Shalamarel (briefed), Law- Henderson Thomas J. Curtin, Bernal, Fry, ego Julie Jessica Rights under yers’ for Civil Committee Bergman, Ashwa- Huang, Heather James DC, Law, S. Skilton Washington, John Cruz, Carlisle, Ronald Nora Cecilia Me- na Ehrman, (briefed), Heller, White & McAu- lendez, Ra- Osei-Frimpong, Irami Gerald DC, liffe, Lawyers’ Washington, for Com- mos, Vasquez, Vasquez, Edward Arturo 01-1447. Rights, mittee for Civil No. Kukua, Jeffrey, Karla Ste- Hoku Vincent Yolanda, Mary phens-Dawson, Gibson Gib- (briefed), Eileen Pen- Kenneth Geller S. Dowdell, Jr., Aleobua, son, Agnes Herbert Platt, (briefed), & Mayer, Brown ner Young, King, Yolanda J. Jaasi Cassandra DC, Motors Washington, General Jodi-Marie, Munanka, Masley Shannon Corp., No. 01-1447. Pimentel, Kerouac, Kevin Ewing, Julie Salinas, Cooper, Scott Bernard Norberto (briefed), Spenta R. F. Davis Martha Abdel- Rowekamp, Abrutyn, Russ Jasmine Cama, and Education Legal Defense NOW Kao, Deo, Khalik, Melisa Meera Winifred Fund, City, Legal for NOW New York Scarlett, Resch, Torre, La Carol Oscar De Fund, Defense No. 01-1447. Affirmative Ac- Equality United for Leffler, Attorney I. Asst. Gen. tion, Susan Affirmative Ac- to Defend Coalition (briefed), Attorney General Law By Any Necessary, Office of Means Stu- tion Action, 01-1447, Div., MI, for Affirmative Nos. Appellate Lansing, State dents for 01-1516. No. 01-1447. Michigan, (briefed), Findley Legal Michigan University Pacific and the John H. of Michigan Sacramento, CA, Foundation, Pacific appeal Law School the district court’s Foundation, 01-1447. Legal No. determination that the Law School’s con- sideration of race and ethnicity its ad- (briefed), Clagett Brice M. Keith A. No- missions decisions Equal violates (briefed), Burling, & Covington reika Protection Clause of the Fourteenth DC, for National Association Washington, Amendment and Title VI of the Civil Scholars, Rights American Civil Insti- Rights Act of 1964.1 The Law School Forum, tute, Independent No. Women’s contends that its interest in achieving a 01-1447. student body compelling diverse under (briefed), Amberg, Michael K. Lee Fire- *4 Regents the University of California Lee, Southfield, MI, Michigan stone & v. Association, Education No. 01-1447. (1978), L.Ed.2d 750 and that its admis- policy narrowly sions tailored to serve MARTIN, Judge; Before: Chief Circuit appeal, interest. On the Law BOGGS, SILER, BATCHELDER, joined by School is the Intervenors: for- DAUGHTREY, MOORE, COLE, CLAY, ty-one individuals and three student GILMAN, Judges. and Circuit
groups, Equality United for and Affirma- MARTIN, C.J., opinion delivered the Action, tive the Coalition to Af- Defend court, which, DAUGHTREY, By Action Any firmative Means Neces- MOORE, COLE, CLAY, JJ., joined. and sary, and Law Students for Affirmative MOORE, 752-758), (pp. delivered a J. Action. The Intervenors offer an addi- separate concurring opinion, in which justification tional for the Law School’s DAUGHTREY, COLE, CLAY, JJ., and ethnicity consideration of race and —rem- CLAY, 758-773), joined. (pp. J. delivered edying past discrimination. Barbara separate opinion, concurring which Grutter, an applicant unsuccessful to the DAUGHTREY, MOORE, COLE, JJ., and School, on Law behalf of herself and oth- BOGGS, 773-815), joined. (pp. J. situated, similarly urges ers us to affirm dissent, separate delivered a in which the district court’s decision. For SILER, J., joined part, and below, reasons set forth we REVERSE BATCHELDER, J., SILER, joined. J. judgment of the district court.2 815), BATCHELDER, 815), (p. (p. J. and GILMAN, 815-818), (pp. also delivered I.
separate dissenting opinions. The Law drafted its School admissions OPINION policy comply Supreme with the Court’s MARTIN, Jr., Judge. BOYCE F. Chief opinion Adopted by in Bakke. the full Lehman, faculty policy Bollinger, Jeffrey Lee states that the Dennis Shields, Regents University “goal of the to admit a group Law School’s recently, Bollinger presi- only pertains 1. Until Lee 2. was the Our decision to the case in- University Michigan. dent of the Prior to volving the Law School. We will address the presidency, his he was dean of the Law challenge University Michigan’s ad- Jeffrey School. His successor as dean was policy, Bollinger, missions Nos. 01- Gratz Lehman. Dennis Shields the director of 01-1416, 01-1418, 01-1438, in a forth- program the Law School's admission until coming opinion. addi- taking After these selection. collectively course individually students who account, into “soft” variables ap- tional capable students the most among admits students Law School sometimes given law schools to American plying Its ad- relatively low index scores. that the Law provides It further year.” vari- general two policy missions describes of students with a mix “seekfs] School admitted may be eties of students who experiences who backgrounds varying (1) “students for whom such other.” with from each respect and learn will scores— skeptical of an reason to be policy good is] of eval- [there the Law School’s part As a stu- prediction” (e.g., index score based individually, its offi- applicant uating each poor a track record of standard- of dent with and factor all application cials read each has an performance, but who into ized test information their accompanying record) (2) stu- outstanding academic decision. help “may who achieve dents can ex- applicants who identifying every- potential to enrich which has academically, the Law pected to succeed a law school and thus make one’s education appli- composite School evaluates parts.” the sum of its stronger class than Admissions Test Law School cant’s average. This grade-point undergraduate policy ex- The Law School’s *5 grid as a with can visualized composite be bas- many possible plains that “[t]here the horizontal test scores on standardized example, diversity admissions.” For es for average on the verti- grade-point axis and weight particular policy states of standard- Every combination cal axis. medal, gold given Olympic be to “an might undergraduate grade- and ized test score age the attainment of physics, a Ph.D. in in a cell on this is shown point average anyone lacked in a class otherwise reports the number of Each cell grid. having been a experience over particular combination applicants with person.” policy The also boat Vietnamese as well as the qualifications, of numerical diversity examples of actual offers three of admission made to number of offers in Ban- One student was born admissions. in this in that cell. Constructed applicants Harvard with graduated from gladesh, manner, of test highest combination average, received “out- grade-point 2.67 grade-point av- undergraduate and scores professors, from his standing references” grid’s upper right- in the erages are found “exceptional record of extracurricu- had an Thus, chance applicant’s an hand corner. Admis- activity,” and had Law School lar increases as being generally admitted percentile the 46th sion Test scores at upper grid’s moves into the he or she Argenti- was an percentile. 52nd Another no combina- corner. There is right-hand extensive business single nian mother with scores, however, grades and test tion cum graduated summa experience, who automatically applicant will which below Cincinnati, University of laude from the admission, ad- or above which denied be languages, fluent four who was guaranteed. mission is on the Law percentile at the 52nd scored applicant The third Admission Test. considers “soft” School Law School also average from grade-point had a 3.99 of the recom- like the enthusiasm variables Florida, Ad- a Law School University menders, undergraduate quality percentile, at the 90th institution, mission Test score applicant’s quality immigrants daughter of Greek ex- and as the leadership and work essay, residency, ethnic interests, significantly in a and was “immersed talents or perience, unique life,” languages. in three and fluent undergraduate home difficulty of the areas and Reflecting goal the Law School’s of en- under-represented numbers ensure mi- class, rolling poli- a diverse its admissions nority students do not feel isolated or like “a cy describes commitment to racial and spokespersons race, for their and do not diversity special ethnic reference to feel discussing uncomfortable freely issues groups the inclusion students personal based their experiences. Pro- historically which have been discriminated Lempert fessor Syverud, Kent African-Americans, Hispanics like against, current dean of Vanderbilt Law School Americans, and Native who without this and a Michigan former profes- Law School represented might commitment sor, offered similar definitions of “critical body meaningful our student numbers.” mass.” The Law School’s witnesses also Students from such racial and ethnic testified that “critical mass” was not a set groups particularly likely “are to have ex- number or percentage. Director Munzel periences special im- perspectives of stated that percent- there is no number or portance to our mission.” Professor age, or range of or percentages, numbers Lempert, faculty Richard the chair of the that constitute a “critical mass.” Like- committee that drafted the admissions wise, Dean Lehman stated that “critical policy, explained that the Law School’s mass” could not be fixed in terms num- commitment to such not in- percentage. ber or remedy past tended as a discrimina- Both the Law School and the unsuccess- tion, but as a including means of students applicants presented ful expert testimony may bring perspective who a different regarding the Law School’s use of race in the Law School. Analyzing decisions. grids of In considering race and ethnicity, the the Law School’s admissions data from Law School does not set aside or reserve *6 1995-2000, the unsuccessful applicants’ under-represented seats for minority stu- expert statistical testified that the relative Jeffrey dents. As Dean Lehman testified: acceptance American, odds of for Native “We do not have a portion of the class African-American, Mexican-American and is set aside for critical mass of applicants Puerto Rican many were times under-represented minority students.” greater than for applicants Caucasian and testimony This was echoed Dennis concluded that groups members of these Shields, the Law former School’s admis- were “given extremely large an allowance director, Munzel, sions and Erica the cur- for admission.” admissions, rent director of both of whom According to the Law School’s statistical testified that the Law School not does expert, eliminating race factor particular percentage strive admit a of process dramatically under-represented minority students. minority lower predicted, admissions. He does, however, The Law School consider example, if the Law could School under-represented the number of minority race, under-represented consider mi- students, and ultimately seeks to enroll a number, nority students mass,” would have constituted meaningful or a “critical 2000, under-represented entering of 4% of the class in minority students. According Munzel, figure instead of the actual enrollment Director “critical Citing experience mass” is a 14.5%. number sufficient to enable the Univer- under-represented sity of at minority Berkeley California after the students 209, passage Proposition contribute to dialogue classroom without Dean Lehman feeling Similarly, predictions, isolated. Dean echoed testifying Lehman these that he equated “critical mass” with under-represented minority sufficient feared enroll- 738 Bakke’s opinions support if Two distinct race “token” levels drop to
ment would Powell’s issue: Justice judgment on this considered. not be ethnicity could announcing judgment opinion 2733, 269-324, Court, S.Ct. II. id. at 98 opinion concurring Brennan’s Justice novo the district de reviews This Court dissenting part judgment ef School’s that the Law finding court’s White, Marshall, part, in which Justices body student a diverse forts to achieve 324-79, 98 joined, at and Blackmun id. and eth of race through the consideration 2733. S.Ct. and violates is unconstitutional origin nic scrutiny, intermediate Applying Act of 1964. Rights of the Civil Title VI Davis could 501, found Brennan concurrence 241 F.3d Corp., Dev. Econ. v. Johnson constitutionally justify its consideration (6th Cir.2001); Med. see also Women’s 509 remedy the effects 187, 192 race as an effort Voinovich, 130 F.3d Corp. v. Prof. 362, discrimination. Id. 98 S.Ct. at Cir.1997) (“[A]n is to societal (6th appellate court scrutiny, Justice Applying strict 2733. of the rec independent review conduct of a diverse “the attainment at is Powell found facts are constitutional ord when review, clearly ... is a constitution- body student sue.”). constitutional To survive institution of goal for an ally permissible of race consideration the Law School’s 311-312, 98 S.Ct. Id. at higher education.” (1) interest compelling state must serve (2) to achieve narrowly tailored Peña, 515 Adarand See that interest. a diverse recognized that Justice Powell 2097, L.Ed.2d 227, 200, 115 S.Ct. U.S. atmosphere body promotes an student (1995).3 and creation” experiment “speculation, quality higher “essential A. S.Ct. Id. education.” Hampshire, 354 Sweezy v. New (quoting Law whether To determine 1 L.Ed.2d stu U.S. achieving a diverse interest School’s (1957) (Frankfurter, concurring)). J. turn to Bakke. compelling, we body is dent that, Moreover, by enriching stu- he noted determined fragmented Court *7 variety perspec- a of University dents’ education School the that the Medical ideas, university tives, a experiences, and Davis, justified its which at California body helps equip its a student in with diverse program, admissions race-conscious of soci- productive members students be a diverse necessary to achieve part, as 313, Bakke, 2733 at 98 S.Ct. ety. 438 U.S. permanently not be body, could student (“[I]t say that too much to is not considering applicants’ its enjoined from upon leaders depends ‘nation’s future has a substantial “the State race because exposure’ to through wide by trained may be served legitimately interest that as diverse and mores of students in ideas program admissions properly a devised peoples.”) (quoting many this Nation competitive consideration volving the Regents, 385 U.S. 320, v. Board Keyishian at 98 origin.” race and Id. ethnic 675, 589, 603, 17 629 L.Ed.2d 87 S.Ct. 2733. S.Ct. program is con- VI, the Law School's prohibits dis- racial Because which 3. Title Sandoval, 532 receiving federal programs See Alexander v. stitutional. crimination in funds, 1511, 275, 282, classifica- proscribes only those racial 149 L.Ed.2d S.Ct. U.S. 121 Protection Equal violate the 517(2001). tions that would Clause, only whether need address this court
739
(1967)).
otherwise,
Accordingly,
reject
he concluded “the
instructs
we
the district
diversity
compelling
interest of
court’s conclusion and find that the Law
university’s
pro-
compelling
admission
School has a
context of
interest
achiev-
314,
ing
body.4
a diverse student
gram.” Id. at
740
supporting
the rationales
that
“con-
onstrates
protection,
Amendment
limited First
overlap on
need not
judgment
[Memoirs
]
the
of the
Court’s
holding
the
stituted
a hold-
provide
to
points
stan-
order
governing
essential
the
provided
Court
Indeed, if the
ratio-
courts.
narrowest
binds lower
ing
the
that
it was
dards” because
the
Id.
points,
at
essential
agreed
Memoirs
judgment.5
Justices
nale for the
unnecessary.
Mar&sanalysis would be
193-94,
741
rejected
possibility
scrutiny
missive intermediate
Douglas
standard
Black and
identifying suppressible ob-
any test for
of
apply to
racial
“benign”
would
classifica
Black and
In contrast
to Justices
scenity.
Id.
tions.
Justice
Under
Powell’s ratio
Memoirs,
Brennan concur-
Douglas in
nale,
scrutiny
apply
strict
to all
would
ra
that Davis’s admis-
rence did not assert
304-07,
Id. at
cial classifications.
98 S.Ct.
wholly insulated from
program
sions
was
constitutionally
2733. Because the set of
fact,
the Brennan concurrence
review.
permissible racial
under in
classifications
Powell
that Davis’s
agreed with Justice
scrutiny by
termediate
definition includes
subject
height-
program
admissions
constitutionally per
those classifications
359,
scrutiny, see
438 U.S. at
ened
scrutiny,
missible under
strict
Justice
(advocating
intermediate
permit
Powell’s rationale would
the most
expressly disagreed only scrutiny);
it
race;
therefore,
limited consideration of
application
scrutiny.
of strict
Because
his
is Bakke’s narrowest
rationale. Accord
is,
Bakke
susceptible
if
anything,
more
ingly,
opinion
Justice Powell’s
constitutes
the Marks
analysis than the case examined
holding
provides
govern
Bakke’s
itself,
Marks
find the district court
we
Marks,
ing standard here.6 See
430 U.S.
Bakke under
failing
analyze
erred
193-94,
990;
Triplett
see also
at
Marks.
S.Ct.
Grille,
Akron,
City
Inc. v.
40 F.3d
of
The Bakke Court addressed
permis
(6th Cir.1994) (“While
there is some
in academic
sibility of racial classifications
attributing
precedential
awkwardness
programs.
the Bren
Under
rationale,
per
opinion
Supreme
nan concurrence’s
the more
value to an
of one
Court
serving merely important
under
6. The "narrowest” rationale of
case
interest would not
scrutiny.
survive strict
capable
supporting the
Marks must be one
of
Maries,
judgment
See
Court’s
in that case.
Moreover,
Maries,
under
this court must fol
("[T]he holding
justice to which no
ap-
that is the deter
practice
plan
when
could be constitutional under its
the usual
Smith v. Univ.
opinion.”);
implicit-
minative
concurrence
proach, the Brennan
(9th
1188, 1200
Cir.
Washington, 233 F.3d
ly
unequivocally signaled
agree-
its
—but
—
ment with Justice Powell’s conclusion
2000).
body
a con-
achieving a diverse student
is
by
this court is bound
Justice
Because
stitutionally permissible goal.7
opinion, we find that the
Powell’s Bakke
compelling
state interest
Law School has
support
no
Although there is
—either
body.
a diverse student
achieving
or without
the footnote—for the
within
contention that
the Brennan concurrence
desirability of an “inte-
believed that the
whether the
grated
body”
student
turns on
Powell’s
determination
Justice
Our
necessary to
consideration of race is
court also
diversity conclusion binds this
integration,
achieve that
some courts have
support in
Brennan concur-
some
finds
lan-
qualifying
read the Harvard footnote’s
approval of the Harvard
qualified
rence’s
opinion:
plan
guage,
long
in the first footnote of its
“at least so
as the use of race
Mr.
agree
“We also
Justice POWELL
integrated
body
to achieve an
student
is
plan
like the ‘Harvard’
...
is
plan
that a
by
lingering
necessitated
effects of
at
approach,
constitutional under our
discrimination,”
past
suggest
use of
to achieve
long
least so
as the
race
implicitly rejected
Brennan concurrence
body
student
is necessitated
integrated
an
goal
achieving
body
student
diversi-
by
lingering
past
effects of
discrimina-
Texas,
ty.
Hopwood v.
78 F.3d
See
tion.”
743
493,
706,
(1989),
the dis
direct
4.
rejected in some other line
rest on reasons
decisions,
Appeals
should
Court
City Rich-
Relying on Adarand and
controls,
Co.,
directly
the case which
mond v. J.A. Croson
follow
reading
construing
night.
Just as whether or not it is
Hopwood's
akin to
permissibility
night
qualify
agree
driv-
does not
the sentence "we
that automobile
road,
on,
not the use
lights
trying to see the
whether or
may drive with their
at least so
ers
by past discrimination
long
lights
of race is necessitated
as the use of
to see the road is
seeking
qualify
permissibility
nightfall” to
does not
necessitated
the effects of
body.”
goal
integrated student
suggest seeing
permissible
"an
the road is a
*12
273-74,
Id. at
98
2733.
prerog
applicants.
S.Ct.
Supreme] Court
leaving to [the
minority
for
overruling
quota
its own decisions.” Davis also established a
ative
1974,
Rodriguez
Quijas
de
v. Shear
in
(quoting
example,
Davis re-
Id.
students —for
Inc.,
477, 484,
490 U.S.
Express,
spots
minority appli-
served sixteen
for
son/Am.
(1989)).
1917,
L.Ed.2d 526
104
275,
109 S.Ct.
cants.
Id. at
communicate with the
or other
B.
important.”
Id. The
fications deemed
to con-
plan
enough
Harvard
was “flexible
Although
achieving
he found that
pertinent
sider all
elements of
body
compelling
was a
in
diverse student
light
particular qualifications
terest,
ad
Justice Powell declared Davis’s
applicant,
place
each
and to
them on the
system
missions
unconstitutional because
consideration, although
footing
same
narrowly tailored.
it was not
necessarily according
them the same
319-20,
oper
2733. Davis
U.S.
S.Ct.
“tip the
weight.” Id. Race could
balance”
system
ated a dual-track admissions
fea
favor,
applicant’s
but so could other
committee
turing
separate
“geographic origin or a life
separate
process
minority
review
factors like
academically
strong qual-
but
other
farm.” Id. at
98 S.Ct.
have
spent on a
ities,
Committee, with a
number
mind, pays
criteria
some attention to
all,
plan “treat[ed]
the Harvard
Above
many
among
types
distribution
and cate-
ad-
as an individual
applicant
each
gories of students.
Id. at
process.”
missions
323-24,
Id. at
In
the Harvard
Justice
boundary
laration that
line is none
“‘[a]
accepted
university
that a
could not
Powell
”
being
Id.(quoting
the worse for
narrow.’
truly heterogen[e]ous environ-
provide “a
Dilworth,
327, 329,
McLeod
...
attention to num-
ment
without some
(1944)).
1023, 88 L.Ed.
S.Ct.
Justice
at
suit of
class
princi-
applicants
atten-
The unsuccessful
focus
minority
Explaining
students.
its
pally
of
on the effects of the Law School’s
tion to the numbers
distribution
students,
policy, contending first
the Law
minority
emphasized
Harvard
“critical
pursuit
black
could not School’s
of a
mass” is
that “10 or 20
students
quota
functional
of a
because it
begin
bring
equivalent
to their classmates and to
view,
under-represent-
in a
variety
points
range
has resulted
of
each other the
minority
from 10%-17%.
backgrounds
experiences
of blacks in
ed
enrollment
definition,
a matter of
we are satisfied
States.” Id. at
98 S.Ct. As
United
Moreover,
not
that the Law School’s “critical mass” is
“[t]heir
small numbers
unlike
equivalent
quota,
of a
because
might also create
sense of isolation
spots
Davis’s reservation of sixteen
among the black students themselves and
candidates,
under-represented minority en-
has School’s
the Law School
minority
In
ranged
That
the Law rollment
from 13.5% to 20.1%.
target.
goal
no fixed
(1)
light
overwhelming testimony by
“critical mass” has
pursuit of a
School’s
under-
approximate range
professors,
admissions coun-
resulted
Law School
minority enrollment does not
does
represented
selors and deans that the Law School
quota.
into a
“critical mass”
employ
quota
transform
or otherwise reserve
high-
allows institutions of
under-represented minority ap-
Because Bakke
seats for
(2)
attention to the
pay
education to
some
plicants
er
Justice Powell’s instruction
under-repre-
presume
and distribution
numbers
that lower courts
academic
316-17,
students, see id. at
minority
good
operating
sented
act in
faith in
institutions
time, rebanee on Bakke
simply
over
cannot
“plus” programs,
their
we
percentage
always produce
will
some
using
conclude that the Law School is
And that
range
minority
enrollment.
equivalent”
“functional
of the Davis Medi-
bottom, which, of
range
always
will
have a
cal
down in Bakke.
quota
School
struck
course,
“minimum.”
can be labeled the
Relying on
evidence that un-
statistical
logical consequence
are the
These results
der-represented minority
are ad-
students
Bakke and establishment of
of reliance on
compara-
Law
mitted to the
School with
policy, like the Harvard
an admissions
tively
undergraduate
grade-point
lower
plan, that attends to the numbers and
scores,
test
averages and standardized
minority
under-represented
distribution
applicants
argue
also
that the
unsuccessful
such,
cannot
they
As
serve as
students.
ethnicity
Law
considers race and
School
the Law
charge
the basis for a
Although they
too much.10
concede
policy is unconstitu-
School’s admissions
qualified,
all admitted students are
tional.
applicants contend that
unsuccessful
data,
analyzing actual admissions
disparity evidences an unconstitutional
dissent
a variation of the unsuc-
tries out
*16
double standard for admission of under-
applicants’
cessful
contention and focuses
represented minority applicants and non-
only
years
through
on the
1995
1998. Dis-
applicants. Upon inspection,
minority
J.).
Op.
(Boggs,
at
Based on
senting
however,
applicants’
the unsuccessful
sta-
tightest four-year range
grouping,
just
tistical evidence demonstrates
what
available,
the dissent concludes
expect
plan
like the Harvard
one would
“critical mass” of for-
Law School seeks a
plan to demonstrate —that race and eth-
under-represented
ty-four
forty-seven
to
factors,
nicity,
“plus”
play
important
class,
per
or “around 13.5%.”
minorities
As the
role
some admissions decisions.
footnote,
But as the dissent confesses
logical result of reliance on the Harvard
picture
a bit.”
“deviate[s]
the rest
applicants’
plan, the unsuccessful
statisti-
1994,
Id. at
n. 29. From 1987 to
under-
accordingly
cal evidence
cannot sustain
represented minority
enrollment was
that the Law
ad-
their contention
School’s
12.3%, 13.6%, 14.3%, 13.4%, 19.1%, 19.8%,
policy
missions
is unconstitutional.
14.5%, 20.1%,
impor-
respectively. More
tantly
present purposes,
advancing
plan,
if we examine
the Harvard
Justice
Powell,
or
under-represented minority
unfortunately,
enrollment
did not define
1998,
respect
permissible “plus”
1993 until
that the Law discuss a
with
we see
policy
sufficiently
plaintiffs’
School's admission
was
10. The district court credited
statis-
conclusions,
incorporate
tical
but did not
narrowly tailored.
Law
them into its discussion of whether the
clari-
define “critical mass”
sufficient
high
grades
school
the test scores
(2)
minority
apparent
Harvard
lack of a time limit on
under-represented
ty;
append a
Harvard did not
And
the Law School’s consideration of race and
applicants.
minority
(3)
and non-
comparison of
ethnicity;
policy
the admissions
statistical
test scores
minority standardized
quo-
and/or
from a
“practically indistinguishable”
Perhaps
plan.
(4)
its admissions
grades to
Law
did not have
system;
ta
School
numbers
Harvard,
enrolling meaningful
the race and
logical
considering
basis for
students,
minority
under-represented
African-Americans,
ethnicity of
Native
minority
under-represented
select
(5)
could
Ricans;
and Puerto
the Law
Americans
high
or
school
scores
applicants with test
“investigate
alternative
School did
non-minority
their
grades equivalent
increasing minority
means for
enrollment.”
again, perhaps
then
counterparts. And
Grutter,
F.Supp.2d at
As a
850-52.
some of the same
grappled with
Harvard
matter,
initial
we have serious reservations
challenges as the Law School
admissions
the district court’s consideration
regarding
course,
admissions
such
today. Of
does
Bakke, which,
found in
of five factors not
before
in the record
are neither
statistics
stated,
Supreme
have
is the
as we
into
incorporated
Justice
explicitly
us nor
directly
address the consid-
Court case
these circum-
Under
opinion.
Powell’s
ethnicity
of race and
academic
eration
stances,
the Law
cannot hold
we
Nevertheless, we are satisfied
admissions.
which is
program,
vir-
School’s
factors relied on
remaining
that the
plan,
Harvard
tually identical
holding.
its
district court cannot sustain
fail
Powell’s test
nevertheless
Justice
Although not addressed
subse-
indication
constitutionality.
some
Without
Supreme
opinions suggest
Court
quent
meant to
specifically
Powell
that Justice
nec-
of race-neutral means is
consideration
of race or ethnici-
limit the consideration
narrowly
satisfy the
tailored
essary to
balance,”
“tip the
or as
“plus,”
ty—as
scrutiny. E.g., Cro-
component of strict
decisions”—
in some admissions
a “factor
(“In
son,
minority students cannot be enrolled
Supreme
Bakke and the
Court’s subse-
significant numbers unless their race is quent
require
decisions to
the Law School
*18
pro-
in
explicitly considered
the admissions
meaningful
to choose between
racial and
cess,”
find that
the Law School has
we
diversity
selectivity.
ethnic
and academic
adequately considered race-neutral alter- An
higher
institution of
education must
natives.
alternatives,
consider race-neutral
but
proposes
The dissent
the Law School need not abandon its academic mission to
pursue “experiential
in a
race-
achieve absolute racial and ethnic neutrali-
Thus,
neutral manner”
an
in
ty.
applying
scrutiny
and characterizes such
strict
we
approach
superior
judgment
as a
cannot
ignore
alternative to
the educational
discussing
freely
issues
faculty
feel uncomfortable
of the Law School’s
expertise
and
personnel regarding
personal experiences.
on their
We
based
and admissions
emphasize
race-neutral alternatives. We
also
the considerable tension
efficacy of
race-
to ascertain which
ill-equipped
findings
between the district court’s
degree
merit
alternatives
which
neutral
insufficiently
“critical mass” is both
de-
will al-
or which alternatives
consideration
equivalent
fined and the functional
of a
the Law School
an
such as
low institution
event,
quota.
district court’s
highly qualified
to assemble both
apparent
insistence that “critical mass”
Regents
richly
academic class. See
diverse
correspond
percent-
with a
definite
more
Ewing, 474
Michigan v.
the Univ.
fatally at odds with
age is also
Bakke’s
214, 226, 106
88 L.Ed.2d
S.Ct.
U.S.
Bakke,
prohibition
quotas.
of fixed
See
(1985)
that a
court is
(noting
federal
last eliminate,” this designed it is directive publishing Appen- their “Procedural neatly not transfer to an institution of dix,” does Judge Boggs I believe that and those higher education’s nou-remedial consider joining opinion grave his have done a harm ethnicity. and Unlike a re ation of race themselves, only but to this court interest, medial an interest academic A and even to Nation as whole. diversity does not have a self-contained opinions court’s state the reasons for its Indeed, point. an interest in aca stopping holdings provide public with the independently demic exists of a principled justifications for them. Dis- policy. race-conscious admissions Never senting opinions typically present princi- theless, apply even if we were to a dura- pled disagreements majority’s with the constraint, that tional we are satisfied holding. disagreements princi- over Such policy appro Law School’s sets admissions ple perfectly legitimate and do not competitive priate limits on the consider public ability undermine confidence our ethnicity. ation of race and The record judges to as do what we have sworn to do indicates School intends because, culture, long recog- as a we have Law ethnicity race and to achieve a disagreements nized that principle over consider body only diverse and robust student until are unavoidable. this cultural back- Given possible to enroll a “critical becomes drop, disagreements principle over can be under-represented minority stu mass” phrased strong damaging terms without Thus, through dents race-neutral means. ability the court’s to function as a decision- policy we are satisfied the admissions making society. institution a democratic possibility “sensit[ive] [it] Judges colleagues’ reasoning criticize their someday might purpose.” have satisfied its time, and, all the if they carry are to out Ohio, See Associated Gen. Contractors office, they their oaths must do so. This Drabik, (6th Inc. v. 214 F.3d exchange sharpens robust of ideas the fo- Cir.2000), denied, cert. pur improves cus and analysis legal of the (2001). 1089, 148L.Ed.2d 963 S.Ct. issues. case, present Judge Boggs
In the has a lengthy strongly III. written worded cri- tique majority’s of the of the substance reasons, foregoing For we RE- holding present in the I Although case. judgment district VERSE of the court conclusions, disagree analysis with his injunction its prohibiting VACATE acknowledge jurist. I his abilities aas considering Law School from race and eth- final Judge Boggs’s section of dis nicity its decisions. sent, Appendix,” labeled “Procedural how ever, publicizes disagreements over the in MOORE, Judge, concurring. Circuit court, which, workings my ternal as states, separately I my colleague directly write both to note dis- “do not affect the approval in- Judge Boggs’s legal principles decision to discussed in this case.” are, Appendix” part clude a “Procedural procedural of Given that these matters best, hand, dissenting opinion provide peripheral his and to an at matter at important accurate account of how this case came to the that “it reason *20 public opin- our decisions to the in written in the record” is to declare placed they be unfounded assertion ions. the dissent’s publicly today decision is the majority’s
that
The decisions of this court are not self-
manip
political maneuvering
result of
executing but instead must
into
be carried
argument of the
ulation. The baseless
practice
do
They
other actors.
will
so
Appendix” is that
the deci
“Procedural
only
long
they regard
legiti-
as
as
us as
in
grounded
are not
of this court
sions
mate,
possess
purse nor
as we
neither the
but in
argument,
and reasoned
principle
sword,
only judgment.
but
For this
judges
and that the
of this court
power,1
reason, we are often
as the
described
ignore the rules
order
manipulate and
branch,
purse,
a court
weakest
but
without
agendas.
I am sad
political
to advance
sword, or legitimacy would be weaker still.
joining
and those
Judge Boggs
dened that
argue
protecting
This is not to
that
But,
opinion
things.
believe these
his
judicial
strength
relative
branch
my
I
that
importantly,
am concerned
more
Indeed,
primary
should be our
concern.
severely
colleagues’ actions will
dissenting
uphold
have all sworn to
the Constitu-
we
confidence in this court.
public
undermine
tion,
judi-
a strong
and the Nation needs
Parenthood,
v.
Planned
Inc.
Memphis
Cf.
ciary to check the occasional excesses
(6th
F.3d
Cir.
Sundquist, 184
and,
importantly,
more
the other branches
1999) (Batchelder, J., separate statement
preserve
the rule
law.
banc) (“Our
rehearing
on denial of
en
dis
ability
perform
these crucial
Our
may
colleague’s
purposes
own
senting
of this
imperiled
tasks is
when members
by publicly impugning
integ
furthered
“expose to
upon
court take it
themselves to
colleagues. Collegiality, coop
rity of his
proce-
public
disagreements
view”
over
decision-making
eration and the court’s
exposés
damage
dure. The
done
such
public
And
confi
process clearly are not.
is,
part,
responsibility
at least in
system and in this
judicial
in the
dence
them,
report
despite the efforts
those who
not.”).
clearly are
court
Boggs
joining
opin-
his
Judge
those
judges
we
are unelected and
Because
responsibility for their own
ion to disclaim
behavior,
during good
our
serve
understandable, however,
conduct.
It is
legitimacy
per-
is the
source of democratic
so,
they
their conduct in the
do
ception
engage
principled
that we
deci- present
nothing
case is
short of shameful.
sion-making. See Planned Parenthood
838, 865-66, 112
Casey, 505 U.S.
S.Ct.
II.
(1992).
per-
As discussed matters of internal had taken immediate action to circulate firmly believe that exposed to procedure petition court should not be the en to the whole court on banc date, in But when one is attacked that have heard public view. the case would been majority way by that the members of the en that in fact the the same banc court attacked, necessary pres- 6, it is have been heard it on December 2001. The record in an account of the events ent accurate simply support any does not other conclu- create the question; to fail to do so would 4, point. Similarly, sion on this the June impression Judge Boggs’s assertions holding petition 2001 order the en banc in are, fact, in correct. abeyance hearing was also referred to the Thus, panel in 2001. August Judge Judge Boggs joining opin- and those his Boggs’s claim that the June order was complaints regarding ion have numerous court, not circulated to the en banc on procedures that were followed in the the true, goes, is as far as it but June end, however, In present case. the their misleading, because that order not was complaint present chief is the case has time, in- any judges circulated to at that by nine-judge decided en banc been cluding hearing panel. the This ministeri- (“the particular decision-making court signed by al order was the clerk of the case]”) ... decided body [the that has any court and was not issued as a result of court, eleven-judge rather than an en banc by hearing panel. action hearing panel and that the members of the (Chief originally assigned Judge this case addition, Judge Boggs’s In assertion Martin, Judge Daughtrey, myself) hearing panel that the violated the rules or purposefully engineered this result. A operating procedures internal of the Sixth Judge Boggs’s unfounded asser- number in circulating peti- Circuit not the en banc May petition tions involve the for tion to the August entire court after 23 but initial hearing en banc filed Barbara 15, 2001, prior simply to October incor- Judge Boggs repeatedly Grutter. asserts 5, 2000, rect.4 On December months be- “preselected” panel hearing with- filing petition present fore the petition held this other members case, Judge poli- Chief Martin instituted a Judges of the court until after Norris and cy regarding petitions the treatment of status, July Suhrheinrich took senior on 1 initial hearing change en banc. This 15, 2001, respectively. August policy spurred by increasing fre- docket, private quency petitions, especially pro The Sixth Circuit’s how- of such ever, May petition that the appeals. detailing indicates se the letter that, hearing policy, en banc was first referred to the judge the chief instructed 23, 2001, filed, panel hearing August petition on and it when such a the clerk of order, panel was not received until several the court should enter such as case, days By August thereafter.3 present holding both issued Judges petition abeyance completion Norris Suhrheinrich had taken until the us, course, accept given composition but he has refused to our assur- 4. Of ances. 23, 2001, August court on would not have made difference outcome of the My own records indicate that I first saw the petition case whether the en banc had been 26, 2001, May petition September date, September, circulated on that or in or in at which time I consulted with the other early October 2001. hearing panel members of the about circulat- ing petition to the whole court. consideration, however, I do not see of this petition to the refer the and then briefing, hearing panel can be faulted for eases. This how the assigned the hearing panel present circulating petition. in the followed procedure was *22 ease, assigned hearing the In each case. objects to the treat- Judge Boggs also decide, mat- an initial then panel would present panel” case as a “must ment of the pro- petition and ter, deny the whether case, “preselected” composition the of the panel consider- the scheduled ceed with handling and the of all ac- hearing panel, or, legitimate raised a petition if the ation appeal by related to this tions and motions banc, to circu- hearing en for initial ground hearing panel. These “preselected” the court. to the rest of the petition late the minor, objections relatively given any objec- no one raised my knowledge, To ini- subsequent decision to hear the case circulated to it was policy to this when tion Indeed, this court’s deci- tially en banc.5 in instituted for comment and the court present to hear the case en banc was sion policy, to this 2000. Pursuant December to the by the concerns related motivated de- present in the case hearing panel composition hearing panel. of the These to circulate cided, in September were raised Senior Circuit concerns the entire court. petition to the en banc in Ralph Guy a letter to Chief Judge practice of the Sixth prior Whatever Martin, dated which was October Judge respect to the circulation Circuit letter, poll issued 2001. The banc, see hearing initial en petitions for panel to the en banc court hearing (discussing peti- at 811 n.43 Dissenting Op. following rationale for very day, stated 2000), hearing year in the tions filed petition hearing for en circulating the required was not present in the case panel banc: petition 14 en banc May to circulate September in policy in effect
under the
En
Hearing
for Initial
Re: Petition
Banc; Request for a Poll
dissent,
in
indicates
his
Judge Boggs
As
have filed
Plaintiffs Gratz and Grutter
is an
hearing of a case en banc
an initial
hearing
initial
en banc
petition
occurrence. See Dissent-
extremely rare
concerning
cases
the admis
these two
(“I
court
been on the
ing Op. at 814
have
University
of the
of Michi
policies
sions
I
recall an
do not
years,
for [sixteen]
its law school. Pursuant
gan and
tenure.”).
my
hearing
initial
en banc
for initial
policy,
petition
usual court
Thus,
not to
hearing panel’s decision
referred to the
hearing en banc was
hearing
for an initial
petition
circulate the
the case. The reasons
panel hearing
prior to the
present
in the
en banc
case—
hearing
initial
en banc were
stated
perfectly under-
discussed
events
infra —is
case,
importance” of the
“exceptional
Indeed,
of the
if the members
standable.
another
conflict” with
the “inevitable
May
had circulated
hearing panel
opinion in view of
circuit’s
federal
the other
September
petition
Fifth
of the
already conflicting decisions
likely
would have
of the court
members
Texas,
F.3d
v.
banc,
Hopwood
en
Circuit
initially
the case
voted not to hear
(5th
(5th Cir.1996),
and 236 F.3d
any other
Boggs cannot recall
Judge
since
Cir.2000),
and the Ninth Circuit
having been
petition
instance of such
Washington Law
University
years.
light
Smith
past
in the
sixteen
granted
actually
finds fault
with which he
decisions
objections are also minor in
5. These
present case.
changed
outcome of the
argue
Judge Boggs
of the
does not
(9th
Sch.,
Cir.2000),
against
hearing
is Chief case en in order banc to resolve the con- trey, Judge panel Moore. The be- cerns of certain members of the court policy court refer- composition lieved that the usual hearing panel. about the of the ring petition hearing for initial en banc Judge Boggs and those joining opinion his followed, complain should be the reasons now composition about the But, hearing forth for initial en en set banc did banc court. as I have demonstrat- *23 hearing. supra, complaints such an initial The ed these warrant are without Moreover, expedited panel already appeal “preselect- had merit. even if the process, hearing panel the conflict ed” had Judge between circuits acted as claims, not, existed, already Boggs impor- and we had not heard which it did it is any exception- deprive en number of other tant to note that this did not Judge banc ally important Boggs op- cases. and the other dissenters of the portunity to call for initial hearing en banc question
Because of a that has been any on their own initiative at time. composition regarding raised of the panel, panel the en believes operating procedures The internal petition banc court should vote on the permit this judge court active to re- for en hearing initial banc. Hence the quest poll a for a hearing initially case en petition is attached for a vote. Since the banc, regardless party of whether a has by ease is scheduled to be heard petition filed a for hearing en banc. 6See 23, panel Wednesday, on October time is 35(c). If, then, Cir. I.O.P. Judges Boggs deciding in whether essence to and others were concerned with the selec- proceed initially en banc. tion of hearing panel present in the
Judges Daughtrey and Moore were on
15,
case at
point prior
some
to October
panel
considering
the initial
2001,
procedure
there was an internal
questions of intervention. Grutter v.
they
which
could have addressed those
(6th Cir.1999).
Bollinger,
for
hearing
initial
en banc.
simple
The
fact of the matter is that the
hearing
The vote for
en
in present
banc was seven
case
panel”
was treated as “must
Martin,
Siler,
Judge
Judges
favor—Chief
early
July
case as
2000. In Grutter v.
Moore, Cole,
(6th
Daughtrey,
Clay,
Cir.1999),
and Gil- Bollinger,
preme value of opinion Justice Powell’s that di- CLAY, Judge, concurring. Circuit versity sufficiently is a compelling govern- I Judge majori- concur in Chief Martin’s justify mental interest a race-based ty opinion, finding insightful it correct and classification, disturbed, should not be es- respects. in all I separately, write howev- pecially justices where various individual er, purpose speaking for the ap- have “from time to time ... written misrepresentations by Judge Boggs made comparable provingly of ethnic opinion unjustifi- in his dissenting Killenbeck, which settings”); Pushing Mark R. ably upon distort and seek to cast doubt Things Up Principles: to Their First Re- majority opinion.1 on the Values Ac- flections of Affirmative Hereinafter, specifically Judge "the dissent” shall be Bat- reference to addressed as such. dissent, regard Judge Boggs’ he in while chelder’s dissent is not referenced in this any Judge opinion. reference to Gilman's dissent shall Diversity Supports (1999) 1299, The Evidence B. tion, L. Rev. 87 Cal. Compelling Governmental as a opinion Powell’s why (illustrating Justice Interest why any and other controlling, is Bakke over substance form Likewise, astray conclusion elevates one should not be led opinion that, Brennan’s Justice as Justice the dissent’s contention inasmuch aside, developing a di- opinion Pow- Powell’s from Justice distinguished cannot cannot serve as a com- body verse student of the level of on the basis opinion ell’s criticizing interest. pelling state While basis) any other or on scrutiny applied, simply it is majority implying that Educ., Bd. Wygant Jackson (citing opinion, Powell’s huddling behind Justice 106 S.Ct. 476 U.S. majority that “the has the dissent claims (O’Connor, J., (1986) concur- L.Ed.2d 260 why engi- as to argument us no given Pow- “[although Justice ring) (finding body student should neering of diverse more may be viewed as ell’s formulation compelling state interest sufficient be a by Justices suggested than that stringent apparent satisfy scrutiny.” strict an Blackmun, Marshall, White, Brennan, majority attempt to elevate itself over tests do the two disparities between goes on to claim opinion, the dissent of consen- fair measure preclude a it, hand, argu- considers “the on the other distinction sus[,]” where “the particularly ... question of this ments on both sides ‘important’ ‘compelling’ between a diverse constructing concluded] negligible purpose may be governmental compel- not a environment is educational Vera, 952, 1010, one”); Bush v. The dissent’s claim ling state interest.” (1996) 135 L.Ed.2d on both arguments considers the (Stevens, J., (noting that “all dissenting) conspicuously ab- suspect because sides might be jurisprudence equal protection its consideration of the benefits sent from scru- of rational basis as a form described meaning- body a diverse student scrutiny1 more apply ‘strict tiny; we schol- legal of the wealth of recognition ful of success than likelihood describe the study involving stu- arship including — *26 applied”); Unit- of the test to character University Michigan— of dents Virginia, 518 U.S. ed States of, documenting as well speaking (1996) 135 L.Ed.2d data, impact positive empirical through (Sealia, J., (contending dissenting) education, just for diversity in of “[tjhese than jour- are no more scientific tests the educational throughout student ele- the educational years and a further for after suggest, ney names but their the dis- completed. Although process fact is by added randomness is ment of points, study on various this sent criticizes up which test will be largely to us study has been that the the fact remains case”)). there- should applied in each One many fronts. hailed on many by in the dissent’s fore not be taken and undermine to convolute contortions major study conducted Specifically, diversity in a holding that majority’s Professor of Michigan University compelling Patricia recognized Studies body student and Women’s Psychology analysis Gurin, scale encompassed a wide pursuant interest Justice governmental learning environ- of a diverse of the effects in Bakke.2 controlling opinion Powell’s governmental inter- compelling Bakke is a in regard, Judge Gilman’s dissent In deciding edu- misguided as well. without est” is which ‘‘assumes diversity Justice Powell as defined cational ment, students, particularly University that at the as well existing as from so- cial Michigan, develop- theory on a student’s overall science and research. ment, included data from the Michigan and Students come to universities at a Study, study Intergroup Student critical stage of their development, a Relations, Conflict, and Community Pro- time during they which define them- gram University at the selves in Michigan, experi- and relation to others and 4-year 9-year ment with different large data on a social roles before making permanent sample national commitments to oc- of institutions and stu- cupations, groups, social Cooperative dents from and intimate Institutional personal addition, relationships. Gurin, Program. Research See Patricia many college students is the first sus- Reports submitted on the Univer- behalf of exposure tained to an environment other sity Michigan: Compelling Need than their Higher communities. edu- Education, Diversity Higher especially cation is influential when its (1999); Mich. J. Race see Law & social milieu is different from the com- Holmes, also A. A Steven New Turn in munity background from which the stu- Action, N.Y. Times, Defense of Affirmative come, dents and when it is diverse 11, 1999, May at A1 (citing Professor Gu- enough complex enough to encour- report rin’s and concluding that “the mar- age experimentation.... intellectual shaling of statistical evidence of the bene- Students deep- learn more and think diversity” fits racial distinguished the er, complex more ways a diverse present involving case University educational environment. Extensive Michigan from similar involving cases Uni- research in social psychology demon- versities California and Texas inasmuch strates active engagement as these institutions defended their affir- learning cannot be taken for grant- policies mative action “anecdotal ed.... Complex thinking occurs when evidence”). people encounter a novel situation for studies, Professor resulting Gurin’s which, by definition, they have no data, statistical her led to conclude as fol- script, or when the environment de- lows: mands more than their scripts current A racially ethnically uni- diverse provide. Racial college versity body student far-ranging has university body provides student and significant benefits for all stu- very features that research has deter- dents, non-minorities and minorities mined are central to producing the alike. Students learn better in a di- conscious of thought mode educators *27 environment, verse educational and demand from their students. This is they are prepared better to become particularly true at the University of participants active in pluralistic, our Michigan, because most of the Univer- society democratic they once leave sity’s students come to Ann Arbor fact, setting. patterns such a of ra- from segregated backgrounds. For segregation cial separation and histori- students, then, most Michigan’s social cally rooted in our national life can be diversity unfamiliar, is new and a broken by diversity experiences in source multiple or and per- different higher Report education. This de- spectives, likely and produce contra- scribes the strong evidence supporting dictory expectations. diversity Social these conclusions derived from three especially effortful, is likely to increase parallel empirical analyses university active thinking when institutions of years five interactions most cross-racial on these capitalize education higher analysis The leaving college.” and Id. provide after in the classroom conditions pat- di- long-term students from that “[t]he in which indicated also a climate frequently interact backgrounds by many noted separation verse tern of racial each other. with diversi- can be broken social scientists Id. higher education.” experiences ty Professor Gurin Gurin, at 364-65. supra “one of the with these conclusions backed underly- in these for Plaintiffs Counsel empiri- series and extensive broad most critical of Professor have been ing actions college students analyses conducted cal conclusions, claiming study and Gurin’s For Id. at 365. diversity.” relation the conten- nothing to refute .they that do “multi- examined Professor Gurin example, role in plays predominate a race tion that data, of an the results national institutional com- process. legal As one the admissions at the survey students Univer- extensive criticism, replied has this mentator a data drawn from Michigan, sity of and not, however, question critical [t]he at the program Univer- classroom specific race, argu- other or not or whether All of these Id. studies Michigan.” sity of characteristic, plays ‘suspect’ group ably interaction with that clearly indicated role’ in the ‘predominate a backgrounds, racial from diverse peers is, rather, whether there It process. posi- informally, and in the classroom both justification for compelling educational Professor Gurin referred to what tively led enter the characteristic to allowing that is, That “[s]tu- “learning outcomes.” as mix, it is in decision-making that and the most racial and experienced who dents study the Gurin specific context diversity settings classroom ethnic a contribution. makes peers informal showed interactions thinking in active engagement greatest Killenbeck, Professor supra at 1328. engage- in intellectual processes, growth signifi- best illustrated possibly Gurin motivation, intel- growth ment to whether seek- findings her as cance of Id. skills.” and academic lectual may be con- body student ing diverse study also indicated Gurin’s Professor interest when compelling state sidered stu- racially diverse the benefits that, she concluded major in a second seen body were dent evidence, face of research [i]n for a area, students being preparing about only remain unconvinced can one society, a democratic role in meaningful if one believes impact positive called Gurin what Professor to be vessels” are “empty that students Id. 365-66. “democracy outcomes.” knowledge. specific content filled with Settings are in diverse educated “Students educators, we chagrin our Much to to partici- better able motivated and more that stu- compelled to understand heterogeneous increasingly in an pate impact- may be hearts and minds dents’ Id. at 366. democracy.” complex they learn from by what most ed the empirical Gurin’s of Professor results why the precisely This is peers. their diversity ex- these analysis indicated body is essential diversity of the student *28 impressive college “had during periences mission fulfilling higher education’s graduates which the extent to on effects demo- encourage learning and enhance living racially study were national in values. and outcomes cratic post- lives integrated in ethnically and light of Gurin’s Gurin, at 422. supra di- the most world. Students college importantly, the and, perhaps more study college had the during experiences versity 762
data empirical 48, and evidence backing her id. at See 313 n. 98 Specifi- S.Ct. 2733. findings on the value of a diverse student cally, Justice Powell noted and embraced body, skep- those who like the dissent are the comments of president of Prince- characterizing tical of diversity as a com- ton University as follows: pelling governmental interest because “di- great “[A] deal of learning occurs in- versity” is not defined or they because formally. It occurs through interactions believe it concept to be a nebulous based among sexes; students of both of differ- evidence, on anecdotal find themselves races, ent religions, and backgrounds; ill standing footings. Friedl, See John areas, who come from cities and rural Making a Compelling Case Diversity countries; from various states and who Admissions, College 61 Pitt. U. L. Rev. interests, have a wide variety talents, 1, (1999) 29-32 (noting date, that “[t]o perspectives; able, and and who are di- almost support all of the evidence in rectly indirectly, to learn from their diversity higher education is anecdotal differences and to stimulate one another nature[,]” discussing while the lack of to reexamine even their deeply most concrete, empirical evidence substantiating assumptions held about themselves and the value of a diverse body student as a their world. As a graduate wise of ours interest); compelling state see also Wess- observed commenting aspect on this mann, 160 (“[A]ny F.3d at 797 proponent of the educational process, ‘People do notion of could recite ...a not learn very much they when are sur- litany Hence, of virtues. an inquiring rounded only the likes of them- court cannot content itself with abstrac- ” selves.’ tions.”).
Professor empirical Gurin’s evidence supports what Justice Powell found to be “In the nature of things, it is hard to true in Bakke regarding diversity’s place how, when, if, know and even as a compelling is, state interest. That informal ‘learning through diversity’ ac- regardless of agrees whether one that Jus tually occurs. It does not occur for opinion tice Powell’s in Bakke is control everyone. however, For many, the un- ling, the fact remains that Justice Powell planned, casual encounters with room- recognized that a diverse body student is a mates, fellow sufferers an organic compelling interest promotes because it class, chemistry student workers in the the atmosphere of higher education to library, teammates on a basketball which our nation is committed inasmuch as squad, or other participants in class af- it allows the students to train in an envi fairs government or student can be sub- ronment embodied with ideas and mores tle yet powerful improved sources of “as diverse as this Nation of many peo understanding personal growth.” ples.” Regents See the Univ. of Calif. 265, 312-313, Bowen, /¿(quoting 438 U.S. William 98 S.Ct. Admissions 2733, (1978) J.) (Powell, Race, L.Ed.2d 750 the Relevance of Princeton (citing Keyishian 7, 1977)). v. Bd. Alumni Regents, Weekly (Sept. Jus- 589, 603, U.S. 87 S.Ct. tice Powell then expressly L.Ed.2d 629 found that the (1967)). And, along the lines of benefits derived Professor from a diverse student study, Gurin’s expressly body apply noted with substantial force at the Justice Powell that it is the graduate student learn level as well as undergradu- ing from the other student that makes a ate level. id. Relying See on Sweatt v. body diverse student Painter, a compelling need.
763 fact, as Killenbeck, 1320. In supra at See that the (1950), he reiterated L.Ed. 1114 study conducted a detailed indicated in specific point with a similar made Court “ at Wightman, F. who Linda Professor ‘Few stu- education: legal to reference Presi- served as Vice research time of her law practiced has no one who and dents Re- Operations, and Testing, for dent vac- in an academic study to choose would Council, search, Admission School Law ideas interplay of uum, from the removed action— affirmative Inc., realities of on the which with exchange of views and to finding compelling most “perhaps the at 438 U.S. is concerned.’” law affirma- to which the extent emerge is not Sweatt, 339 (quoting 318-14, legal doors of opened the action has tive 848). 634, 70 S.Ct. atU.S. and other African Americans education to indeed and proffered, to the In addition to Instead, it is the extent minorities. diverse of a proven, benefits statistically routinely applicants school white law which edu- higher fulfill to in order body student merit exceptions benefit learning to enhance cation’s mission F. Linda (citing id. at 1321 principle.” See val- outcomes encourage democratic Le- Diversity in to The Threat Wightman, im- state justifying ues, for reasons other Analysis Empirical An gal Education: of realm educational diversity posed Race as Abandoning Consequences example, For proposed. also been have Deci- Admission in Law a Factor School university in the supporters (1997)). 1,16 tbl.2 sions, L. 72 N.Y.U. Rev. a diverse seeking argued that setting have [table explains “[d]ata Killenbeck this coun- consistent body is student 14.9% indicate that study] Wightman’s absolute to commitment try’s historical not accepted applicants white Association See education. equality in accep- suitable for predicted as have been Universities, Impor- On American of their on the combination tance based Admis- University Diversity in tance of average point grade undergraduate A17; sions, April Times, N.Y. is, purportedly if the That score. LSAT Educ., 347 U.S. v. Bd. Brown see also oppo- embraced criteria objective merit L.Ed. 483, 494-95, 74 S.Ct. in fact action were nents of affirmative equal” (1954) “separate but (rejecting every white six nearly one dispositive, Ferguson, Plessy v. doctrine of arguably were actually accepted applicants (1896), 1138, 41 L.Ed. 537, 16 S.Ct. sense.” traditional ‘qualified’ past rejecting the recognizing and while Accordingly, n. 100. id. at See educate illegal making practices something more applicants, these white Americans, them educating African admis- in the considered than merit school’s The law surroundings). inferior something more just process, as sions isolation of racial the impact pro- concern with designed program in a considered few “to- only a id.; when stigmatization Susan see also diversity. See mote echos to attend are allowed Guinier, ken” minorities The Future & Lani Sturm of Af- Innova- Reclaiming point. Action: firmative 953, 968-80 Ideal, 84 Calif. tive L.Rev. designing argued that been It has also (1996) the use of standardized (criticizing oth- account factors takes into system that of candidates’ an indicator as test scores noth- of merit is notions than traditional er admission). suitability for affir- very new, reason ing inasmuch scholarship has indi- short, legal years because arose was mative action body serves a diverse student males— cated white groups particularly some — deep commitment nation’s promote our over others. advantage provided were *30 equality, provides educational significant applicant black may very well bring to the benefits to all students —minorities and student body experiences life rich in the alike, non-minorities and does so using a African-American traditions emulating the system foreign which is not to the admis- struggle the black race has endured in process, sions but allows for which order for applicant the black even to have just Thus, benefit of all and some. opportunities privileges to learn. although majority does base its holding HigginbothaM, Jr, See A. LeoN Shades Of diversity compelling governmen- is a Freedom, 195-96, (Oxford University tal opinion interest on Justice Powell’s 1996) Press (formulating ten precepts of contrary it is clear that to the American slavery jurisprudence, with the criticism, dissent’s holding this is not with- precept seventh being the historical denial out standing foundation even when alone. any education to blacks and making it a hand, On the other the dissent’s conclusion crime to teach who those were slaves how that diversity cannot as a compelling serve write); to read and see also Frederick state purposes interest of surviving Douglass, What to the Slave is the Fourth constitutional muster under the Equal (1852) July? (addressing Rochester La- Clause, supported Protection is by neither Anti-Slavery dies’ Society, noting legal scholarship empirical nor evidence. “[i]t is admitted in the fact that Southern example,
For questions why the dissent statute books are covered with enactments race is at all relevant to promoting a stu- forbidding, under severe fines penal- dent body rich in experience. ties, teaching of the slave to read or to shown, however, Statistics have that using write”). factors other than race such as socioeco- It insulting Americans, to African status, produce nomic failed highly to to ethnicity race or that has known qualified, ethnically body diverse student oppression and discrimination the likes of achieved when race also factored into embodies, which slavery to think that a process. the admissions Wightman, See generation enjoying the product end of a supra at position 39-45. The dissent’s life of forgotten affluence has or cannot simply point misses that advanced by De- relate the personal enormous sacrifice fendants this at oral argument; case made by their family members and is, ances- that a comparably-situated white tors not all that ago in long order to applicant make is a person” “different from possible. Indeed, end inwe this coun- applicant. black This is obvious when one try a generation or so considers the dissent’s criticism that removed legally enforced University give diversity preference segregation which was used “conventionally discriminatorily black deny liberal” student who African is the child Americans “lawyer parents and other living minorities in Grosse Pointe” access (typically thought education, of as as well employ- suburbs).3 ment, Michigan’s one of affluent housing, more health care and even basic Notwithstanding the fact public the black addition, facilities. it is naive to applicant may be similarly situated finan- believe that because an African American cially candidates, to the affluent white lives an affluent neighborhood, he or she originally 3. The dissent characterized the opinion. addition, conservative” to its This being however, black "conventionally student as lib- nothing change does the fact that Then, response eral.” to the criticism that engaging the dissent stereotyping by la- this was in stereotypical, itself beling any dissent minority group as "conventional- parenthetical added the conventionally "or ly” of certain views. *31 “race does that stipulate to offer dissent’s of dis- victim the or been not known has of thinly-veiled offer matter,” a constitutes cannot he or she such that crimination the least. say to sincerity, dubious as the experiences life same the relate A well person. black impoverished conten- by dissent’s is evident the This means wealthy of woman black dressed of made favor arguments tion that the in an afflu- or Neiman Marcus shopping that societal ills diversity merely address be very well may shopping center ent individual confused with should not be eye and suspect same with the treated character- as “societal ills” rights.4 woman black poorly dressed as the bigotry fact borne out of are in by the dissent ized Target. See shopping at means of limited the such that rights individual the denial of While Shopping O’Shaughnessy, Elise Indeed, history separated. cannot be two 2001, at Housekeeping, Black, Nov. Good Protection Clause Equal the tells us that experi- Winphrey’s Oprah (recounting 129 the attempt to cure in an was enacted an affluent away being turned ence of denied African that had ills” “societal a black shopping was she store while to which rights the individual Americans cus- though white even companion, female entitled, right to an as the such they were admittance, allegedly were allowed tomers P. Blaustein See education. Albert & employees the store that premise Desegrega- on the Clyde Jr., Ferguson, Clarence her Oprah of the belief Meaning were And Ef- Law—The tion And The who transsexuals the black friend were Segregation 59- Of Cases fect The School store; also to rob the tried previously had 1985) (1957). Press University (Rutgers 67 suc- other recounting the discrimination to “the evil recognized It has been Congress- as such females black cessful “gross the was by this remedied clause” experienced have Waters Maxine woman “new- by hardship” faced the injustice and shopping). while a See as class. emancipated Negroes” ly 36, Cases, 16 Wall. Slaughter-House In re why toas Thus, arguments dissent’s the (1873). been And it has 394 21 L.Ed. compelling as cannot serve justifications the recognized that than further more nothing constitute state interest ratifica- Amendment’s Fourteenth for the ignore conclusions that baseless myopic, times, in modern validity their “retain society tion of interactions daily affairs the the War close of years after the may experienced very be well today which other States, racial and ... “stipu- Between to offer all. And dissent’s by a fact remain still of discrimination forms play to continues race the fact that late” to as in justice life, in administration of minorities lives role negative Vasquez See as a whole.” society our expression a mere than nothing more Hillery, U.S. attempt in an minimize words made (1986). Accordingly, 88 L.Ed.2d diversity as benefits many force Bar- like “people claim that the dissent has read Anyone who above. illustrated equal denied being bara Grutter” that the quickly realizes dissent entire transcend economic experienced both ills” ills”—as the "societal bring fore I reader should again, the Once pres- status. past it—of has couched dissent attempt ignore that, astray by dissent’s led con- to illustrate ent minorities faced true it is assertion, issue. While minority reframe an the dissent’s trary to generalized has found Supreme Court may bring to the wealthy means member cannot serve discrimination expe- past claim of "life the same environment educational such claim plan, no a remedial impover- the basis for minority member that a riences” being in this case. made "societal may'bring because the means ished treatment under the law school’s admission whereas the average scores of quota policy such that the Equal Protection beneficiaries in placed them in the Clause is being “ignored,” particularly bottom Likewise, third. his science while irreverently invoking the grade point name of average 3.44 on a 4.0 Lincoln, Abraham is completely scale, unfound- compared with at 2.42 average for *32 ed. The law school’s goal of creating special admittees, the and his overall diverse body, student which has not exist- GPA was similarly superior. Given ed previously and would numbers, not otherwise ex- these only reason for ist without its policy, admissions rests in rejection Bakke’s was the school’s need very heart of the Equal Protection to make room for qualified less minority Clause. applicants, right?
Moreover, Wrong. Although contrary Justice pointed Powell the dissent’s as- sertion, out that minority there nothing applicants is were indicate that admit- with grades law ted school’s and admission’s test policy scores much has Bakke’s, “taken” than lower anything “from he not Barbara Grat- did discuss ters of what I society.” our found to be the legal As one most striking scholar data illustrated, has recently appeared opinion: the idea in his an grades admissions Bakke’s policy provides which signifi- scores were minority applicants cantly higher with an than the advantage average does at for the so expense regular applicants admittees. In words, white is other simply a his myth. Liu, qualifications See academic Goodwin The were Myth better than & Math Action, those the majority of applicants The Washing- ad- of Affirmative Post, ton April 14, 2002, mitted outside the quota. racial B01 (citing why So excerpts from didn’t he his earn one article “The the 84 regular Causation Fallacy: places? Bakke and the Basic Arithmetic of Selective Admissions” which is to be It is clear that the medical school admit-
published in the upcoming edition of the ted students not on the basis Review). Michigan Law As Liu makes grades and scores, test but on other note, factors relevant to the study prac-
[f]or many Americans, medicine, tice of success such compassion, Bakke’s lawsuit has long highlighted communication skills and commitment to what is unfair about affirmative research. action: Justice opinion Powell’s does Giving minority applicants a not tell significant us exactly qualities what advantage causes deserving regular white admittees appli- had that Bakke cants to lose out. But to draw lacked. But such an it notes that the head of the inference Bakke’s case—or in committee, case who interviewed of the vast majority rejected found white him “rather limited in ap- applicants to indulge proach” in ... “the medical cau- problems —is sation fallacy.” thought he “very had opinions definite which were based more doubt, personal on his There’s no based on test scores viewpoints upon than a study of grades, total that Bakke was a highly problem.” qualified applicant. Justice Lewis Pow- ell, who authored the opinion decisive in Whatever were, Bakke’s weaknesses case, observed that Bakke’s Medical reasons, there were several apart from College (MCAT) Admission Test scores action, affirmative that might have led placed him in top test-takers, tier of the medical reject school to his applica- 1973 and in both fact, applied Bakke not-tell do scores and test Grades tion. in the and, to evidence according story. the whole us the wait- make lawsuit, not did even he Id. year. list in ing either although recognize that toon Liu went in Bakke’s case pattern statistical Bakke’s did lower action affirmative any selec- It occurs in anomaly. school, to the medical of admission chance who applicants in which process tion telling and most significant what action affirmative not benefit do forth Setting Id. much?” “by how who do. those outnumber greatly observed: Liu then data statistical point. this confirms research Recent question is to answer way One representative data from Using *33 admission chance of Bakke’s compare schools, uni- former sample of selective in the seats all 100 competed for he had and Bowen William presidents versity com- of admission his chance with class book, 1998 in their showed Bok Derek the of seats outside 84 the peting for River,” eliminat- the Shape of “The assume simplify, let’s To quota. racial have in- would preferences ing racial would applicants special the of none for admission of likelihood the creased any regular of ahead admitted have been from 25 applicants undergraduate white candidate. percent. only 26.5 to percent 3,109 regular one Bakke was Foundation, spon- In which Mellon The With the medical school. to applicants with addi- me study, provided the sored likelihood average the rates quota, the racial admission calculate to tional data was regular applicants for in the of admission the schools If by SAT score. 3,109). (84 With by appli- divided percent admitted sample 2.7 had Bowen/Bok likelihood average the at the quota, no racial SAT scores similar with cants percent 3.2 race, been the chance would have regardless admission rate same quota 3,109). would (100 by applicants So white divided admission of re- point likelihood average percentage by increased one increased have above, per- by 97.3 to percent 96.8 1300 from scores jection less at at scores points percentage cent. four three seven four to by 1150 to from average not an sure, Bakke To be below scores points percentage ap- regular one-sixth of Only applicant. were 520) applicants an inter- black received is true (roughly It plicants than rates higher highly among these at much even admitted But view. grades similar the ra- eliminating applicants applicants, white qualified does not av- But that scores. increased test have quota would cial fact imposes action percent prove admission rate of erage affirmative ap- white disadvantage on 520) percent (84 by substantial divided the disadvan- extent 520). a few Certainly plicants. (100 divided blacks number depends tage have regular applicants more Be- pool. applicant in the whites affirmative it not for were admitted been applicants of black number receiving his cause Bakke, upon But action. small, relatively is institutions to believe selective letter, no reason had rejection does rates higher them admitting lucky among have been he would of admis- the chance lower significantly few. sion average for the individual in the is operating. again, Once the dissent’s relatively large sea applicants. of white narrow-mindedness point. misses added). While it is true that (emphasis Id. the law policy school’s upon based its desire to achieve a di- provided Liu further statistical data to verse body, very student reason that back this conclusion as follows: the law school is in program need of a In study, example, Bowen/Bok create a diverse environment because percent applicants of black scoring discrimination faced African Ameri- 1200-1249 admitted, on the SAT were cans and other throughout minorities compared percent with 19 of whites. process educational produced has not range, 1250-1299 percent admitted, diverse body blacks were student in compared with 23 normal course percent of of things. whites. Diversity education, These data indi- at its cate—more so than proponents base, of affir- is the desegregation of a historically mative action typically acknowledge— segregated and, population as the interve- that racial preferences give minority ap- nors essentially argue, Bakke and Brown- plicants a advantage. substantial But must therefore together be read so as to eliminating affirmative action would allow a school to consider or ethnicity race *34 have increased the admission rate for in its many reasons, admissions for includ- percent whites from 19 only per- to ing past to remedy discrimination pres- or cent in the 1200-1249 range, and from ent racial bias the educational system. percent only to 24 percent in the Coleman, See Trevor W. A well-deserved 1250-1299 range. honor lifelong legal breaker, barrier for figures These show rejected that white Press, The Detroit Free April 2002, at applicants every have reason not to 10A (chronicling the life of the Honorable blame their on misfortune affirmative McClain, William the University of Michi- admissions, action. In selective the gan’s oldest living African-American law competition is so intense that even with- graduate, how, and describing as the action, out the overwhelm- affirmative black law student his at the class Uni- ing majority rejected white appli- of versity, McClain was “fed humiliation cants still get wouldn’t in. nearly every day,” was forbidden from liv- added). Id. (emphasis so, And contrary to ing in the quad, law and “prevented assertion, the dissent’s “the Barbara Grat- from joining study groups which are essen- ters of our society” have no reason to education”). tial legal to a claim that anything has been “taken” from them of virtue the law school’s admis- summary, the attempt dissent’s to sion policy. otherwise, In purporting the east the law school’s interest achieving dissent is simply advancing “the causation diverse body student as anything but com- fallacy” which exposes Liu myth for the pelling simply cannot carry day, the that it is. its claim applicants that white being denied equal
The protection dissent also contends under the law that one can- as a not consider result the of the qualities attempt remedial school’s of cor- to achieve a recting past diverse present— student body matter is fallacious. As next —or illustrated, discrimination way as a of supporting arguments the the dissent’s as to law school’s policy admissions past why because the policy school’s admissions is not discrimination is not the upon narrowly basis which tailored to compel- achieve this the school claims that its policy admissions ling just interest are as ill-conceived. predictive val- lack test scores’ dardized Policy Nar- is School’s The Law C. perfor- future to students’ respect ue with rowly Tailored to insure effort mance). The law school’s as to argument its quarters dissent The inclusionary process is admissions that its policy admissions school’s the law why be should substantively unfair not and is com- to achieve narrowly tailored cause to an effort advance as viewed diversity. Each interest pelling diversity, excellence educational both un- that are arguments bear subparts four plan as a “merit” counterpoint to not as example, For inflammatory. founded has case dissent. by the suggested charac- the dissent discussing what in first conven- made that convincingly not been law magnitude true terizes equate which plans admissions tional focuses dissent policy, school’s persuasively status socio-economic higher advances It then data. and UGPA LSAT See of “merit.” to consideration correlate law contention outrageous at 992-96. id. minority appli- for a allows policy school’s its disbelief barely conceals The dissent other- effort than less put forth cant assertion school’s the law truth of in the applicant, white similarly situated wise every ap- reads officer admissions that its minority will therefore somehow an individualized makes file and plicant’s his lack compensate his race use applicant’s regarding determination in the nothing whatsoever There is effort. Accepting admission. suitability for allegation support the record re- part, requires, argument dissent’s policy law school’s description school’s jecting the law by people fashion in this manipulated program its admissions in which manner ethnicity. color justifi- any adequate without administered *35 assertion the dissent’s Similarly, goes The so. dissent doing for able basis of numerical treatment schools law the above-referenced the to claim far as so scores) for (UGPA LSAT and credentials test scores using standardized of criticisms “shocking,” ig- is admission of purposes numerical creden- and the LSAT such as showing no scholarly writings the di- nores be should admission to means tials as cre- numerical these the between not to and correlation school law rected or bar school in law success chooses and the law school dentials as inasmuch dissent 1- supra Wightman, its admis- rates. See in passage credentials such to consider only” “numbers a claim However, the dissent’s that while (explaining policy. sion in the sharp point, decline is in the misses regard resulted policy in this would made who misrepresentations students minority of of the example number attempt to school, there apparent to law in an dissent admitted have been the of the use grad- in the of Criticism the differences issues. significant reframe no were scores as LSAT be- such passage rates credentials numerical and bar rates uation law the support to opinion would who is made minority students those tween in its admis- other criteria use of who those school’s admitted been have ethnic- is race of which leading policy admitted, sion thus have been —one inflam- to the dissent’s And, contrary poli- ity. only” a “numbers the conclusion relies assertion, law school many matory education to legal deny cy would to LSAT in addition many factors upon capable fully were who minority students admission UGPAs, race its scores, of education legal aof rigors of undoubt- this assertion Although process. & Sturm profession); legal entering the is position, the dissent’s edly bolsters stan- (explaining Guilder, at 968-80 supra unfounded and flies in the face of icies” and that “[b]y introducing its own record before us. agenda substantive under the guise of a tailoring narrow analysis, court
The dissent next calls into question the strayed from purpose of the narrow law school’s designation of a “critical tailoring inquiry”). Here, the dissent mass” of minority students its student claims that the link between the law body. Claiming that the term “critical school’s “critical mass” and the values of mass” simply a phrase used to disguise diversity is lacking. Oddly, the what dissent actually an impermissible quota cites report Gurin, from Professor system, the dissent heavily relies upon the report same that others have fact that hailed as the numbers of minorities admit- showing documented ted over evidence for the years ben- has varied sightly. efits of a diverse may There student body, claiming number of likely benign that the just results explanations indicate opposite for the numerical configura- tions, how Professor reports Gurin including consistency them. quality contention, This minority regardless applications its accuracy, a few succes- appears to years sive be in criticism application of the concept and/or a uni- itself, formity perspective and not of the evaluating process applications achieve that end. resulting from having the same evaluators read applications all the Next, the dissent criticizes the relation- for admissions. idiosyncratic Even expla- ship between diversity and the means to nations relatively narrow numerical promote this interest being dependent range for a number years would be upon the psychological makeup peo- constitutionally acceptable in the absence ple involved. The dissent refers to histor- quota of a or other invidious motivation on ical black leaders such as Frederick part of the law school. point is Douglass and Dr. Martin Luther King, that on the case, record of this there are at Jr., opining that these men would have many least as presume reasons said piece their regard without to whether there is quota not a as there are pre- thought others them to be “representa- sume one, that there is and the balance tive.” Apparently, by using these black certainly tips in favor of the law school’s leaders to make point, its the dissent is *36 representation that it does not employ a claiming that process the employed by the quota in the absence of any evidence to the law school is not necessary because if an contrary.5 American, African or other minority
Typically, member, the purpose group of the has the “psychological” narrow tailoring inquiry make-up leader, an to be involves evaluation of he will be so the fit between the regardless compelling of interest and whether he is one among policy the adopted to advance that ten or one among interest. one hundred. Such an See Recent Cases, 115 1239, allegation point misses the of HaRV. L.Rev. many the (2002) 1244-45 (criticizing the aspects beneficial Eleventh of in education Circuit’s decision that found the to University minorities and alike, non-minorities is of Georgia’s race-conscious an pol- affront admissions to the sacrifices and contribu- icy unconstitutional, noting while the that tions made by leaders, these black and opinion court’s “reveals both overt co- and does nothing to why show the law school’s vert hostility toward affirmative pol- action policy is not narrowly fact, tailored. In 5. Judge Inasmuch as appears Gilman to policy rest results impermissible in quota sys- his on tem, dissent his belief that the law school's his conclusion is fallacious as well.
771 in to order these tests resulting from nothing doing to be appears dissent the of admission means a race-neutral achieve substan- own “introducing its than more way no flawed, in and would inherently of narrow guise the under agenda tive Instead, such a merit. race-neutral argu- its reflect making analysis” tailoring of a combination reflect Cases, proposal at would supra Recent See ments here. race, gender, based preferences subtle 1239. Guinier, supra class, Sturm & see even and because claims dissent the Finally, accompany- text 992-96; supra see also at to achieve are available means race-neutral utility for B, of limited and are Part ing pro- school’s the law diversity, academic racial success across meaningful predicting muster. constitutional pass does gram lines. conclusion, dissent the reaching provided the evidence ignores completely suggest core, purporting itsAt to formu- efforts and its school the law by the dissent methodologies, race-neutral The dis- policy. race-neutral a viable late exer- impermissible in an simply engages simply does it suggests strongly sent in this judgment substituting its of cise representation school’s the law not believe who are educators the that of regard unwork- rejected as and it considered the law of guardians and custodians poli- admissions other impractical or able standards. academic mission school’s either because procedures, cies Ew- Mich. Univ. Regents See result would not alternatives available 214, 225, 106 S.Ct. ing, body pur- student competitive sort Susan (1985); generally see L.Ed.2d overall, because school the law sued “Ex- Rights Stefan, Leaving Civil minority students of qualified number Un- Abdication From perts”: Deference be inade- would law school attracted Standard, Judgment der Professional which premise, school’s The law quate. (1992) a sum- (providing Yale L.J. dispute, is convincingly fails to dissent rule doctrine general mary of the students minority law number of which the situations deference in the inconsequential admitted Indeed, record on the applied). been has current school’s absence race-neutral us, any purportedly before program. segregated a de result could policy facto proposals which Indeed, dissent’s results school, one of deleterious law admission, using and re- society means known long “race-neutral” been have Sweatt, See, certain above e.g., all students by the Court. lottery jected LSAT, GPA 634-36, for their figures threshold U.S. as reflected way “race-neutral” in no record indi- example, For *37 record.
the Summary D. Jay Ros- testimony of (through the cates opinion majority Martin’s Judge Chief White and David Shapiro, ner, Martin finding the and court reversing the district tests others) on performance among constitution- policy admissions school’s law correlates SAT and the LSAT as the such Protection Clause Equal the under al gender. race and applicant’s an with provides Amendment Fourteenth the words, indicates the record other resolution understanding and or clear race-neutral neither scores LSAT attempt to dissent’s The involved. de- issues criteria gender-neutral its head opinion majority the turn pro- the dissent’s Consequently, cisions. nothing to ad- issues does reframe to upon scores lottery based using a posal of vanee the jurisprudence on very sig- this ing with only one-half of the judges’ active nificant matter. positions filled, and with over 4000 cases
reaching our Court year, each the Chief Response E. to the Dissent’s “Proce- Judge any members of this Court would Appendix”
dural single any particular out one case and maneuver system particular for a out- Although the dissent’s substantive at- come. None of the by decisions made tack, grounded which is in neither fact nor Chief Judge regard to the scheduling of law, is disturbing, the dissent’s procedural this case or in relation to administering the attack, as set forth in its “Procedural Ap- docket, Court’s differ in any significant pendix,” constitutes embarrassing and way from the decisions the Judge Chief incomprehensible attack on the integrity of and the Court’s staff routinely and fre- the Chief Judge and this Court aas whole. quently make respect to pending mat- Apparently, the strategy dissent’s in this ters. Given voluminous nature of the regard if is that its substantive basis for Court’s docket and shortage judicial disagreement with majority opinion is resources, the case management per- tasks not convincing, then questioning proce- by formed the Chief Judge are both neces- posture dural of this case will enough be to sary and appropriate, and were not in any forever cast upon doubt the outcome sense improperly performed in relation to today. reached here This unfortunate tac- the instant case. tic place has no in scholarly jurisprudence Again, it is unfortunate that the dissent and certainly does deserve digni- be has stoop chosen to desperate such fied with response. However, because of allegations unfounded which no serve use- the magnitude of involved, the issues ful purpose. The dissent’s claim that it is because of the baseless nature alle- “legitimizing” the by Court revealing the gations, procedural attack go cannot procedural course of this matter is disin- unanswered. genuous, best, when considering that questions dissent the appropriate- (Judge dissent Boggs) once scathingly ness of hearing bane, this case en Judge attacked Damon J. Keith for reveal- course by which this case came heard ing the vote count in a case major court, the en banc composition import wherein the denial for rehearing en of the en banc court itself. It should be banc was split seven-seven. See Memphis noted at the outset that throughout the Planned Parenthood v. Sundquist, 184 pendency this appeal, the dissent re- (6th F.3d Cir.1999) 605-07 (published mained silent on all of questions these order) J.). (Boggs, Judge Keith wrote in now, until and its concerns should there- Memphis that he revealed the seven-seven fore be regarded having been waived or tally vote supported because it his belief forfeited. It was not until the various that the majority’s opinion was result driv- opinions had been circulated throughout en, and to encourage litigant possi- the Court and the votes cast panel bly seek further review. See id. at 601-02 members that the dissent opin- revised its J.). (Keith, Judge emphasized Keith ion by tacking on complaints these and in making known, the vote tally he had allegations. And the dissent’s new-found “not violated rule of policy internal *38 allegations of impropriety as to the course ...; nor divulged [had he] any internal this matter followed in reaching the en communicationsf,]” confidential and found banc simply court defy belief. It ludi- “reprehensible” the “practices of secrecy crous to think that with our operat- circuit and concealment by advocated Judge example, in her letter to the For response, Judge Court. at 605. Id. Boggs.” Commission, in and several times [Judge Keith’s White regret, “with noted Boggs cus- the Ninth Circuit Judicial Con- long-standing addressing alleged breach ] of ference, O’Connor, justice circuit to by a member Justice that actions tom this court of Circuit, that the petitions suggested has respect to Ninth court with of in matters appeals matters of sit en banc banc matters are courts rehearing enof Supreme likely think are to reach the they and are procedure court internal of Stephen Wasby, L. How do (Boggs, Id. Court. See judges.” other public made added). J.) En Banc Decisions Judge Boggs Appeals went Courts (emphasis of Court?, accuracy Judge Supreme of Fare in the U.S. question so far as to Judica- -Feb.2002, tally by at 184 & n.6. Like- conveyance of the vote Jan. Keith’s ture, court, course, wise, Kennedy, makes himself a former Justice writing that “our Circuit, suggested Ninth to accuracy member of the as to no warranties “questions by judges Commission made in statements White assertions one).” heard en course, exceptional importance” Id. at are not this (including, of nearly enough. often See id. banc Kenne- (quoting Anthony n. 7 M. & Justice for a fel- “regret” his one-time Despite White, Bryon R. Au- dy, letter to Justice tally the vote jurist’s decision to make low 17,1998). gust case, Judge Boggs in an en banc known disregard Here, im- flagrant exceptional his in now characterizes this matter procedural likely measures with the Su- portance may for the which reach Court’s Court, “legitima- court have respect preme to this case as form we as an en banc internal Judge Boggs carefully has revealed considered is- cy.” properly particu- public, Judge matters to the Martin’s thor- procedural sues involved. Chief Judge re- speaks majority opinion every regard he of Senior larly ough when consideration, internal communication such Ralph Guy’s flects that careful in footnote 46 of his one based Judge today Martin reached Chief the outcome Furthermore, remaining than sound and schol- upon nothing dissent. other way Despite have no its unfortunate arly of this Court deliberation. members by Judge attempts portray the ma- responding desperate inaccuracies less, Guy’s anything communica- the dis- regarding Judge jority opinion as Boggs procedural characterization attacks Judge Boggs’ tion—or sent’s substantive resorting themselves unpersuasive. thereof —without remain internal communica- discussing the Court’s BOGGS, dissenting. Judge, Circuit made many Like of the assertions
tions.
whole,
Boggs’
Judge
as a
his dissent
in
straightforward
This case involves
secrecy and claim
renouncement of
by a state
stance of racial discrimination
appendix “legitimizes”
procedural
his
highly
than in the
Other
institution.
hollow,
Court,
light
particularly
in edu
charged context of discrimination
Indeed, it was
Memphis.
position
his
“underrepre
in favor of
decisions
cational
“secrecy”
Judge Boggs
for which
so vehe-
minorities,”
justi
the constitutional
sented
Memphis.
mently argued
practice would not
offered for this
fications
See,
scrutiny.
e.g.,
slightest
pass even
significant
fact
anything,
If
448, 491,
Klutznick, 448 U.S.
initially by
en banc Fullilove
matter was heard
(1980)
2758,
based on racial or
must
lentio.
the words of
searching
receive a most
exam
necessarily
essay
English
his famous
Politics and the
ination.”);
Calif,
Regents
the Univ.
v. Language, “a
Latin
mass of
words falls
307,
2733,
265,
57
438 U.S.
snow,
upon the
like
blurring
facts
soft
(1978) (Powell, concurring)
L.Ed.2d 750
covering up
outline and
all the details.”
(“Preferring
any
group
members of
one
Orwell,
George
English
Politics and the
than
for no reason other
race or ethnic
Essays,
4 Language,
Collected
origin is discrimination for its own sake.
George
And
JouRNalism
Letters Of
Or-
forbids.”); Loving
This the Constitution
1945-1950
Nose,
well:
In Front
Your
Of
1, 11,
Virginia,
87
18
S.Ct.
(Sonia
eds.,
Angus,
Orwell and Ian
(1967) (“[T]his
L.Ed.2d 1010
Court has
1968).
Harcourt, Brace
consistently repudiated
be
distinctions
very
example
A
revealing
of this is the
solely
tween citizens
because of
an
their
use of the term “affirmative action” to
cestry
being
people
as
odious to a free
policies
refer
in question.
See Ma-
upon
whose institutions are founded
jority Op. at
(discussing intervening
(internal quotations
doctrine of equality.”
groups,
including
student
“United
omitted));
Florida,
McLaughlin v.
Action,
Equality and Affirmative
the Coali-
184, 196,
U.S.
In tracing argu- the intricacies of the government dered contractors to “take af- presented ment by by the court and action, School, applicants firmative to ensure that Law we must be aware that the employed, employees are and that precise definitions and connotations of during employment, are of treated importance. words crucial As I without re- demonstrate, race, creed, color, gard shall many critical instanc- their or national Ibid, es, added). key origin” (emphasis words are in ways contrary used It is thus grammatical their normal clear that meaning, Michigan’s policy or with whatever else very specific be, qualifications attached may sub si- it is not “affirmative action.”1 occasionally ("black” phrases by 1. I will use the "race” skin color or "African-Ameri- can.” I note that the children of Boer or type "racial” as shorthand for the immigrants conventionally Berber are not preference accorded the Law School. label, given surely the latter which would fact, groups preference chosen for are a matter.); linguistic apply to as a them melange groupings socially that are de- (as origin national the Census Bureau fined: notes, carefully "Hispanics” can be of *40 policy puts starkly That answer absolutely insists The Law School practiced throughout discrimination re applicants “without not consider does ages. See, Admissions e.g., race. to” their gard
Policies,
Michigan Law
University of
discussion,
Throughout
my quarrel
22, 1992,
School,
(noting
at 12
“a
April
constitutionality
policy,
is with the
context,
proponents.
In a related
not its
to racial and ethnic
commitment
gives good
rule
to the inclusion of
Robert’s Rules Of Order
special reference
with
public disputation:
engaged
those
have been his
groups
which
students
likely
“can condemn the nature or
debate
...
against
[and]
torically discriminated
proposed
consequences of the
measure
not be«
might
commitment
without this
who
terms,
strong
but
... under no circum-
body in mean
in our student
represented
...
or
the motives
question
stances
attack
numbers”).
Instead, as is discussed
ingful
Robert,
Henry
of another.” General
M.
majority and will be discussed
by the
(10th
Robert’s Rules of Order 380
appli
all
below,.Michigan considers
length
ed.2000).
propo-
I
no
that the
have
doubt
race
regard for their
exquisite
cants with
policy act
discriminatory
of this
with
nents
put
As I
it to the
origin.
national
However, the
the most tender of motives.
argu
in oral
the Law
counsel for
School
propounding
those
uncon-
noble motives of
Sweatt,
ment,
plaintiff
if Heman
policies
stitutional
should not save those
Painter,
v.
case of Sweatt
famous
policies, just
segregationists’ gen-
as some
(1950),
had
94 L.Ed.
pro-
education
segregated
uine belief that
to ask the Dean of
Universi
been able
races
vided better education for both
School, “Dean,
you
would
Texas Law
ty of
justify
policies.
inadequate to
those
white?,”
dean, if he
in if I
let me
were
I
doubt that there are
Finally,
do not
honest,
surely
would
have said “Yes.”
were
arguments
Michigan
for what
strong policy
counsel, “If Barbara Grutter
I
asked
then
plausible (though
has done. There is
the current Dean of
in to whoever
walked
sound)
policy argument
perhaps not
said, 'Dean,
the Law School is
out-
arrange
should
social
government
in if I were
wouldn’t he
you let me
black?’
according to the race
proportionally
comes
‘pretty
honestly say either Tes’ or
have to
citizens, remedying,
its
ethnicity
or
agreed,
eertain[ly]’?” Counsel
darn almost
can,
pervasively unequal dis-
where it
who
that “a black woman
responded
but
education,
wealth,
or status.
tribution of
application
looked
had otherwise
India, Malay-
many
There are
countries —
Grutter, that would be a
Serbia,
Barbara
sia,
like
a few—where
to name
dif-
(emphasis add-
more on
practiced.
Tr. at 38
For
person.”
policy
such a
ferent
worldwide, see Thom-
ed).
action”
“affirmative
in this
Any
use of those terms
shorthand
Presumably, the children of the for-
race.
all the
to have
opinion should
understood
president,
Fujimori,
Alberto
mer Peruvian
precision
qualifiers.
similar
relevant
For
purely Japanese,
though ethnographically
prefer-
ethnic
with racial and
other universities
“Hispanic.”);
would be considered
Curiae,
ences,
Columbia
Brief of Amicus
see
by legal
(depending
status
on whether
Univ.,
Univ.,
Univ.,
and the
Stanford
Harvard
prefer-
Michigan
American”
limits "Native
Penn.,
Regents
the Univ.
Univ. of
members,
legally
tribal
ence to
enrolled
99 Landmark Briefs
And
California
ancestry of
opposed to those with sufficient
Arguments
Supreme Court Of The Unit-
Of The
person
qualify a
status that would
"Indian”
Supp.
Law Term
ed States: Constitutional
comparable
Hispanic ances-
black or
(Phillip
& Gerhard
n.3
B. Kurland
designations).
try for those
eds., 1978).
Casper,
*41
Sowell,
A
compelling
open
state interest? On this
as
Raoe AND Culture:
World
(Basic 1994). However, so
View 126-29
I
question,
argument
have no
to which to
long
Equal
as the
Protection Clause is
respond,
majority
explains
as the
never
Constitution, the
part of the United States
why “diversity”
compelling
should be a
one of those countries.
United States is not
interest, except
say
state
that the con-
Bakke.2,
might
society
The fact that
think this
some
clusion is demanded
After
governmen-
be a
one if more
better
sides,
considering
arguments
I
both
allocated,
tal benefits were
because
their
conclude that the state’s
in a di-
interest
status,
blacks, Hispan-
racial or ethnic
body,
verse student
at least
articulated
as
ics, or Native Americans and less to
School,
by the Law
cannot constitute a
whites,
Jews,
vice-versa,
Asians, or
does
compelling state interest sufficient to satis-
policies permissible
make
under
those
scrutiny.
strict
fy
our Constitution.
Second, much like Justice
Powell’s
Instead, the framers of the Fourteenth
Bakke, my
engi-
answer
whether the
government
Amendment decided that our
neering
racially
body
of a
diverse student
engineering
should abstain from social
compelling
is a
state interest is not neces-
through
explicit
racial
classifications.
sary to the resolution of the case before
Thus,
subject every
we
state racial classifi-
if
this court. Even
student
were
scrutiny,” requiring
cation to “strict
that
interest,
compelling
state
the Law
the state show both that the classification
School’s admissions scheme could not be
“compelling
furthers a
state
interest”
narrowly
considered
tailored to
inter-
that
it
“narrowly
tailored” to achieve
cursory glance
est. Even a
at the Law
interest. Adarand
v.
Constructors
stag-
School’s admissions data reveals the
Pena,
200, 235,
2097,
515 U.S.
gering magnitude of the Law School’s ra-
(1995).
conclusion falls into two below. First, why majority’s I examine read- A. Bakke a Nutshell ing correctly, of Bakke is erroneous. Read law, good Bakke remains but does not majority The Law School and the of this conclusively questions resolve the before argue court the constitutionality of court. More recent decisions of the policy the Law School’s is mandated Court, Supreme contrary to Grutter’s ar- Supreme precedent, engaging Court in a gument and what the district court in this painstaking analysis Supreme held, place questions case these in no Regents decision in Court’s the Univer- greater relief. Bakke, sity of California (1978), 57
We are therefore faced
S.Ct.
L.Ed.2d 750
resolving
with
given
the instructions
constitutionality
for ourselves the
of the
Marks v. United
States,
Law School’s
in-
admissions scheme. Our
U.S.
S.Ct.
(1977),
quiry
open
must address at
one
L.Ed.2d 260
ques-
attempting
least
to dis-
tion of
achieving diversity
“holding”
law: can
be a
cern a
from decisions which
concurring opinion
present
Concurring Op.
The
does
sub-
considered in Part II.A.
arguments
point,
(Clay).
stantive
on this
which are
759-769
majority
applies
in this case
ex-
engage
I
will
splintered.
the Court
reasoning to come to the
counter-analysis;
tremely
how-
subtle
detailed
equally
instead be
from the
conclusion that Bakke should
ever,
what is obvious
begin
I
race,
read to hold that the use of
no matter
opinion.
face
extensive,
long
so
as
how
is constitutional
held that
Supreme
Court
to be
specify
it does not
a number of seats
racial dis-
type of massive
particular
long
for minorities and so
*42
reserved
University
by
in
engaged
crimination
plan. The
arguably tracks the Harvard
a
setting aside
of California
Davis—
majority’s reasoning
problematic
is
uti-
year and
number of seats each
certain
reasons.
several
system for
separate admissions
lizing a
and that
illegal
minority applicants —was
analogy
an exact
in the field of
Consider
so dis-
right
had a
not to be
Allan Bakke
Let us assume that state C
criminal law.
(This
not re-
fact is
against.3
criminated
prison guards may
that
policy
has a
its
deci-
majority’s
12 of the
page
vealed until
prisoners to within “half an inch of
beat
However,
sion,
obliquely).
and then
any disciplinary infraction.
their lives” for
a
agreed that
members of the Court
five
in the Su-
policy
challenged
is
When
could never
injunction that race
blanket
Court,
holding is that
preme
the Court’s
was
programs
in admissions
be considered
unconstitutional,
particular policy
mem-
and one of those
premature,
at least
injunction
an
but
it will
issue
that race could be
went on to state
bers
touching
prisoner
ever
a
against guards
diversity
proffered
promote
to
used
of the
any
infraction. Four members
program
race-conscious admissions
policy is constitution-
court believe that the
by
brief
in an amicus
briefly described
entirety,
in
and therefore dissent
al
its
model of
a
University as a
such
Harvard
holding C’s
portion
opinion
of the
plan.4
other
unconstitutional. Four
Jus-
policy
never
argue
guards
should
be
tices
policy other than the
Unfortunately, no
physically, and
punish prisoners
allowed
was be-
by
utilized
UC Davis
specific one
portion
from the
therefore dissent
Thus,
matter what
no
fore
Court.
injunction
an
refusing to issue
opinion
to decon-
artillery
applied
analytical
A
touching prisoners.
against guards ever
can-
opinions,
Bakke
we
struct the various
policy
strikes down the
be-
swing Justice
“holding”
that is
up
not come
with a
him,
time, in
that at some
argues
fore
but
plan
Davis’s
specific
more
than that UC
manner,
discipline might
physical
(and
some
absolutely reserve
plans
all
speaks
he
fa-
appropriate.
particular,
In
racially
specific
of seats for
number
particular state
favored)
unconstitutional,
vorably
plan
of the
of a
and that
was
(call
where,
plan)
“H”
under some
it the
preference may be
type of racial
some
delineated, a
specifically
circumstances not
constitutional.
Court,
Rehnquist
argument
in his
affirming the
tices Stewart and
judgment
3. The
program
Title VI of the Civil
that the
violated
Supreme Court
judgment
the California
Bakke,
Rights Act of 1964.
ordering
was
UC Davis to admit
Powell,
supported by
opinions of Justice
2733,
320,
Bakke,
plan
this
description
S.Ct.
who
of the Harvard
particular implicitly search holds unconsti- lenged jury the use of a instruction defin- tutional search that is not like it.” ing obscene material that came Ibid, added). effect, (emphasis In the ma- Supreme Court case decided after the time jority today of this court similarly holds conduct, of the defendant’s Miller v. Cali- incorrectly that opinion denying fornia, 15, 2607, 413 U.S. 93 S.Ct. 37 particular legality policy implicitly of a (1973). L.Ed.2d 419 The defendant al- every holds constitutional policy that falls leged that the expanded new definition in the slightest degree short of the evils conduct, scope prohibited and therefore that were condemned the first case. applied could not be in his without case by going past violating
The court does this rights. his Due Process The general, unhelpful, propositions and thus therefore Court needed to determine what
779
the fewest state and federal
material
struck down
definition of obscene
operative
defining
statutes
materials as obscene.
was before Miller.
face,
might
Taken on its
Marks
be read
that in the last obscen-
problem
was
only
proposition
for the limited
that a
before Mil-
by the Court
ity case decided
cannot be held
criminal defendant
liable
Massachusetts,
ler,
383 U.S.
v.
Memoirs
for conduct that he did not have fair notice
975,
(1966),
413,
1
no
16 L.Ed.2d
86 S.Ct.
192-93,
prohibited.
would be
Id. at
97
fact,
majority.
opinion garnered
However,
Marks has been read
S.Ct.
deeply fragmented,
was
Court Memoirs
broadly,
provide
a basis for
much more
there was
facially
clear that
and it was
in cir-
discerning
holding
Court
for what constituted obscene
one definition
majority
cumstances where a
Jus-
from the
that could
derived
material
agree
tices
on an outcome but not on a
expressed
opinions. Two Justices
various
See, e.g.,
rationale for the outcome.
O’Dell
sexually explicit material
the view that all
151, 160,
521
117
v.
U.S.
S.Ct.
Netherlands
pro-
full First Amendment
was entitled to
(1997)
1969,
(utilizing
L.Ed.2d
351
(Black,
Id. at
86 S.Ct.
tection.
analysis
holding
to discern a
Marks
Justice believed
dissenting). One
Florida,
349, 97
Gardner v.
S.Ct.
unpro-
pornography”
“hard core
(1977));
Bell,
tional on the basis (that reasoning on standards strict scruti- past and so discrimination dissented ny should be used to evaluate the constitu- holding Justice Powell’s on that score. tionality preferences) of all racial is a sub- ap- (applying merely Since Justice Brennan would have set of Justice Brennan’s plied scrutiny intermediate ra- “benign” scrutiny) nothing intermediate tells us classifications, cial whereas Powell question Justice about the first before this court applied scrutiny today: diversity would have strict to all compelling whether is a classifications, most, majority racial holds state interest. At it might tell us question Justice Powell’s rationale that if the before this court were binding precedent. Bakke Specifically, apply scrutiny whether to intermediate *45 “[bjecause they explain that scrutiny analysis the set of strict to our of the Law constitutionally permissible racial classifi- program, School’s admissions the answer However, scrutiny, by cations under intermediate scrutiny. would be strict definition, court, question includes those classifications not before this because it constitutionally permissible answered, conclusively under strict has been in favor of Adarand, scrutiny, In scrutiny. Justice Powell’s rationale would strict 515 U.S. at permit Supreme the most limited consideration of the Court race; therefore, it is Bakke’s narrowest held that all racial classifications are sub- Majority ject rationale.” at In Op. scrutiny. 742. other to strict words, the majority sees Justice Powell’s In trying holding to divine a from Bakke Brennan’s, reasoning as a subset of Justice supporting diversity the use of race for binding therefore reasons it to be the purposes, apply we are not able to Marks Bakke, holding of as Marks instructs us to level, on relying only a surface on the fact are, however, glean it. There two funda- applied Powell Justice would have a problems mental argument. scrutiny stricter standard of to race-based
First,
majority’s analysis
the
inverts the
classifications than would have Justice
concept of
In
unavailability
“narrowness”
Marks.
Brennan. The
of a “surface-
Marks,
plurality opinion
the Memoirs
application
may
level”
of Marks
itself be
all,
interpretation
dispositive.
“narrowest” because its
merely
After
Marks is
the First Amendment
invalidated smaller
tool with which to determine the collective
race,
possible permissible
discussing
court. Because
after
of a fractured
intent
utilizing
race in admissions deci-
has
dis- bases
analysis
Marks
been
first-level
issue,
respect
sions. With
to the latter
intervening precedent, perhaps
placed by
majority
analysis
in its Marks
defines the
still-open
application of Marks to
judgment
stating
as
that race can be used
by the Powell and Bren-
questions raised
in-
in certain circumstances
educational
opinions
longer
in Bakke can no
serve
nan
Majority Op. at
stitutions.5 See
purpose
deriving
the collec-
its intended
Court,
assump-
tive intent of the
to view the rationale of
order
Justice
deciding Bakke no
tions of the Justices
Powell’s concurrence as the narrowest
longer hold.
grounds
support
judgment,
of this
court must read Justice Powell as embrac-
to Bakke is
application
of Marks
ing
the. use of race
for the limited
(1)
separate opin-
inapt
also
because
purpose
promoting diversity, while
Jus-
a coherent
ions in Bakke do not constitute
permitted
tice Brennan would have
the use
of each other and cannot be
set and subset
broadly,
promote diversity
of race more
(2)
continuum;
ap-
placed
logical
remedy past
and to
discrimination. On its
really yields
two Marks
plication Marks
face,
writing
Justice Brennan’s
Bakke
(3)
Bakke;
Supreme
holdings from
support
does not
the use of race for both
recognized
have
Court and other courts
diversity
purposes.
and remedial
No-
holding
yield
that Bakke does not
useful
opinion
Brennan’s
he
where
Justice
does
permissible
constitutionally
on the
use
rationale,
diversity
and he
mention
ought
applied
not be
race and
Marks
join
explicitly did not
Part IV-D of Justice
circumstances that obtain here.
opinion,
discussing
Powell’s
Further,
above,
rationale.
as mentioned
a. No Set and Subset or Continuum
clearly
that “the
Justice Brennan
states
in Bakke
Available
today’s opinions”
central
meaning
Nevertheless,
if we are still to use the
“[gjovernment may
take race into ac-
apparatus, we need to examine the
Marks
count when it acts not to demean or insult
specific
rationales offered
Justices Pow
group,
remedy
racial
but to
disadvan-
whether it is
ell and Brennan
determine
by past racial
tages cast on minorities
words,
possible, in this
to charac
court’s
prejudice.”
supporting
terize one Justice’s rationale
added).
(emphasis
Finally, in
S.Ct. 2733
judgment
as a “coherent subset of the
footnote,
his now-famous first
Justice
*46
principles
by the other’s ratio
articulated”
Brennan,
himself and the three
writing for
Akron,
City
40
Triplett
nale.
Grille v.
joined
opinion,
who
his
other Justices
Cir.1994).
(6th
129, 134
F.3d
plan
agrees
plan
that a
like the Harvard
potentially
judgments
There are
two
by
set out as a model
Justice Powell would
Bakke.
struck down UC Davis’s ad-
approach,
One
“constitutional under our
be
program.
purported
long
missions
The second
least
as the use of race
achieve
so
body
necessitated
injunction against
integrated
an
all use of
an
student
is
to overturn
involving
quotes
program
competi-
the
majority
5. The
from Section V-C of
admissions
opinion,
joined by
origin.
Justice Powell’s
which was
of race and ethnic
tive consideration
reason,
group
which states:
the Brennan
much of the California
For this
so
enjoins petitioner from
judgment
court’s
as
enjoining petitioner
In
from ever consider-
any appli-
however,
of the race of
consideration
ing
any applicant,
the
the race
cant must be reversed.
recognize
below failed to
that the
courts
(emphasis
tion.”
added).6
phasis
least, however,
very
At the
since Justice
rejected
past
discrimination ra
opinion
Brennan’s
Powell
If one reads Justice
read to
and Justice Brennan can be
use of race for remedial
tionale
approving
implicitly rejected
diversity
ratio
diversity,
one could
have
purposes, but not
nale,
there
no
to be found
that
Powell’s
continuum
argument
make the
Justice
Bakke;
holding
and a
concept
instead of broader
accepts
general
opinion, which
rationale,
are
holding,
might
narrower
what we
have
is broader
than
diversity
of a
Brennan’s,
non-comparable
hold
accepts only
which
two
Justice
different
adopted,
ings.
reading
ratio-
If such a
specific “past discrimination”
more
Indeed,
court
“holding”
majority
that
of this
permitting
in a world
nale.
Supreme
decisions when it
has divined from the
Court’s
use of race in admissions
diversity,
educational Bakke decision is a rationale set out
one
promote
is used to
rejected by eight. See Cass R.
merely
place
have to
Justice and
institutions would
Deliberation,
Sunstein,
pass
actions in order
Public
label on their
Affirmative
Court,
Action, and the
84 Calif.
Supreme
muster. There is no facial
constitutional
(1996)
(noting that
or the ends of a race-based
L.Rev.
limit on the use
seeking “diversity.”
represented
thought
“rule” Bakke
policy
Justice,
rationale,
hand,
just
eight
while
other
“[t]he
on the other
one
remedial
justices
rejected
proof
past
participating
explicitly
require
would at least
some
rule”).
discrimination,
hardly can
consistent
provide
and it would
that
This
be
spirit
Marks.7
endpoint
program, namely
with the letter or the
obvious
five, may
reading
would be
between the hours of nine and
it
be
6. A
of this sentence
normal
liquor
policy
question were necessitated
because those are the hours when
that if the
discrimination,
may
lingering
past
open,
or it
be because of state
effects of
stores
sales,
legislation limiting
may
beer
or it
be
group
it
the Brennan
would hold constitution-
Therefore,
liquor
shoplifting
because
store owners fear
policy
al.
if the
were not so neces-
hours; however,
sitated,
at other
each of these ratio-
might argue by expressio
one
unius
way
nales is related in a causal
to the time
group
that the Brennan
would hold it uncon-
just
way, may
stitutional;
limitation.
the same
might argue
they
at most one
really
that Justice Brennan
meant
wholly agnostic on the constitution-
would be
by the
However,
race could be used when "necessitated
ality
policy.
majori-
of such a
discrimination,”
lingering
past
effects of
but
deconstruction,
ty’s grammatical
arguing that
qualification
scope
this is still a
provides affirmative
the footnote somehow
diversity
Justice Powell’s
rationale.
support
proposition
for the
is a
interest, simply
compelling
does not
state
Indeed,
it is the rule in several of our sister
Op.
Majority
at 742. It is
bear examination.
inapplicable
simply
un-
circuits that Mariesis
correct,
out,
majority points
quite
as the
other,
opinion
logical
less "one
is a
subset of
"only
long
not mean
if.”
“at least so
as” does
Palmer,
opinions.”
King
broader
See
"if,”
However, it does mean
which is all
Ibid.
(D.C.Cir.1991) (en banc).
F.2d
See
necessary
the Brennan
that is
to show that
*47
also,
Energy
e.g.,
Corp. v.
Anker
Consolidation
affirmatively reject-
concurrence —while
161,
Co.,
(3rd Cir.1999)
Coal
177 F.3d
170
certainly
ing
diversity
the Powell
rationale —
("the
applicable only where one
Marks rule is
endorse it.
did not
meaningfully regarded
opinion can be
as nar-
Further,
represent a
majority's attempt
rower than another and can
com-
the
distin-
reasoning.”);
guish
language modifying
the
when
mon denominator of the Court’s
between
Bound,
may
why may
Inc. v. Hissom Memorial
race
be used and
it
be used
Homeward
Center,
(10th Cir.1992)
nothing,
temporal qualifier
F.2d
1359
adds
because a
at
reasoning
reasoning
(quoting approvingly of the
in
least hints at some
related to that
King).
Dague
Burlington, 935 F.2d
only buy
v.
limitation.
If I am told I can
beer
Cf.
now,
by
for the use of
educational institutions.
we
Viewing the rationales
Until
judgment
the Bakke concurrences
have assumed that the
in Bakke
put
race
forth
(or
subset),
majority
a set and
is as the
it.-
not as a continuum
defines
Rather than
justi-
adopting
providing
distinct and unrelated
a broad statement
no
but as several
fications,
real
ways
might
guidance
is one of the
one
on when race can be used
simply
apply
purposes,
does not
what
look
argue
might
that Marks
we
at
for
Indeed,
precisely
opinions
this is
what the what the two
on the
Bakke.
concur
present
possibility
in
case.
district court held
the
See
constitutional use of race
Bollinger,
F.Supp.2d
say
potential
have to
about each of the two
Grutter
(E.D.Mich.2001) (“The
rationales, namely
past
frame-
remedying
Marks
discrim-
this,
applied
diversity.
to a case like
ination and
If
work cannot be
we do
we
essentially
holdings
where the various Justices’ reasons
are
left with two
in
judgment
permissible
in
are not Bakke on
concurring
the
rationales for the
merely
by degree,
they
holding permitting
different
as
were
use of race: one
Memoirs,
fundamentally
diversity purposes
are
differ- use of race for
but
so
some-
comparable in terms of
times and one permitting
ent as to not be
it for remedial
”).
purposes
generally
‘narrowness.’
sometimes.8
Lack-
See
Bloom, Jr.,
land H.
Hopwood, Bakke and
Two Marks
b. The Potential
Diversity Justification,
the Future
Holdings
(1998).
29 Tex. Tech. L.Rev.
30-32
gets past
conceptual
Even if one
Justice Powell’s decision would be the
(or a set
treating
hurdle of
as a continuum
support the
grounds
holding
narrowest
subset)
two rationales that are not
that race can
be used to reme-
sometimes
clearly
scope,
related in
it is not clear that
dy
past
the effects of
discrimination. This
analysis
a Marks
of the rationales
group
is because the Brennan
would have
produce
holding
Bakke
that the
race
allowed
use of
whenever there is
majority
it
claims does.
believing
problem
“sound basis for
that the
mentioned,
underrepresentation
minorities ...
majority
As
defines
abstractly,
handicaps imposed
judgment
[is]
relevant
Bakke
as
attributable
minority
by past
present
holding
applicants
that race can sometimes be used
(2d Cir.1991) (noting
King,
at 782.
"the anoma-
950 F.2d
ly
justice,
of the views of one
with whom no
majority
by redefining
8. The
contends that
land,
concurs, being
one
the law of the
where
judgment
impermissibly
I
"cobble to-
relevant
and where
the Court is so divided on
issue
gether
holding
rationales
from various
all").
majority opinion
there is no
opinions.”
Majority
the discrete Bakke
See
explained
Circuit
well
District of Columbia
However,
Op.
majority
misun-
at 741 n.6.
a rule:
the reason for such
my
suggesting we
derstands
aim.
I am not
When, however,
opinion supporting the
one
apply
given judgment
Maries to a
and then
judgment
entirely
does not fit
within a
pick
among
sup-
and choose
the rationales to
others,
Instead,
broader circle drawn
Marks
port
merely
judgment.
I am
problematic.
applied
analytical
whereby
If
in situations
suggesting an
tool
we
supporting
opinions
holding
accurately
where the various
define the relevant
more
exclusive,
judgment
mutually
applying
By defining
Marks will
before
the hold-
Marks.
pro-
single opinion
majority
ing
stating
turn a
that lacks
that race can be used to
sometimes,
support
eight
that Jus-
into national law. When
mote
I illustrate
given
to a
tice Brennan's rationale is the narrowest
nine Justices do not subscribe
holding
doing
approach
legal question,
surely
support
and in so
call
to a
can-
question
premise
provides
proper
approach
into
that Maries
not be
to endow
*48
force,
question facing
controlling
persuasive
matter
an answer to the threshold
no
how
may
this court.
it
be.
diversity as a
Bakke,
utility
put
at
a limit on
438 U.S.
racial discrimination.”
constitutionally
supporting
hand,
rationale
the other
369,
On
the Harvard
set
and Marks
model,
long
“at least so
Justice Powell as
integrated
of race to achieve an
as the use
Supreme
that the
Court
apparent
It is
finger-
body
is necessitated
provided holding
student
Bakke
has doubted that
Davis’s
past
effects of
discrimination.”
the obvious one
UC
ing
beyond
writing
Though only
system
illegal.9
was
Further, Supreme prece there is Court represented Powell’s rationale Bakke’s proposition dent for the that when it is so holding regarding un- issue holding unclear what the Marks would be Marks, der while the other district court decision, in a fractured court may there found inapplicable. Marks not be one. example, For Nichols v. States, United U.S. C. The Dicta Problem
1921, 128 (1994), L.Ed.2d 745 the Court re that, pause I prior, splintered Lastly, point examined out even if its decision in Illinois, the majority’s application Baldasar v. of Marks were correct, (1980). it would not be S.Ct. L.Ed.2d 169 After clear that ' citing noting possi permissible Marks and the varied various discussions of ratio- holdings ble divined different courts nales be found Justices Powell and Baldasar, that had examined Supreme opinions anything Brennan’s more course, Broadcasting Majority Op. in Metro and therefore his views at 743. Of this court constitutionality any policy on the or ratio- (or ignores at least does not rule in accor- speak present nale would not case with) persuasive authority dance all the time. standard, scrutiny where strict particular, exegesis post an ex written majority statement is—as the itself notes— opinion different Justice of another Justice's merely majority attempts dicta. The to sal- prevail point that did not on the at issue is vage the usefulness of the statement to their hardly strongest type persuasive au- argument by describing "persuasive it is as thority. authority, may ignore.” which this court *50 786 (due rule, cited the long-standing VI This is because non-binding dicta.
than
Stevens,
avoids con
that the Court
not
Justice
that Bakke does
argument
there is an
be
fairly
a case can
issues if
respect
stitutional
“judgment”
a
have
statutory ground).
a
See
decided on
in educational insti-
race
permissible use of
411,
Bakke,
2733. See
at
there
438 U.S.
policies, so
admissions
tutions’
106
Regents,
Johnson v. Board
issue.
also
holding
that
no Marks
on
(same
(S.D.Ga.2000)
1362,
F.Supp.2d
1369
argument,
to understand
In order
(11th
aff'd,
More
fundamentally,
holding/dicta
holding,
a Bakke
distinction demands that we
the district court in
consider bind-
this
case
ing only
Supreme
reviewed recent
necessary
which was
to re-
Court cases
classifications,
solve the
that have
question before the Court. At
addressed racial
most,
and held that
question
together they
before the Court
in
make clear
Bakke was whether
race
could ever be
“racial classifications are unconstitu
in
they
used
admissions decisions. To resolve
tional unless
are
remedy
intended to
question,
carefully
Court
needed to
past
documented effects of
dis
that race
potentially
Grutter,
answer
could
be used.
F.Supp.2d 821,
crimination.”
137
Any speculation regarding
(E.D.Mich.2001).
the circum- 849
The court found this
stances under which race could be used
holding
required
to be
Supreme
two
was little more than an advisory opinion,
First,
Court
cases.
court cited Ada
as those circumstances were not before the
Pena,
200,
rand Constructors v.
515 U.S.
court and need not be validated to over- 227,
115 S.Ct.
tutionally unacceptable
counsel-
ing against recognizing its achievement as
Developing
A.
Is
a Diverse Student
compelling
purpose.
state
Body
Compelling
State Interest?
If I
deciding
majori-
were
this case for a
“Diversity”
1. The Nature of
ty,
likely
I
would not have resolved the
question of
developing
whether
a diverse
that,
Holding
*53
generally speaking, “diver-
body
student
is a compelling state interest.
sity in education” is a compelling state
Even if a racial
designed
classification is
to interest
terribly helpful.
would not be
Af-
interest,
compelling
achieve a
state
it must
all,
ter
it is not clear what the term means.
be narrowly tailored to that
interest.
therefore,
From the outset
it is crucial to
I
prefer-
While
could conceive of racial
precise
be
about the nature of the “diversi-
narrowly
ences
admission that are
tai-
ty” that the Law
promote.
School seeks to
lored to achieve some
diversity
edu-
Justice Powell discussed a diversity that
cation,
plan
the Law School’s
not among
is
pedagogical
enrich the
activities of a
majority
those. The
appears satisfied that
school,
diversity
“experiences,
of
out-
the Law
program narrowly
School’s
is
tai-
looks, and ideas” that would challenge its
lored because the Law School has not ar-
students’
preconceptions
open
settled
precise
target
ticulated a
numerical
them to new
paradigms.
intellectual
By
admitted minorities.
carefully avoiding Bakke,
U.S.
Perhaps the unifying one feature of the than suburban may correlate to minority groups that Law School areas — degree under-represented some with racial heavily prefers in they admissions is that or ethnic minorities.13 all, average, experience have had some being object of racial discrimina- system Such a seeking experiential students, tion. might bring For law unlikely signifi- would be to raise an understanding *55 purposes behind cant problems, constitutional unless it they the anti-discrimination laws that were clear that an manipulated institution hard, however, might study. It is to be- these par- factors to admit members of a lieve that the Law School’s admissions However, ticular race. the Law School terribly scheme is sensitive to this interest. certainly implement does not to seek an If truly the Law School were interested experientially system based admissions or profound experience those with with dis- did, preference even to assert that if it crimination, it would be sensitive to differ- given explain such factors could its groups. ences within the An Afri- Instead, affected current results. it is clear that applicant can-American who only type comes to the diversity given that is modest, by way Law School of Choate and Har- if any, weight more than is based fact, respect concurring opinion's 11. may With to the 13.In these factors also correlate to example, Concurring Op. criticism of this at ability, unrealized academic if the student has (Clay), n.3 see n.21 resources, not had sufficient educational or infra. financial, intellectually. to blossom In this Indeed, likely it is such minorities —those sense, system truly an admissions sensitive to relatively who have been at well-educated experiential diversity may also select more schools, performed elite but who have not intellectually talented. terribly well there —that the Law School's preference policy most benefits. “All Independence are: The Law the Declaration categories. racial assigned en- ... and are equal created that the men are maintain plausibly cannot School in- certain dowed their Creator with especially be- impractical, system would be Thus, basis starting rights.” us for alienable cause, remind they elsewhere separately as- not of equality, one of preference its is distinguishing purposes of measure that are to categories used signed admissions officer only one quota, from a every decisions, starting point, that diversity. From all makes applications, all reads are “diverse” person’s experiences considering capable and therefore measure of very The every those of other. possibility individually. candidates University is to by the system diversity as used based experientially an do not some of those differences apparent say disinterest that the Law School’s School, Thus, un- Law ten the Law system, indicate count. in such a students, race, each a not as a der-represented-minority to grants preference School families, experiences, lawyer but unique two-parent set of proxy for a child of diverse, while children race to be proxy as a considered itself. merchants, parents are Chinese whose if we were consider Accordingly, even workers, farmers, or Japanese white steel opin- Powell’s this court Justice binding on are all con- of the above any combinations achievement of some in Bakke ion (and homogeneous part of a sidered to be compel- diversity in education is a form, of course, And, of “over-represented”) mass. interest, ipso we would ling state facto strongly deter- then categorization diversity compelling type find A child mines odds of admission. For apparently Law School seeks. ancestry and one of parent of Chinese one ethnicity race Powell Justice of “diver- find that level Chilean would his fac- in a range element “one the Law wholly on whether sity” depends may educational institution tors” that an on one assign him based chooses School experientially an het- develop consider parent or the other.14 Bakke, 438 U.S. erogeneous environment. 2733. The Law School’s explanation of gives no The Law School race, race, for the sake of consideration of be favored. groups it defines the how pedagogical type not the make, ultimately it must This means that compelling Powell’s thought potentially is, basis, on who and is a decision on some
opinion. “African-American, not, Hispanic, or (dis- at 1957 American.” See JA Native prob- fundamental
There are more yet favored). to be Such cussing groups rationale of di- lems with the broad-brush course, long have a and sor- judgments, of premise of our versity. The fundamental *56 Rule classic Southern history. did The person is “di- society equally is each “one ancestry, African or be- was that exactly equality of her verse” because blood, one black.15 drop” African made very The words of and the law. fore God grandpar- of her rather than another for me on one personal observation makes clear 14. A problematic nature of such definitions. ents. grandparent My daughter who was has one grandparents of Rus- immigrant, Cuban two rule, see A. Leon one-drop on the more For origin, grandparent who and one sian Jewish Michael Higginbotham, Jr. & F. a Euro-American as could be characterized "Yearning Breathe Free”: Higginbotham, to to think her life I would hate mixture. Against Options in Favor Legal Barriers altered, favorably significantly chances were Virginia, Liberty in Antebellum body unfavorably, government because a or (1993). 1243 n.163 N.Y.U.L.Rev. "grandfather focused applied a clause” that Nuremberg The Nazi laws made the fatal compelling, considered would eviscerate decision turn on the number of Jewish protection the constitutional that strict grandparents.16 “Hispanic” background scrutiny provides. The requirements two suppose, depend Imay, on which side of a scrutiny strict identification of a —the pass Pyrenees your great-grandfa- in the compelling state interest and the use of Christmas, my ther came from. This wife only those means narrowly tailored to card, containing lovely and I received a serve that designed interest —are to be picture spouse, a Mend and his their independently meaningful rather than spouses, two children and their and four mere redundancies. Yet it meaningless is grandchildren. sample I asked a of peo- to require that a narrowly state tailor its chambers, ple, my many in and out of how suspect policies to purpose that itself is people of the ten in the picture should poorly defined. preference Michigan’s receive racial under Requiring purpose a well-defined to be I policy. ranging received answers compelling Supreme reflects the Court’s one to ten. judgment that racial classifications ought contemplation A moment’s of these ex- to be used sparingly. The Law School’s amples problem shows another serious repeated incantation of “developing a di- Michigan’s policies. hand, with On the one body” verse student suffers from this vice all the ethnicity evidence is that race and vagueness. words, These same togeth- nothing” are considered on “all or basis. er with the discussion of promoting a more But experience, the actual diverse or oth- used, intriguing body, student could be erwise, person of a who is or “one-half’ indeed have been used not “one-quarter” ethnicity, likely invalidly of one on to be, face, average, their justify different from one whose to ethnic classifications ancestry relatively uniform. On the oth- patently seem unconstitutional. hand, apply boldly er to a system of half- may It compare be instructive to quarter-credit assigned status would implementation actual of and articulated system reveal the racist nature of the to a Michigan plan rationale behind the degree from proponents which even its another, possibly well-intentioned, attempt would shrink. manipulate to criteria Thus, if give even we full force to Justice achieve a diverse body. student I refer to Powell’s discussion of “the virtues of diver- “religious-conscious” policies, adopted sity,” program provides the Law School’s Ivy a number of League universities of term, linguistic but not the substance. notable, which Harvard was the most preference in give admissions to Gentiles Logical 2. No Limitation opposed policies to Jews. The were also completely We are not at regarding sea designed produce a mixture of students how to discern a compelling state interest. propor- the school that was closer to the Supreme consistently Court has re prevailed society, pro- tion that jected purposes those that lack a “logical portion thought that was socially Croson, point.” stopping U.S. educationally beneficial. 706; Wygant v. Jackson Bd. of *57 Educ., The 267, 275, 106 policy reasons for the offered 476 U.S. S.Ct. (1986) (plurality opinion). L.Ed.2d 260 then-President Lowell of Harvard are vague Such if purposes, hauntingly ill-defined similar to given the rationale See, Dawidowicz, Levin, e.g., Lucy (Schocken 16. S. Nora The Holocaust 69-70 The War Against (Bantam 1975); 1973). The Jews: 1933-45 91 comparable in connection with other truly without the explained, Lowell As here. that the “Har- character The fact lose its characteristics. would “Harvard policies university basically draw- cut of the 1930’s Jew- national vard plan” a democratic as community and more classes would belie ing from all ish numbers half understanding sympathetic a to discriminate.” promoting a “facial intent the lack of Lo- President from Letter among Synnott, them.” Graham generally See Marcia Yeomans, Henry Aaron well, reprinted in Half-Opened 96, 108, 110, Door The Lowell, 1856-1943 1979). (Greenwood University of LAWRENCE The Abbott 1977). that “race (Arno worried Lowell plan, by its own calcula- Michigan’s which if numbers intense” become feeling would of students inflates the numbers from tions proportional were not more students of three-to- groups approximately favored if that population, general fold, betrays a “facial similarly intent four rectified, “it be imbalance could numerical at 6047. See JA to discriminate.” feeling among the race eliminate would that important to note It is thus passed out students, these students and ‘as unintentionally, though Michigan policy, world, it in the com- eliminating into that of the Harvard an effect similar to has ” Rosovsky, The Jewish munity.’ Nitza similar, my in is plan of old. The effect Experienoe And Radcliffe At Harvard view, proportion of significant because 1986) (Harvard A. Law- (quoting & n.2 because of persons who are excluded those 1056). Lowell also Papers # Lowell rence under-rep- in favor of racial discrimination “in the would be policy his believed While no minorities are Jews. resented Jews, everyone of as as well interests given, been wide specific numbers have Ibid. else.” rep- that Jewish variety of sources indicate Har- system at preference weighted is general law schools resentation as much the same Michi- then worked vard multiples proportion of Jews several day its also plan” The “Harvard gan’s. no population. There is general in the individually. applicant each considered proportion as a reason to believe that admitted, some were not. Jews were Some policies, by Michigan’s those excluded among factor one religion only was Their any different. impact would be per- It was many that were considered. Law School’s are Powell, policies If like the clear, in the Justice fectly words “over- effect on permitted, the adverse loses out on applicant who that “the only grow will represented” another candidate minorities seat last available policies inexora- basis of ethnic because such ‘plus’ grave on the more receiving a philosophy foreclosed which bly will not have been drive toward a background seat.” parceled roughly all consideration out from general in the representation proportion could not be deny who were admitted may Those population. The Law School ethnicity had been deci- their this, only certain policy argue certain- were applicants All admitted But, sive. if minorities. “under-represented” by the same standards ly “qualified,” divided, can any group become suitably Michigan plan. distinguishes between de- minority. If one Christianity, religion no nominations comes distinction Perhaps the crucial only the Using in America. con- majority “plus” program that a the notion true national stitutionally protected classes of “facial to discriminate.” lack a intent majority. ais origin, background no ethnic plus if the case This could Ibid. Thus, Michigan’s policy, modest, by the rationale and calibrated fashion some *58 every group suitably defined could be enti- prospects These for such uninhibited ra- cial and ethnic discrimination tled to “a critical mass” of its so are especial- members ly important because the Law too, School has students, that those “not should feel declined to justify policy its as remedying spokespersons” or like nor isolated “feel past discrimination.17 There is no limiting discussing freely uncomfortable issues principle preventing the Law School from personal experiences.” based on their Ma- employing or religious preferences ethnic then, jority Op. at 15. And the inexora- to arrange its body by student critical mathematics, ble laws existence of a short, mass. In the compelling state inter- critical rough proportionality mass or for est of developing a diverse student body group each so considered means that what justify an infinite amount of engi- groups is left the remainder of the neering respect racial, every with to eth- (those formerly “over-represented”) is no nic, and religious class.18 more own critical “rough than its mass of
proportionality.” And there lies the rub. B. Is the Law School’s Pol- Admissions Being relegated rough proportionality icy Narrowly Tailored? brings applicants full Jewish to their circle pressed, however, If it would be unnec- Plan,” under Lowell’s chances “Harvard or essary to determine whether promoting worse, today even as Jews only constitute diversity in education compel- constitutes a population. 2-3% the total The Law we, ling state just interest because Jus- certainly deny School and the court will tice Powell in are not faced with an this, that is where figures but unavoid- admissions scheme that tai- narrowly ably lead us. lored to compelling achieve the state inter- why 17. Law School’s attempted disavowal is I do School analogy by deflect this past whether arguing discuss religious preference remediation that a compelling is a discrimination state interest same form as the Law School’s racial and justify preference could the Law "special” School's actions. ethnic would raise con Not compelling must state interest be problems “getting stitutional entangled” satisfy scrutiny, strict but it also be religion must in violation of the "First Amend that motivated essence, interest the classification ment.” atTr. 16-17. counsel’s first instance. While we have been argument was that an admissions policy with actually reluctant determine what motivat- religious preferences comport that would bodies, see, legislative e.g., ed Commu- Federal with the Equal Protection Clause could never Communications, Comm’n v. nications Beach theless the Establishment violate I Clause. Inc., 307, 315, analytic argument could find case no or even (1993), L.Ed.2d 211 the Law adminis- School policy, for the proposition pursuing that a is the sole creator tration of the admissions compelling state interest and tailored narrow policy at rely issue here and we can on its interest, ly to that could violate the Establish (as compared assurance statement of CIR, ment Clause. 48 F.3d Droz Cf. particular legislator incomplete or an statuto- (9th 1995) (noting Cir. relevance ry preamble) that such is not the remediation scrutiny the strict framework to the First purpose policy. of its admissions inquiry). Amendment justifica With as much tion as the Law School disclaims invidi society’s history Because of our of reli ous “over-represented” toward animus gious religion’s discrimination continuing groups policy, comparable in its discrimina salience, recognized I have at times against “over-represented” the analo religious tion gy religious preference between groups represent racial could said not to preference and ethnic religions bestowed this case. of all other establishment example, argument For questioned irreligious. oral I analogy, I am convinced that the constitutionality about engi counsel implications, therefore inevitable neering Baptists a critical mass of argument Southern Law School’s constitutional here, at the Law School. Counsel the Law hold. *59 a “criti- attempts to achieve ma- Law School’s For the diversity in education.
est of minorities under-represented tailoring narrow cal mass” into inquiry jority, the majority concedes that the quotas determination with a and ends begins Third, an question aside” “sets I neither School unconstitutional. the Law racial or ethnic for bears strong preference of seats racial number a exact whether a minorities with relationship nor admits to the minorities any demonstrable The in mind. admittees specific quota pluralism. of educational claimed benefits prefer- other quotas distinction race- suggest I some finally, Fourth and constitu- dividing line between ences is Law achieving the means of neutral poli- admissions unconstitutional tional and Law School that the avowed ends School’s position, this cies, For on this view. pursued. has not plan, not of Harvard to the majority points time, of which Justice the one but Lowell’s Magnitude the Law The True 1. factual record Powell, no on the basis of Preference Racial School’s description appended only a bland but out majority has laid not Because brief, spoke approvingly an amicus re- the discrimination magnitude of a only as using race plan, That Bakke. record, important is vealed the Constitution offend not “plus,” does the ad- An examination of it here. detail Pow- majority because according the most that even missions data shows its constitutionali- advisory opinion on ell’s (those with majority19 students qualified Therefore, hold majority would ty. 3.75) a over 170 and GPA an LSAT over as a merely use race plans that that all per- admissions perfect achieve the do not Yet, the consti- constitutional. “plus” are minority under-represented centages ap- preferences analysis of tutional racial point a less nearly awith GPA students majority in that for the binary pears to be range. in the 164-66 score LSAT an quota or forbidden is either a preference under-represented roughly speaking, More plus. permissible B under- high to low with a C minorities however, be, concerned about We must the same average admitted at graduate Even preference. magnitude of this A aver- applicants with an majority rate as doubt, that all Justice against assuming, LSAT scores.20 roughly the same age with constitutionality of opinion on the Powell’s axis, minority applicants a different Along case or contro- part of the plan any score average and an LSAT with an A holding be a could versy before the Court (the national- percentile 70th down to court, cannot believe I binding on the same rate roughly admitted at ly) are size, large, matter how no “plus” average with an A majority applicants I be- therefore constitutional. would be (the a 167 96th over LSAT score preference the Law School’s lieve that nationally). percentile narrowly tailored. large to be just too worth indicate race figures tailoring de- My analysis of narrow college average point of grade one full over scheme Law School fects of the 20-percentile 11-point least an or at First, I parts. detail four falls into effect, Law on the LSAT. boost prefer- School’s Law magnitude true very sub- by giving admits students School Second, explain why we cannot I ence. virtually every weight additional stantial between meaningful distinction draw a Comparison stu- between 20. JA 605. purposes, those stu- Meaning, these 19. in range LSAT "under-represented minori- in the 167-169 are not dents dents who ties.” *60 (100%) “under-repre- designated candidate would be better guarantee called a or, equivalently, by minority” sented sub- of admission.
stantially discounting credentials however, At point, some comparison of by every happens earned student who white, Asian, the admissions rates minority fall outside the Law School’s des- other unselected applicants ethnic and the ignation. minority groups designated preference potential applicant,
For the
the Law
impossible.
becomes
The Law School sim-
system
very
creates
ply stops meaningful
School’s
different di-
consideration of non-
If
depending
minority
lemmas
on his race.
con-
candidates below certain grade
year
they applied
point
fronted a
before
figures,22 practice
and LSAT
a
dem-
Law
with the records of
by
School
two stu-
onstrated
admissions rates well below
dents,
non-racial
percent,
whose
credentials were
and often the absence of a
equivalent,
might
pros-
single
student,
we
evaluate their
admitted
in these credential
pects
categories.
for admission as follows: Student A
“Under-represented minori-
ties,”
hand,
could work harder and raise her GPA a
on the other
only
not
continue
point.
full
Student B could
fact
respectable
reveal the
to have
chances of admission
skin color or
it
ethnicity,
being
categories,
his
in in these
but most cases en-
preferred categories.21
joy
one of the
The
rates of admission in excess of 80
officer,
percent.23
Law School’s admissions
who
“competi-
be-
Far from receiving
changes
consideration,”
fore both
would have
applicants
rated the
tive
majority
are
equally,
students
would now find the stu-
all
summarily rejected
but
with creden-
tials,
equal,
being
dents
the effort of the one
ethnicity,
but not
identical to their
background
counterbalanced
of the
under-represented minority “competitors”
other.
virtually guaranteed
who are
admission.
practices
The Law School’s admissions
be-
shocking
comparison
More
is the
of the
tray its claim that it gives meaningful indi-
applicants
chances of admission for
vidual
every applicant
consideration to
not-
(at
the same academic credentials
least
withstanding their race.
numerically). Taking middle-range
ap-
plicant with an LSAT score 164-66 and a
sharp
threshold for
admission
3.25-3.49,
GPA of
the chances of
appears
admission the Law School
to establish for
for a
applicant
applicants
white or Asian
are around majority
emptiness
reveals the
22 percent. For an under-represented
purported justification
mi- of another
for its
nority applicant,
preference.
justi-
the chances of admission racial
The Law School
10%,
necessary
21. While it
regardless
grade
should not be
to make
more than
of their
point,
hypotheticals
point average.
the use of
or exam-
ples
impact
that illustrate the effective
policies
way
under consideration is in
no
23.By
comparison, designated minorities are
commentary
specific persons.
policy
considered,
If a
but admitted in rates
impolite
60%,
80%,
has real effects that seem
or offen-
usually
over
over
with LSAT
sive,
policy,
that is a result of the
not of those
grade point averages
scores down to 154 and
point
who
it out.
range.
fig
in the low B
Even below these
ures, designated minorities are still admitted
Majority applicants
average
nearing
many categories
with an A
at rates
30%
enjoy
LSAT over 164
designated
admission rates over
LSAT and GPA. Not until the
mi
(47th
grades
high
drops
percen
As their
slide to a
B aver-
40%.
norities' LSAT
below 150
age
nationally)
and an LSAT over
their admission
tile
or a GPA
we
of 2.5 do
see
drop
designated
rates
to around
Below a
admission rates under
20%.
10%
majority applicants are not admitted at a rate
minorities.
rejection of
explains
usage when
by claim-
part,
preference,
fies its stark
admitted,
method because
even
random selection
applicants
more
that all the
ing
preference,
highly
of its
“both
because
school seeks
assemble
those admitted
actually
Law School
richly
If the
diverse academic
“qualified.”
qualified
combina-
applicants, with
that all
The Law
believed
at 751.
Majority Op.
class.”
*61
for admission
sufficient
tions of credentials
of
cognizant
all too
appears to be
School
it
minorities,
truly “qualified,”
were
qualified”
“highly
the difference between
at least to consider
willing
likely be
would
Its two
“qualified” applicants.
merely
who were
applicants
majority
admitting
rate, one for
in the admissions
steep cliffs
Instead,
Law
“qualified.”
equally
minority applicants and
under-represented
regarding the
views
reveals its true
School
majority applicants, demonstrate
one for
its law students
necessary credentials
a “two-
Law
maintains
School
of
in its admission
clear line
through its
track,”
for ad-
separated, system
indeed
below the
students
majority candidates:
mi-
under-represented
its
Using
missions.
either diminish
threshold
credential
threshold,
Law
fills its
nority
School
of the school or
educational environment
candidates.
“qualified”
reserved for
seats
kept
percentage
to a small
if
spare
threshold,
Law
majority
Using its
the class.
balance of its class
completes the
School
alternative,
pro-
the Law School’s
In the
applicants. That
qualified”
“highly
with
virtually all
“qualified”
designates as
cess
merely seeks to insure
Law
School
If the Law
for admission.
apply
who
qualified”
are
that “all its students
honest,
every
it considers
being
School
empty claim.
minority admitted
under-represented
last
however, that
argues,
The Law School
Indeed,
data
the admissions
“qualified.”
pro-
overwhelming data are illusions
these
nearly
admits
that the
School
reveal
Law
litigation.
the smoke of
through
duced
meets thresh-
minority
who
every
student
alone,
data,
the Law
standing
These
credentials,
appears to be a
as there
old
claim,
produced
could be
School seems
of admission between
sharp cliff
rates
qualifi-
in actual
by very small differences
objective
cre-
extremely small variations
sta-
Taking
hypothetical
certain
cations.
If the Law School considers
dentials.24
tistics,
could
minority threshold
School’s contention
the Law
everyone above this
example,
the 89
if for some
certainly
it must also consider
hold. For
“qualified,”
pool
applicant
above
had the same
percent
applicant
every
reason
it is clear that
“qualified.”
score,
Yet
every
threshold
white had a GPA
but
LSAT
3.49,
not be comfortable
the Law
would
a
School
had a
every black
GPA
3.50 and
any of the
random
with the
admission
required to
be
preference”
“racial
would
The Law
applicant pool.
School
students,
89% of its
but
any admission of black
obtain
applicants
truly
majority
does not
consider
would obvi-
preference
of that
degree
“quali-
half of this 89%
toward the bottom
The difference
very small.
ously be
none of them.
fied”—it admits almost
for the black and
chances of admission
large,
very
still
applicants would
white
“quali-
of the term
The Law
use
School’s
preference
practical
but
amount
The court
slipperiness.
its
fied” reveals
very small.
in would be
Law School’s shift
majority reveals the
rates in excess
to a
we see
sharp drop
rates
admission
example,
is a
24. For
there
however,
under-represented mi-
mi-
of admission between
With
60%.
LSAT
nority applicants
a 154 to
with
at rates below
norities are admitted
20%.
With a
a 151 to a 153.
and those with
score
However,
plans
such
the two
the admissions
are identical in the same
in this case. As the statistics
paragraph.
statistics
majority’s
argument, yet
show,
degree
preference
can be
again, simply
empirical premises
elides
characterized, in
benign
words of Jus-
necessary to sustain what it claims to be
Harvard,
“tip” only
tice Powell
controlling
analogy between the Law
with some considerable violence to termi-
plans.
School and Harvard
nological
“tip”
exactitude.25 The term
And indeed the majority’s recognition
convey
average
reasonable
that there is no factual record regarding
a fair-
person something
overbalances
plan
the Harvard
in Bakke echoes the
ly closely
nearly evenly
divided or
bal-
why
reason
federal courts do not issue
A
roughly
anced choice.
seesaw
advisory opinions on cases not before them
equivalent children on either end can be
*62
why
we find binding only
holdings,
“tipped” from
one side
the other with a
dicta,
but
prior
not the
cases. Without
However,
weight.
small
if a boulder must
it,
an actual case or controversy before
balance,
placed
be
on one side to shift the
court is
develop
not able to
a factual rec-
“tip”
apply only
the term
would
if it were
ord and to determine which facts would be
infinitely elastic. A common-sense view of
legally relevant. The absence of a factual
“tip”
in
might be that
a zone where 80 or
plan
record on the Harvard
reinforces the
admitted,
majority applicants
90% of
are
that
thoughts
reasons
Justice Powell’s
re-
Or,
100% of
would
favored.
minorities
garding
potential
its
constitutionality are
in zone
majority
where
or 20% of
binding.
not
admitted,
applicants are
mi-
30 or 40% of
Even if
nothing
we know
of the absolute
might
norities
be.
If Justice Powell’s
magnitude of the
plan
Harvard
other than
anything
words are
be used as
more
description
its
merely
“tip”
as
or a
subterfuge,
than a
that would be the kind
“plus,” we have some evidence regarding
preference
that a fair reading of his
its
magnitude.
relative
As
in
described
opinion might endorse.
the amicus brief before the Court
majority responds
The
that there is no
plan provided
Harvard
evidence in Bakke
large
about how
applicant may
“the race of an
tip the bal-
preference
plan
racial
was in
Harvard
just
ance in
geographic origin
his favor
as
spoke
of which Justice Powell
approvingly.
spent
or
may tip
life
on a farm
the balance
result,
Majority Op. at 756-757. As a
it is
in other candidates’ cases.” Landmark
impossible to know whether
the Law
Arguments, supra
Briefs and
n.
at 736
alleged “plus”
larger
School’s
than
added).
(emphasis
description,
From the
Majority Op.
Harvard’s.
at 749. Immedi-
it
prefer-
would seem that Harvard’s racial
thereafter,
ately
majority
concludes
ence would be similar in magnitude to the
that the Law School’s admission scheme is
preference given other soft factors. We
“virtually
plan,”
identical to the Harvard
know, however,
indisputable
from the
sta-
and that
sys-
therefore the Law School’s
tistical evidence in this case and the Law
tem must be constitutional.
Ibid. How
School’s own admission that no other soft
majority
does the
know that
the Law
remotely
significant
factor is even
as
system “virtually
School’s
identical” to
race in its admission
Addition-
I
decisions.
deeply puzzled regard-
Harvard’s?
am
ally,
nothing
there is
ing
majority
place
how the
could
both
the Harvard de-
its
scription
prefer-
ignorance regarding
confession
the de-
even hints that
its
plan
tails
the Harvard
and its claim that
ences for race or others factors of
Alien,
(6th Cir.2000) (en banc).
United States v.
211 F.3d
Cf.
justification,
some
argues, with
here,
Michigan
taking
magnitude
are of
variety of
wide
also considers a
to near
from near zero
chance
admission
opinion
nothing in this
factors. And
“soft”
100%, many
cases.
factors, or even
of such
denigrates the use
statis-
Law School’s
It is clear from
them,
long as
increasing
so
changing or
minority stu-
under-represented
tics that
However, it is of
applied equally.
they are
automatically admitted
nearly
dents are
note that Mich-
importance to
greatest
students with
or Asian
white
zones where
contend,
any way,
igan does
nearly
automati-
the same credentials
explains any
of those
consideration
factors
Indeed,
the Law School
rejected.
cally
otherwise, mi-
systematic or
advantage,
suffi-
preference is
that its racial
concedes
not make that
It does
nority candidates.
under-repre-
4of
heavy that 3 out
ciently
briefs,
specifi-
I
filings
its
or
claim in
not be ad-
minority
would
students
sented
argument:
in oral
cally
question
put
truly
were
considered
if all students
mitted
mi-
under-represented
you assert that
“Do
race. JA 6047.
regard to
without
stronger [soft
systematically
norities
have
pref-
the Law School’s
characterization
non-minority students?”
than
factors]
“tip”
“plus”
only a
erence as
firm “no.” Tr.
responded with a
Counsel
words, and
those
transform
eviscerate
Thus,
the merits
is not
at 41.
issue
a carte
thoughtful discussion into
Powell’s
*63
qualifications or
combination
behind one
system
adopting the UC Davis
blanche
pre-
dilemma
The constitutional
another.
changes.
a few cosmetic
only
with
use,
degree
the
or at
sented is
least
why I focus so heavi-
wonder
might
One
use,
qualifications,
of race to overcome
data
admissions
LSAT and GPA
ly on the
defined.
however
course,
Of
by the Law School.
provided
Mass,”
Differentiating
Michi-
a “Critical
deficiencies
the constitutional
“Quota”
“Plus” and
nothing to do with
policy have
gan
whether universities
how
question
preference
just explained,
have
As I
such
academic measures
should consider
Law School’s
minorities
accorded
admissions
in their
and LSAT
as GPA
magni-
is different
scheme
admissions
to
perfectly
is
free
Michigan
policies.
“tip” that
“plus”
tude from
or
to
those measures.
restructure
abandon
permissi-
be
thought might
Powell
Justice
it
However,
has
are
standards
those
The Law
certain conditions.
ble under
majority can-
among
however,
distinguish
chosen
suffers
preference,
racial
School’s
minority
didates,
distinguish among
appears
and to
cali-
problems
deeper
—as
of the laws
protection
percentage
Equal
candidates.
to admit
certain
brated
objective
minority
The
under-represented
standards
students.
demands that the
preference
applied
are
with
concedes that the
chooses
Law
the Law School
School
a “critical mass”
they
designed
to admit
is
equality,
modicum of
some
minority students. Of
under-represented
not here.26
only other
important. The
are most
concurring opinion
this sta-
GPA
criticizes
26. The
appears
systematically
scholarship suggest-
by noting
credential
analysis
tistical
race,
at
important
I think we should
creden-
ing
good
between “numerical
no
link
GPA,
emphasis
much
tials,”
candid about
meaning
least be
how
LSAT and
presumably
places
To the
on race.
Concurring
Law School
Law School.”
and "success in
a more
only
that the concurrence mounts
(Clay). My
point here is
extent
Op. at 768-769
use of numerical
that,
attack on the
notwithstanding
more
substantial
the debate over
merit,
with the
generally,
quarrel
its
credentials
of educational
accurate measures
School,
my position.
with
Law
undoubtedly
thinks LSAT
Law School
course,
“critical mass” is
the term
inten-
of the seats were set aside for Gentiles—it
pressed,
just
tionally vague.
apply
When
Law
had to
system
explain that a “critical
School will
mass” is based on “character” that achieved rough-
necessary
ly
that number of students
to en-
the same result.28
“minority
able
students
contribute to
[to]
The results of the
system
Law School’s
dialogue and not feel
classroom
isolated.”
a “critical mass” reassure us
produce
further,
Op. at
Majority
746. Pressed
really
that the Law School
seeks to enroll
say that any particular
Law School will not
a critical number of minority students.
minority
number of
students constitutes a
Between 1995 and
years
the last four
me,
critical
It
mass.
seems obvious
data,
for which we have
the Law School
however,
opin-
that the Law
has an
School
consistently enrolled a number of under-
ion
attempts
as to what that number is and
represented
constituting
minorities
13.5 to
to achieve it.27
percent
13.7
of the class enrolled. The
majority summarily dispenses
just
absolute numbers are
as consistent:
problem,
approvingly quoting
the com- 47 of
46 of 339 in
44 of
forting
reassurances
of Dean Lehman
and 46 of 340 in 1995. Uni-
(“We
portion
do not have a
versity
the class
of Michigan Law
Report
School’s
mass”)
ABA,
that is set aside for a critical
with-
JA at 643. The statistics
noting
out
that in fact a critical mass is
demonstrate that
the Law School was
always
Majority Op.
obtained.
at 746. more successful at enrolling
precise
be,
comforting
And
those words must
as a
of under-represented
number
minorities
contrary response
produced
would have
precise
than a
number
total students.29
appears
me,
what
least,
to be the
manner in
It seems clear to
preference
which a racial
in admissions
“critical
mass”
Law School seeks to
*64
could
majority:
be unconstitutional for the
only vague
achieve is
and flexible for out-
quota system.
a
Yet Harvard in the
looking
1930’s
siders not
at its enrollment statis-
say
exactly
did not have to
percent
that
87
tics.30 The Law School’s “critical
of
mass”
See,
21-24,
been,
view,
e.g.,
at
may
Tr.
where counsel for
have
in the Law School's
27.
the Law
percentages
School admitted that
years.
"excessive"
in three of
3-5%
the
Nevertheless,
enough
“clearly
not be
and that
we
percentage
care
the lowest
never
12%,
about the number.”
falls below
while the Law School ac-
knowledges that three-fourths of that number
percentage
application
pref-
is
The
of Harvard
accounted
of its
students who
28.
1933-42,
policy.
erence
were Jewish varied between
but was
quite
percentages
stable and
below
well
in
course,
early
Of
even these
numbers are
1920’s,
percentage
1920’s.
In the
maintaining
consistent with the Law School’s
consistently approached
glance
A
at
30%.
target. Perhaps
a numerical
the Law School
figures,
percent-
the 1933-42 Harvard
with
target
years.
a
had
different
in those
It is
12.4, 9.9, 10.9, 14.8, 14.0, 15.4, 14.4,
ages of
know,
hard
because the Law School has
16.0, 14.1,
16.1,
reveals a chart that looks
specify
failed to
its view of “critical mass.”
very
Michigan’s
respect
much like
with
Perhaps
simply got
the Law School
better at
under-represented
Synnott,
minorities.
The
exactly achieving
target.
its
115,
(1971).
Door Table 4.8
Half-Opened
30.There
is little solace in the Law School’s
Admittedly,
percentages
unwillingness
quota.
these
did
a
deviate
to reveal its
I share
tight grouping
years
bit from this
in some
Justice
view: "there
Brennan's
is no basis for
12%, 14%,
being, respectively,
preferring
particular
before
preference program
a
14%, 13%, 19%, 20%, 14%, 20%,
years
simply
achieving
goals
for the
because in
the same
deviations, however,
quota system],
proceeds
1987-94. These
do not
a
[as
in a manner
extraordinarily tight grouping
immediately apparent
pub-
muddle the
in
that is not
379,
years
primarily
the last four
show what
lic.”
tween
School’s
and its
On
if
the other
the measurement
conceptually
claimed benefits is
flawed.
is based on the attitudes of the “non-
relationship
students,
The
between a “critical mass” minority”
again
there
is little
and the
of diversity
depend
values
would
concreteness to the measure. This would
contingencies nearly impossible
pre-
on
seem to mean that
if those outside the
dict. The Law School’s definition
minority groups
seems to
were all paragons of toler-
depend wholly
ance,
psychological
make-
then there would
be no need for
involved,
up
people
preference,
whether labeled
because all
up-
students would
majority minority. Certainly history
as
or
precepts
hold the
of the Constitution and
replete
examples
major
of members of
religions to treat each person as an
minority groups,
Douglass
Conversely,
Frederick
individual.
if
majority
Sowell,
(follow-
Luther King
to Martin
to Thomas
body stubbornly persisted
student
lead)
piece
who have said their
ing
stood
the Law School’s
in attributing
they
what
believed in without
regard
experiences
and opinions of their class-
thought
“rep-
whether others
them to be a
mates to their racial identity, the critical
Eleanor
quoted
resentative.”
Roosevelt is
mass
expand
expand,
would need to
having
said
you presumably
that “no one can make
until most or all of the recalci-
your
feel inferior without
consent.”
majority
trant
students had been driven
have,
important
more
determinants of how the in-
should
led to a different constitutional
develop
very
dividual
strongly
student will
than are the
outcome in Brown? I
doubt it.
abilities,
orientation,
peer group's
religious
Similarly,
asserting
or
research
that Jews and
composition.”
harmoniously
racial
Id. at
S.Ct.
Gentiles in fact interacted more
Accordingly,
plan
under
empirically
justi-
a candid and
Lowell’s Harvard
would not
fy
rigorous
policy
supporter
that
either.
affirmative action
has ad-
mitted
link between racial
question
simply
Questions
I note that this
is not
improved
"yet
educational results has
antiquarian
academic or
interest.
convincingly
demonstrated”
and that
ability
have been raised as to the
or desirabili-
research still needs
"[t]he
to be done that
ty
implementing
of school districts
all-black
Schmidt,
would demonstrate the link.” Peter
improve
academies in order to
educational
Action,
Debating the Benefits of Affirmative
performance.
Haygood, Rethinking
See Wil
Higher
18, 2001).
(May
A25
Chron. Of
Educ.
Schools,
Integration:
Many
On
Blacks Return
Roots,
I
(Nov.
1997).
Globe
Boston
fundamentally,
37. Even more
social science
sincerely doubt that the factual outcome of
efficacy,
eyes
data as to the
in the
one
or
vary-
conflicts between social scientists as to
researcher,
policies
another
of discrimina-
ing studies of the educational effect of such
utility
tion are themselves of limited
in resolv-
policies
dispositive
would be
of the constitu-
ing the ultimate constitutional issue. At the
question
might
tional
be raised. See
Education,
III,
time of Brown v. Board
Days,
Rethinking
Drew S.
Brown Blues:
(1954),
Ideal,
chian were their remarks might also feel Means Race-Neutral 4. Potential rather than representative, being taken as racial classifications In order for its too, “criti- they, had a unless individually, must first scrutiny, the state survive strict Then, makeup of the enter- cal mass.” even means to to race-neutral achieve look wholly determined class be ing could Supreme interests. The compelling state chose to that the Law School groups those must clear that courts Court has made worrying about appropriate for classify as classifi- a state’s racial determine whether Indeed, “under-represented status.” their necessary with reference cation is not to believe appear the Law does School See, race-neutral alternatives. efficacy of Ameri- mass for Native the critical 706; 507, Croson, 109 S.Ct. e.g., U.S. it is cans, nearly large as example, Paradise, 480 U.S. v. United States Thus, some Hispanics. for blacks (1987); 94 L.Ed.2d proportionality inevita- rough measure Ohio, Inc. Contractors Associated Gen. is the measure of what bly creeps in as the Cir.2000). (6th Drabik, 214 F.3d the Law Although “critical mass.” however, clear, crystal is not What very hard to tried deponents School’s (“A reviewing responses nature consideration in their any specificity avoid only one tack facts Yet upon falls courts must undertake. of Latin words mass pre- snow”), analytical sense. order both makes like soft was clear argument the state must scrutiny, and at oral trial record vail under strict less of a only half or classi- number that that its racial demonstrate benefits, national in some representation group’s compelling state fication achieves not be consid- population would may only measure of that these benefits but also ered a “critical mass.” well-designed, shift from a obtained differently, Put race-neutral alternative. how Law School problematic is Also the mar- demonstrate that the state must the minorities entitled has selected employing gained from ginal benefits fostering a diverse terms of preference most effi- over the next racial classification The Law educational environment. them- are cacious race-neutral alternative jus- actions are that its School’s statement standard Any other compelling. selves under-repre- members of tified because scrutiny a under strict make success likely to would “particularly sented minorities framing. The question spe- mere exercise experiences perspectives have *69 skin, a racial necessarily interest vindicated classification would not significantly be very large, perhaps even com- would look different from each other. In principle at compared to the pelling, when benefits least, the race-neutral seeking means of by some dismal In- delivered alternative. experiences themselves would seem su- stead, require we should that before we perior to the Law School’s race-conscious marginal find benefits reflective of a com- means, if its aim professes. is as it This is interest, pelling they state must be those quite the opposite of the woeful inadequa- gained over the best race-neutral alterna- cy of race-neutral generally means that we tives. require to consider a racial classification narrowly
Consider some of the race-neutral alter- tailored. gradi- natives available this case. The practice, the Law School could make benefits, of along ent which the race-con- all sorts of arguments about the inadequa- judged, scious and race-neutral means are cy merely seeking experience. of For ex- diversity,” achieving plu- is “academic ample, admissions officers would have to experiences of ralism and ideas. See Part (and consider) read seriously more text in opinion, III.A.1. Earlier in this I discussed application if seeking it were experience possibility considering experiential of rather than race. The medium for com- diversity in a race-neutral manner. municating course, quality, this lacks Swamped with wealthy the children of su- the efficient simplicity of the racial check- burbanites, the Law School could seek out Yet, box. again, over and over the Law applicants who were raised amidst relative School has reassured us that its exquisitely poverty, who attended under-funded or meticulous admissions officers already con- schools, failing past who walked to school sider application each individually and coffeehouses, warehouses instead of who thoroughly. luxury, Such is the the Law experienced conquered but extreme emo- us, tells applications School of so few trauma, parent, tional like the loss of a spots to fill. I willing am to take the Law prevailed profound who over a childhood word, School its and believe it illness, years help- who have dedicated fully capable undertaking searching ing poor in Corps, the Jesuit Volunteer experience. review of individual or, stirringly, even less who have a strong Also, accounting background system among seeking experiential a raft of di- history majors. If really versity is a might applicant increase the risk of experiences and viewpoints the Law might fraud. It somewhat be easier to seeks, School why cannot the Law School verify truly that some individuals were just experiences seek those and view- the right group than the details of their points? comparative life stories. This ease should overstated, however, not be as the distinc-
Instead, the Law School searches for tions between the Law School’s “under- particular races and ethnicities as a means minorities,” represented from various securing and, a diversity experience, types Hispanics marginally Afri- they say, so A purpose. no other well- can-American, and the rest of can society functioning experiential search for diversi- very subtle indeed. Part III.B.2. See ty certainly yield greatest mea- Moreover, all, readily there are all sorts of sure of it. After even the Law School identifiable experiential diversity. indicia of would admit an imperfect race is One’s home proxy experiential diversity. mailing gives quite address Next- Pointe, neighbors away. already door bit Law ask for separated Grosse schools only by yards and the color of their detailed financial information to fi- make stu- “highly-qualified” for the system, one permitting review judgments, aid
nancial *70 seeks, generally it of all races that appli- the dents to which poverty of the relative minori- under-represented and another for Law subjected. If the School cant was only “qualified.”38 secondary ties who are student’s interested the were it im- education, experiences that race-neutral availability of such outrageous to ask not be it would parted, man- means, dealing with the especially Indeed, a transcript. high for a school the Law applicant pool of ageably small student Law School’s portion of the good School, the Law School’s talk reveals that Michigan, see JA from body hails diversity” is only “academic desiring offi- admissions seasoned the Law School’s racial dis- for sheer only dressing window inti- develop pretty a probably cers could crimination. high understanding state’s mate Ill schools. observed that Many commentators have availability of seek- short, ready
In society [as in which “race is still a America themselves, rather experiences ing unique ances- ethnicity, religion and other well as them, proxy for demon- imperfect than an can But we matters.” characteristics] tral of the marginal benefits strates that Protection suspend Equal simply not prefer- suspect racial using its Law School longer matters. Nor until race no Clause race-neutral of the available ence instead to do authorized us Supreme has the Court fact, compelling. far from means are not literal “color- so. One need advocate on selecting to me that it seems because blindness,” nor neither notice where we actually poorly a more of race is the basis experiences and differing appreciate achieving exper- means of calibrated others, to hold that our communities of seeks, I allegedly it diversity that iential government from forbids the Constitution really inter- the Law School is doubt that advantages and disad- assigning massive And this diversity.” in “academic ested assignment naked vantages on based a diversity” “academic racial labels. opinion that the satisfy the Powell that will majority considers outcome-determinative. analysis at A of the significant amount Instead, likely that the Law it is more opinion concurring pages 764-765 of is an certain races preference for School’s point that race continues directed to the interest in race itself. operates in American soci- a factor that be positive, many negative, as well as ety men- alternative
Another race-neutral fully I am deny I not that. ways. do conducting lottery for all stu- tioned is matter stipulate race does willing figures threshold dents above certain that, average, society in American insure a and LSAT. This would their GPA some, if not negatively for it matters more body “qualified” as the student as diverse all, by the Law groups favored As demonstrated applicant pool itself. some, all, of if not above, than does for unwillingness School the Law School’s by the Law groups disfavored School. among all those students lottery conduct impact stipulate that such it And I will also reveals that “qualified” it considers strictly limited disadvantage is or not really maintains a two-track using how the Law I do see concurring suggests that evi- race-neutral. opinion 38. The threshold, with "qualification” School’s gender bias in LSAT dence of racial and quar- party judge has heretofore lottery which no figures race- GPA render reled, lottery would make the (Clay). to restrict the Concurring Op. Of at 771 conscious. course, lottery lottery completely race-conscious. would be itself America, struggle rights income or status. But a defense for civil present going policies on the basis of back well a century, certainly of the Law School’s over can remediating generalized past discrimina- characterized as a righteous war. Howev- er, problems. just spoils tion has several the earlier set of war, righteous, actual the American Civil First, firmly has Supreme Court War, First, had two they characteristics. rejected general “socie the remediation by changing were enshrined the charter of justifi past tal ills” and discrimination as *71 Thirteenth, our society, through the Four- cation for racial classifications. Richmond teenth, and Fifteenth Amendments to the Co., 469, 498, v. J.A. Croson Second, “spoils” Constitution. the embod- (1989). 706, 102 Second, L.Ed.2d 854 S.Ct. ied in those amendments were taken from it is not the basis on which Law School themselves, slaveholders or from social operates, nor was the has stated political in structures which the entire intervenors), litigated (except by question (or society the entire majority society) paid appellate at the trial level or the either the bill. level, majority opinion. in the addressed however, case, fundamentally, ap More such an “spoils” that are in- ills, proach may societal volved rights equal confuses be are the individual means, by addressed societal treatment of real like people Barbara Bond, If, rights of certain in individuals. Julian Grutter. the words of Abraham Lincoln, ly person knowledgeable society a who has been “every drop chooses that decades, engaged by this issue for of blood drawn paid by the lash shall be another,”39 Gonzaga in the Review that paid by wrote Law then that bill should be policies question society, like those here are the the whole considered alter- “just Clause, spoils righteous Equal of a war.” Julian ation of our Protection not Bond, A by ignoring Though may Lecture: Call in it. the war Defense Affir Spoils Righteous mative Action: a righteous, spoils Just such taken from the Bar- (1998). War, 1, 9 society just.40 34 Gonz. L.Rev. The bara Grutters of our are not Lincoln, Inaugural places 39. Abraham Second have one Ad- received of the sixteen im- dress, properly segregated general appli- March from the pool. cant that, concurring opinion responds 40. The in a Second, gives game away the article action, applicants world without affirmative candidly when it states that its statistical con- like Grutter will not be much better off. Con- process clusion "occurs in selection curring Op. (Clay). at 766-768 To make its applicants which the who do not from benefit point, concurring quotes length opinion at greatly affirmative action outnumber those statistics, opinion, interlaced with some Liu, Bl; Concurring Op. supra, who do.” at Washington set forth in a recent Post column. added). (emphasis at 747 Liu, Myth See Goodwin The and Math of Affir- very It is true is a that there real sense Action, 14, 2002). (April mative Wash. PostBI wrong against person which a committed asserts, concurring opinion The on the basis absolutely barred from consideration for a evidence, of this that the idea that an admis- governmental greater benefit than the policy expense sions does so at the of white wrong against person only committed de- applicants simply myth. Concurring Op. prived of a fair chance of consideration. at 766. wrong But a has still been committed. analysis simply support The Liu concurring opinion may does not and Liu not First, concurring opinions wrong conclusion. as a dis- characterize "substantial ibid., explicitly argument advantage,” deprivation the article states that its but applies just forcefully equal wrong to Alan Bakke. But consideration is a to which the Supreme certainly deny opposed. did Court not Constitution is prove may Bakke’s claim because he could been hundreds of Jews There have certainty year with mathematical that he would each who were denied a fair chance for not seek that, Michigan’s plan does aver- hardly be doubted It can It seeks racial num- sake. for education’s are admitted to who age, those students that those the comfort for the sake of bers despite policies Michigan Law School It does so may bring. numbers abstract favorably more will have been question rights real of real expense socially, than situated, economically and long It is to fair consideration. people chances plaintiff whose as the such those to Barbara Grut- Hernán road from Sweatt or elimi- reduced admission have been up outside a ended they ter. But both policies. nated those use racial government’s door that credentials Similarly, because academic fair chance them a considerations denied parental correlated with significantly respectfully dissent I therefore to enter. education,41 status, income, social legitimation of this uncon- the court’s discriminatory policies malign effects policy. stitutional rarely upon fall like the Law School’s will *72 APPENDIX PROCEDURAL craft who children of the educators
the upon them. judges the who rule or them following procedural mat- Although the policies region those The statistical where princi- legal directly not affect ters do bite, people like Barbara really case, and where important in this it is ples discussed consider- equal excluded from are in the record as an they placed Grutter that be race, likely are areas on their based the manner which this explanation ation of heavily populated by persons particular be more decision- case came before the income, standing, ethnicity, social decided it. body that has now making whose opinions of preferences reading are not those these religious person and Since variety academic, judicial deci- read a legislative, and order will have sequential attempting to policies. complicated responses those de- support who sion-makers happened procedurally policy can not be seen fend what Michigan’s Thus case, begin with the may one be well to good-hearted effort simply as undisputed plainest possible for itself for statement forego opportunities group to panel The that considered primary facts. greater good. respect. I decline quota plan, this court is bound by the Harvard consideration attitude. though number of actual take that a far even smaller applicants such were involved most seats and Banks, See, e.g., R. Meritocratic 41. Richard of admission. could have been certain Defending Outcomes: Values and Racial They comforted would not have been Admissions, College Class-Based arguments. force of Liu’s (2001) (noting N.C.L.Rev. importance say of less To that it is a matter pos- variety studies have demonstrated “[a] deprived people of a one- that ten are each early relationships academic between itive because of race tenth of admission chance education, income, parental achievement and person completely excluded than if one Brown-Nagin, occupation.”); Tomiko and ignore both mathematics from admission is to Ownership” the Public Schools: An “Broad system deciding cases and contro- and our Analysis Process Model the “T-Formation” violat- rights Grutter’s have been versies. If Adequacy Achieving and Its Educational ed, proper degree of the violation for Implications Contemporary School court to remedy matters the district for Reform (1998) (not- Efforts, J.L. & Educ. say To determine in the first instance. showing "comparative ing indicia ignored claims are to because Grutter’s relationship socioeconomic back- between challenged system that she has has whole performance continues ground and impact academic discriminatory or be- relatively small persistent gap in achievement be- to reveal magnitude the violation as to her cause the students”). poorer wealthier and rights that tween say that has no is small is to she to, certainly prior following, this case and how these cases should be heard as a filing present appeals panel.” was not “must conformity with 6th Cir. constituted panel If a has “returned a case to the 34(b)(2) rules, I.O.P. of this court’s or district court for proceedings” further A other rule. motion counsel made another appeal has been taken from those 14, 2001, May hearing initial en further proceedings, original panel banc to most was not transmitted mem- appeal “determine^] whether the second months, of the court for five bers decision, should be submitted to it for not treated as stated in the court’s order of assigned panel to a at random.” If a Ibid. speak June 2001. These facts for them- case, judge, district as in this was on the selves, may each of however us choose to original panel, remaining two circuit characterize them. judges from the original panel are re- quired to decide whether the district judge appeals Law regarding School’s should panel be recalled for the or whether program today that we have n a third judge circuit “should be drawn to decided were filed as follows: case number that, fill out panel; provided if oral 2, 2001, April 01-1447 on and case number scheduled, argument is the draw shall be April 01-1516 on made judges from the of this Court sched- rules, Under this court’s these cases uled to sit at that time.” Ibid. These generally assigned would have been ato procedures were not followed this case. panel chosen at random. 6th See Cir. *73 While these cases were before the dis- 34(b)(1). I.O.P. This was not done. In- court, trict interlocutory several motions stead, as a result of a series of decisions in were, policies, in the usual course of our policies, contravention of our rules and we weekly panel referred to a motions chosen present arrived at configuration. the However, at random. though even no sec- 1999, court, In August panel of this filed, appeal ond had been the motions consisting Judges of Circuit Daughtrey panel, were then redirected to the earlier visiting and Moore and District Senior augmented, which had been the di- Stafford, 98-2009, Judge in case number by rection of the Judge, Chief the addition appeal decided an concerning rights the Judge, randomly Chief not a chosen parties certain to intervene in the district judge.42 Following filing the of the cur- underlying court case appeal, the current appeals, regarding rent all further actions but did not address the merits case. appeals, including stay those a motion to (6th Bollinger, See Grutter v. F.3d 394 order, the district were handled court’s Cir.1999). preselected panel. Upon filing appeals, of the instant when, 14, May This was the situation question could have regarding arisen 2001, court, petitioned counsel the entire appeals, whether seeking these review of 35(b)(1)(B), pursuant RApp. to Fed. P. already cases returned to the district court asking that the cases be heard the en court, by panel panel” of this were “must banc court the first instance. At this 34(b)(2). cases. See Cir. It is 6th I.O.P. point, en banc court consisted of eleven absolutely applicable proce- clear that the judges: judges active the nine who ulti- potential panel” dures for “must cases mately plus heard this case then-active Judges pe- were not followed to determine whether Norris and Suhrheinrich. The preliminary panel purported panel” It is not clear that motions to a when can tions “must randomly appeal be redirected from selected mo- no has been filed. to the not circulated petition was still to the entire not circulated tition was 1, took sen- July Judge Norris court. On court. briefing All in the case was status. ior 2001, 4, Instead, an order was on June 30, 2001. completed by July certainly Judge issued, Chief at the direction still, was not circulated petition Even court, stating that name of the 15, August Judge Suh- the court. On court,” but before the “c[ame] the motion peti- The took senior status.44 rheinrich hearing en banc petition holding the to the court. tion was still not circulated time as the briefs “until such abeyance our inter- according to August On filed, after which parties have been docket, “referred” to petition nal on wheth- a determination court will make I no panel. have specially constituted to a be submitted er the cases should Judges Moore reason to doubt adjudication or be panel for three-judge petition known of the Daughtrey had not (emphasis en court.” referred to the banc panel still special time. The prior to that added). not circulated was also This order petition for an en circulate the proof did not Appellee’s the en banc court. hearing to the full court.45 2001.43 The banc filed on June brief was 35(a) hearing argument en 6th Cir. I.O.P. en were oral banc.” banc 43. Petitions for initial year 2000. Two of cases in the filed in nine (2002). se, cases, pro disposed of filed were both governed all the would have The old rule petition circulating en banc without composition court issues relevant en banc v. See Docket Naturalite court. Ciarlo, Sheets we Popovich, know I have raised here. From 00-2106, decided Rule No. under is, by per- precedent at least court’s that this (2001) Fed.Appx. 506 and in 22 Warren, Griffin case, Judge mitting to sit in that Merritt (petition certificate No. 00-4552 35(a) statutorily Policy invalid. our old denied). appealability Thus, Judges Suhrheinrich both Norris cases, peti- each the other seven en banc court if the could have sat on the hearing en banc was circulated tion for initial Judge petition had been earlier. circulated days two after the to the court no later than *74 part a of the en banc Norris would have been proof was filed. All were appellee’s brief petition a on the had court in this case if vote by final disposed of the court before the full 1, days by 45 after requested July over been were filed. briefs Judge petition been filed. Suhrhein- the had question of circumstances under 44. The the part if a been a of the court rich would have Judge Judge Suhrhein- which Norris and/or 15, requested by August over vote had been potential have sat en banc rich could on days petition was filed and more 90 after the hearing of the case could be a matter court briefing. completion days the than 15 after the circuit rule in contention. Under some withholding specially panel's The constituted time, judge place "any who had been in at the 15, until October petition from the court the regular poll at time a was active service the 2001, days and 75 after had been filed it petition” requested the for an en banc briefing, completion had the days the after hearing of the en banc would be member judges potentially keeping both off an effect of 35(a) hearing the 6th Cir. I.O.P. court case. court. en banc added). (1998) Judge (emphasis As Gilman separate opinion Popovich his discussed in 5, 45.Judge to a December Moore’s reference Pleas, Cuyahoga Cty. Ct. Common v. Judge policy imposed omits the Chief (en banc), (6th Cir.2002) there F.3d important policy. See of the several features regarding question whether is a substantial First, policy Concurring Op. at 754-755. consistent rule in effect at the time was our prompted by petitions for it was states that 46(c), governing compo § with 28 U.S.C. litigants, “pro hearing en se initial banc appeals en banc. Neverthe sition of courts of impor- mainly counsel in prisoners,” not from less, we Octo that was the rule followed until specifically states that it does tant cases. It subsequently changed We our ber 2001. agree Judge apply Chief and clerk if the compose all the en banc court of rule to I think we can an unusual case.” regular "at time of that "it is judges in active service circulating pending hearing why the still banc nor indicated Rather than issue raised, time, panel opposed the was at that petition, special scheduled to proximate time itself, filing more of the before argument case for oral petition, though did state that the full panel. Ac- normally not a selected again being court was ques- advised because “a order, August cording to the issued tion ... has been regarding raised on October argument oral was be held event, composition panel.”47 In any 28, fifty-seven days away. Forty-nine of sufficient members of the active court vot- ac- fifty-seven days passed, those with no banc, ed to have the case heard en an pend- to circulate the still being tion taken 19, 2001, order was issued on October can- banc, en ing petition hearing even celing panel hearing scheduled to occur certainly had com- though briefing all been only days four and instituting an en panel hearing pleted. Suddenly, with the banc hearing before the now-reduced just eight days away, decision was made court.48 finally pending petition to circulate the judges
the nine active of our court.46 The Judge Moore’s concurrence makes sev- petition any expla- circulated without points. eral remarkable She first notes delay, nation for the and without even that the irregular panel constitution of the delay that a had occurred. In can be Judge notation excused because “Chief Mar- addition, accompanying the tin frequently the statement has substituted himself in a matters, variety varying degrees circulation neither recommended en agree unusually impor- away, a all that this case was decision was made to circulate the Second, policy petition tant. authorized two and hearing. for an en banc hearing panel two actions petition case and the is referred. which the Judge Clay’s concurring opinion suggests panel “deny petition” could either "questionf] appropriateness I ” argument and schedule the case for before the hearing argues this case en banc and then panel petition out to or "send the the en banc why hearing important good. cases en banc is policy occurred here. The court.” Neither Concurring Op. opin- 773. I have no panel argu- never authorized the to schedule ion on the substance of the decision to hear Third, petition. to decide the ment and not banc, only procedures this case en used to policy panel directed the to circulate the timing. dictate its petition to the en banc court if it saw "some legitimate argument hearing en banc.” It precedent special 48. There is for the adminis now, credulity argue peti- strains after the high-profile tration of a case. Mozert granted, petition *75 tion has that the con- been (6th Cty. of Educ., Bd. Hawkins F.2d 1058 “legitimate argument” grant- tained no for its 1987), Judge Lively the Cir. then-Chief took ing. hearing case out of the be normal schedule cause of educational time constraints and its October, early judge 46.In one senior of our importance. personally than Rather consti proce- court concerned the became about tuting special panel, Judge, the Chief after case, dures that had been followed in this suggesting procedure the to all the active namely specially panel the constituted that court, judges on the had the clerk conduct judge had taken over this case. After that judges of circuit to random draw constitute speak made several unsuccessful efforts to drawing, panel. the Pursuant to the the Chief Judge, with the Chief on October 15 he faxed coincidence, Judge, as a matter of was ran Judge setting to the Chief a letter forth his domly process in a selected. This occurred poli- concerns as to whether court rules and days, delay matter of and never threatened to cies had been followed in this case. He re- transparent process the case. If such had response any ceived no or other communica- here, (and not, procedural the issues not been followed regarding letter tion this has to this However, appendix probably day). day ed in this would not have on the same that he sent letter, hearing only eight days that with the arisen. years, for 16 I on the court chief have been his throughout tenure importance, hearing initial en I do recall an not inconveniencing to avoid in order judge, The concatenation my in tenure. banc Concurring Op. at judges.” circuit other irregular panel, withholding, But, course, very (Moore). mechanism, ad- of the motion whatever the extent practice, to point is that such court, and the later grant- to the dressed mem- exists, to the other was unknown haste, in are matters ing of that motion court, every had reason to who bers of the court are the other members which regularly had been panel that the believe responsible. certainly not to know no There was reason constituted. objec- suggests my that Judge Moore motions handling of the unusual of the three-judge composition tions to know that no reason 2000. There was “minor” because the decisions panel are the consti- any relation between there was composition did not “actual- regarding and the panel” of the “must tution present the outcome of the ly change[] rea- And there no in 2000. was activities (Moore). Op. at 755 n.5 Concurring case.” going on anything that to know was son clear, it is always But as I made have conformity with 6th in strict that not was body what would have difficult to know 34(b)(2). Thus, no was there Cir. I.O.P. if the rules had been decided this case in re- any take unusual action reason to Further, implemented. correctly to “April before or sponse, whether after Judge Moore that that the claims extent Op. at 758. Concurring 2001.” hearing panel’s in the irregularities contends that Judge composition Moore also were the reason petition, irreg- those en banc granting fills “vacancies Judge regularly Chief petition at the time the ularities existed cases,” previously no one has other that filed, thus it is difficult also prac- that his objected practice, his composi- they did not affect the argue common “a matter become tice has ultimately decided panel tion of the judges of this knowledge among the however, the importantly, case. this Most I Concurring Op. at 757. abso- court.” litigants and the members of this rights of any had lutely deny judge that this has scrupulous compliance with the court to of, Judge that the Chief “knowledge” or dependent on the likely rules are not —or to, any admitted such has announced par- outcomes of even certain —substantive panels practice inserting himself onto before the court. ticular matters a random draw. without concurring Contrary Judge Moore’s other notion that members legal I not contend opinion, do in not sua way derelict court were some of this court do opinions of member hearing initial en banc calling for an sponte judg- represent judge’s principled appeal was filed is both as the as soon Op. 752- Concurring case. ment point. Concur- and misses remarkable (Moore). However, under cir- these 756-757, would be ring Op. at 758. There cumstances, say what impossible it is hearing for an reason initial particular no had this case result have been *76 extraordi- unless there were some en banc long- in accordance with our been handled circumstance, Judge as the document nary might have rules. The case established indicates. .obliquely panel, a different quoted has heard before Moore been court.49 en banc before different Concurring Op. at 755-756. negative Judge Clay argues no that conclu- concurring opinions ad- 49. Neither of regarding tiny this can member of court dressing appendix disputes any of the sions this handling of this case. drawn be described. circumstances factual SILER, Judge, dissenting. history separate of the case. In her Circuit concurrence, expresses Judge Moore her by Judge Boggs in I concur the dissent by revealing history, belief that Judge separately I for the on the merits. write I, Boggs by concurring —and —undermine that I do not concur the addition reason legitimacy court and do harm to appendix, not because I procedural of the ourselves, this court and the nation. I I accuracy, but because feel question its exactly opposite believe that is true. unnecessary it is for the resolution of Public confidence in this court or any other appendix procedural If the were case. premised on certainty is court filed, responses filed in the then case, every follows the rules in regardless by Judges Clay concurrences Moore and question particular of the that a case unnecessary. would also have been presents. expose we public Unless view our failures to follow the court’s BATCHELDER, Judge, Circuit procedures, established our claim to dissenting. legitimacy illegitimate. is in Judge Boggs’s I concur careful and GILMAN, Judge, dissenting. Circuit I scholarly separately dissent. write majority opinion Both the Judge dissent, that I in all of that say concur Boggs’s key dissent address the two issues procedural including exposition (1) this case: whether in high- Concurring Op. (Clay). place at 773 I draw no The other alternative is to the actions record, may on the may for such remediation as be appendix. such conclusions in this It possible. possible that each of these events occurred any I revealed have not the substance of without conscious direction. Each reader internal communications on this case be independent judgment can make an from the court, excep tween members of our with the apparently undisputed facts that I have laid judge tion of the letter of one senior who Frankly, out here. I would have been most supra. Compare asked me to do so. See n.46 my apparent pleased if statement of facts had Concurring Op. (Clay); at 772 & 764 n.3 Con proven wrong. Unfortunately, been that has (Moore). curring Op. Judge at 757 As to not occurred. Clay’s my opinion Memphis discussion of Judge correctly "only Moore states that our Sundquist, Planned Parenthood F.3d legitimacy percep- of democratic source (6th 1999) (Boggs, 605-07 Cir. concur engage principled tion that we decision- banc), ring rehearing in the denial of en (Moore). Concurring making.” Op. at 753 If Concurring Op. (Clay), at 772-773 I will leave may imperil legiti- actions are taken that to the candid reader to consider the distinc macy, a member of this court who observes significant laying very out tion between alternatives, unpa- them is left with two both rights obvious violations of of members of this pass latable. One is to allow the actions court, revealing, long- in contravention of silence, explanations been re- even after have custom, honored the internal votes of mem quested, produced. but have not been Si- bers of this court. simply lence allows those actions to continue Legitimacy protected only our silence repeated, consequences and to be with real damage fleeting. has been done If court, actors, litigants ap- for both the court and the who it is the work of the not the pear reporters. before it. *77 816 system, which reserved fornia’s admissions education, including racial and ethnic
er in- government specifically of compelling places a a fixed number diversity, is (2) University of terest, students, Pro- Equal whether minority violated policy is admissions Law School’s Michigan Fourteenth Amend- tection Clause of the goal. further tailored to narrowly ment). said for each view- much to be There is policy, in Law admissions The School’s opin- aspects of both there are point, but view, impermissible an my creates such The ma- agree. I do not with which ions that this court system. I therefore believe I reaches whát particular,
jority opinion,
assume,
that edu-
deciding,
should
without
re-
conclusion
an erroneous
believe to be
by Justice
diversity
defined
cational
—as
narrow-tailoring challenge to
garding the
compelling govern-
a
in Bakke—is
Powell
policy.
admissions
the Law School’s
Indian
Lyng v.
ment interest.
Northwest
hand,
dissent, on the other
Judge Boggs’s
Ass’n,
439, 445,
Cemetery Prot.
posi-
of
support
his
arguments
includes
(1988) (“A
1319, 99
534
108 S.Ct.
L.Ed.2d
poli-
admissions
tion that the Law School’s
of
principle
and longstanding
fundamental
I
tailored that
find
narrowly
cy is
requires that courts avoid
judicial restraint
unper-
I am
Specifically,
troublesome.
in ad-
questions
reaching constitutional
empirical
that no
by his critique
suaded
them.”).
deciding
of
necessity
vance
mi-
a critical mass of
link
between
exists
our sister circuits have taken
Several of
perceived edu-
nority students and
Re-
approach.
v. Bd.
similar
Johnson
that race-
or his belief
cational benefits
F.3d
gents
Georgia, 263
Univ.
likely
more
would be
neutral factors
(11th Cir.2001)
that edu-
(assuming
diversity
experience
the desired
achieve
interest,
compelling
diversity
I
cational
is
applicant’s race.
on an
than reliance
sepa-
compelled
holding
to write a
school’s admissions
feel
but
therefore
tailored);
dissenting opinion.
narrowly
rate
Tuttle v.
policy was not
Bd.,
Arlington County
195 F.3d
Sch.
case, in
present
my
The facts of the
Cir.1999)
curiam) (same);
(4th
(per
to decide
the need
opinion, eliminate
Gittens,
790, 796
v.
160 F.3d
Wessmann
court
is bound
whether or not this
(1st Cir.1998) (same).
Regents
Powell’s conclusion
Justice
University
California
Law
primary problem
The
with the
the student is in effect diversity recognized educational groups, to be members of selected ethnic compelling government interest. This remaining percentage with the an undif- scope of clearly fall within the what aggregation ferentiated of students. compelling I Justice Powell had mind when furthers believe *79 “plus” use of a appropriate discussing America, UNITED STATES diversity in Bakke. Plaintiff-Appellant, according the Law problem, v.
School, favor- limiting that the conscious where the to situations of minorities itism III, Defendant- F. PARSON Willie among “plus equals” is a factor Appellee. produce the critical mass likely No. 00-4186. achieve earnestly is essential to believes other body. On the truly Appeals, diverse student United States Court pre- hand, policy would an admissions such Sixth Circuit. up stirred sumably the animosities avoid Argued Nov. and Submitted: that admitted perception the common 3, 2002. May Decided and Filed: than minority qualified are less students Bakke, 438 nonminority peers. See
their J.) (Powell, 98 S.Ct.
U.S.
(“[Preferential may only rein- programs stereotypes holding common
force are suc- groups unable achieve
certain special protection based on a without
cess relationship no to individual having
factor
worth.”) Odegaard, (citing DeFunis 312, 343, 40 L.Ed.2d
U.S. (1974) J., (Douglass, dissenting)). competing
But these considerations cannot, not, be re- that need
matters by the case us. Based
solved before I am presented, record convinced policy Law School’s quota in a de favor
results facto rigid far closer to the
minority students is prohibited by Bakke squarely
set-aside that I “plus among equals” it is to the
than clearly would be constitutional.
believe would have to close the Law School
How spectrum to the latter end
come policy to survive for its admissions
order should, my opin- strict-scrutiny test
ion, day, day a more await another when policy is
narrowly tailored formulated In the mean-
presented for resolution.
time, respectfully I dissent.