Grutter v. Bollinger

288 F.3d 732

Barbara GRUTTER, Plaintiff-Appellee, v. Lee BOLLINGER, et al., Defendants-Appellants (01-1447) Kimberly James, et al., Intervening Defendants-Appellants (01-1516).

No. 01-1447.

No. 01-1516.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2001.

Decided and Filed: May 14, 2002

David F. Herr (briefed), Kirk O. Kolbo (argued and briefed), R. Lawrence Purdy (briefed), Michael C. McCarthy (briefed), Kai H. Richter (briefed), Maslon, Edelman, Borman & Brand, Minneapolis, MN, George B. Washington (briefed), Scheff & Washington, Detroit, MI, Michael E. Rosman (briefed), Center for Individual Rights, Washington, DC, for Barbara Grutter, Nos. 01-1447, 01-1516.

Lawrence R. Velvel, Peter M. Malaguti, Andover, MA, Jodi Marie Masley, Scheff & Washington, Detroit, MI, for Massachusetts School of Law, Nos. 01-1447, 01-1516.

Philip J. Kessler (briefed), Butzel Long, Detroit, MI, John Payton (argued and briefed), John H. Pickering (briefed), Craig Goldblatt (briefed), Anne Harkavy, Brigida Benitez, Stuart F. Delery (briefed), Robin A. Lenhardt (briefed) Tonya T. Robinson, Wilmer, Cutler & Pickering, Washington, DC, Leonard M. Niehoff (briefed), Butzel Long, Ann Arbor, MI, Philip J. Kessler, Butzel Long, Ann Arbor, MI, for Lee Bollinger, Jeffrey Lehman, Dennis Shields, University of Michigan, Board of Regents, Nos. 01-1447, 01-1516.

Rowan D. Wilson (briefed), Paul M. Dodyk (briefed), Charles J. Ha (briefed), Farah S. Brelvi (briefed), Alexandra S. Wald (briefed), Kenneth E. Lee (briefed), Cravath, Swaine & Morre, New York City, Martha W. Barnett (briefed), President American Bar Association, Chicago, IL, for American Bar Association, No. 01-1447.

Kumiki Gibson (briefed), Williams & Connolly, Washington, DC, Neal K. Katyal (briefed), Georgetown University of Law Center, Washington, DC, for Judith Areen, No. 01-1447.

Martin Michaelson (briefed), Hogan & Hartson, Washington, DC, for American Council on Education et al., No. 01-1447.

Thomas J. Henderson (briefed), Lawyers' Committee for Civil Rights under Law, Washington, DC, John S. Skilton (briefed), Heller, Ehrman, White & McAuliffe, Washington, DC, for Lawyers' Committee for Civil Rights, No. 01-1447.

Kenneth S. Geller (briefed), Eileen Penner (briefed), Mayer, Brown & Platt, Washington, DC, for General Motors Corp., No. 01-1447.

Martha F. Davis (briefed), Spenta R. Cama, NOW Legal Defense and Education Fund, New York City, for NOW Legal Defense Fund, No. 01-1447.

Susan I. Leffler, Asst. Attorney Gen. (briefed), Office of the Attorney General Appellate Div., Lansing, MI, for State of Michigan, No. 01-1447.

Fred G. Pressley, Jr. (briefed), Porter, Wright, Morris & Arthur, Columbus, OH, for Ohio State University, No. 01-1447.

Jeffrey S. Silver (briefed), Jenner & Block, Chicago, IL, Deanne E. Maynard (briefed), Shilpa S. Satoskar (briefed), David W. DeBruin (briefed), Daniel Mach (briefed), Jenner & Block, Washington, DC, for 3M et al., No. 01-1447.

Yong Lee (briefed), Cameron & Hornbostel, Washington, DC, for National Asian Pacific American Bar Association, et al., No. 01-1447.

Daniel W. Sherrick (briefed), Catherine J. Trafton (briefed), Associate General Counsel International Union, UAW, Detroit, MI, for International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), No. 01-1447.

George B. Washington (briefed), Miranda K.S. Massie (argued and briefed), Jodi-Marie Masley (briefed), Scheff & Washington, Detroit, MI, for Kimberly James, Jeanette Haslett, Raymond Michael Whitlow, Shabatayah Andrich, Dena Fernandez, Shalamarel Kevin Killough, Diego Bernal, Julie Fry, Jessica Curtin, James Huang, Heather Bergman, Ashwana Carlisle, Ronald Cruz, Nora Cecilia Melendez, Irami Osei-Frimpong, Gerald Ramos, Arturo Vasquez, Edward Vasquez, Vincent Kukua, Hoku Jeffrey, Karla Stephens-Dawson, Gibson Yolanda, Mary Gibson, Herbert Dowdell, Jr., Agnes Aleobua, Cassandra Young, Yolanda J. King, Jaasi Munanka, Masley Jodi-Marie, Shannon Ewing, Julie Kerouac, Kevin Pimentel, Bernard Cooper, Norberto Salinas, Scott Rowekamp, Russ Abrutyn, Jasmine Abdel-Khalik, Meera Deo, Winifred Kao, Melisa Resch, Oscar De La Torre, Carol Scarlett, United for Equality and Affirmative Action, Coalition to Defend Affirmative Action By Any Means Necessary, Law Students for Affirmative Action, Nos. 01-1447, 01-1516.

John H. Findley (briefed), Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation, No. 01-1447.

Brice M. Clagett (briefed), Keith A. Noreika (briefed), Covington & Burling, Washington, DC, for National Association of Scholars, American Civil Rights Institute, Independent Women's Forum, No. 01-1447.

Michael K. Lee (briefed), Amberg, Firestone & Lee, Southfield, MI, for Michigan Education Association, No. 01-1447.

Before: MARTIN, Chief Circuit Judge; BOGGS, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

MARTIN, C.J., delivered the opinion of the court, in which, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined. MOORE, J. (pp. 752-758), delivered a separate concurring opinion, in which DAUGHTREY, COLE, and CLAY, JJ., joined. CLAY, J. (pp. 758-773), delivered a separate concurring opinion, in which DAUGHTREY, MOORE, and COLE, JJ., joined. BOGGS, J. (pp. 773-815), delivered a separate dissent, in which SILER, J., joined in part, and BATCHELDER, J., joined. SILER, J. (p. 815), BATCHELDER, J. (p. 815), and GILMAN, (pp. 815-818), also delivered separate dissenting opinions.

OPINION

BOYCE F. MARTIN, Jr., Chief Judge.

Lee Bollinger, Jeffrey Lehman, Dennis Shields, the Regents of the University of Michigan and the University of Michigan Law School appeal the district court's determination that the Law School's consideration of race and ethnicity in its admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.¹ The Law School contends that its interest in achieving a diverse student body is compelling under Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and that its admissions policy is narrowly tailored to serve that interest. On appeal, the Law School is joined by the Intervenors: forty-one individuals and three student groups, United for Equality and Affirmative Action, the Coalition to Defend Affirmative Action By Any Means Necessary, and Law Students for Affirmative Action. The Intervenors offer an additional justification for the Law School's consideration of race and ethnicity — remedying past discrimination. Barbara Grutter, an unsuccessful applicant to the Law School, on behalf of herself and others similarly situated, urges us to affirm the district court's decision. For the reasons set forth below, we REVERSE the judgment of the district court.²

I.

The Law School drafted its admissions policy to comply with the Supreme Court's opinion in Bakke. Adopted by the full faculty in 1992, the policy states that the Law School's "goal is to admit a group of students who individually and collectively are among the most capable students applying to American law schools in a given year." It further provides that the Law School "seek[s] a mix of students with varying backgrounds and experiences who will respect and learn from each other." As part of the Law School's policy of evaluating each applicant individually, its officials read each application and factor all of the accompanying information into their decision.

In identifying applicants who can be expected to succeed academically, the Law School evaluates a composite of the applicant's Law School Admissions Test and undergraduate grade-point average. This composite can be visualized as a grid with standardized test scores on the horizontal axis and grade-point average on the vertical axis. Every combination of standardized test score and undergraduate grade-point average is shown in a cell on this grid. Each cell reports the number of applicants with that particular combination of numerical qualifications, as well as the number of offers of admission made to the applicants in that cell. Constructed in this manner, the highest combination of test scores and undergraduate grade-point averages are found in the grid's upper right-hand corner. Thus, an applicant's chance of being admitted generally increases as he or she moves into the grid's upper right-hand corner. There is no combination of grades and test scores, however, below which an applicant will automatically be denied admission, or above which admission is guaranteed.

The Law School also considers "soft" variables like the enthusiasm of the recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, residency, leadership and work experience, unique talents or interests, and the areas and difficulty of undergraduate course selection. After taking these additional "soft" variables into account, the Law School sometimes admits students with relatively low index scores. Its admissions policy describes two general varieties of students who may be admitted with such scores — (1) "students for whom [there is] good reason to be skeptical of an index score based prediction" (e.g., a student with a track record of poor standardized test performance, but who has an outstanding academic record) and (2) students who "may help achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts."

The Law School's admissions policy explains that "[t]here are many possible bases for diversity admissions." For example, the policy states that particular weight might be given to "an Olympic gold medal, a Ph.D. in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person." The policy also offers three examples of actual diversity admissions. One student was born...