ERIC ED475069: Brief of the American Educational Research Association, the Association of American Colleges and Universities, and the American Association for Higher Education as Amici Curiae in Support of Respondents. In the Supreme Court of the United S

41 Pages·2003·0.41 MB·English

by  ERIC

DOCUMENT RESUME
ED 475 069
UD 035 581
Brief of the American Educational Research Association, the
TITLE
Association of American Colleges and Universities, and the
American Association for Higher Education as Amici Curiae in
Support of Respondents. In the Supreme Court of the United
States, Barbara Grutter, Petitioner, v. Lee Bollinger, et
al., Respondents on Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit.
INSTITUTION
United States Supreme Court, Washington, DC.
REPORT NO
Supreme-Court-No-02-241
PUB DATE
2003-00-00
NOTE
40p.; For other legal documents in this case, see UD 035 577-
582
PUB TYPE
Legal/Legislative/Regulatory Materials (090)
EDRS PRICE
EDRS Price MF01/PCO2 Plus Postage.
DESCRIPTORS
Access to Education; *Affirmative Action; Civil Rights;
*College Admission; Court Litigation; *Diversity (Student);
Higher Education; Law Schools; Racial Discrimination;
*Selective Admission
IDENTIFIERS
Bakke v Regents of University of California; Gratz et al v
Bollinger et al; Grutter et al v Bollinger et al; University
of Michigan
ABSTRACT
This legal document asserts that the judgment of the Court of
Appeals upholding the constitutionality of the University of Michigan Law
School's race-conscious admissions policy should be affirmed. It argues that
research evidence in the record supports the compelling interest in promoting
educational diversity (the Gurin Report supports the compelling interest in
promoting educational diversity, and the "strong basis in evidence"
requirement is not mandated for non-remedial university admissions). It also
argues that research studies support the Law School's compelling interest in
promoting educational diversity (student body diversity improves education
outcomes in legal education, and student body diversity and diverse learning
environments challenge racial stereotyping in education). Finally, it asserts
that the LawSchool's admissions policy is narrowly tailored to promote
educational diversity (the Law School's admissions policy employs race
modestly and flexibly, "critical mass" is a flexible concept designed to
prevent tokenism and stereotyping, race-neutral policies are less efficacious
than race-conscious policies in promoting educational diversity, and a
"percent plan" is not a viable alternative to the Law School's race-conscious
policy.
(SM)
Reproductions supplied by EDRS are the best that can be made
from the original document.
o
tr)
N
No. 02-241
Sin Vie
'upreme Court of the
iiptate0
BARBARA GRUTTER,
U.S. DEPARTMENT OF EDUCATION
Petitioner,
Office of Educational Research and Improvement
EDUCATIONAL RESOURCES INFORMATION
V.
CENTER (ERIC)
This document has been reproduced as
ILI
eceived from the person or organization
originating it.
LEE BOLLINGER, et al.,
Minor changes have been made to
Respondents.
improve reproduction quality.
Points of view or opinions stated in this
document do not necessarily represent
official OERI position or policy.
On Writ Of Certiorari To The
United States Court of Appeals For The Sixth Circuit
BRIEF OF THE AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, THE ASSOCIATION OF AMERICAN
COLLEGES AND UNIVERSITIES, AND THE AMERICAN
ASSOCIATION FOR HIGHER EDUCATION
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
ANGELO N. ANCHETA
Counsel of Record
CHRISTOPHER F. EDLEY, JR.
124 MT. AUBURN STREET,
SUITE 400 SOUTH
CAMBRIDGE, MA 02138
[phone]
CO
BEST COPY AURA
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2
TABLE OF CONTENTS
TABLE OF AUTHORITIES
iii
INTEREST OF AMICI CURIAE
1
SUMMARY OF ARGUMENT
2
ARGUMENT
4
RESEARCH EVIDENCE IN THE RECORD
I.
SUPPORTS THE COMPELLING INTEREST
IN PROMOTING EDUCATIONAL DIVERSITY
4
A. The Gurin Report Supports the Compelling
Interest in Promoting Educational Diversity.
5
1. The Gurin Report is Useful and Reliable
Evidence Documenting the Positive Ef-
fects of Educational Diversity.
5
2. Critiques of the Gurin Report Offered by
Amici Curiae are Unsound and Unreli-
able
7
B. The "Strong Basis in Evidence" Requirement
is Not Mandated for Non-Remedial Univer-
sity Admissions
14
RESEARCH STUDIES SUPPORT THE LAW
II.
SCHOOL'S COMPELLING INTEREST IN
PROMOTING EDUCATIONAL DIVERSITY.
16
A. Student Body Diversity Improves Education-
al Outcomes in Legal Education
16
B. Student Body Diversity and Diverse Learn-
ing Environments Challenge Racial Stereo-
typing in Legal Education
20
III. THE LAW SCHOOL'S ADMISSIONS POLICY
IS NARROWLY TAILORED TO PROMOTE
EDUCATIONAL DIVERSITY
22
3
11
A. The Law School's Admissions Policy Employs
Race Modestly and Flexibly.
22
B. "Critical Mass" is a Flexible Concept De-
signed to Prevent Tokenism and Stereo-
typing.
23
C. Race-Neutral Policies are Less Efficacious
than Race-Conscious Policies in Promoting
Educational Diversity.
25
D. A "Percent Plan" is Not a Viable Alternative
to the Law School's Race-Conscious Policy.
29
CONCLUSION
30
APPENDIX A
A-1
4
111
TABLE OF AUTHORITIES
Cases
Bell v. Wolfish, 441 U.S. 520 (1979)
8
Brown u. Board of Educ., 347 U.S. 483 (1954)
1
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
14
Dep't of Taxation & Finance u. Milhelm Attea & Bros.,
Inc., 512 U.S. 61 (1994)
8
Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich.
2001), rev'd 288 F.3d 732 (6th Cir. 2002).
23
Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002)... 15, 22
Johnson v. Board of Regents, 263 F.3d 1234 (11th Cir.
22
2001)
Keyishian v. Board of Regents, 385 U.S. 589 (1967)
15
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)
14, 22
Sweatt v. Painter, 339 U.S. 629 (1950)
16
Sweezy v. New Hampshire, 354 U.S. 234 (1957)
15
United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 (1981)
8
United States v. Paradise, 480 U.S. 149 (1987)
22, 25
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986)
.... 14
Treatises, Books, Articles & Papers
Walter R. Allen, The Color of Success: African-American
College Student Outcomes at Predominantly White and
Historically Black Public Colleges and Universities, 62
HARV. EDUC. REV. 26 (1992)
24
4 Am. Jur. 2d Amicus Curiae § 7 (1998)
8
iv
Jorge Chapa & Vincent A. Lazaro, Hopwood in Texas: The
Untimely End of Affirmative Action, in CHILLING
ADMISSIONS: THE AFFIRMATIVE ACTION CRISIS AND THE
SEARCH FOR ALTERNATIVES 55 (Gary Orfield & Edward
Miller eds. 1998)
28
David L. Chambers, Richard 0. Lempert & Terry K.
Adams, Michigan's Minority Graduates in Practice: The
River Runs Through Law School, 25 LAW & SOC.
18, 21
INQUIRY 395 (2000).
Peter T. Ewell & Dennis P. Jones, Actions Matter: The
Case for Indirect Measures in Assessing Higher
Education's Progress on the National Educational
Goals, 42 J. GEN. EDUC. 123 (1993)
13
Roxanne Harvey Gudeman, Faculty Experience with
Diversity: A Case Study of Macalester College, in
DIVERSITY CHALLENGED: EVIDENCE ON THE IMPACT OF
AFFIRMATIVE ACTION 251 (Gary Orfield with Michal
Kurlaender eds. 2001)
23
Expert Report of Patricia Y. Gurin, Gratz v. Bollinger, No.
97-75231 (E.D. Mich.) & Grutter v. Bollinger, No. 97-
75928 (E.D. Mich.), in THE COMPELLING NEED FOR
DIVERSITY IN HIGHER EDUCATION 99 (1999)
6
Supplemental Expert Report of Patricia Y. Gurin, Grutter
v. Bollinger, No. 97-75928 (E.D. Mich.) (Jan. 11, 2001)
8, 10, 11, 25
Patricia Gurin, et al., Diversity and Higher Education:
Theory and Impact on Educational Outcomes, 72 HARV.
ED. REV. 332 (2002)
12
Patricia Gurin, Lerner & Nagai: Evidence for the
Educational Benefits of Diversity in Higher Education:
An Addendum (2001), available at http://www.umich.
eduiurel/admissions/research/gurin.html
9
Patricia Gurin, Wood & Sherman: Evidence for the
Educational Benefits of Diversity in Higher Education:
Response to the Critique by the National Association of
6
V
Scholars of the Expert Witness Report of Patricia Gurin
in Gratz, et al. v. Bollinger, et al. and Grutter v.
Bollinger, et al. (2001), available at http://www.umich.
edu/urel/admissions/research/gurin.html
8, 12, 13
Catherine L. Horn & Stella Flores, Percent Plans in
College Admissions: A Comparative Analysis of Three
States' Experiences (2003), available at
http://www.civilrightsproject.harvard.edu
30
SYLVIA HURTADO, ET AL., ENACTING DIVERSE LEARNING
ENVIRONMENTS: IMPROVING THE CLIMATE FOR
RACIAL/ETHNIC DIVERSITY IN HIGHER EDUCATION
24
(1999)
Helen H. Hyun, The End of Race: Maintaining Diversity
at U.C. Law Schools in a Post-Affirmative Action Era
(2000) (unpublished Ed.D. dissertation, Harvard
University)
27
Rosabeth Moss Kanter, Some Effects of Proportions on
Group Life: Skewed Sex Ratios and Responses to Token
24
Women, 82 AM. J. SOC. 965 (1977)
Jerome Karabel, No Alternative: The Effects of Color-
Blind Admissions in California, in CHILLING
ADMISSIONS: THE AFFIRMATIVE ACTION CRISIS AND THE
SEARCH FOR ALTERNATIVES 33 (Gary Orfield & Edward
Miller eds. 1998)
28
William C. Kidder, The Struggle for Access from Sweatt to
Grutter: A History of African American, Latino, and
American Indian Law School Admissions, 1950-2000,
19 HARV. BLACKLETTER L.J. (forthcoming 2003),
available at http://www.law.harvard.edu/studorgs/
blj/articles.html
28, 29
Chalsa M. Loo & Garry Rolison, Alienation of Ethnic
Minority Students at a Predominantly White
24
University, 57 J. HIGHER EDUC. 58 (1986)
Jose F. Moreno, Affirmative Actions: The Educational
Influence of Racial/Ethnic Diversity on Law School
7
vi
Faculty (2000) (unpublished Ed.D. dissertation,
Harvard University).
19, 21
Note, An Evidentiary Framework for Diversity as a
Compelling Interest in Higher Education, 109 HARV. L.
REV. 1357 (1996)
15
Gary Orfield & Dean Whit la, Diversity and Legal
Education: Student Experiences in Leading Law
Schools, in DIVERSITY CHALLENGED: EVIDENCE ON THE
IMPACT OF AFFIRMATIVE ACTION 143 (Gary Orfield with
Michal Kurlaender eds. 2001)
17, 18, 20, 21
ERNEST T. PASCARELLA & PATRICK T. TERENZINI, How
COLLEGE AFFECTS STUDENTS: FINDINGS AND INSIGHTS
13
FROM TWENTY YEARS OF RESEARCH (1991)
Supplemental Expert Report of Stephen W. Raudenbush,
Grutter v. Bollinger, No. 97-75928 (E.D. Mich.) (Jan. 5,
26
2001)
Thomas D. Russell, The Shape of the Michigan River as
Viewed from the Land of Sweatt v. Painter and
28
Hopwood, 25 LAW & SOC. INQUIRY 507 (2000).
Ewart A.C. Thomas & Richard J. Shavelson, Analysis of
Report of Wood & Sherman, Addendum to National
Association of Scholars Amicus Brief, available at
http://siher.stanford.edu
9, 10, 13
Richard A. White, Preliminary Report: Law School
Faculty Views on Diversity in the Classroom and the
Law School Community (May 2000), available at
http://www.aals.org/statistics/diverse3.pdf
19, 21, 23
Linda F. Wightman, The Threat to Diversity in Legal
Education: An Empirical Analysis of the Consequences
of Abandoning Race as a Factor in Law School
Admissions Decisions, 72 N.Y.U.L. REV. 1 (1997). 26, 27
8
INTEREST OF AMICI CURIAE
Pursuant to Supreme Court Rule 37, the American
Educational Research Association, the Association of
American Colleges and Universities, and the American
Association for Higher Education submit this brief as
amici curiae in support of Respondents.'
Amici curiae are among the nation's leading associa-
tions and institutions committed to improving the quality
of higher education in the United States through schol-
arly inquiry, the exchange and dissemination of informa-
tion, institutional reform, and public policy development.
Collectively, the membership of amici curiae includes edu-
and
institutions,
organizations,
individuals,
cational
ranging from major research universities, liberal arts col-
leges, and community colleges to educators, researchers,
university officials, students, and social scientists in disci-
that include
education,
plines
psychology,
sociology,
statistics, economics, anthropology, and political science.
Individual statements of interest are contained in Appen-
dix A of this brief.
This Court has often employed relevant research
studies in its equal protection decisions involving race,2
and, in determining whether the promotion of educational
diversity in higher education is a compelling governmen-
tal interest, the Court's decision can and should be in-
formed by credible and reliable research findings. Amici
curiae have a deep-seated interest in the accurate presen-
tation of relevant research addressing the educational
' All parties have filed with the Court their written consent to the
filing of all amicus curiae briefs in this case. Pursuant to Supreme
Court Rule 37.6, counsel for amici curiae certifies that this brief was
not written in whole or in part by counsel for any party, and that no
person or entity other than amici curiae, their members, or their
counsel has made a monetary contribution to the preparation or
submission of this brief.
2 See, e.g., Brown v. Board of Educ., 347 U.S. 483, 494 n.11 (1954).
9
2
benefits of student body diversity in higher education.
Much of this research has been generated in only the past
few years, but the consistency of the findings in demon-
strating the educational benefits of diversity is impres-
sive. Amici curiae are also concerned about the possible
misapplication of research evidence in this litigation, in-
cluding potentially misleading evidence offered at both
the trial court and appellate levels. Accordingly, amici
curiae provide analyses of the research evidence offered in
the trial court below, address critiques of the evidence in-
troduced by amici curiae in the instant case and in the
related case of Gratz v. Bollinger (No. 02-516), and pre-
sent highlights and citations to relevant findings in this
brief to help clarify the Court's review of the literature.
In addition, research findings bear directly on the
question of whether the University of Michigan Law
School's admissions policy has been narrowly tailored to
advance its compelling interest in promoting educational
diversity. Empirical data and recent studies evaluating
the effectiveness of race-neutral admissions policies are
highly relevant to the Court's determination of whether
the Law School's race-conscious admissions policy has
satisfied the narrow tailoring requirement.
The interrelated arguments of amici curiae are con-
tained both in this brief and in their brief in the compan-
ion case of Gratz u. Bollinger (02-516), and amici curiae
respectfully request that the briefs be reviewed comple-
mentarily.
SUMMARY OF ARGUMENT
The Sixth Circuit below correctly ruled that the ap-
plicable precedent in this case is Regents of the University
of California v. Bakke, in which Justice Powell's control-
ling opinion held that the promotion of educational diver-
sity in higher education is a compelling governmental in-
terest. This holding is supported both by research evi-
dence introduced into the record in the district court and