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June 24, 2003 - Image 11

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ADMISSIONS ON TRIAL

The Michigan Daily - Tuesday, June 24, 2003 -11

Process" filed by the parties in the District
Court. App. to Pet. for Cert. 108a-t17a.
7. In 1995, counselors used four such
tables for different groups of applicants: (1)
nMstate, nonminority applicants; (2) out-of-
pfate, non-minority applicants; (3) in-state,
minority applicants; and (4) out-of-state,
minority applicants. In 1996, only two
tables were used, one for in-state applicants
and one for out-of-state applicants. But
each cell on these two tables contained sep-
arate courses of action for minority appli-
cants and nonminority applicants whose
GPA 2 scores and ACT/SAT scores placed
them in that cell.
8. LSA applicants who are Michigan resi-
dents must accumulate 80 points from the
selection index criteria to be flagged, while
out-of-state applicants need to accumulate
75 points to be eligible for such considera-
tion. See App. 257.
9. The District Court considered and
rejected respondent-intervenors' arguments
in a supplemental opinion and order. See
135 F. Supp. 2d 790 (ED Mich. 2001). The
court explained that respondent-intervenors
"failed to present any evidence that the dis-
crimination alleged by them, or the contin-
uing effects of such discrimination, was the
real justification for the LSA's race-con-
scious admissions programs." Id., at 795.
We agree, and to the extent respondent-
intervenors reassert this justification, a jus-
tification the University has never asserted
throughout the course of this litigation, we
affirm the District Court's disposition of
the issue.
10. The- District Court determined that
respondents Bollinger and Duderstadt, who
were sued in their individual capacities
under Rev. Stat. §1979, 42 U. S. C. §1983,
were entitled to summary judgment based
on the doctrine of qualified immunity. See
122 F. Supp. 2d, at 833-834. Petitioners
have not asked this Court to review this
aspect of the District Court's decision. The
District Court denied the Board of Regents'
motion for summary judgment with respect
to petitioners' Title VI claim on Eleventh
Amendment immunity grounds. See id., at
834-836. Respondents have not asked this
Court to review this aspect of the District
Court's decision.
11. The Equal Protection Clause of the
Fourteenth Amendment explains that "[n]o
State shall ... deny to any person within its
jurisdiction the equal protection of the
laws."
12. Title VI provides that "[n]o person in
the United States shall, on the ground of
race, color, or national origin, be excluded
from participation in, be denied the bene-
fits of, or be subjected to discrimination
under any program or activity receiving
Federal financial assistance." 42 U. S. C.
§2000d.
13. Section 1981(a) provides that:
"All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and
enforee contracts,. .. and to the full and
equal benefit of all laws and proceedings
for the security of persons and property as
is enjoyed by white citizens."
14. This finding is further corroborated
by Hamacher's request that the District
Court "[r]equir[e] the LSA College to offer
[him] admission as a transfer student." App.
40.
15. Although we do not resolve here
whether such an inquiry in this case is
appropriately addressed under the rubric of
standing or adequacy, we note that there is
tension in our prior cases in this regard.
See, e.g., Burns, Standing and Mootness in
Class Actions: A Search for Consistency, 22
U. C. D. L. Rev. 1239, 1240-1241 (1989);
General Telephone Co. of Southwest v. Fal-
con, 457 U. S. 147, 149 (1982) (Mexican-
American plaintiff alleging that he was
passed over for a promotion because of race
was not an adequate representative to
"maintain a class action on behalf of Mexi-
can-American applicants" who were not
hired by the same employer); Blum v. Yaret-
sky, 457 U. S. 991 (1982) (class representa-
tives who had been transferred to lower

levels of medical care lacked standing to
challenge transfers to higher levels of care).
16. Because the University's guidelines
concededly use race in evaluating both
freshman and transfer applications, and
because petitioners have challenged any use
of race by the University in undergraduate
admissions, the transfer admissions policy
is very much before this Court. Although
petitioners did not raise a narrow tailoring
challenge to the transfer policy, as counsel
for petitioners repeatedly explained, the
transfer policy is before this Court in that
petitioners challenged any use of race by
the University to promote diversity, includ-
ing through the transfer policy. See Tr. of
Oral Arg. 4 ("[T]he [transfer] policy is
essentially the same with respect to the
consideration of race"); id., at 5 ("The
transfer policy considers race"); id., at 6
(same); id., at 7 ("[T]he transfer policy and
the [freshman] admissions policy are funda-
mentally the same in the respect that they
both consider race in the admissions
process in a way that is discriminatory");
id., at 7-8 ("[T]he University considers
race for a purpose to achieve a diversity
that we believe is not compelling, and if
that is struck down as a rationale, then the
[result] would be [the] same with respect to
the transfer policy as with respect to the
[freshman] admissions policy, Your
Honor").
17. Indeed, as the litigation history of
this case demonstrates, "the class-action
device save[d] the resources of both the
courts and the parties by permitting an
issue potentially affecting every [class
member] to be litigated in an economical
fashion." Califano v. Yamasaki, 442 U. S.
682, 701 (1979). This case was therefore
quite unlike General Telephone Co. of
Southwest v. Falcon, 457 U. S. 147 (1982),
in which we found that the named represen-
tative, who had been passed over for a pro-
motion, was not an adequate representative
for absent class members who were never
hired in the first instance. As we explained,
the plaintiff's "evidentiary approaches to

the individual and class claims were entire-
ly different. He attempted to sustain his
individual claim by proving intentional dis-
crimination. He tried to prove the class
claims through statistical evidence of dis-
parate impact. . . . It is clear that the main-
tenance of respondent's action as a class
action did not advance 'the efficiency and
economy of litigation which is a principal
purpose of the procedure."' Id., at 159
(quoting American Pipe & Constr. Co. v.
Utah, 414 U. S. 538, 553 (1974)).
18. U. C. Davis set aside 16 of the 100
seats available in its first year medical
school program for "economically and/or
educationally disadvantaged" applicants
who were also members of designated
"minority groups" as defined by the univer-
sity. "To the extent that there existed a pool
of at least minimally qualified minority
applicants to fill the 16 special admissions
seats, white applicants could compete only
for 84 seats in the entering class, rather
than the 100 open to minority applicants."
Regents of Univ. of Cal. v. Bakke, 438 U. S.
265, 274, 289 (1978) (principal opinion).
Justice Powell found that the program
employed an impermissible two-track sys-
tem that "disregard[ed] . . . individual
rights as guaranteed by the Fourteenth
Amendment." Id., at 315. He reached this
conclusion even though the university
argued that "the reservation of a specified
number of seats in each class for individu-
als from the preferred ethnic groups" was
"the only effective means of serving the
interest of diversity." Ibid. Justice Powell
concluded that such arguments misunder-
stood the very nature of the diversity he
found to be compelling. See ibid.
19. JUSTICE SOUTER recognizes that
the LSA's use of race is decisive in practice,
but he attempts to avoid that fact through
unsupported speculation about the self-
selection of minorities in the applicant
pool. See Post, at 6 (dissenting opinion).
20. JUSTICE SOUTER is therefore
wrong when he contends that "applicants to
the undergraduate college are [not] denied
individualized consideration." Post, at 6. As
JUSTICE O'CONNOR explains in her con-
currence, the LSA's program "ensures that
the diversity contributions of applicants
cannot be individually assessed." Post, at 4.
21. JUSTICE SOUTER is mistaken in his
assertion that the Court "take[s] it upon
itself to apply a newly formulated legal
standard to an undeveloped record." Post, at
7, n. 3. He ignores the fact that the respon-
dents have told us all that is necessary to
decide this case. As explained above,
respondents concede that only a portion of
the applications are reviewed by the ARC
and that the "bulk of admissions decisions"
are based on the point system. It should be
readily apparent that the availability of this
review, which comes after the automatic
distribution of points, is far more limited
than the individualized review given to the
"large middle group of applicants" dis-
cussed by Justice Powell and described by
the Harvard plan in Bakke. 438 U. S., at
316 (internal quotation marks omitted).
22. JUSTICE GINSBURG in her dissent
observes that "[o]ne can reasonably antici-
pate . . . that colleges and universities will
seek to maintain their minority enrollment .
.. whether or not they can do so in full can-
dor through adoption of affirmative action
plans of the kind here at issue." Post, at 7-8.
She goes on to say that "[i]f honesty is the
best policy, surely Michigan's accurately
described, fully disclosed College affirma-
tive action program is preferable to achiev-
ing similar numbers through winks, nods,
and disguises." Post, at 8. These observa-
tions are remarkable for two reasons. First,
they suggest that universities-to whose
academic judgment we are told in Grutter v.
Bollinger, post, at 16, we should defer-
will pursue their affirmative action pro-
grams whether or not they violate the
United States Constitution. Second, they
recommend that these violations should be
dealt with, not by requiring the universities
to obey the Constitution, but by changing
the Constitution so that it conforms to the
conduct of the universities.

23. We have explained that discrimina-
tion that violates the Equal Protection
Clause of the Fourteenth Amendment com-
mitted by an institution that accepts federal
funds also constitutes a violation of Title
VI. See Alexander v. Sandoval, 532 U. S.
275, 281 (2001); United States v. Fordice,
505 U. S. 717, 732, n. 7 (1992); Alexander
v. Choate, 469 U. S. 287, 293 (1985). Like-
wise, with respect to §1981, we have
explained that the provision was "meant, by
its broad terms, to proscribe discrimination
in the making or enforcement of contracts
against, or in favor of, any race." McDonald
v. Santa Fe Trail Transp. Co., 427 U. S. 273,
295-296 (1976). Furthermore, we have
explained that a contract for educational
services is a "contract" for purposes of
§1981. See Runyon v. McCrary, 427 U. S.
160, 172 (1976). Finally, purposeful dis-
crimination that violates the Equal Protec-
tion Clause of the Fourteenth Amendment
will also violate §1981. See General Build-
ing Contractors Assn., Inc. v. Pennsylvania,
458 U. S. 375, 389- 390 (1982).

JUSTICE SANDRA O'CONNOR,
concurring.*
*JUSTICE BREYER joins this opinion,
except for the last sentence.
I
Unlike the law school admissions policy
the Court upholds today in Grutter v.
Bollinger, post, p. 1, the procedures
employed by the University of Michigan's
(University) Office of Undergraduate
Admissions do not provide for a meaning-
ful individualized review of applicants. Cf.
Regents ofUniv. of Cal. v. Bakke, 438 U. S.
265 (1978) (principal opinion of Powell, J.).
The law school considers the various diver-
sity qualifications of each applicant,
including race, on a case-by-case basis. See
Grutter v. Bollinger, post, at 24. By con-
trast, the Office of Undergraduate Admis-
sions relies on the selection index to assign
every underrepresented minority applicant
the same, automatic 20-point bonus without
consideration of the particular background,
experiences, or qualities of each individual
applicant. Cf. ante, at 23, 25. And this
mechanized selection index score, by and
large, automatically determines the admis-
sions decision for each applicant. The
selection index thus precludes admissions
counselors from conducting the type of
individualized consideration the Court's
opinion in Grutter, supra, at 25, requires:
consideration of each applicant's individu-
alized qualifications, including the contri-
bution each individual's race or ethnic
identity will make to the diversity of the
student body, taking into account diversity
within and among all racial and ethnic
groups. Cf. ante, at 24 (citing Bakke, supra,
at 324)).
On crossmotions for summary judgment,
the District Court held that the admissions
policy the University instituted in 1999 and
continues to use today passed constitutional
muster. See 122 F. Supp. 2d 811, 827 (ED
Mich. 2001). In their proposed summary of
undisputed facts, the parties jointly stipu-
lated to the admission policy's mechanics.
App. to Pet. for Cert. 116a-118a. When the
university receives an application for
admission to its incoming class, an admis-
sions counselor turns to a Selection Index
Worksheet to calculate the applicant's
selection index score out of 150 maximum
possible points-a procedure the University
began using in 1998. App. 256. Applicants
with a score of over 100 are automatically
admitted; applicants with scores of 95 to 99
are categorized as "admit or postpone";
applicants with 90-94 points are postponed
or admitted; applicants with 75-89 points
are delayed or postponed; and applicants
with 74 points or fewer are delayed or
rejected. The Office of Undergraduate
Admissions extends offers of admission on
a rolling basis and acts upon the applica-
tions it has received through periodic
"[m]ass [a]ctiop[s]." App. 256.,
In calculating an applicant's selection
index score; counselors assign numerical
values to a broad range of academic factors,
as well as to other variables the University
considers important to assembling a diverse
student body, including race. Up to 110
points can be assigned for academic per-
formance, and up to 40 points can be
assigned for the other, nonacademic fac-
tors. Michigan residents, for example,
receive 10 points, and children of alumni
receive 4. Counselors may assign an out-
standing essay up to 3 points and may
award up to 5 points for an applicant's per-
sonal achievement, leadership, or public
service. Most importantly for this case, an
applicant automatically receives a 20 point
bonus if he or she possesses any one of the
following "miscellaneous" factors: mem-
bership in an underrepresented minority
group; attendance at a predominantly
minority or disadvantaged high school; or
recruitment for athletics.
In 1999, the University added another
layer of review to its admissions process.
After an admissions counselor has tabulat-
ed an applicant's selection index score, he
or she may "flag" an application for further
consideration by an Admissions Review

Committee, which is composed of members
of the Office of Undergraduate Admissions
and the Office of the Provost. App. to Pet.
for Cert. 117a. The review committee meets
periodically to discuss the files of
"flagged" applicants not already admitted
based on the selection index parameters.
App. 275. After discussing each flagged
application, the committee decides whether
to admit, defer, or deny the applicant. Ibid.
Counselors may flag an applicant for
review by the committee if he or she is aca-
demically prepared, has a selection index
score of at least 75 (for non-Michigan resi-
dents) or 80 (for Michigan residents), and
possesses one of several qualities valued by
the University. These qualities include
"high class rank, unique life experiences,
challenges, circumstances, interests or tal-
ents, socioeconomic disadvantage, and
underrepresented race, ethnicity, or geogra-
phy." App. to Pet. for Cert. 117a. Coun-
selors also have the discretion to flag an
application if, notwithstanding a high selec-
tion index score, something in the appli-
cant's file suggests that the applicant may
not be suitable for admission. App. 274.
Finally, in "rare circumstances," an admis-
sions counselor may flag an applicant with
a selection index score below the designat-
ed levels if the counselor has reason to
believe from reading the entire file that the
score does not reflect the applicant's true
promise. Ibid.
II
Although the Office of Undergraduate
Admissions does assign 20 points to some
"soft" variables other than race, the points
available for other diversity contributions,
such as leadership and service, personal
achievement, and geographic diversity, are
capped at much lower levels. Even the most
outstanding national high school leader
could never receive more than five points
for his or her accomplishments-a mere
quarter of the points automatically assigned
to an underrepresented minority solely
based on the fact of his or her race. Of

course, as Justice Powell made clear in
Bakke, a university need not "necessarily
accor[d]" all diversity factors "the same
weight," 438 U. S., at 317, and the "weight
attributed to a particular quality may vary
from year to year depending on the 'mix'
both of the student body and the applicants
for the incoming class," id., at 317-318.
But the selection index, by setting up auto-
matic, predetermined point allocations for
the soft variables, ensures that the diversity
contributions of applicants cannot be indi-
vidually assessed. This policy stands in
sharp contrast to the law school's admis-
sions plan, which enables admissions offi-
cers to make nuanced judgments with
respect to the contributions each applicant
is likely to make to the diversity of the
incoming class. See Grutter v. Bollinger,
post, at 22 ("[T]he Law School's race-con-
scious admissions program adequately
ensures that all factors that may contribute
to student body diversity are meaningfully
considered alongside race in admissions
decisions").
The only potential source of individual-
ized consideration appears to be the Admis-
sions Review Committee. The evidence in
the record, however, reveals very little
about how the review committee actually
functions. And what evidence there is indi-
cates that the committee is a kind of after-
thought, rather than an integral component
of a system of individualized review. As the
Court points out, it is undisputed that the
"'[committee] reviews only a portion of all
the applications. The bulk of admissions
decisions are executed based on selection
index score parameters set by the [Enroll-
ment Working Group]."' Ante, at 26 (quot-
ing App. to Pet for Cert. 117a). Review by
the committee thus represents a necessarily
limited exception to the Office of Under-
graduate Admissions' general reliance on
the selection index. Indeed, the record does
not reveal how many applications admis-
sions counselors send to the review com-
mittee each year, and the University has not
pointed to evidence demonstrating that a
meaningful percentage of applicants
receives this level of discretionary review.
In addition, eligibility for consideration by
the committee is itself based on automatic
cut-off levels determined with reference to
selection index scores. And there is no evi-
dence of how the decisions are actually
made-what type of individualized consid-
eration is or is not used. Given these cir-
cumstances, the addition of the Admissions
Review Committee to the admissions
process cannot offset the apparent absence
of individualized consideration from the
Office of Undergraduate Admissions' gen-
eral practices.
For these reasons, the record before us
does not support the conclusion that the
University of Michigan's admissions pro-
gram for its College of Literature, Science,
and the Arts-to the extent thatitconsiders
race-provides the necessary individualized
consideration. The-University, of course,
remains free to modify its system so that it
does so. Cf. Grutter v. Bollinger, post, p. 1.
But the current system, as I understand it,
is a nonindividualized, mechanical one. As
a result, I join the Court's opinion reversing

I concur sine judgment o mte Court
though I do not join its opinion. I join JUS-
TICE O'CONNOR'S opinion except inso-
far as it joins that of the Court. I join Part I
of JUSTICE GINSBURG'S dissentiig
opinion, butI do not dissent from the
Court's reversal of the District Court's deei-
sion. I agree with JUSTICE GINSBURG
that, in implementing the Constitution's
equality instruction, government decisie-
makers may properly distinguish between
policies of inclusion and exclusion, post,:at
4, for the former are more likely to prove
consistent with the basic constitutioral
obligation that the law respect each individ-
ual equally, see U. S. Const., Amdt. 14. 1

uururuin .
I join the Court's opinion because I
believe it correctly applies our precedents,
including today's decision in Grutter v.
Bollinger, post, p. __. For similar reasons
to those given in my separate opinion in
that case, see post, p. - (opinion concur-
ring in part and dissenting in part), howev-
er, I would hold that a State's use of racial
discrimination in higher education admis-
sions is categorically prohibited by the
Equal Protection Clause.
I make only one further observation. The
University of Michigan's College of Litera-
ture, Science, and the Arts (LSA) admis-
sions policy that the Court today invalidates
does not suffer from the additional consti-
tutional defect of allowing racial "discrimi-
nat[ion] among [the] groups" included
within its definition of underrepresented
minorities, Grutter, post, at 24 (opinion of
the Court); post, at 27 (THOMAS, J., con-
curring in part and dissenting in part),
because it awards all underrepresented
minorities the same racial preference. The
LSA policy falls, however, because it does
not sufficiently allow for the consideration
of nonracial distinctions among underrepre-
sented minority applicants. Under today's
decisions, a university may not racially dis-
criminate between the groups constituting
the critical mass. See ibid.; Grutter, post, at
17 (opinion of the Court) (stating that such
"racial balancing.. . is patently unconstitu-
tional"). An admissions policy, however,
must allow for consideration of these non-
racial distinctions among applicants on
both sides of the single permitted racial
classification. See ante, at 24 (opinion of
the Court); ante, at 1-2 (O'CONNOR, J.,
concurring).
JUSTICE STEPHEN BREYER, concur-
ring in the judgment.

JUSTICE JOHN PAUL STEVENS, with,
whom JUSTICE DAVID SOUTER joins,
dissentingT
Petitioners seek forward-looking relief
enjoining the University of Michigan fron
continuingstouse its current race-consoimis
freshman admissions policy. Yet unlike the
plaintiff in Grutter v. Bollinger, post, p. 1
the petitioners in this case had already
enrolled at other schools before they filed
their class-action complaint in this case.
Neither petitioner was in the process of
reapplying to Michigan through the fresh-
man admissions process at the time this suit
was filed, and neither has done so since.
There is a total absence of evidence that
either petitioner would receive any benefit
from the prospective relief sought by their
lawyer. While some unidentified membdrs
of the class may very well have standing to
seek prospective relief, it is clear that nei-
ther petitioner does. Our precedents ther-
fore require dismissal of the action. b
I Petitioner Jennifer Gratz applied in
1994 for admission to the University of
Michiganis (University) College of Litera-
ture, Science, and the Arts (LSA) as tn
undergraduate for the 19951996 freshman
class. After the University delayed action
on her application and then placed her
name on an extended waiting list, Gratz
decided to attend the University of Michi-
gan at Dearborn instead; she graduated in
1999. Petitioner Patrick Hamacher applied
for admission to LSA as an undergraduate
for the 19976 1998 freshman class. After
the University postponed decision on his
application and then placed his name on an
extended waiting list, he attended Michigan
State University, graduating in 2001. In the
complaint that petitioners filed on Octobr
14, 1997, Hamacher alleged that "[he
intends to apply to transfer [to the Universi-
ty of Michigan] if the discriminatony
admissions system described herein is elist-
inated." App. 34. ?
At the class certification stage, petition-
ers sought to have Hamacher representa
class pursuant to Federal Rule Civil Proc-
dure 23(b)(2).2 See App. 71, n. 3. In
response, Michigan contended tht
iHamacher lacks standing to representa
class seeking declaratory and injunctive
relief.i Id., at 63. Michigan submitted that
Hamacher suffered leno threat of imminent
future injuryil given that he had already
enrolled at another undergraduate institu-
tion.3 Id., at 64. The District Court rejected
Michiganis contention, concluding that
Hamacher had standing to seek injunctive
relief because the complaint alleged that he
intended to apply to Michigan as a transfer
student. See id., at 67 (iTo the extent thpt
plaintiff Hamacher reapplies to the Univer-
sity of Michigan, he will again face the
same eharmi in that race will continue to be
a factor in admissionsi). The District Court,
accordingly, certified Hamacher as the sole
class representative and limited the claims
of the class to injunctive and declaratory
relief. See id., at 70671. 0
In subsequent proceedings, the District
Court held that the 1995-1998 admissions
system, which was in effect when both peti-
tionersi applications were denied, was
unlawful but that Michiganis new 1999-
2000 admissions system was lawful. When
petitioners sought certiorari from this
Court, Michigan did not cross-petition for
review of the District Courtis judgment
concerning the admissions policies that
Michigan had in place when Gratz and
Hamacher applied for admission in 1994

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