ADMISSIONS ON TRIAL
The Michigan Daily - Tuesday, June 24, 2003 -17
dents Bollinger et al. 33-36. In other
words, the Law School seeks to improve
marginally the education it offers without
sacrificing too much of its exclusivity and
elite status.';
The proffered interest that the majority
vindicates today, then, is not simply "diver-
sity." Iyistead the Court upholds the use of
raciaf discrimination as a tool to advance
the, aw School's interest in offering a mar-
} gnally superior education while maintain-
lhg an elite institution. Unless each
constituent part of this state interest is of
pressing public necessity, the Law School's
use of race is unconstitutional. I find each
of them to fall far short of this standard.
III A
A close reading of the Court's opinion
reveals that all of its legal work is done
through one conclusory statement: The Law
School has a "compelling interest in secur-
ing the educational benefits of a diverse
student body." Ante, at 21. No serious
effort is made to explain how these benefits
fit with the state interests the Court has
recognized (or rejected) as compelling, see
Part I, supra, or to place any theoretical
constraints on an enterprising court's desire
to discover still more justifications for
racial discrimination. In the absence of any
explanation, one might expect the Court to
fall back on the judicial policy of stare
decisis.
But the Court eschews even this weak
defense of its holding, shunning an analysis
of the extent to which Justice Powell's
opinion in Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265 (1978), is binding,
ante, at 13, in favor of an unfounded
wholesale adoption of it.
Justice Powell's opinion in Bakke and the
Court's decision today rest on the funda-
mentally flawed proposition that racial dis-
crimination can be contextualized so that a
goal, such as classroom aesthetics, can be
compelling in one context but not in anoth-
er. This "we know it when we see it"
approach to evaluating state interests is not
capable of judicial application. Today, the
Court insists on radically expanding the
range of permissible uses of race to some-
thing as trivial (by comparison) as the
assembling of a law school class. I can only
presume that the majority's failure to justi-
fy its decision by reference to any principle
arises from the absence of any such princi-
ple. See Part VI, infra.
B
Under the proper standard, there is no
pressing public necessity in maintaining a
public law school at all and, it follows, cer-
tainly not an elite law school. Likewise,
marginal improvements in legal education
do not qualify as a compelling state inter-
est.
1
While legal education at a public univer-
sity may be good policy or otherwise laud-
able, it is obviously not a pressing public
necessity when the correct legal standard is
applied. Additionally, circumstantial evi-
dence as towhether a state activity is of
pressing public necessity can be obtained
by asking whether all States feel compelled
to engake ifn that activity. Evidence that'
States, in general, engage in a certain activ-
ity by no means demonstrates that the
activity constitutes a pressing public neces-
sity, given the expansive role of govern-
ment in today's society. The fact that some
fraction of the States reject a particular
enterprise, however, creates a presumption
thatthe enterprise itself is not a compelling
state interest. In this sense, the absence of a
public, American Bar Association (ABA)
accredited, law school in Alaska, Delaware,
Massachusetts, New Hampshire, and Rhode
Island, see ABA- LSAC Official Guide to
ABA-Approved Law Schools (W. Margolis,
B. Gordon, J. Puskarz, & D. Rosenlieb, eds.
2004) (hereinafter ABA-LSAC Guide),
provides further evidence that Michigan's
maintenance of the Law School does not
constitute a compelling state interest.
2
As the foregoing makes clear, Michigan
has no compelling interest in having a law
school at all, much less an elite one. Still,
even assuming that a State may, under
appropriate circumstances, demonstrate a
cognizable interest in having an elite law
school, Michigan has failed to do so here.
This Court has limited the scope of equal
protection review to interests and activities
that occur within that State's jurisdiction.
The Court held in Missouri ex rel. Gaines
v. Canada, 305 U. S. 337 (1938), that Mis-
souri could not satisfy the demands of
"separate but equal" by paying for legal
training of blacks at neighboring state law
schools, while maintaining a segregated
law school within the State. The equal pro-
tection
"obligation is imposed by the Constitu-
tion upon the States severally as govern-
mental entities-each responsible for its
own laws establishing the rights and duties
of persons within its borders. It is an obli-
gation the burden'of which cannot be cast .
by one State upon another, and no State can
be excused from perform-ance by what
another State may do or fail to do. That
separate responsibility of each State within
its own sphere is of the essence of state-
hood maintained under our dual system."
Id., at 350 (emphasis added).
The Equal Protection Clause, as inter-
preted by the Court in Gaines, does not
permit States to justify racial discrimina-.
tion on the basis of what the rest of the
Nation "may do or fail to do." The only
interests that can satisfy the Equal Protec-
tion Clause's demands are those found
within a State's jurisdiction.
is not an office in the State in which seri-
ous legal inquiries may not frequently
arise.. . . In all these matters, public and
private rights are constantly involved and
discussed, and ignorance of the Law has
frequently led to results deplorable and
alarming.. . . [I]n the history of this State,
in more than one instance, that ignorance
has led to unlawful violence, and the shed-
ding of innocent blood." E. Brown, Legal
Education at Michigan 1859- 1959, pp.
404-406 (1959) (emphasis added).
The Law School today, however, does
precious little training of those attorneys
who will serve the citizens of Michigan. In
2002, graduates of the University of Michi-
gan Law School made up less than 6% of
applicants to the Michigan bar, Michigan
Lawyers Weekly, available at
http://www.michiganlawyersweekly.com/ba
rpassers02O2.cfm, barpassers702.cfm (all
Internet materials as visited June 13, 2003,
and available in Clerk of Court's case file),
even though the Law School's graduates
constitute nearly 30% of all law students
graduating in Michigan. Ibid. Less than
16% of the Law School's graduating class
elects to stay in Michigan after law school.
ABA- LSAC Guide 427. Thus, while a
mere 27% of the Law School's 2002 enter-
ing class are from Michigan, see University
of Michigan Law School Website, available
at http://www.law.umich.edu/prospectives-
tudents/Admissions/ index.htm, only half
of these, it appears, will stay in Michigan.
In sum, the Law School trains few Michi-
gan residents and overwhelmingly serves
students, who, as lawyers, leave the State of
Michigan. By contrast, Michigan's other
public law school, Wayne State University
Law School, sends 88% of its graduates on
to serve the people of Michigan.
ABA-LSAC Guide 775. It does not take a
social scientist to conclude that it is pre-
cisely the Law School's status as an elite
institution that causes it to be a way-station
for the rest of the country's lawyers, rather
than a training ground for those who will
remain in Michigan. The Law School's
decision to be an elite institution does little
to advance the welfare of the people of
Michigan or any cognizable interest of the
State of Michigan.
Again, the fact that few States choose to
maintain elite law schools raises a strong
inference that there is nothing compelling
about elite status. Arguably, only the public
law schools of the University of Texas, the
University of California, Berkeley (Boalt
Hall), and the University of Virginia main-
tain the same reputation for excellence as
the Law School.' Two of these States, Texas
and California, are so large that they could
reasonably be expected to provide elite
legal training at a separate law school to
students who will, in fact, stay in the State
and provide legal services to its citizens.
And these two schools far outshine the Law
School in producing in-state lawyers. The
University of Texas, for example, sends
over three-fourths of its graduates on to
workin the State of Texas, vindicating the
State's interest (compelling or not) in train-
ing Texas' lawyers. Id., at 691.
3
Finally, even if the Law School's racial
tinkering produces tangible educational
benefits, a marginal improvement in legal
education cannot justify racial discrimina-
tion where the Law School has no com-
pelling interest in either its existence or in
its current educational and ad-missions
policies.
IV
The interest in remaining elite and exclu-
sive that the majority thinks so obviously
critical requires the use of admissions
"standards" that, in turn, create the Law
School's "need" to discriminate on the
basis of race. The Court validates these
admissions standards by concluding that
alternatives that would require "a dramatic
sacrifice of. . . the academic quality of all
admitted students," ante, at 27, need not be
considered before racial discrimination can
be employed. In the majority's view, such
methods are not required by the "narrow
tailoring" prong of strict scrutiny because
that inquiry demands, in this context, that
any race-neutral alternative work "'about as
well."' Ante, at 26- 27 (quoting Wygant,
476 U. S., at 280, n. 6). The majority errs,
however, because race-neutral alternatives
must only be "workable," ante, at 27, and
do "about as well" in vindicating the com-
pelling state interest. The Court never
explicitly holds that the Law School's
desire to retain the status quo in "academic
selectivity" is itself a compelling state
interest, and, as I have demonstrated, it is
not. See Part III-B, supra. Therefore, the
Law School should be forced to choose
between its classroom aesthetic and its
exclusionary admissions system-it cannot
have it both ways.
With the adoption of different admissions
methods, such as accepting all students
who meet minimum qualifications, see
Brief for United States as Amicus Curiae
13-14, the Law School could achieve its
vision of the racially aesthetic student body
without the use of racial discrimination.
The Law School concedes this, but the
Court holds, implicitly and under the guise
of narrow tailoring, that the Law School
has a compelling state interest in doing
what it wants to do. I cannot agree. First,
under strict scrutiny, the Law School's
assessment of the benefits of racial dis-
crimination and devotion to the admissions
status quo are not entitled to any sort of
deference, grounded in the First Amend-
ment or anywhere else. Second, even if its
"academic selectivity" must be maintained
The constitutionalization of "academic
freedom" began with the concurring opin-
ion of Justice Frankfurter in Sweezy v. New
Hampshire, 354 U. S. 234 (1957). Sweezy,
a Marxist economist, was investigated by
the Attorney General of New Hampshire on
suspicion of being a subversive. The prose-
cution sought, inter alia, the contents of a
lecture Sweezy had given at the University
of New Hampshire. The Court held that the
investigation violated due process. Id., at
254.
Justice Frankfurter went further, howev-
er, reasoning that the First Amendment cre-
ated a right of academic freedom that
prohibited the investigation. Id., at
256-267 (opinion concurring in result).
Much of the rhetoric in Justice Frank-
furter's opinion was devoted to the personal
right of Sweezy to free speech. See, e.g.,
id., at 265 ("For a citizen to be made to
forgo even a part of so basic a liberty as his
political autonomy, the subordinating inter-
est of the State must be compelling"). Still,
claiming that the United States Reports
"need not be burdened with proof," Justice
Frankfurter also asserted that a "free socie-
ty" depends on "free universities" and
"[t]his means the exclusion of governmen-
tal intervention in the intellectual life of a
university." Id., at 262. According to Jus-
tice Frankfurter: "[I]t is the business of a
university to provide that atmosphere which
is most conducive to speculation, experi-
ment and creation. It is an atmosphere in
which there prevail 'the four essential free-
doms' of a university-to determine for
itself on academic grounds who may teach,
what may be taught, how it shall be taught,
and who may be admitted to study."' Id., at
263 (citation omitted).
In my view, "[i]t is the business" of this
Court to explain itself when it cites provi-
sions of the Constitution to invent new doc-
trines-including the idea that the First
Amendment authorizes a public university
to do what would otherwise violate the
Equal Protection Clause. The majority fails
in its summary effort to prove this point.
The only source for the Court's conclusion
that public universities are entitled to defer-
ence even within the confines of strict
scrutiny is Justice Powell's opinion in
Bakke. Justice Powell, for his part, relied
only on Justice Frankfurter's opinion in
Sweezy and the Court's decision in Keyishi-
an v. Board of Regents of Univ. of State of
N. Y., 385 U. S. 589 (1967), to support his
view that the First Amendment somehow
protected a public university's use of race
in admissions. Bakke, 438 U. S., at 312.
Keyishian provides no answer to the ques-
tion whether the Fourteenth Amendment's
restrictions are relaxed when applied to
public universities. In that case, the Court
held that state statutes and regulations
designed to prevent the "appointment or
retention of 'subversive' persons in state
employment," 385 U. S., at 592, violated
the First Amendment for vagueness. The
statutes covered all public employees and
were not invalidatedronly as applied'to uni'
versity faculty members, although the
Court appeared sympathetic to the notion
of academic~freidom,calling it a'dspecia'
concern of the First Amendment." Id., at
603. Again, however, the Court did not
relax any independent constitutional
restrictions on public universities.
I doubt that when Justice Frankfurter
spoke of governmental intrusions into the
independence of universities, he was think-
ing of the Constitution's ban on racial dis-
crimination. The majority's broad deference
to both the Law School's judgment that
racial aesthetics leads to educational bene-
fits and its stubborn refusal to alter the sta-
tus quo in admissions methods finds no
basis in the Constitution or decisions of
this Court.
B1
The Court's deference to the Law
School's conclusion that its racial experi-
mentation leads to educational benefits
will, if adhered to, have serious collateral
consequences. The Court relies heavily on
social science evidence to justify its defer-
ence. See ante, at 18-20; but see also Roth-
man, Lipset, & Nevitte, Racial Diversity
Reconsidered, 151 Public Interest 25
(2003) (finding that the racial mix of a stu-
dent body produced by racial discrimina-
tion of the type practiced by the Law
School in fact hinders students' perception
of academic quality). The Court never
acknowledges, however, the growing evi-
dence that racial (and other sorts) of het-
erogeneity actually impairs learning among
black students. See, e.g., Flowers & Pas-
carella, Cognitive Effects of College Racial
Composition on African American Students
After 3 Years of College, 40 J. of College
Student Development 669, 674 (1999)
(conclud-ing that black students experience
superior cognitive development at Histori-
cally Black Colleges (HBCs) and that, even
among blacks, "a substantial diversity mod-
erates the cognitive effects of attending an
HBC"); Allen, The Color of Success:
African-American College Student Out-
comes at Predominantly White and Histori-
cally Black Public Colleges and
Universities, 62 Harv. Educ. Rev. 26, 35
(1992) (finding that black students attend-
ing HBCs report higher academic achieve-
ment than those attending predominantly
white colleges).
At oral argument in Gratz v. Bollinger,
ante, p. _, counsel for respondents stated
that "most every single one of [the HBCs]
do have diverse student bodies." Tr. of Oral
Arg. in No. 02-516, p. 52. What precisely
counsel meant by "diverse" is indetermi-
nate, but it is reported that in 2000 at
fact, yield educational benefits," ante, at
16. It follows, therefore, that an HBC's
assessment that racial homogeneity will
yield educational benefits would similarly
be given deference.' An HBC's rejection of
white applicants in order to maintain racial
homogeneity seems permissible, therefore,
under the majority's view of the Equal Pro-
tection Clause. But see United States v.
Fordice, 505 U. S. 717, 748 (1992)
(THOMAS, J., concurring) ("Obviously, a
State cannot maintain ... traditions by
closing particular institutions, historically
white or historically black, to particular
racial groups"). Contained within today's
majority opinion is the seed of a new con-
stitutional justification for a concept I
thought long and rightly rejected-racial
segregation.
2
Moreover one would think, in light of the
Court's decision in United States v.
Virginia, 518 U. S. 515 (1996), that before
being given license to use racial discrimi-
nation, the Law School would be required
to radically reshape its admissions process,
even to the point of sacrificing some ele-
ments of its character. In Virginia, a major-
ity of the Court, without a word about
academic freedom, accepted the all-male
Virginia Military Institute's (VMI) repre-
sentation that some changes in its "adversa-
tive" method of education would be
required with the admission of women, id.,
at 540, but did not defer to VMI's judgment
that these changes would be too great.
Instead, the Court concluded that they were
"manageable." Id., at 551, n. 19. That case
involved sex discrimination, which is sub-
jected to intermediate, not strict, scrutiny.
Id., at 533; Craig v. Boren, 429 U. S 190,
197 (1976). So in Virginia, where the stan-
dard of review dictated that greater flexibil-
ity be granted to VMI's educational policies
than the Law School deserves here, this
Court gave no deference. Apparently where
the status quo being defended is that of the
elite establishment-here the Law
School-rather than a less fashionable
Southern military institution, the Court will
defer without serious inquiry and without
regard to the applicable legal standard.
C
Virginia is also notable for the fact that
the Court relied on the "experience" of for-
merly single-sex institutions, such as the
service academies, to conclude that admis-
sion of women to VMI would be "manage-
able." 518 U. S., at 544-545. Today,
however, the majority ignores the "experi-
ence" of those institutions that have been
forced to abandon explicit racial discrimi-
nation in admissions.
The sky has not fallen at Boalt Hall at
the University of California, Berkeley, for
example. Prior to Proposition 209's adop-
tion of Cal. Const., Art. 1, §31(a), which
bars the State from "grant[ing] preferential
treatment ... on the basis of race. . . in the
operation of ... public education,"8 Boalt
Hall enrolled 20 blacks and 28 Hispanics in
its first- year class for 1996. In 2002, with-
out deploying express racial discrimination
in admissions, Boalt's entering class
enrolled 14 blacks and 36 Hispanics.9Uni-
versity of California Law and Medical
School Enrollments, available at
http://www.ucop.edu/acadadv/datamgmt/la
wmed/law-enrolls-eth2.html. Total under-
represented minority student enrollment at
Boalt Hall now exceeds 1996 levels. Appar-
ently the Law School cannot be counted on
to be as resourceful. The Court is willfully
blind to the very real experience in Califor-
nia and elsewhere, which raises the infer-
ence that institutions with "reputation[s]
for excellence," ante, at 16, 26, rivaling the
Law School's have satisfied their sense of
mission without resorting to prohibited
racial discrimination.
V
Putting aside the absence of any legal
support for the majority's reflexive defer-
ence, there is much to be said for the view
that the use of tests and other measures to
"predict" academic performance is a poor
substitute for a system that gives every
applicant a chance to prove he can succeed
in the study of law. The rallying cry that in
the absence of racial discrimination in
admissions there would be a true meritocra-
cy ignores the fact that the entire process is
poisoned by numerous exceptions to
"merit." For example, in the national debate
on racial discrimination in higher education
admissions, much has been made of the
fact that elite institutions utilize a so-called
"legacy" preference to give the children of
alumni an advantage in admissions. This,
and other, exceptions to a "true" meritocra-
cy give the lie to protestations that merit
admissions are in fact the order of the day
at the Nation's universities. The Equal Pro-
tection Clause does not, however, prohibit
the use of unseemly legacy preferences or
many other kinds of arbitrary admissions
procedures. What the Equal Protection
Clause does prohibit are classifications
made on the basis of race. So while legacy
preferences can stand under the Constitu-
tion, racial discrimination cannot.0 I will
not twist the Constitution to invalidate
legacy preferences or otherwise impose my
vision of higher education admissions on
the Nation. The majority should similarly
stay its impulse to validate faddish racial
discrimination the Constitution clearly for-
bids.
In any event, there is nothing ancient,
honorable, or constitutionally protected
about "selective" admissions. The Universi-
ty of Michigan should be well aware that
alternative methods have historically been
used for the admission of students, for it
California, and Florida, see ante, at 28, are
in many ways the descendents of the cer-
tificate system.
Certification was replaced by selective
admissions in the beginning of the 20th J
century, as universities sought to exercise
more control over the composition of their
student bodies. Since its inception, selec-
tive admissions has been the vehicle for
racial, ethnic, and religious tinkering and
experimentation by university administra-
tors. The initial driving force for the reloca-
tion of the selective function from the high.
school to the universities was the same
desire to select racial winners and losers >
that the Law School exhibits today. Colum
bia, Harvard, and others infamously deter-
mined that they had "too many" Jews, just
as today the Law School argues it would +
have "too many" whites if it could not dis-
criminate in its admissions process. See ;
Qualified Student 155-168 (Columbia); H'
Broun & G. Britt, Christians Only: A Study
in Prejudice 53-54 (1931) (Harvard).
Columbia employed intelligence tests
precisely because Jewish applicants, who +
were predominantly immigrants, scored a
worse on such tests. Thus, Columbia could
claim (falsely) that "[w]e have not elimi-
nated boys because they were Jews and do
not propose to do so. We have honestly
attempted to eliminate the lowest grade of.
applicant [through the use of intelligence
testing] and it turns out that a good many
of the low grade men are New York City ?
Jews."' Letter from Herbert E. Hawkes, o
dean of Columbia College, to E. B. Wilson
June 16, 1922 (reprinted in Qualified Stu-
dent 160-161). In other words, the tests
were adopted with full knowledge of their ;
disparate impact. Cf. DeFunis v. Odegaard,
416 U. S. 312, 335 (1974) (per curiam) +
(Douglas, J., dissenting).
Similarly no modern law school can a
claim ignorance of the poor performance of
blacks, relatively speaking, on the Law
School Admissions Test (LSAT). Neverthea-
less, law schools continue to use the test i
and then attempt to "correct" for black
underperformance by using racial discrimi
nation in admissions so as to obtain their
aesthetic student body. The Law School's '
continued adherence to measures it knows
produce racially skewed results is not enti-
tled to deference by this Court. See Part IV,.
supra. The Law School itself admits that 2
the test is imperfect, as it must, given that '
it regularly admits students who score at or
below 150 (the national median) on the
test. See App. 156-203 (showing that,
between 1995 and 2000, the Law School ;
admitted 37 students-27 of whom were
black; 31 of whom were "underrepresented
minorities"-with LSAT scores of 150 or
lower). And the Law School's amici Cannot'
seem to agree on the fundamental question
whether the test itself is useful. Compare -
Brief for Law School Admission Council as'
Amicus Curiae 12 ("LSAT scores ... are -
an effective predictor of students' perform-'
ance in law school") with Brief for Harvard
Black Law Students Association et al. as
Amici Curiae 27 ("Whether [the LSAT]
measure[s] objective merit ... is certainly
questionable"'). ' .
Having decided to use the LSAT, the Law
School must accept the constitutional bur-
dens that come with this decision. The Law.
School may freely continue to employ the
LSAT and other allegedly merit-based stan-
dards in whatever fashion it likes. What the
Equal Protection Clause forbids, but the
Court today allows, is the use of these stan
dards hand-in-hand with racial discrimina-
tion. An infinite variety of admissions
methods are available to the Law School. .
Considering all of the radical thinking that
has historically occurred at this country's
universities, the Law School's intractable '
approach toward admissions is striking.
The Court will not even deign to make a
the Law School try other methods, howev-'
er, preferring instead to grant a 25-year '
license to violate the Constitution. And the'
same Court that had the courage to order r
the desegregation of all public schools in
the South now fears, on the basis of plati-
tudes rather than principle, to force the
Law School to abandon a decidedly imper-'
feet admissions regime that provides the
basis for racial discrimination.
VI
The absence of any articulated legal prin,
ciple supporting the majority's principal
holding suggests another rationale. I
believe what lies beneath the Court's deci-
sion today are the benighted notions that
one can tell when racial discrimination
benefits (rather than hurts) minority
groups, see Adarand, 515 U: S., at 239
(SCALIA, J., concurring in part and con-
curring in judgment), and that racial dis-
crimination is necessary to remedy general
societal ills. This Court's precedents sup-
posedly settled both issues, but clearly the
majority still cannot commit to the princi-
ple that racial classifications are per se
harmful and that almost no amount can jusj
tify such classifications.
Putting aside what I take to be the
Court's implicit rejection of Adarand's
holding that beneficial and burdensome 4
racial classifications are equally invalid, I
must contest the notion that the Law
School's discrimination benefits those
admitted as a result of it. The Court spends
considerable time discussing the impressive
display of amicus support for the Law
School in this case from all corners of soci-
ety. Ante, at 18-19. But nowhere in any of
the filings in this Court is any evidence '
that the purported "beneficiaries" of this «
racial discrimination prove themselves by
performing at (or even near) the same level