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10/14/2002 Gratz Writ of Certioari

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10/14/2002 Gratz Writ of Certioari No. 02-_____ IN THE Supreme_________________________ Court of the United States EBONY PATTERSON, ET AL., PETITIONERS, V. JENNIFER GRATZ AND PATRICK HAMACHER, AND LEE BOLLINGER, JAMES J. DUDERSTADT, THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN, RESPONDENTS. ____________________ On Petition for Writ of Certiorari to the United States Court____________________ of Appeals for the Sixth Circuit PETITION FOR WRIT OF CERTIORARI PATRICIA MENDOZA ELAINE R. JONES RUPE ALBA Director-Counsel MEXICAN AMERICAN *THEODORE M. SHAW LEGAL DEFENSE AND NORMAN J. CHACHKIN EDUCATIONAL FUND JAMES L. COTT 188 W. Randolph Street MELISSA S. WOODS Chicago, IL 60605 NAACP LEGAL DEFENSE (312) 782-1422 AND EDUCATIONAL FUND, INC. 99 Hudson Street,16th Fl. New York, NY 10013 (212) 965-2200 *Counsel of Record Attorneys for Petitioners (Listing of Counsel continued inside cover) (Listing of Counsel continued from cover) BRENT E. SIMMONS GODFREY J. DILLARD ACLU FUND OF MICHIGAN MILTON R. HENRY 300 S. Capitol Avenue REGINALD M. TURNER Lansing, MI 48901 CITIZENS FOR (517) 371-5140 AFFIRMATIVEACTION’S PRESERVATION MICHAEL J. STEINBERG P.O. Box 31-1421 ACLU FUND OF MICHIGAN Detroit, MI 48231 60 West Hancock Street (313) 964-2838 Detroit, MI 48226 (313) 578-6814 CHRISTOPHER A. HANSEN E. VINCENT WARREN AMERICAN CIVIL LIBERTIES UNION 125 Broad St., 18th Fl. New York, NY 10004 (212) 549-2500 i QUESTION PRESENTED Is a university policy that considers race and ethnicity as one of several factors in its admissions process justified under the Equal Protection Clause of the Fourteenth Amendment both by a compelling interest in assembling a diverse student body, and a compelling interest in remedying past and present discrimination at the university, whether or not the university articulates the remedial justification as a basis for the policy? -ii- PARTIES TO THE PROCEEDING Petitioners are Ebony Patterson, Ruben Martinez, Laurent Crenshaw, Karla R. Williams, Larry Brown, Tiffany Hall, Kristen M.J. Harris, Michael Smith, Khyla Craine, Nyah Carmichael, Shanna Dubose, Ebony Davis, Nicole Brewer, Karla Harlin, Brian Harris, Katrina Gipson, Candice B.N. Reynolds, by and through their parents or guardians, Denise Patterson, Moises Martinez, Larry Crenshaw, Harry J. Williams, Patricia Swan-Brown, Karen A. McDonald, Linda A. Harris, Deanna A. Smith, Alice Brennan, Ivy Rene Carmichael, Sarah L. Dubose, Inger Davis, Barbara Dawson, Roy D. Harlin, Wyatt G. Harris, George C. Gipson, Shawn R. Reynolds, and Citizens for Affirmative Action’s Preservation. They are defendant-intervenors in the District Court and appellants in the Court of Appeals. Respondents are Jennifer Gratz and Patrick Hamacher. Respondents were plaintiffs in the District Court and were appellees in the Court of Appeals with respect to intervenors’ appeal. Additional Respondents are Lee Bollinger, James J. Duderstadt, and the Board of Regents of the University of Michigan. These respondents were defendants in the District Court and were appellees in the Court of Appeals with respect to intervenors’ appeal. -iii- TABLE OF CONTENTS Page Question Presented for Review...................... i Parties to the Proceeding ...........................ii Table of Authorities ...............................v Opinions Below..................................1 Jurisdiction......................................2 Constitutional and Statutory Provisions Involved ........2 Statement of the Case..............................3 A. Introduction ...............................3 B. Prior Proceedings ...........................6 1. The District Court .......................6 2. The Court of Appeals ....................8 C. Factual Background .........................9 1. The Discriminatory Impact of the Current Selection Criteria ......................10 2. The University’s History of Discrimination . 12 -iv- TABLE OF CONTENTS (continued) Page a. 1817-1964: More than a Century of University Segregation and Discrimination ...................12 b. 1965-1980: The First “Mandate” — The Opportunity Program ..........13 c. 1980-1990: The Michigan Mandate . 15 d. Persisting Effects of The University’s Long-Maintained Discrimination .....16 REASONS FOR GRANTING THE WRIT. .17 I The Court Should Grant The Writ Before Judgment By The Court Of Appeals Because This Case Is Of Such “Imperative Public Importance” As To Require Immediate Determination In This Court .................17 II The Court Should Also Grant The Writ Before Judgment By The Court Of Appeals Because Similar And Related Questions Of Constitutional Significance Will Be Before This Court If It Grants Certiorari In Grutter v. Bollinger ................................21 -v- TABLE OF CONTENTS (continued) Page III The Court Should Grant This Writ To Consider Whether The Constitution Permits The Use Of Race And National Origin In College Admissions Upon A Showing That There Is A Strong Basis In Evidence Of Discrimination Even If That Showing Is Not Proffered By The University .................23 Conclusion.....................................26 TABLE OF AUTHORITIES Cases: Bolling v. Sharpe, 344 U.S. 873 (1952) ........................21 Brown v. Board of Education, 347 U.S. 497 (1954) ........................18 Brown v. Board of Education, 344 U.S. 1 (1952) ..........................21 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ......................4, 23 Coral Constr. v. King County, 941 F.2d 910 (9th Cir. 1991) ..................24 -vi- TABLE OF AUTHORITIES (continued) Page Cases (continued): Dames & Moore v. Regan, 453 U.S. 654 (1981) ........................18 Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D. Mich. 2001) .......1, 25 Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) ..........1 Greene v. McElroy, 360 U.S. 474 (1959) ........................21 Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999) ..............4, 7, 22 Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), pet. for cert. filed, 71 U.S.L.W. 3154 (August 9, 2002) . 1, 8, 20 Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234 (11th Cir. 2001) .............19, 20 Mazurek v. Armstrong, 520 U.S. 968 (1997) ........................18 Mistretta v. United States, 488 U.S. 361 (1989) .....................18, 19 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) ........................21 -vii- TABLE OF AUTHORITIES (continued) Page Cases (continued): Porter v. Dicken, 328 U.S. 252 (1946) ........................21 Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) ..................19, 20, 24 Smith v. University of Washington Law Sch., 233 F.3d 1188 (9th Cir. 2000), cert. denied, 532 U.S. 1051 (2001) ................20 Taylor v. McElroy, 358 U.S. 918 (1958), 360 U.S. 709 (1959) ......21 Texas v. Hopwood, 518 U.S. 1033 (1996) .......................19 Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998) ..................20 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) .....................24, 25 Constitution and Statutes: U.S. Const., amend. XIV, § 1 .......................2 28 U.S.C. § 1254(1) .........................2, 17, 19 28 U.S.C. § 1292 .................................2 -viii- TABLE OF AUTHORITIES (continued) Page Constitution and Statutes (continued): 28 U.S.C. § 2101(e) ............................2, 17 42 U.S.C. § 2000d ................................3 Rules: S. Ct. R. 11.....................................18 Fed. R. Civ. P. 54(b) ..............................2 Other Authorities: National Center for Education Statistics, Projections of Education Statistics to 2012 (31st ed. Oct. 2002), available at http://nces.ed.gov/pubs2002 .................19 Shomari Terrelonge-Stone, ‘U’ Prof. Studies Racial Tolerance, The Michigan Daily Online, November 3, 1999, available at http://www.michigandaily.com ...............16 17 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4036 (2d ed. 1988) .......................18 1 PETITION FOR WRIT OF CERTIORARI Petitioners Patterson, et al. (defendant-intervenors below) (“intervenors”) respectfully request that this Court issue a writ of certiorari to review a judgment of the United States District Court for the Eastern District of Michigan that is presently pending on appeal in the United States Court of Appeals for the Sixth Circuit. OPINIONS BELOW The opinion of the United States District Court for the Eastern District of Michigan granting summary judgment against intervenors, and rejecting their claim that the University of Michigan (“University”) was justified in considering race in its admissions policy in order to remedy the effects of past and present discrimination, is reported as Gratz v. Bollinger,135 F. Supp. 2d 790 (E.D. Mich. 2001) (App. 66a).1 The Court of Appeals has not yet ruled on the appeal of that decision. The opinion of the district court on the other parties’ cross-motions for partial summary judgment, dealing with the question whether the University could consider race as an admissions factor in order to achieve a diverse student body, is reported as Gratz v. Bollinger,122 F. Supp. 2d 811 (E.D. Mich. 2000) (App. 1a). The Court of Appeals has not yet ruled on the appeal of that decision. Plaintiffs in this action have filed a separate Petition seeking review of that ruling, No. 02-516 in this Court (filed October 1, 2002). The opinion of the United States Court of Appeals for the Sixth Circuit in the related case of Grutter v. Bollinger is reported at 288 F.3d 732 (6th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3154 (August 9, 2002) (No. 02-241) (“Grutter”).
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