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Supreme Court of the United States ------♦ Nos. 02-214 and 02-516 ================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- BARBARA GRUTTER, Petitioner, v. LEE BOLLINGER, et al., Respondents. --------------------------------- ♦ --------------------------------- JENNIFER GRATZ AND PATRICK HAMACHER, Petitioners, v. LEE BOLLINGER, et al., Respondents. --------------------------------- ♦ --------------------------------- On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit --------------------------------- ♦ --------------------------------- BRIEF OF CARNEGIE MELLON UNIVERSITY AND 37 FELLOW PRIVATE COLLEGES AND UNIVERSITIES AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS [Individual Amici Listed On Inside Cover] --------------------------------- ♦ --------------------------------- MARY JO DIVELY W. THOMAS MCGOUGH, JR.* Vice President and KATHY M. BANKE General Counsel GARY L. KAPLAN CARNEGIE MELLON UNIVERSITY EDWARD N. STONER II 5000 Forbes Avenue REED SMITH LLP Pittsburgh, PA 15213 435 Sixth Avenue Telephone: 412.268.2000 Pittsburgh, PA 15219 Telephone: 412.288.3131 Facsimile: 412.288.3063 *Counsel of Record ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 --------------------------------- ♦ --------------------------------- AMERICAN UNIVERSITY BELMONT UNIVERSITY BOSTON COLLEGE BRANDEIS UNIVERSITY BUCKNELL UNIVERSITY CALIFORNIA INSTITUTE OF TECHNOLOGY CARNEGIE MELLON UNIVERSITY CASE WESTERN RESERVE UNIVERSITY COLLEGE OF THE HOLY CROSS DePAUL UNIVERSITY DICKINSON COLLEGE DREXEL UNIVERSITY DUQUESNE UNIVERSITY OF THE HOLY SPIRIT ELIZABETHTOWN COLLEGE EMORY UNIVERSITY FAIRLEIGH DICKINSON UNIVERSITY GETTYSBURG COLLEGE GOUCHER COLLEGE JOHNS HOPKINS UNIVERSITY MARQUETTE UNIVERSITY NEW SCHOOL UNIVERSITY NEW YORK UNIVERSITY NORTHWESTERN UNIVERSITY OCCIDENTAL COLLEGE PEPPERDINE UNIVERSITY RHODE ISLAND SCHOOL OF DESIGN SAINT LOUIS UNIVERSITY SYRACUSE UNIVERSITY THE CATHOLIC UNIVERSITY OF AMERICA THE GEORGE WASHINGTON UNIVERSITY THE UNIVERSITY OF NOTRE DAME du LAC THE UNIVERSITY OF MIAMI THE UNIVERSITY OF ROCHESTER THE UNIVERSITY OF SAN FRANCISCO THE UNIVERSITY OF SCRANTON VILLANOVA UNIVERSITY WASHINGTON AND LEE UNIVERSITY WASHINGTON UNIVERSITY IN ST. LOUIS --------------------------------- ♦ --------------------------------- i TABLE OF CONTENTS Page Statement Of Interest ................................................ 1 Argument.................................................................... 4 A. The Court Should Reaffirm Justice Powell’s Opinion In Bakke That Diversity, Including Racial Diversity, Serves Compelling Interests In Excellence, Leadership, And Experimen- tation In Higher Education ............................. 4 B. The Court Should Reaffirm Justice Powell’s Opinion In Bakke That Race May Be Consid- ered, As One Of Many Factors, In A Nar- rowly Tailored Effort To Achieve Meaningful Diversity In Higher Education........................ 9 C. The Court Should Preserve Academic Free- dom And The Spirit Of Experimentation Vi- tal To Higher Education By Preserving The Ability Of Colleges And Universities To Con- sider Race As One Of Many Factors When Selecting Students For Admission .................. 16 Conclusion .................................................................. 18 Appendix: Individual Statements Of Interest Of Amicus Curiae ................................................................ 1a ii TABLE OF AUTHORITIES Page CASES Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) .....6, 7, 11 Keyishian v. Board of Regents, 385 U.S. 589 (1967) .......... 5 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), overruled on other grounds, Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).............. 5 Palmore v. Sidoti, 466 U.S. 429 (1986)................................ 7 Regents of the University of California v. Bakke, 438 U.S. 265 (1978) .................................................passim Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ............ 9 Sweezy v. New Hampshire, 354 U.S. 234 (1957) ............ 4, 5 The Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) .......................................................... 17 United States v. Lopez, 514 U.S. 549 (1995)..................... 17 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ...................................................................... 5, 7, 15 STATUTES AND REGULATIONS 42 U.S. § 2000d et seq........................................................... 1 34 C.F.R § 100.5(i) ................................................................ 6 MISCELLANEOUS Bowen, William G., “Admissions and the Relevance of Race,” Princeton Alumni Weekly (September 26, 1977)............................................................................ 7 Bowen, William G. & Bok, Derek, The Shape of the River (1998)..................................................... 7, 13, 15, 16 iii TABLE OF AUTHORITIES – Continued Page Bowen, William G. & Rudenstine, Neil L., Race- Sensitive Admissions: Back to Basics (February 3, 2003) available at http://www.mellon.org/publi- cations/Admisions/load.htm ............................. 8, 12, 13, 16 Bucks, Brian, Affirmative Access Versus Affirmative Action: How Have Texas’ Race-Blind Policies Affected College Outcomes? (February 5, 2003) available at http://www.utdallas.edu/research/ greenctr/Papers/pdfpapers/paper33.pdf ........................ 12 Horn, Catherine L. and Flores, Stella M., Percent Plans in College Admissions: A Comparative Analysis of Three States’ Experiences, The Civil Rights Project Harvard University (February 2003) available at http://www.civilrightsproject.harvard. edu/research/affirmativeaction/tristate.pdf.....................11 Kain, John F. & O’Brien, Daniel M., Hopwood and the Top 10 Percent Law: How They Have Affected the College Enrollment Decisions of Texas High School Graduates (February 5, 2003) available at http://www.utdallas.edu/research/greenctr/Papers/ pdfpapers/paper26.html................................................. 12 Kane, Thomas J., “Racial and Ethnic Preferences in College Admissions,” in The Black-White Test Score Gap (1998)............................................................. 15 Marin, Patricia and Lee, Edgar K., Appearance and Reality in The Sunshine State, The Civil Rights Project Harvard University (February 2003) avail- able at http://www.civilrightsproject. harvard.edu/ research/affirmativeaction/florida.pdf........................... 12 O’Connor, Sandra Day, Thurgood Marshall: The Influence of a Raconteur, 44 Stan. L. Rev. 1217 (1992) ................................................................................ 8 iv TABLE OF AUTHORITIES – Continued Page The College Board, http://www.collegeboard.com/press/ releases_main ................................................................. 14 The College Board, http://www.collegeboard.com/ prod_downloads/about/news_info/cbsenior/yr2002/ pdf/threeC.pdf................................................................. 14 1 STATEMENT OF INTEREST Amici Carnegie Mellon University, American Univer- sity, Belmont University, Boston College, Brandeis Uni- versity, Bucknell University, California Institute of Technology, Case Western Reserve University, College of the Holy Cross, DePaul University, Dickinson College, Drexel University, Duquesne University of the Holy Spirit, Elizabethtown College, Emory University, Fairleigh Dickinson University, Gettysburg College, Goucher Col- lege, Johns Hopkins University, Marquette University, New School University, New York University, Northwest- ern University, Occidental College, Pepperdine University, Rhode Island School of Design, Saint Louis University, Syracuse University, The Catholic University of America, The George Washington University, The University of Notre Dame du Lac, The University of Miami, The Uni- versity of Rochester, The University of San Francisco, The University of Scranton, Villanova University, Washington and Lee University, and Washington University in St. Louis submit this brief in support of Respondents.1 Amici respectfully urge the Court to affirm, in accordance with Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), that some consid- eration of race, as one of many factors in the selection of students for admission to a college or university, comports with the Equal Protection Clause of the Fourteenth Amend- ment and Title VI of the Civil Rights Act of 1964, 42 U.S. § 2000d et seq. 1 This brief is submitted with the consent of the parties. Pursuant to Rule 37.6, Amici affirm that no party or their counsel authored, or paid for, this brief in whole or in part. 2 Amici are selective private colleges and universities of national and international prominence. As the appended individual statements of interest show, Amici differ markedly in their educational missions, philosophies and constituencies. Some offer undergraduate and graduate degrees in a wide range of subjects and professions. Others emphasize highly specialized fields, such as mathematics, the physical sciences, or the arts. Still others pursue spiritual, as well as academic goals. Amici are united in their pursuit of excellence in education, and believe meaningful diversity among their students, including racial diversity, is essential to that shared commitment. Long before Justice Powell’s opinion in Bakke, Amici sought to
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