No. 01-1447
In the
UNITED STATES COURT OF APPEALS for the
SIXTH CIRCUIT
____
B
ARBARA
G
RUTTER
,
Plaintiff-Appellee, v.
L
EE
B
OLLINGER
, et. al.,
Defendants-Appellants, and
K
IMBERLY
J
AMES
, et. al,
Intervening Defendants.
________
On appeal from the United States District Court for the Eastern District of Michigan
BRIEF OF 36 INDIVIDUAL FACULTY MEMBERS
OF THE OHIO STATE UNIVERSITY COLLEGE OF LAW,
AS AMICI CURIAE, IN SUPPORT OF DEFENDANTS-APPELLANTS
AND REVERSAL OF THE JUDGMENT BELOW
E
DWARD
B.
F
OLEY
D
AVID
G
OLDBERGER
55 W. 12 th Avenue
Columbus, Ohio 43210
(614) 292-4288
L
OUIS
A.
J
ACOBS
4905 Stonehaven Drive
Upper Arlington, Ohio 43220
(614) 459-5690
Counsel for Amici Curiae

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................... iii
STATEMENT OF AMICI INTEREST AND SUMMARY OF
ARGUMENT .................................................................................... 1
ARGUMENT .................................................................................... 3
I. A critical mass of minority students is necessary to obtain the educational benefits of diversity .............. 3
A. Dean Syverud’s testimony confirms this necessity ................................................................ 3
B. Seeking a critical mass of minority students is not the same as a quota or set-aside ................ 8
II. The professional achievements of minority graduates from Ohio State corroborate the
Lempert Study ............................................................. 11
A. The career success of minority lawyers cannot be explained as ongoing affirmative action11
B. The leadership positions attained by minority graduates of the Ohio State
University College of Law demonstrate the value of a diverse student body .......................... 14
C. The background and career of Dean
Gregory H. Williams exemplify the educational benefits of diversity ........................ 18
CONCLUSION............................................................................... 21
CERTIFICATE OF COMPLIANCE .............................................. 22 i

CERTIFICATE OF SERVICE ....................................................... 23 ii

TABLE OF AUTHORITIES
Lempert, et al., Michigan’s Minority Graduates in Practice:
The River Runs Through Law School, 25 L AW & S OCIAL
I NQUIRY 463 (2000) ............................................................. 1-2, 11-15
Sandra Day O’Connor, Thurgood Marshall: The Influence
of a Raconteur, 44 S TAN .
L.
R EV . 1217 (1992) ........................... 3, 20
Smallwood recognized for promoting equality, CBA T
ODAY
(May 11, 2001) ............................................................................... 16
Gregory H. Williams, Life on the Color Line (1995) ................. 18-19
Gregory H. Williams, Transforming the Powerless to the
Powerful: The Public Responsibilities of Law Schools,
28 N.M. L. R EV . 1 (1998) ................................................................ 19 iii

STATEMENT OF AMICI INTEREST
AND SUMMARY OF ARGUMENT 
Amici are 36 individual members of the faculty of the Ohio
State University College of Law. Their names appear in the attached Appendix.
As classroom teachers, amici have a direct stake in the outcome of a decision of this Court concerning the constitutionality of diversity as a justification for race-sensitive admissions practices within a law school. Amici have personally experienced precisely what Dean Kent Syverud describes in his expert testimony in this case: a critical mass of minority students is especially important in the context of law school instruction that employs the Socratic method. A primary purpose of this brief is to convey to this Court the importance, thoughtfulness, and rich detail of Dean Syverud’s testimony.
In addition, observing the career successes of their own students, amici can corroborate the findings of the Lempert Study, submitted by the intervenors in this case. The brief filed in this

This brief is identical in content to the brief that amici have submitted in Gratz.
1

case on behalf of the College of Law discusses the Lempert Study
(at pages 16-18), and amici here do not wish to repeat that discussion. We add only the important point that the Lempert
Study considered, and rejected, the suggestion that the career successes of minority graduates results from ongoing affirmative action after graduation. Instead, the Lempert Study concluded that the professional achievements of minority graduates are best explained by the talents of those individuals themselves, and
amici here confirm this truth by highlighting several examples of minority alumni from Ohio State.
Finally, amici speak to the direct benefits they and their students have received because Gregory H. Williams has been
Dean and a faculty member at the College of Law. As described below, Dean Williams’ own background and experience illustrate the value of diversity within a law school community. The stories that Dean Williams has shared with his colleagues and students are analogous to the stories that Justice Marshall shared with his colleagues on the Court, see Sandra Day O’Connor, Thurgood
2

Marshall: The Influence of a Raconteur, 44 Stan. L. Rev. 1217
(1992), and they are enriching and enlightening in the same way.
ARGUMENT
I.
A critical mass of minority students is necessary to obtain the educational benefits of diversity.
A.
Dean Syverud’s testimony confirms this necessity.
Although other witnesses addressed the issue of “critical mass,” it is worth focusing on the testimony of Kent Syverud,
Dean of Vanderbilt University Law School. Not only does Dean
Syverud have experience teaching at two law schools in the Sixth
Circuit (Michigan and Vanderbilt) – and has won teaching awards at both of them – but he is perhaps the nation’s foremost expert on teaching law. Serving as editor of the Journal of Legal Education, and having published a bibliography on legal education, he has
“pretty much read everything that’s been written on law teaching in the last 50 to a hundred years.” 5 Trial Transcript (Tr.) 28. He is also working with the Carnegie Foundation on a report on professional education and is writing a book entitled Teaching
Across a Career, which addresses a teacher’s need for ongoing skill
3

development. Accordingly, Dean Syverud is uniquely wellpositioned to attest to the importance of racial diversity in legal education.
His testimony confirmed what amici (and other professors) know from their own experience: unless a classroom has a critical mass of minority students, class discussions are unlikely to contain a diversity of minority viewpoints. Moreover, his testimony emphasized that seeking a diversity of views among members of a minority race is “the opposite” of assuming there to be a “racial point of view” that “one has because of one’s race.” Id. at 51. (In addition, a critical mass of minority students facilitates a diversity of perspectives in student organizations, which is an important extracurricular element to the learning experience at many schools, including Ohio State.)
As Dean Syverud explained, when there is a critical mass of minority students in the classroom, “they become individuals rather than representatives of races in the dialogue among students and with me.” Id. at 38. As individuals, they express “a diversity of views.” Id. at 39. But without a critical mass of
4

minority students, this diversity of viewpoints “usually does not happen.” Id. at 40. Instead, as Dean Syverud explained, either the minority students are silent “because they don’t want to be a spokesperson for their race,” id. at 40, or else they express views
“that tend to be politically correct, expected views.” Id. at 41.
As Dean Syverud further explained, this kind of tokenism – and the racial stereotyping it reinforces – is particularly problematic in legal education. One key function of legal education (and higher education generally) is “to teach [students] .
. . that they don’t know what people think in advance without asking and listening.” Tr. at 41. But “[i]f I have a token African
American who is by the dynamic of the classroom articulating what is perceived as what that person is supposed to say on a particular issue, it doesn’t help with that lesson.” Id. at 42.
A critical mass of minority students is especially important in classes, like those common in law school, that use the Socratic method, which enables the professor “to get a dialogue going in which the students question deeply their assumptions and provoke other students to see how many different angles there are
5

in any question that we address.” Id. at 37. Because students
“learn as much from each other as they do from the teacher” in a
Socratic classroom, it is important that the student contributions reflect “deep thinking” rather than “superficial thinking.” Id. at
43, 45, 50. Yet without a critical mass of minority students, the thinking of white students often remains superficial, because they come to class “projecting assumptions about [the] views” of minority students and those views are not adequately challenged.
Id. at 43-45, 63. Accordingly, in a Socratic class, “the quality of
[student] answers is often a function of the range of knowledge and experience and background that the students bring to bear in answering those questions.” Id. at 45. And because racial background is relevant to the social dimensions of so many legal issues – from torts to property to tax, and not just “civil rights” issues – only a token presence of minorities in law school classes will tend to diminish the learning that occurs.
Moreover, minority students contribute facts and experiences of which the professor was unaware. For example,
Dean Syverud (who is also an expert on insurance law) noted the
6

time an African American student corrected his false assumption, widely shared among academics, that African American families do not buy life insurance on their children. Contrary to the thenexisting academic literature, the insurance of children is a prevalent phenomenon among African American families. But
Dean Syverud did not know this fact until an African American student mentioned it in class.
This example illustrates, in one small, but significant way, how racial diversity in the classroom can contribute to the advancement of knowledge. It also illustrates the important related point that racial diversity is relevant not only to overtly racial topics, like the history of slavery or segregation, but also to many other social issues, including all aspects of law. Insurance is not an overtly racial topic, but nonetheless race is relevant to the advancement of knowledge in that field. This is true because race is such a salient fact in our society, and so there still is a racially distinctive dimension to many social practices. As professors of family law or criminal law would testify, for example, it is impossible to teach these fields without properly considering
7

the role that racial background may have in affecting one’s experience relevant to these fields. And it is exceedingly difficult, if not impossible, for a class discussion of these topics to mirror adequately the complexity of race in society unless the classroom contains a critical mass of minority students. As Dean Syverud put this crucial point, “it has been my experience that a critical mass of minority students does bring an experiential base that tends not to come out otherwise.” Id. at 60.
B.
Seeking a critical mass of minority students is not the same as a quota or set-aside.
In the district court, the Grutter plaintiffs argued that the
University of Michigan Law School’s effort to attain a critical mass of minority students was the functional equivalent of a quota or set-aside. But this assertion is incorrect. Under the University of Michigan Law School’s policy, as extensively described at trial, the school’s interest in a critical mass of minority students does not dictate admissions decisions. Instead, it is one factor, to be weighed together with other considerations, in examining the whole package that each applicant presents. As such, the “plus” that a particular applicant would make in attaining critical mass
8

in the classroom may be outweighed by “minuses” in that applicant’s file or other “pluses” that other applicants can bring to the school.
The discussion of critical mass in the district court focused on whether a particular percentage could be identified as the minimum necessary for achieving critical mass. Amici agree with the University of Michigan’s view that critical mass is characterized by a range, rather than particular percentage. It is also our view that the focus on this issue is largely unnecessary.
Even if it could be said that a particular percentage of admitted students were the minimum necessary to achieve critical mass, that fact would not mean that the goal of achieving critical mass functioned as a quota or a set-aside. Instead, as long as the target percentage was flexible rather than rigid (to be achieved or not depending upon other factors in all the admissions files in a given year), then the effort to achieve critical mass would be consistent with Bakke.
That the quest for critical mass functions as a flexible target, rather than fixed quota, was made clear by the evidence at trial in
9

this case. As Dean Syverud underscored, a critical mass of
African Americans is not the same as a critical mass of Hispanic or Native Americans. Since the whole point of achieving a critical mass of a minority group is to promote student appreciation for the diversity of viewpoints within each racial minority, 5 Tr. at 51,
Hispanic and Native American students cannot be grouped together with African Americans to obtain a critical mass of minorities generally.
But the University of Michigan Law School does not always attain enough Hispanic or Native American law students to achieve critical mass of these groups in the classroom. Although that fact is to be regretted, as Dean Syverud testified, and results in a legal education that is less sound than would otherwise exist
(all else being equal), id. at 69, it shows that the University of
Michigan does not ignore the consideration of other relevant factors in its effort to attain a critical mass of racial minorities.
Instead, critical mass functions as a goal to be achieved, when it can be, consistent with the other relevant factors that inform the law school’s evaluation of each applicant.
10

II.
The professional achievements of minority graduates from Ohio State corroborate the Lempert Study.
The Lempert Study statistically demonstrates that minority law graduates from Michigan are equally successful as white graduates. As the Lempert Study itself explained, this success is not the product of ongoing affirmative action after graduation.
Instead, minority graduates attain leadership positions within the profession because of their own talents and abilities. The career paths of Ohio State’s own alumni confirm this crucial point.
A.
The career success of minority lawyers cannot be explained as ongoing affirmative action.
The Lempert Study considered the skeptical suggestion that perhaps the success of Michigan’s minority graduates was caused by continuing affirmative action throughout their careers. The study, however, rejected this suggestion as inconsistent with the evidence. It is unlikely, for one thing, that minority graduates would report equal levels of professional satisfaction, including equal satisfaction with the quality of their work, if after decades of practice they were being retained and promoted by their
11

employers, not because of their ability to do their jobs, but rather for public relations. Lempert Study at 497.
Likewise, the study found that the hypothesis of ongoing affirmative action cannot adequately explain the relatively high level of incomes of minority alumni, more than twenty years after graduation, especially for those alumni in solo practice or small firms. Michigan’s minority graduates from the 1970s in solo practice or small firms had average incomes of $154,400 (and their median income was $95,000) in 1996, whereas “[w]hite graduates from the 1970s in solo practice and small firms average somewhat less than their minority classmates.” Id. “From an economic perspective, these solo and small-firm minority practitioners seem to have demonstrated their competence in the marketplace.” Id. at
498.
Moreover, the success of minorities, whether from Michigan or other law schools, who go on to become partners at large law firms or high-level government officials cannot be considered the product of ongoing affirmative action. For example, as we describe more fully below, one does not become the lead judge of a
12

court, the president of a major metropolitan bar association, or the head of an office overseeing a major metropolitan police department without the requisite talent. And amici can especially attest to the fact that one does not become President of City
College of New York, after serving as Dean of the Ohio State
University College of Law, unless one demonstrates the necessary leadership skills in previous positions.
Rather, the success of these attorneys, like the success of
Michigan’s minority graduates, is best explained by the fact that they are highly capable individuals. As the Lempert Study put it,
“[t]he explanation for the high incomes and substantial career satisfaction of Michigan’s minority alumni lies, we suspect, largely in the same factors that explain the high incomes and substantial career satisfaction of Michigan’s white students: ambition, considerable intelligence, a capacity for hard work, the quality of a
Michigan education, and the prestige and network benefits that go with a Michigan degree.” Id. at 500. When law students at
Michigan – in some cases thirty years ago – these individuals had within them the potential to achieve their future success, whether
13

or not they had the same LSATs or GPAs as their white classmates.
One compelling justification of affirmative action in law school admissions is to identify applicants who have this potential for success despite somewhat lower LSATs and GPAs. No law school should be deprived of the ability to admit these applicants, in its effort to identify those most likely to succeed in the practice of law, just because one factor (among many) relevant to predicting the future success of these applicants is their racial background.
B.
The leadership positions attained by minority graduates of Ohio State demonstrate the value of a diverse student body.
The careers of Ohio State’s minority law graduates corroborate the findings of the Lempert Study. For illustrative purposes, we here identify several especially distinguished careers. While we make no claim that these particular individuals would not have been able to attend Ohio State absent affirmative action, we share the Lempert Study’s conclusion that, without race-sensitive admissions policies, minority enrollment in law
14

school would have diminished significantly during the decades since 1970, and thus many future minority leaders would have been lost, along with the tremendous benefits they have brought to society. Lempert Study at 50.
Judge Yvette McGee Brown. A 1985 graduate of the Ohio
State University College of Law, Judge Brown initially worked at the Office of the Ohio Attorney General. She later worked for the
Ohio Department of Youth Services, and in 1992, she was elected as Judge of the Domestic Court of Franklin County (and re-elected in 1998). As Judge, she has quickly become a leader in the
Columbus community on youth-related policies. A recipient of the
1999 Champion of Children Award, she also has been chosen as
Lead Juvenile Judge by her colleagues on her Court.
Carl Smallwood. A 1980 graduate of the College of Law,
Carl Smallwood is a partner at Vorys, Sater, Seymour & Pease and currently serves as President of the Columbus Bar
Association (the first African American to do so in its 130-year history). On May 24, he will receive the Award of Excellence from the Columbus Urban League for his dedication to promoting equal
15

opportunities for residents of central Ohio. See Smallwood
recognized for promoting equality, CBA T ODAY (May 11, 2001).
Kennetha Sawyers. A member of the Class of 1981,
Kennetha Sawyers now heads the newly created Office of
Professional Accountability for the Metropolitan Nashville Police
Department. This office was created after the Nashville police were reported to have committed a series of abuses, particularly directed at the city’s Hispanic community. The office has jurisdiction to investigate any allegations of misconduct by a police officer, whether corruption, drug-related, or otherwise.
Before taking on this assignment, Sawyers served for 13 years as a senior litigator in the city’s Metro Legal Department.
John Garland. Currently serving as President of Central
State University, an historically black campus in Wilberforce,
Ohio, John Garland received his undergraduate degree from
Central State in 1971 and his law degree from Ohio State in 1974.
His path back to his undergraduate alma mater has taken him to the general counsel’s office at the University of Virginia, where he also served as Executive Assistant to the President and Associate
16

Vice Provost for Intellectual Property. He has also held the position of General Counsel at the University of the District of
Columbia. Garland was tapped to be President of Central State with the specific mission of restoring it to fiscal integrity.
Karen Sarjeant. Since graduating from the College of Law in 1975, Karen Sarjeant has devoted her whole career to public interest law, representing low-income clients and managing legal service agencies. In addition to supervising the Legal Aid Bureau in Silver Spring, Maryland, as its Chief Attorney, she has served as Vice-President for Programs at the Legal Services Corporation in Washington, D.C. She currently serves as Deputy Director at the National Association of Public Interest Law (NAPIL), an organization dedicated to providing public interest employment opportunities to recent law graduates around the country. In her current position, she is responsible for management of all program initiatives undertaken by NAPIL.
* * * * *
Amici are especially proud that Ohio State has graduates of precisely the kind that these individuals exemplify. They are
17

using their legal education and their own talents to serve society – and serve it with great distinction. It is important that law schools continue to admit into their classes minority students who have the talent for this kind of future success.
C.
The background and career of Dean Gregory H.
Williams exemplify the educational benefits of diversity.
Greg Williams, who now serves as Dean of the College of
Law at Ohio State University, and who in August will become
President of City College of the City University of New York, grew up living life on both sides of the “color line.” He believed himself to be white until he was ten years old, when he learned that he and his father were “colored.” Gregory H. Williams, Life on the
Color Line 32 (1995). Dean Williams’ childhood story is a most compelling one, and he won the Los Angeles Times Book Prize for telling it.
For purposes of this lawsuit, the key fact about Dean
Williams is his opportunity to attend law school at George
Washington University. Otherwise, society might not have
18

enjoyed the benefits of his many accomplishments. As he himself has observed:
“Many of us teaching law overcame great odds to reach this coveted place. But we achieved our goals because others believed in our abilities and felt we deserved the opportunity
to show we merited the term ‘qualified.’ Now it is our obligation to make sure that those who come behind us have the same opportunity to prove that they too can meet the challenges of today.”
Gregory H. Williams, Transforming the Powerless to the Powerful:
The Public Responsibilities of Law Schools, 28 N.M.
L.
R EV . 1, 17
(1998).
Particularly through his leadership as President of the
Association of American Law Schools, Dean Williams has promoted equal opportunity within legal education throughout the nation. But it is in his role as a faculty member at the College of
Law that amici and their students have personally and directly benefited from the distinctive perspective his background and experience bring to the law school. Dean Williams’ stories of how race mattered in his experience, both as a child and later as a deputy sheriff, have greatly enriched the understanding of his colleagues on the faculty and also the students in his classes on
19

criminal law. In this respect, Dean Williams’ “special perspective” from his “life experiences” has served the same role within the
College of Law that Justice Marshall’s background and experience did within the Supreme Court. See Sandra Day O’Connor,
Thurgood Marshall: The Influence of a Raconteur, 44 Stan. L. Rev.
1217 (1992).
Moreover, the kind of enlightenment that others receive from direct contact with a person like Greg Williams is especially important in the context of an educational institution. It is the function of diversity as an admission criterion to compose a student body whose members have a wide variety of backgrounds and experiences, so that they may learn from each other in the way that amici and their students have learned from being at the same law school as Greg Williams. This Court should not deprive a law school of its ability to impart to its students the distinctive educational benefits that a rich diversity of backgrounds can achieve.
CONCLUSION
20

For the foregoing reasons, the judgment of the district court should be reversed.
Respectfully submitted,
_____________________________
E DWARD B.
F OLEY
D
AVID
G
OLDBERGER
55 W. 12 th Avenue
Columbus, Ohio 43210
(614) 292-4288
L OUIS A.
J ACOBS
4905 Stonehaven Drive
Upper Arlington, Ohio 43220
(614) 459-5690
Counsel for Amici Curiae
June __, 2001
21

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief complies with FRAP
32(a)(7)(B) by containing 3,654 words.
___________________________
Edward B. Foley
22

CERTIFICATE OF SERVICE
I hereby certify that the original and six copies of the foregoing brief were served upon the Clerk, and two copies of the foregoing brief were served upon the following, by First Class
Mail, postage prepaid, on June __, 2001:
David H. Herr, Esq.
Kirk O. Kolbo, Esq.
Maslon, Edelman,
Borman & Brand
300 Norwest Center
Kerry L. Morgan, Esq.
Pentuik, Couvrer & Kobiljak
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180
90 South Seventh Street
Minneapolis, MN 55402
Michael E. Rosman, Esq. Miranda S.K. Massie, Esq.
Hans F. Bader, Esq. Scheff & Washington, P.C.
Center for Individual Rights 3800 Cadillac Tower
Washington, D.C. 20036 Detroit, MI 48226
Philip J. Kessler, Esq.
Leonard M. Niehoff, Esq.
Butzel Long
350 South Main Street
Suite 300
John H. Pickering, Esq.
John Payton, Esq.
Stuart F. Delery, Esq.
Craig Goldblatt, Esq.
Brigida Benitez, Esq.
Ann Arbor, MI 48104 Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
__________________________
Edward B. Foley
23