No. 01-1447
IN THE
FOR THE SIXTH CIRCUIT
BARBARA GRUTTER, for herself and all others similarly situated,
Plaintiff-Appellee,
—V.—
LEE BOLLINGER; JEFFREY LEHMAN; DENNIS SHIELDS;
REGENTS OF THE UNIVERSITY OF MICHIGAN; and
THE UNIVERSITY OF MICHIGAN LAW SCHOOL,
Defendants-Appellants,
—and—
KIMBERLY JAMES et al.,
Intervening Defendants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN (FRIEDMAN, 1.)
BRIEF OF AMICI CURIAE
NATIONAL ASIAN PACIFIC AMERICAN BAR
ASSOCIATION, NATIONAL ASIAN PACIFIC AMERICAN
LEGAL CONSORTIUM, ASIAN LAW CAUCUS, ASIAN
AMERICAN LEGAL DEFENSE AND EDUCATION FUND,
AND ASIAN PACIFIC AMERICAN LEGAL CENTER
IN SUPPORT OF DEFENDANTS-APPELLANTS
AND IN FAVOR OF REVERSAL
Yong Lee
CAMERON & HORNBOSTEL
LLP
818 Connecticut Avenue, N.W.
Suite 700
Washington, D.C. 20006
(202) 293-4690
Counsel for NAPABA as Amicus
Curiae
Karen K. Narasaki
Vincent A. Eng
Aryani Ong
NATIONAL ASIAN PACIFIC
AMERICAN LEGAL
CONSORTIUM
1140 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 296-2300
Counsel for NAPALC as
Amicus Curiae
NJ
UNITED STATES COURT OF APPEALS
FOR TILE SIXTH CIRCUIT
(This statement should be placed immediately preceding the table of contents in the brief of the party. See copy of
6th Cir. R. 26.1 on page 2 of this form.)
Barbara Grutter
V.
Lee Bollinger, et al.
and
Kimberly James, et al.
DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST
National Asian Pacific Bar Association, National Asiar
Pursuantto6thCir.R.26.1, P~-ifi~ ~.mri~n T.~g~1 C'r~n~rtium, Asian Law Caucus,
(Name ofParty)Asian American Legal Defense and
makes the following disclosure:
Education Fund, Asian Pacific American Legal Center
1.
Is said party a subsidiary or affiliate of a publicly owned corporation? NO
If the answer is YES, list below the identity of the parent corporation
or affiliate and the relationship between it and the named party:
2.
Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome?
NO
If the answer is YES, list the identity of such corporation and the nature of
the financial interest:
Si~~f Counsel)
5/3o o/
(Date)
(
O
v
e
r
)
6CA-l
Page 1
TABLE OF CONTENTS
TABLE OFAUTHORITIES
.111
INTERESTS OFAMICI CURIAE
.1
INTRODUCTION AND SUMMARY OF ARGUMENT
3
ARGUMENT
6
II.
EMIANCING DIVERSITY IS A COMPELLING
STATE INTEREST, AND THE TRIAL COURT
ERRED IN HOLDING OTHERWISE
A.
Under the Marks v. United States Test, Justice Powell's
Conclusion That Enhancing Diversity Is a Compelling
State Interest Was a Holding of the Bakke Court Because It
Constituted the Narrowest Grounds upon Which that
Court Permitted Race to Be Used in School Admissions
B.
Even Assuming Justice Powell's Diversity Rationale Is Not
Controlling, the Trial Court Erred in Failing to Conduct a
Strict Scrutiny Analysis to Determine Whether Enhancing
Diversity Is a Compelling State Interest
C.
Enhancing Diversity Is a Compelling Interest Because It
Benefits All Students, Including Groups That Are Not
Explicitly Targeted Beneficiaries
PLAINTIFF'S ASSERTION THAT ASIAN PACIFIC
AMERICANS ARE ALLIES IN HER CASE IS IMPROPER
SINCE ASIAN PACIFIC AMERICANS ARE NOT, AND
HAVE NOT BEEN, SIMILARLY SITUATED AS PLAINTIFF
A.
Plaintiff Improperly Allies Herself with Asian Pacific
Americans and, in so Doing, Attempts to Use Asian Pacific
Americans to Justify Her Politically Difficult Case
6
7
12
18
19
20
B.
Plaintiff Does Not Speak for Asian Pacific Americans Because
She Is Not Similarly Situated as Asian Pacific Americans
1.
Asian Pacific Americans Are Underrepresented
in the Legal Field
2.
Negative Stereotyping Is Still Common,
and Still Dangerous
3.
Asian Pacific Americans Have Faced Discrimination
in Various Facets of American Life,
Including in Education
22
23
25
27
CONCLUSION
30
CERTIFICATE OF COMPLIANCE
32
CERTIFICATE OF SERVICE
33
ADDENDUM
34
ii
TABLE OF AUTHORITIES
CASES
Adarand Constructors. Inc. v. Pena,
515 U.S. 200 (1995)
11, 14, 15, 17
Application of Griffiths,
413U.S.717(1973)
25
Brown v. Board of Education,
347 U.S. 483 (1954)
29
Califano v. Webster,
430 U.S. 313 (1977)
9,10
City of Cleburne v. Cleburne Living Center. Inc.,
473U.S.432(1985)
9
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989)
15, 16
Coalition for Economic Egui~ v. Wilson,
946 F. Supp. 1480 (N.D. Cal. 1996), vacated on other grounds,
110 F.3d 1431 (9thCir. 1997)
23
Gong Lum v. Rice,
275 U~S. 78 (1927)
29
Gratz v. Bollinger,
122F. Supp.2d 811 (E.D. Mich. 2000)
17
Hirabavashi v. United States,
320 U.S. 81(1943)
29
Korematsu v. United States,
323 U.S. 214 (1944)
29
iii
Lau v. Nichols,
414 U.S. 563 (1974)
29
Marks v. United States,
430 U.S. 188 (1977)
7, 8, 12
Metro Broadcasting. Inc. v. FCC,
497 U.S. 547 (1990)
11,14
Ozawa v. United States,
260 U.S. 178(1922)
28
Regents of the University of California v. Bakke,
438 U.S. 265 (1978)
passim
Tape v. Hurley,
6 P. 129 (Cal. 1885)
29
Terrace v. Thompson,
263 U.S. 197 (1923)
28
Webb v. O'Brien,
263 U.S. 313 (1923)
28
Wen~ler v. Dru~ists Mutual Insurance Company,
446U.S. 142 (1980)
10
Wygant v. Jackson Board of Education,
476 U.S. 267 (1986)
10, 14, 15, 16
Yick Wo v. Hopkins,
118 U.S. 356 (1886)
28
iv
STATUTES
Chinese Exclusion Act, ch. 126, 22 Stat. 58, 58-6 1 (repealed 1943)
28
Immigration Act of 1917, ch. 29, 39 Stat. 874 (repealed 1952)
28
Immigration and Naturalization Act of 1952, 8 U.S.C. § 1422 (2001)
25
Naturalization Act of 1790, cli. 3, 1 Stat. 103
24
Naturalization Act of 1870, cli. 254, § 7, 16 Stat. 254 (1870)
24
Tydings-McDuffie Act of 1934, ch. 84, 48 Stat. 456 (amended 1946)
28
OTHER SOURCES
137 Cong. Rec. H8130 (daily ed. Oct. 22, 1991)
(statement of Rep. Rohrabacher (R-CA))
21
Alastafr I. Johnston, et al., The Cox Committee Repo~:
An Assessment, (Michael M. May ed., Dec. 1999), available in
http://cisac.stanford.eduldocs/cox.pdf
26
American Association of Law Schools, All Full-Time Facul~ in the 1999-2000 Directory of Law
Teachers, available at
http://www.aals. org/statistics/TI B .htm
24
American Bar Association,
Directory of Minority Judges (1997)
23
Asian Americans on the Issues,
AsianWeek,Aug. 23, 1996
23
Clarence Page, Asian Americans in Middle of~
California Controversy, Oregonian, May 24, 1995, at D7
21
v
Cynthia K. Lee, Beyond Black and White:
Racializing Asian Americans in a Society Obsessed with O.J.,
6 Hastings Women's L.J. 165 (1995)
25
Frank Wu, Neither Black nor White: Asian Americans
and Affirmative Action, 15 B.C. Third World L.J. 225 (1995)
21-22
Gary Orfield, Diversity Challenged: Evidence on the
Impact of Affirmative Action 153 (2001)
18, 19
Hearing to Examine the Status and Future of Affirmative Action
Before the Senate Subcommittee on Constitution.
Federalism and Property Rights, 104th Cong., 1st Sess. (1995)
(testimony of Professor Man J. Matsuda)
18-19
Heath Foster, Supreme Court Will Grant Posthumous Bar Membership to a Japanese Victim of
Racism,
Seattle Post-Intelligencer, Feb. 5, 2001, at Al
25
Ian Hoffman, Lee Case Concerns Scientists,
Albuquerque Journal, Feb. 20, 2000, at 1
26
Jerry Kang, Note, Racial Violence Against Asian Americans,
lO6Harv.L.Rev. 1926 (1993)
27
Joan M. Jensen,
Passage from India (1988)
24
Keith Aoki, No Right to Own?: The Early Twentieth-Century "Alien Land Laws" as a Prelude to
Internment,
40 B.C. L. Rev. 37(1998)
National Review, Mar. 24, 1997, at cover page
28
26, Addendum
Pat K. Chew, Asian Americans: The "Reticent" Minority
and Their Paradoxes, 36 Win. & Mary L. Rev. 1 (1994)
vi
24
Report of Select Comm on U.S. Nat'l Securi~ and Military/Commercial Concerns with the
People's Republic of China, H.R. Rep. No. 851, 105th Cong., 2d Sess. (1999)
26
Robert S. Vrooman, Ethics, Integrity, and National Security:
The Other Side of the Story. Remarks Presented at Stanford
University and the University of California at Berkeley
(May 1-2, 2000), available in
www.napalc ore/pro grams/antiviolence/profilin~/vrooman.htm1 27
.
Saul A. Green, Access to the Academy: The Absence of Minority Facul~ at Michigan's Law
Schools,
73 Mich. B.J. 306(1994)
24
Sucheng Chan, Asian Americans:
An Interpretative History (1991)
28
Vincent A. Eng, Biow?aphical Directory of
the Federal Judiciary (2001)
23
William C. Kidder, Situating Asian Pacific Americans in the Law School Affirmative Action
Debate:
Empirical Facts About Thernstrom's Rhetorical Acts,
7 Asian L.J. 29,36-46 (2000)
22
vii
INTERESTS OF AMICI CURIAE
The National Asian Pacific American Bar Association
("NAPABA") is the national professional association of Asian Pacific American' attorneys,
judges, law professors and law students. NAPABA was incorporated in 1989 to represent and
advocate for, on a national level, the interests of Asian Pacific American attorneys and their
communities. To advance its goals, NAPABA monitors legislative developments and judicial
appointments, and advocates on issues of importance to Asian Pacific American lawyers and the
community.
The National Asian Pacific American Legal Consortium ("NAPALC") is a national nonprofit, non-partisan organization whose mission is to advance the legal and civil rights of Asian
Pacific Americans. NAPALC is committed to supporting affirmative action as a way of ensuring
equal opportunities for women and minorities. NAPALC focuses on educating policymakers,
corporations, institutions and the general public on the facts and importance of affirmative action
to the Asian Pacific American community, and works with other civil rights organizations and
policymakers to ensure that affirmative action programs are appropriate and effective and address
Asian Pacific American concerns.
The terms "Asian Pacific American" and "Asian American" encompass people of
Asian descent from over 30 countries, including countries in East Asia, Southeast Asia, the Indian
Subcontinent and the Pacific Islands.
The Asian Law Caucus ("ALC") is a not-for-profit, publicinterest legal organization whose mission is to promote, advance and
represent the civil rights of Asian Pacific Islander communities. Founded in 1972, the ALC is the
nation's oldest Asian Pacific Islander civil rights legal organization. ALC has provided legal
services and community education on affirmative action and discrimination, represented
individuals in discrimination suits and conducted local and regional policy advocacy on
affirmative action.
The Asian American Legal Defense and Education Fund ("AALDEF"), founded in 1974, is
a non-profit civil rights organization based in New York City. AALDEF protects and promotes the
civil rights of Asian Americans through litigation, legal advocacy and community education.
AALDEF has challenged discrimination on the basis of race, national origin and immigration
status in both the public and private sectors, and works to secure for Asian Americans
opportunities denied to them as a result of their historic exclusion from the mainstream of
American life and of the legacy of discrimination sanctioned by law.
The Asian Pacific American Legal Center ("APALC") is the leading organization in
Southern California dedicated to providing the growing Asian Pacific American community with
multilingual, culturally sensitive legal services,
2
education and civil rights advocacy.
This case raises crucial questions concerning the importance of racial and ethnic diversity
in the context of legal education and the appropriate role that affinnative action programs should
play in bringing about such diversity—issues that have long been and are today of vital concern to
all amici curiae (hereafter "Amici"). The decision of the Court of Appeals here would affect not
only the
program at issue and other similar programs at law schools throughout the Sixth
~2
Circuit, but also similar programs across the United States.
Accordingly, because
of the broad impact of the decision here, Amici have an important and substantial interest in the
outcome of this case.
Pursuant to FRAP 29(a), Arnici have obtained from all parties consent to file this brief.
INTRODUCTION AND SUMMARY OF ARGUMENT
Asian Pacific Americans play a distinct role in the
affirmative action arena. Opponents of affirmative action often
have used improperly Asian Pacific Americans to justify a position that would
benefit the racial majority at the cost of harming minorities and, given the
benefits of diversity in education, of harming society in general. Affirmative action
proponents have often oversimplified the affirmative action debate to a black-and-white
dichotomy, thereby ignoring Asian
'3
4-".
Pacific Americans. Asian Pacific Americans have faced their own history of
discrimination, including segregation in schools, but policymakers have sometimes determined
that, especially in the context of higher education, civil rights remedies such as affirmative action
programs are not necessary for Asian Pacific Americans. In this case, too, the University of
Michigan Law School (the "Law School") has enacted an affirmative action admissions policy that
does not include Asian Pacific Americans as a beneficiary group.
Amici do not challenge here the decision of the Law School in crafting its admissions
policy. Indeed, Amici support the Law School's efforts to improve the presence of
underrepresented minorities because it is lawful, it benefits underrepresented-minority students
and it benefits society as a whole, including Asian Pacific Americans. Further, Amici object to
Plaintiff Barbara Grutter's ('.'Grutter" or "Plaintiff') claiming to represent Asian Pacific Americans
in her quest to eliminate all diversity-based affirmative action programs.
Amici are thus filing this Brief in support of Defendants. In Part I of this Briefs Argument,
Amici dispute the trial court's conclusions that promoting diversity is not a sufficiently compelling
governmental interest to justif~~" affirmative action programs m the education context. Justice
Powell's opinion, which allowed the competitive consideration of race in university admissions
4
programs for the purpose of enhancing diversity, was the
controlling holding of Regents of the University of California v.
Bakke, 438 U.S. 265 (1978), and thereby was binding precedent.
Furthermore, post-Bakke caselaw did not prevent the trial court
from making a finding, under strict scrutiny review, as to whether
enhancing diversity was a compelling interest, a step which the trial court should have
taken.
Amici also wish to dispel certain underlying assumptions
about Asian Pacific Americans that Plaintiff Grutter appears to
have injected into this litigation. For example, Plaintiff's
complaint lumped together under the rubric "disfavored racial
groups" White Americans, who constitute the historical majority of
this country, with certain minorities such as Asian Pacific
Americans, as if the two groups face the same circumstances in
this country. (Compl.
¶¶ 20,
23.) By doing so, Plaintiff has
misused Asian Pacific Americans to justify her politically
difficult position of asserting claims for the racial majority.
Further, Plaintiff has brought Asian Pacific Americans into this
dispute as a "wedge group." That is, she has held up Asian Pacific
Americans as the model minority as a means of telling other
minorities, "They made it. Why can't you?" (See Bench Trial Tr. at
74 (testimony of Professor Frank Wu).)
To the contrary, Asian Pacific Americans are minorities who have faced past and present racial
discrimination and are underrepresented in law schools and in
5
4';
the legal profession. Moreover, they, as minorities, have a stake
in these entire proceedings and are beneficiaries of civil rights
programs such as affirmative action. Accordingly, Amici submit Part II of the
Argument to bring to light and dispel these erroneous characterizations about Asian Pacific
Americans. Part II also presents a brief summary of current and past discrimination against Asian
Pacific Americans to demonstrate a sad history of discrimination that might have been different if
all Americans had received the educational and societal benefits that flowed from a multicultural,
diverse learning environment. Diversity such as that promoted by the Law School is compelling
because it helps this countiy to guard against repeating a history of stereotyping and
discrimination.
ARGUMENT
I.
ENHANCING DIVERSITY IS A COMPELLING STATE INTEREST,
AND THE TRIAL COURT ERRED IN HOLDING OTHERWISE.
Enhancing diversity is a compelling interest justifying the competitive
consideration of race and ethnic origin in student admissions programs. In holding otherwise,
the trial court made two errors of law. First, it erred in
concluding that Justice Powell's opinion in Bakke which concluded
--
that enhancing diversity, including racial and ethnic diversity,
was a compelling state interest in higher education (hereafter referred to as Justice Powell's
"diversity rationale") was not a holding of the Bakke Court. (See Opinion at 44.) Second, the
--
trial court erred in
'6
4''
holding that the Supreme Court's post-B akke decisions precluded diversity from ever being a
compelling state interest, thereby freeing the trial court from applying a full strict scrutiny review
of the Law School policy. (~ Opinion at 47.)
A.
Under the Marks v. United States Test, Justice Powell's Conclusion That
Enhancing Diversity Is a Compelling State Interest Was a Holding of the Bakke
Court Because It Constituted the Narrowest Grounds upon Which that Court
Permitted Race to Be Used in School Admissions.
The trial court erred in concluding that Justice Powell's diversity rationale was not a
holding of the Supreme Court in Bakke. As explained below, under the analysis outlined in Marks
v. United States, 430 U.S. 188 (1977), Justice Powell's opinion formed the narrowest grounds
upon which five Justices reached the same judgment and is therefore a holding of the Bakke Court.
Bakke involved a Fourteenth-Amendment review of a medical school's admissions
program, which used' separate-tracked quotas to promote the admission of more minorities. Five
Justices agreed that the state had "a substantial interest that legitimately may be served by a
properly devised admissions program involving the competitive consideration of race and ethnic
origin." Bakke, 438 U.S. at 320 (Powell, J.); see id. at 328 (Brennan, White, Marshall, Blackmun,
JJ., concurring in relevant part). These five Justices, however, took different roads to reach this
common judgment. Applying strict scrutiny review, see id. at 291,
7
NJ
Justice Powell concluded that attainment of a diverse student body was a compelling interest to
justify the narrowly tailored use of racial classifications. Id. at 311-15. On the other hand, Justices
Brennan, White, Marshall and Blackmun (the "Brennan Group") applied intermediate scrutiny, see
id. at 359, to hold that remedying the effects of societal discrimination was a "sufficiently
important" governmental objective to justify the use of racial classifications. Id. at 362.
The trial court attempted to apply to these different opinions an analysis propounded by
Marks v. United States: "When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as
that position taken by those Members who concurred in the judgments on the narrowest grounds."'
Marks, 430 U.S. at 193. The trial court concluded, however, that the Bakke opinions Justice
--
Powell's and the Brennan Group's employed "completely different rationales," making the Marks
--
framework inapplicable. (Opinion at 44.)
The trial court gave up too soon. Had the trial court looked at the rationale and the standard
of review, it would have found that the Marks framework can be applied to the Bakke opinion.
Upon doing so, the trial court would have found that Justice Powell's opimon is the narrowest
ground in support of the Bakke judgment because his search for a "compelling" state interest was a
narrower one than the
8
(C
Brennan Group's search for an "important" state interest.
Review under the Equal Protection Clause falls in one of three different levels, depending
on the type of classification. Each level of review consists of two prongs: first, whether the
objective or interest sought by the state is of sufficient importance; and second, whether the means
to reach that objective is sufficiently tailored to that objective. Courts will subject most
classifications to the lowest level of scrutiny, often called rational basis review, which will sustain
a classification if it is "rationally" related to a "legitimate" state interest. See. e.g., City of Cleburne
v. Cleburne Living Ctr.. Inc., 473 U.S. 432, 440 (1985). Classifications based on gender or
legitimacy of birth are subject to a higher level of scrutiny, often called intermediate scrutiny,
which will sustain a classification if it is "substantially" related to an "important" state interest. ~
j~ at 440-41; Califano v. Webster, 430 U.S. 313 (1977) (per curiam) (applying intermediate
scrutiny to gender discrimination case). Finally, classifications based on race, alienage or national
origin are subject to the most heightened scrutiny, often called strict scrutiny, which will sustain a
classification only if it is "narrowly tailored" to serve a "compelling" state interest. City of
Cleburne, 473 U.S. at 440.
As one heightens the level of scrutiny, the search for an appropriate interest grows more
narrow m scope. Thus, "legitimate" state interests under rational basis
9
r
review make up a relatively large group of interests; "important" state interests under intermediate
scrutiny constitute a narrower subset of the legitimate interests; and "compelling" state interests
under strict scrutiny constitute an even narrower subset of important state interests. Thus, when
comparing application of intermediate scrutiny with that of strict scrutiny, one finds that the
Supreme Court has supported important state interests under intermediate scrutiny that, under
strict scrutiny, the Court has never recognized2 or has rejected outright3 as falling within the
narrower subset of compelling state interests. In short, the set of compelling state interests is a
subset of, and therefore narrower than, the set of important state interests.
In Bakke, the Brennan Group applied intermediate scrutiny, thereby casting
a relatively wide net in search of the more numerous "important" state interests, 2 See. e.g.,
Wenglerv. Drug2ists Mutual Ins. Co., 446 U.S. 142, 151
(1980) (applying intermediate scrutiny test in gender-based claim against worker's compensation
law, and holding that providing for needy spouses was an important government interest).
The Supreme Court has held that remedying the effects of societal discrimination is
a sufficiently important interest under intermediate scrutiny, but is not a sufficiently compelling
interest under strict scrutiny. Compare Califano, 430 U.S. at 317 (noting, in gender discrimination
case involving intermediate scrutiny, that "[r] eduction of the disparity in economic condition
between men and women caused by the long history of discrimination against women has been
recognized as such an important governmental objective"), with Wygant v. Jackson Bd. of Educ.,
476 U.S. 267, 274-76 (1986) (plurality opimon) (rejecting the remedying of societal
discrimination's effects as a compelling interest under strict scrutiny).
10
(.2
such as the remediation of the effects of societal discrimination. Bakke, 438 U.S. at 359, 362.
While the Brennan Group did not describe what other interests they might have caught with their
wider net, one can conclude that compelling state interests found under the narrower, more
stringent strict scrutiny review formed a subset of, or was "subsumed within," the important state
interests sought by the Brennan Group.
Justice Powell, on the other hand, applied strict scrutiny, thereby casting a net narrow
enough to catch the few "compelling" state interests to justify the use of racial classifications. In
doing so, he determined that enhancing diversity in a higher education setting was one such
compelling state interest. Id. at 291, 311-15. By using a higher level of review, the compelling
interest that Justice Powell recognized was the narrowest grounds upon which Justice Powell and
the four members of the Brennan Group reached their judgment of allowing the competitive
consideration of race in university admissions. Cf. Metro Broadcasting. Inc. v. FCC, 497 U.S. 547,
567 (1990) (recognizing, in the context of intermediate scrutiny, that enhancing broadcast diversity
was, "at the very least, an important governmental objective" (emphasis added)), rev'd on other
grounds, Adarand Constructors. Inc. v. Pena, 515 U.S. 200, 227 (1995).
11
Statements from both factions support that Justice Powell's rationale was narrower than that
of the Brennan Group. Justice Powell explicitly rejected as too broad the Brennan Group's
rationale that an affirmative action program is permissible for the objective of remedying societal
discrimination. See Bakke, 438 U.S. at 297 n.36 (objecting to the hypothesis underlying the
Brennan Group's opinion because the "breadth of this hypothesis is unprecedented in our
constitutional system"). As for the Brennan Group, the Justices acknowledged that they had not
exhausted the universe of important state interests, as they pointed out Justice Powell's agreement
with them that "some uses of race in university admissions are permissible." Id. at 326 (emphasis
added). In summary, Justice Powell used the narrow strictures of strict scrutiny review to arnve at
a compelling state interest ~ enhancing diversity), the set of which is inherently narrower than,
and a subset of, the set of important state interests sought by the Brennan Group. Accordingly,
Justice Powell's diversity rationale is the narrowest basis upon which the Bakke Court arrived at its
judgment, and it therefore constitutes the opinion of the Bakke Court in accordance with the tenets
of Marks.
B.
Even Assuming Justice Powell's Diversity Rationale Is Not
Controlling, the Trial Court Erred in Failing to Conduct a Strict
Scrutiny Analysis to Determine Whether Enhancing Diversity Is a
Compelling State Interest.
12
Even assuming, ar~i'uendo, that Justice Powell's diversity rationale is not a holding in
Bakke, the trial court was still obligated to conduct a strict scrutiny analysis: i.e~ to determine
whether—after reviewing voluminous evidence presented by the Law School demonstrating the
important educational value in having racial and ethnic diversity—such diversity was a compelling
governmental interest and whether the Law School used narrowly tailored means to meet such
interest. The trial court failed to conduct such an analysis. Instead, it held that as a matter of law
the only compelling interest in a government's use of racial classifications is "to remedy carefully
documented effects of past discrimination," (Opinion at 46-47), thereby precluding consideration
of other compelling interests, such as enhancing diversity in schools. Consequently, the trial court
skipped completely any examination of the compelling-interest prong of the strict scrutiny review.
See Appellants' Br. at 4 (detailing the court's exclusion from trial any additional testimony by the
Law School on the educational benefits of diversity). (See also Opinion at 49 (acknowledging the
"important and laudable" benefits of racial diversity in the law school population, but holding that
such diversity "is not a compelling state interest because it was not recognized as such by Bakke
and it is not a remedy for past discrimination").)
13
Contrary to the trial court's legal conclusion, the Supreme Court has not limited the
universe of compelling interests to the remediation of "carefully documented effects of past
discrimination," (Opinion at 46-4 7). Even assuming that Justice Powell's Bakke opinion was not a
holding of the Supreme Court, the Court has nevertheless recognized in separate instances Justice
Powell's diversity rationale in Bakke. In Metro Broadcasting. Inc. v. FCC, for example, the
Supreme Court recognized that enhancing diversity in media broadcasting was, "at the very least,
an important governmental objective," 497 U.S. at 567,~ thereby suggesting that it could be an even
greater interest. In Wygant v. Jackson Board of Education, a case involving a race-sensitive layoff
policy for teachers, Justice O'Connor in her concurrence distinguished certain state interests that
the plurality opinion had rejected as being insufficient to justify an affirmative action program--i.e
the remediation of societal discrimination and the need to provide role models for minority
students--from "the very different goal of promoting racial diversity." Wyg, 476 U.S. at 288
(O'Connor, J., concurring). She further recognized that "although its precise contours are
uncertain, a state interest in the promotion of
The Supreme Court in Adarand later overruled Metro Broadcasting, which had used
intermediate scrutiny, to the extent that it had failed to apply strict scrutiny to even a "benign"
racial classification. See Adarand, 515 U.S. at 227. The Adarand Court did not address, however,
whether broadcast diversity was also a compelling. governmental interest.
14
racial diversity has been found sufficiently 'compelling,' at least in the context of higher education,
to support the use of racial considerations in furthering that interest." Id. at 286 (citing Bakke)f
Thus, contrary to the trial court's findings, the post-Bakke Supreme Court decisions, at a
minimum, have not precluded the consideration of enhanced diversity as a compelling state
interest.
The trial court further erred in relying on City of Richmond v. J.A. Croson Co 488 U.S. 469
(1989), and Adarand Constructors. Inc. v. Pena, 515 U.S. 200 (1995) to conclude that the Supreme
Court had limited the use of race solely for remedying carefully documented past discrimination.
These two cases do not support the trial court's holding.
The trial court relied in part on what it called a "significant statement" by Justice O'Connor
in Croson: "Classifications based on race carry a danger of stigmatic harm. Unless they are strictly
reserved for remedial settings, they may m fact promote notions of racial inferiority and lead to a
politics of racial hostility." (Opinion at 46 (quoting Croson, 488 U.S. at 493 (O'Connor, J., with
Rel'mquist, White and Kennedy, JJ., concurring)).) However, it was error to rely on this statement
in determining whether diversity is a compelling interest. First, the Croson statement appears in a
portion of Justice O'Connor's opinion in which only
The Wyg~ Court did not address the diversity rationale because the Jackson Board
of Education did not proffer it as one of the state interests justifying its policy.
15
4'-';
three other Justices joined, and does not constitute a holding of the Supreme Court. Second, the
Croson case involved a set-aside program m government contracting, not higher education, and
therefore did not implicate Justice Powell's concerns about a school's First Amendment rights and
academic freedom. In fact, when Justice O'Connor was faced with a case involving education, she
explicitly recognized the importance of diversity see Wygant, 476 U.S. at 286, and further left open
the possibility that there may be other compelling interests beyond remediation of documented
past discrimination, see id. ("And certainly nothing the Court has said today necessarily forecloses
the possibility that the Court will find other governmental interests which. have not been passed on
..
here to be sufficiently 'important' or 'compelling' to sustain the use of affirmative action policies.").
Third, this statement is mere dicta conjecturing on the possible sociological impact of racial
classifications beyond the remedial seftings and does not address directly the magnitude of
diversity as a compelling interest. Finally, the trial court quoted Justice O'Connor's "significant
statement" in Croson out of context. Justice O'Connor supported her statement by citing to Justice
Powell's opinion in Bakke, the very opinion that has held that enhancing diversity is an interest
sufficiently compelling to justify an affirmative action program. See Croson, 488 U.S. at 493-94
(citing Bakke, 438 U.S. at 298 (opinion of Powell, J.)).
16
The trial court's reliance on Adarand for its dispensing with the compelling interest analysis
is equally misguided. The Adarand Court dispelled the notion that strict scrutiny is "strict in theory,
but fatal in fact," 515 U.S. at 237, and thereby implicitly required lower courts to conduct a true
strict scrutiny analysis, including an analysis of the interests of a given program. Consistent with
this requirement, the Adarand Court remanded the case to the lower court to determine "whether
the interests served. are properly described as 'compelling."' II
..
Pursuant to Adarand's dictates, the trial court should have allowed the Law School to
introduce additional testimony addressing the educational benefits of diversity. It failed to do so.
(See Appellants' Proof Br. at 4 (citing R-3 30, SJ Hearing at 93).) Based upon the evidence
provided by the Law School, it should have then made a determination, as directed in Adarand, as
to whether enhancing diversity was a compelling state interest. Again, it failed to do so. Had it
done so, it would have found that diversity, including racial and ethnic diversity, is a compelling
interest' because it allows participants (in this case, law students) to think critically and not to
accept stereotypes.6 The trial court's failure to find so, or
even to conduct an inquiry, constitutes reversible error.
6
In a case parallel to this one, the court conducted a strict scrutiny
analysis pursuant to Adarand and, upon reviewing the evidence presented by the University of
Michigan and others, found that enhancing diversity was indeed a compelling interest, and that it led
to substantial educational benefits. See Gratz v.
Bollinger, 122 F. Supp. 2d 811, 822-24 (E.D. Mich. 2000).
'17
C.
Enhancing Diversity Is a Compelling Interest Because It Benefits All Students,
Including Groups That Are Not Explicitly Targeted Beneficiaries.
Asian Pacific Americans benefit from diversity in education. Specifically, diversity within
the classroom challenges all students to improve their critical thinking skills because they are
forced to see any set of facts from different points of view, and better prepares them to participate in
our pluralistic society. (See generally Appellants' Proof Br. at 30-31.) Diversity in an educational
setting also provides students, including Asian Pacific Americans, with the opportunity to study, live
among and socialize with students from different backgrounds, thus facilitating their interactions
with different peoples in the future. According to a survey of law school students at Harvard, Yale,
the University of Michigan, University of Virginia, University of Chicago, University of
Minnesota and the University of Iowa, 46% of Asian Pacific Americans reported that campus
diversity helped them to live among and work with people of different backgrounds. Gary Orfield,
Diversity Challenged: Evidence on the Impact of Affirmative Action 153 (2001). The educational
benefits flowing from such interactions have been recognized by the faculty. See Hearin2 to Examine
the Status and Future of Affirmative Action Before the Senate Subcommittee on Constitution.
Federalism and Property Rights, 104th Cong., 1st Sess. (1995)
18
(testimony of Professor Mari J. Matsuda) (describing support among her colleagues, liberal and
conservative, because "they have seen [affirmative action] work"). At Harvard and Michigan Law
Schools, for example, 45% of Asian Pacific Americans reported experiencing the largest changes
in their views from interracial discussions of criminal justice issues. Orfield, supra, at 164.
Similarly, a significant percentage of all law school students (28% at Harvard to 31% at Michigan)
reported that those discussions altered their view of the kind of legal or community issues they
would encounter as professionals. Id.
As future stewards of the justice system, law students must fulfill the expectation that they
will effectively represent the interests of all persons within
American society, particularly of minorities who have encountered a history of institutional bias. Studies
show that diversity in education has a positive impact on students' ability to rise to that task Id
II.
PLAINTIFF'S ASSERTION THAT ASIAN PACIFIC AMERICANS
ARE ALLIES IN HER CASE IS IMPROPER SINCE ASIAN PACIFIC
AMERICANS ARE NOT, AND HAVE NOT BEEN, SIMILARLY
SITUATED AS PLAINTIFF.
In the proceedings below, Plaintiff Grutter injected a number of erroneous assumptions
concerning Asian Pacific Americans, whom she purported to represent. Worse still, the trial court
appeared to share at least some of these assumptions in its Opinion. (See. e.g., Opinion at 20 n.13,
21 n.15 (grouping
19
Asian Pacific Americans with "Caucasian applicants" and Jews).) Amici dispute Plaintiffs stated
and unstated assumptions about Asian Pacific Americans and, so as to avoid any misunderstandings
during the course of this appeal, shall bring to light and dispel her erroneous assumptions.
A.
Plaintiff Improperly Allies Herself with Asian Pacific Americans and, in So
Doing, Attempts to Use Asian Pacific Americans to Justify Her Politically
Difficult Case.
Ms. Grutter, who is not Asian Pacific American, has made a strategic decision to proffer
Asian Pacific Americans as her supposed allies in this litigation, rather than simply representing
her own race. In her Complaint, Ms. Gruffer purports to represent "all others similarly situated,"
described as "members of those racial or ethnic groups. that defendants have treated less
..
favorably in considering their application for admission to the [University of Michigan] Law
School." (Compl. at 1, 3.) In her briefs in the proceedings below, she more explicitly included
Asian Americans in her cause as members of those other "racial or ethnic groups" that were
similarly situated as hers. (See Pl.'s Mem. Supp. Partial Summ. J. at 16 ("Asian Americans are at a
systematic disadvantage similar to Caucasians"); Pl.'s Post-Trial Br. at 13 ("[S]tandards for
admission for minority applicants in general are substantially different than they are for applicants
of other races, such as whites and Asian-Americans.").)
20
Plaintiffs strategy is not novel. Opponents of affirmative action who have no track record
of advocating for Asian Pacific Americans have often misused Asian Pacific Americans in a
manner similar to Plaintiff's when it comes to affirmative action. See Clarence Page, Asian Americans
in Middle of California Controversy, Oregonian, May 24, 1995, at D7 (quoting then-House Speaker
Newt Gingrich as saying, "Asian Americans are facing a very real danger of being
discriminated against because they are becoming overrepresented at prestigious universities that have
affirmative action plans"); 137 Cong. Rec. H8130 (daily ed. Oct. 22, 1991) (statement of Rep.
Rohrabacher (R-CA)) (criticizing affirmative action and stating that "Asian-Americans are being
penalized").
The Asian Pacific American legal community, speaking on its own behaW
hereby rejects Plaintiffs attempt to represent Asian Pacific Americans. Further, Amici object
strongly to Plaintiffs tactic of using Asian Pacific Americans to justify the politically difficult
position of advocating for the racial majority at the cost of harming underrepresented minorities. As
one scholar noted, "The linkage of Asian Americans and affirmative action.., is an intentional
maneuver by conservative politicians to provide a response to charges of racism. The advocates
against affinnative action can claim that they are racially sensitive, because, after all, they are agitating
on behalf of a non-white minority group." Frank Wu,
21
Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225,
226 (1995).
Contrary to Plaintiff's intimations, eliminating affirmative action programs will not benefit
Asian Pacific Americans. See William C. Kidder, Situating Asian Pacific Americans in the Law
School Affirmative Action Debate: Empirical Facts About Therustrom's Rhetorical Acts, 7 Asian
L.J. 29, 36-46 (2000) (finding that California' s ban on affirmative action had resulted in "negligible
gains" for Asian Pacific American law students). Furthermore, ending affirmative action would
harm Asian Pacific Americans in the same way that it would harm all Americans:
it would eliminate quality state universities that nurture racial and ethnic diversity as a valuable
educational tool and that value the variety of viewpoints of peoples who have suffered historic,
systemic discrimination simply because of the color of their skin.
B.
Plaintiff Does Not Speak for Asian Pacific Americans Because She Is Not
Similarly Situated as Asian Pacific Americans.
Plaintiff does not speak for Asian Pacific Americans. Contrary to Plaintiffs claim that she
represents those who are similarly situated, Asian Pacific Americans are not situated similarly as
she. First, unlike Plaintiff, Asian Pacific Americans have generally supported affirmative action.7
Second and more importantly, Asian
For example, in voting on California's Proposition 209, which banned affirmative action
programs, Asian Pacific Americans, like other racial minority
22
Pacific Americans are minorities who remain underrepresented in significant sectors of society,
including the legal field, and have faced past and present racial discrimination.
1.
Asian Pacific Americans Are Underrepresen ted in the Legal Field
Asian Pacific Americans are underrepresented in various sectors of the legal profession
today. For example, there, are extremely few Asian Pacific American state or federaijudges. In
1997, out of approximately 60,000 judgeships, Asian Pacific Americans held only 254 seats, giving
Asian Pacific Americans the second lowest number of seats, just above, Native Americans who had
forty-two seats. See American Bar Association, Directory of Minori~ Judges (1997). Moreover, no
Asian Pacific American was appointed to serve as a federal Article III judge until 1971 ten years
--
after the first Latino judge had been appointed and twenty years after the first Black judge had
been appointed. See Vincent A. Eng, Biographical Directory of the Federal Judiciary 341-42
(2001).
groups, voted "no" to Proposition 209 by a 61%-to-39% margin to those who had voted "yes."
Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1495 n.12 (N.D. Cal. 1996), vacated
on other grounds, 110 F.3d 1431 (9th Cir. 1997). See also Asian Americans on the Issues, Asian
Week, Aug. 23, 1996 (reporting that Asian Pacific Americans support affirmative action programs
by a margin of 57% to 22.8%).
23
(C
Asian Pacific Americans law professors also are comparatively few in number. They
constitute only about 1.5% of law school faculty nationwide. See American Association of Law
Schools, All Full-Time Faculty in the 1999-2000 Directory of Law Teachers, available at
http://www.aals.org/statistics/TlB.htm (last visited May 22, 2001). A recent study showed that
Michigan's five law schools had no Asian Pacific American full-time faculty members. See Saul A.
Green, Access to the Academy: The Absence of Minority Faculty at Michi~arfs Law Schools, 73
Mich. B.J. 306 (1994).
The current underrepresentation of Asian Pacific Americans in the legal profession is
attributable to a history of discriminatory barriers. Because of prohibitions on immigration,8 the
denial of citizenship9 and, in the case of Asian Indians, denaturalization,~0 Asian Pacific
Americans were foreclosed from the legal
profession, where United States citizenship was a prerequisite for admission to a 8 See infra note 14
and accompanying discussion.
A 1790 statute allowed only "free white persons" to become citizens. See
Naturalization Act of 1790, ch. 3, 1 Stat. 103. Even when that statute was amended to include
Blacks, similar legislation to include Asians was rejected. See Naturalization Act of 1870, ch. 254,
§ 7, 16 Stat. 254 (1870) (extending naturalization to "aliens of African nativity and to persons of
African descent"); Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes,
36 Win. & Mary L. Rev. 1, 13 (1994).
10
See Joan M. Jensen, Passape from India 259 (1988) (describing retroactive rescission of
citizenship and denaturalization of forty-three Asian Indians).
24
state bar. Not until 1952 when the naturalization bars began to be lifted, see humigration and
Naturalization Act of 1952, 8 U.S.C. § 1422 (2001), did the legal profession for Asian Pacific
Americans become a somewhat more realistic possibility. The Supreme Court ultimately
invalidated the citizenship requirement for admission to a state bar, but this did not occur until
1973. See Application of Griffiths, 413 U.S. 717 (1973). See also Heath Foster, Supreme Court
Will Grani Posthumous Bar Membership to a Japanese Victim of Racism, Seattle PostlLntelligencer, Feb. 5, 2001, at Al (reporting the Washington supreme court's decision to admit
posthumously Takuji Yamashita to the bar, after the court had prevented him in 1902 from
practicing law because he was of the "yellow race").
2.
Negative Stereotyping Is Still Common, and Still Dangerous.
Negative stereotyping of Asian Pacific Americans remains alive and well in the United
States. High-profile incidents include former Senator Alfonse d'Amato's caricaturing Judge Lance
Ito (a U.S.-born citizen who speaks with a standard American accent) in a mocking, heavilyaccented "Ah-so" fashion see Cynthia K. Lee, Beyond Black and White: Racializing Asian
Americans in a Society Obsessed with O.J., 6 Hastings Women's L.J. 165, 175 (1995) (quoting
Sen. d'Amato), and grotesque caricatures on national magazine covers, see
25
National Review, Mar. 24. 1997, at cover page."
Perhaps the most widespread stereotype today is that of Asian Pacific Americans being
perpetually foreign and thereby owing their allegiance to foreign countries, which was the same
misguided stereotype underlying the internment of Japanese Americans, discussed infra. In 1999,
for example, anti-Chinese sentiment fueled by the "Cox Report," which made unsubstantiated
claims that the Chinese were stealing nuclear codes from national laboratories, highlighted the
perception of Asian Pacific Americans as perpetual foreigners.'2 Asian Pacific American scientists
left national laboratories after claiming that their job prospects had declined in an increasing
hostile environment toward employees of Asian descent.'3 During this time, a counter-espionage
investigation was conducted
For the Court's convenience, Amici attach a copy of the National Review magazine
cover as an addendum to this Brief.
See Report of Select Comm. on U.S. Nat'l Security and Military/Commercial Concerns
with the People's Republic of China, H.R. Rep. No. 851, 105th Cong., 2d Sess. 21,40 (1999)
(chaired by Rep. Christopher Cox) ("The PRC also tries to identify ethnic Chinese in the United
States who have access to sensitive information, and sometimes is able to enlist their cooperation
in illegal technology or information transfers.... The Select Committee has received information
about Chinese-American scientists from U.S. nuclear weapons design laboratories being identified
in this manner."). But see Alastair I. Johnston, et al., The Cox Committee Report: An Assessment,
(Michael M. May ed., Dec. 1999), found in htti~//cisac.stanford.eduJdocs/cox.pdf (last visited on
May 30, 2001) (refuting the Cox Report findings).
12
13
See Ian Hoffman, Lee Case Concerns Scientists, Albuquerque Journal, Feb. 20, 2000, at
1.
26
422
against Wen Ho Lee, a Chinese American scientist working at the Los Alamos National
Laboratory, because of his ethnic heritage, as the laboratory's former chief counter-intelligence
officer admitted.'4
In its worst forms, attitudes such as these have links to race-based violence. An emblematic
instance is the murder of Vincent Chin. In 1982, Mr. Chin, a Chinese American engineer, was beaten
to death with a baseball bat by two laid-off auto workers, who blamed Japan for their
unemployment and assumed that Mr. Chin was a Japanese foreigner. These auto workers
"transferred blame not only from the Japanese government to the Japanese people, not only from
the Japanese people to United States citizens of Japanese descent, but finally from Japanese
Americans to anyone unlucky enough to bear Asian features." Jerry Rang, Note, Racial Violence
Against Asian Americans, 106 Harv. L. Rev. 1926, 1928 (1993).
3.
Asian Pac~fic Americans Have Faced Discrimination in
Various Facets ofAmerican Life, Including in Education.
The United States has a long history of racial discrimination against people of Asian
descent. Asian Pacific Americans have faced discriminatory measures at
Robert S. Vrooman, Ethics. Integri~. and National Security: The
Other Side of the Story. Remarks Presented at Stanford University and the
University of California at Berkeley (May 1-2, 2000), available in
wwwnapalc. ore/pro grams/antiviolence/profiling/vrooman .html
("ethnicity played a role in identifying Wen Ho Lee as the only suspect").
27
the United States' borders in the form of anti-immigration laws often targeting Asians and Pacific
Islanders specifically'5 and barriers to obtaining citizenship.'6 They were removed from their
homes and confined to areas set aside for slaughterhouses and other businesses thought prejudicial
to public health or comfort.'7 They were denied the right to own land and related real property
rights.'8 They have faced a flurry of other discriminatory laws ranging from foreign miner taxes,
directed at Chinese gold miners, to anti-Asian business regulations.19
See. e.g., Chinese Exclusion Act, ch. 126, 22 Stat. 58, 58-61 (repealed
1943) (prohibiting immigration of Chinese laborers); Immigration Act of 1917, ch.
29, 39 Stat. 874 (repealed 1952) (banning mimigration from almost all countries in
the Asia-Pacific region); Tydings-McDuffie Act of 1934, ch. 84, 48 Stat. 456
(amended 1946) (imposing annual quota of fifty Filipino immigrants).
16
People of Asian descent were ineligible for citizenship because they were considered
neither Black nor White. See Ozawa v. United States, 260 U.S. 178, 198 (1922).
17
18
Yick Wo v. Hopkins, 118 U.S. 356 (1886) (describing San Francisco ordinance).
See. e.g., Webb v. O'Brien, 263 U.S. 313 (1923) (upholding California Alien Land
Law prohibiting land rights for "aliens ineligible for citizenship"); Terrace v. Thompson, 263 U.S.
197 (1923) (upholding similar Alien Land Law in Washington). See also Keith Aoki, No Right to
Own?: The Early Twentieth-Century "Alien Land Laws" as a Prelude to Internment, 4Q B.C. L.
Rev. 37 (1998) (describing history of Alien Land Laws, which, while facially raceneutral, were
passed in response to Japanese immigrants competing for agricultural land).
See Sucheng Chan, Asian Americans: An Interpretative History, at 46-47 (1991).
28
(222.
Such discrimination has extended into education. Asian Pacific Americans students have
been denied meaningful opportunity to participate in public education. See Lau v. Nichols, 414
U.S. 563 (1974) (holding that failure of school district to provide English language instruction to
non-English-speaking Chinese students violates the Civil Rights Act). Prior to Brown v. Board of
Education, 347 U.S. 483 (1954), Asian Pacific Americans, like Blacks, also were denied an
integrated education. See Gong Lum v. Rice, 275 U.S. 78, 86-87 (1927) (applying separate-butequal doctrine to hold that the principle of establishing "separate schools as between white pupils
and black pupils" should also apply "where the issue is as between white pupils and the pupils of
the yellow races"). See also Tape v. Hurley, 6 P. 129 (Cal. 1885) (suit brought by Chinese
American seeking admission to public school of the district in which she resided).
Perhaps the most egregious and best documented example of discriminatory treatment of
Asian Americans by society and the law was the internment, without due process, of over 120,000
Japanese Americans during World War II. The internment was executed by Executive Order 9066,
signed by President Roosevelt and sanctioned by the Supreme Court. See Hirabavashi v. United
States, 320 U.S. 81(1943); Korematsu v. United States, 323 U.S. 214 (1944) (upholding the
internment). Although Germany and Italy, too, were enemies, the United States
29
did not accord similar treatment to German Americans and Italian Americans. Amid provide this
summary as further explanation for Amici's support for
proper affirmative action programs, whether or not directly addressed to Asian Pacific Americans.
Amici support such programs because, as uncontested in the court below, racial and ethnic
diversity provides educational benefits that also impact society as a whole, including the
opportunity for all students to learn to rely less on stereotypes by experiencing "members of one
racial or ethnic group often [expressing] differing views," (Appellants' Proof Br. at 32). and the
creation of members of society who are better able to work in a cross-cultural setting. These
benefits serve Asian Pacific Americans generally, as they have faced incidents of discrimination
and stereotyping incidents, that decrease through the use of affirmative action programs.
--
CONCLUSION
Enhancing racial diversity in higher education provides substantial educational benefits and
helps to produce graduates who are better equipped for an increasingly multicultural society.
Neither the lower court nor the Plaintiff contested this in the proceedings below. Asian Pacific
Americans reap the benefits of such diversity, both as students who study in such an environment
and, more generally, as beneficiaries in a resultant society that, by virtue of including more
30
~22
graduates from such diversity-based education, will improve in its treatment of minorities. The
Supreme Court, through Justice Powell's narrowly grounded opinion in Bakke and through
subsequent cases, determined that enhancing diversity is compelling enough to justify an
affirmative action program such as the Law School's. This Court should, as well. For these and the
foregoing reasons, Amici respectfully requests that the Court reverse the lower court's judgment.
Date: May31, 2001
Respectfully submitted,
CAMERON & HOR>2~BOSTEL LLP
818 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 293-4690
Attorneys for NAPABA as amicus curiae
Karen K. Narasaki
Vincent A. Eng
Aryani Ong
NATIONAL ASIAN PACIFIC
AMERICAN LEGAL CONS ORTRJM
1140 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 296-2300
Attorneys for NAPALC as amicus curiae
31
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 29(c)(5), 32(a)(7)(C), and 6th Cir. R. 32(a), the
undersigned certifies that this brief complies with the type-volume limitations of Fed. R.
App. P. 32(a)(7)(B) and, as applicable for amicus curiae briefs, of Fed. R. App. P. 29(d).
Relying on the word-count function of the word processing program (Corel Wordperfect) used to
create this brief, the undersigned further certifies that this brief contains 6,986 words, exclusive of
the portions of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
Yong Lee
32
C
CERTIFICATE OF SERVICE
I hereby certify that, on this 31st day of May, 2001, pursuant to Fed. R. App. P. 25 and,
where applicable, 6th Cir. R. 31, I caused an original and six
copies of the foregoing BRIEF OF AMICI CURIAE NATIONAL ASIAN PACIFIC
AMERICAN BAR ASSOCIATION ET AL. IN SUPPORT OF DEFENDANTS-APPELLANTS
AND IN FAVOR OF REVERSAL to be filed, by Federal Express,
with:
Mr. Bryant Crutcher
Office of the Clerk
U.S. Court of Appeals for the Sixth Circuit
Potter Stewart U.S. Courthouse
100 E. Fifth Street
Cincinnati, OH 45202-3988
I further certify that, on the same day and pursuant to the
same provisions, I caused two copies of the above Brief to be
served, by Federal Express, on:
John Payton, Esq.
Wilmer, Cutler & Pickering
2445 M Street, NW
Washington, DC 20037-1420
David F. Herr, Esq.
Kirk 0. Kolbo, Esq.
Maslon, Edelman, Borman & Brand
300 Norwest Center
90 South Seventh Street
Minneapolis, MIN 55402
George B. Washington, Esq.
Eileen R. Scheff, Esq.
Miranda K.S. Massie, Esq.
Scheff& Washington, P.C.
3800 Cadillac Tower
Detroit, Ml 48226
Yong Lee
33
r4.
ADDENDUM
(From Footnote 11)
34
11
Guns Don't Kill Peoi~le Studies Do. Daniel D. Polsby
—
NATIONAL
REVIEW
The Manchurian
Candidates
Rich Lowry
The Illegal Services Corporation:
Why
Congress Still Funds the Left
Rae! Jean Isaac
I
I
I
~
~