Nos. 01-1416, 01-1418, 01-1333
UNITED STATES COURT OF APPEALS
FOR THE
SIXTH CIRCUIT
JENNIFER GRATZ, et al.,
Plaintiffs-Appellants (01-1333, 01-1418)
Plaintiffs-A ppellees (01-1416)
V.
LEE BOLLINGER, et al.,
Defendants-Appellees (01-1333, 01-1418)
Defendants-Appellants (01-1416)
and
EBONY PATTERSON, et al.,
Intervening Defendants-Appellees (0 1-1333, 01-1416, 01-1418).
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MICHIGAN (DUGGAN, J.)
BRIEF OF AMICUS CURIAE
Thomas J.
Henderson
Leslie M. Gross
Lawyers' Committee
for Civil Rights
Under Law
1401 New York
Ave.
NW, Suite 400
Washington, D.C.
20005
(202) 662-8600
John S. Skilton
Marvin H. Lett
Jane E. Steick
Mireya A.R. Llaurado
Heller Ehrman White
&
MeAuliffe LLP
1666 K Street, NW,
Suite 300
Washington, D.C.
20006
(202) 912-2000
Prof. Douglas L.
Colbert
University of Maryland
School of Law
515 West Lombard St.
Baltimore, MD 21201
(410) 706-0683
Counsel for Amicus Curiae
Supporting Defendants-Appellees University of Michigan
and Intervening Defendants-A ppellees
TABLE OF CONTENTS
TABLE OF CONTENTS
1
TABLE OF AUTHORITIES
iii
IDENTITY AND INTEREST OF THE AMICUS CURIAE
1
SUMMARY OF THE ARGUMENT
2
ARGUMENT
3
I.
II.
THE DISTRICT COURT CORRECTLY APPLIED SUPREME COURT PRECEDENT
ESTABLISHING DIVERSITY AS A COMPELLING
STATE INTEREST
3
ALTERNATIVE GROUNDS ARE AVAILABLE THAT SUPPORT
AFFIRMANCE OF THE LOWER COURT'S DECISION
3
A.
B.
C.
1.
2.
The Intervenors Presented Strong Evidence to Justify on Remedial Grounds the University's
Race-Conscious Admissions Program 3
Remedying past Discrimination Is a Valid Justification for the
University's Consideration of Race in Admissions Under the
Fourteenth Amendment
6
The Thirteenth Amendment Girds the Conclusion That There Is a Compelling Interest to
Support the University's Admissions
Program
9
Educational Deprivation and Intellectual Inferiority Are
"Badges and Incidents" of Slavery
10
The Thirteenth Amendment Has Been Interpreted to Authorize
Measures to Eradicate the Badges and Incidents of Slavery
12
i
3.
The University's Program Furthers the Core Concerns of
the Thirteenth Amendment
4.
The Supreme Court Has Articulated "Thirteenth
Amendment Justifications" in its Equal Protection
Rulings.
5.
The Legislative History of the Fourteenth Amendment
Further Supports Race-Conscious Governmental Action
CONCLUSION
ii
16
18
20
22
TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pei~a, 515 U.S. 200 (1995)15, 18, 19,21
Brown v. Board of Education, 347 U.S. 483 (1954)
7, 18, 19
Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) 14
20
Green v. County School Board, 391 U.S. 430 (1968)
City of Richmond v. Croson, 488 U.S. 469 (1989)
4, 6, 7
City of Memphis v. Greene,451 U.S. 100 (1981)
16
Crandall v. Connecticut, 10 Conn. 340 (1833)
10
Civil Rights Cases, 109 U.S. 3 (1883)
15,22
DredScottv. Sandford,60 U.S. 393 (1857)
10
Geier v. Alexander, 801 F.2d 799 (6th Cir. 1986)
19
Green v. County School Board, 391 U.S. 430 (1968)
19
Hurdv. Hodge, 334 U.S. 24 (1948)
21
Jones v.AlfredH Mayer Co., 392 U.S. 409 (1968)
2, 13, 15, 19, 20, 21
McDaniel v. Barresi, 402 U.S. 39 (1971)
8
Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997)
5
Millerv. Johnson, 515 U.S. 900 (1995)
7
Oregon v. Mitchell,400 U.S. 112 (1970)
17
Palmer v. Thompson, 403 U.S. 217 (1971)
16
Regents of the University of California v. Bakke,
438 U.S. 265 (1978)
Runyonv.McCraiy,427U.S. 160(1976)
2, 3, 13, 18
14
iii
Runyonv.McCraty,427U.S. 160 (1976)
14
United States v. Fordice, 505 U.S. 717 (1992)
United States v. Virginia, 518 U.S. 515 (1998)
Williams v. City of New Orleans, 729 F.2d 1554 (5th Cir. 1984)
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)
6,7, 8
4
15, 22
3, 7, 8
STATUTES
34 C.F.R. § 100.5(h)
8
42 U.S.C. § 1981(a) (1994)
12
42 U.S.C. § 1982 (1994)
12, 14
Fed. R. Civ. P., 24
6
U.S. Const. amnd. XIII
9
MISCELLANEOUS
Cong. Globe, 38th Cong. 1st Sess. 1319 (1864)
12
Cong. Globe, 38th Cong., 1st Sess. 1324 (1864)
11
Cong. Globe, 38th Cong., 1st Sess. 2615 (1864)
11
Bruce Ackerman, We The People: Foundations (1991)
21
Douglas L. Colbert, Challenging the Challenge:
Thirteenth Amendment as a Prohibition Against the Racial
Use of Peremptory Challenges, 76 Cornell L. Rev. 1 (1990)
20
A. Leon Higginbotham, In the Matter of Color: Race and the American Legal
Process The Colonial Period 258 (1978)
10
Jacqueline Jones, Soldiers of Light and Love: Northern Teachers
and Georgia Blacks, 1865-18 73, at 50(1980)
11
—
iv
Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 429-32 (1997)
Eric Schnapper, Affirmative Action and the Legislative History
of the Fourteenth Amendment, 71 Va. L. Rev. 753 (1985)
George M. Stroud, A Sketch of the Laws Relating to Slavery in the
Several States of the United States ofAmerica 141 (2d ed. 1856)
Jacobus tenBroek, Thirteenth Amendment to the Constitution of the
United States: Consummation to Abolition and Key to the Fourteenth
Amendment, 39 Cal. L. Rev. 171 (1951)
v
13
13, 20, 21
10
9
IDENTITY AND INTEREST OF THE AMICUS CURIAE
The Lawyers' Committee for Civil Rights Under Law is a tax-exempt
nonprofit civil rights organization founded in 1963 by the leaders of the American bar, at the
request of President John F. Kennedy, to help defend the civil rights of minorities and the poor.
Its Board of Trustees presently includes past presidents of the American Bar Association, past
attorneys general of the United States, numerous law school deans, and many of the
nation's leading lawyers. It has local affiliates in Boston, Chicago,
Denver, Los Angeles, Philadelphia, San Antonio, San Francisco, and Washington, D.C. Through
the Lawyers' Committee and its affiliates, hundreds of attorneys have represented thousands of
clients in civil rights cases across the country. Among the essential interests of the Lawyers'
Committee are the proper construction and implementation of programs to remedy racial
discrimination and its effects and to ensure that all members of our society share in its
institutions, opportunities and benefits.
The Lawyers' Committee submits this amicus curiae brief in support of the positions of
the University of Michigan ("University") and the Intervenors. The Lawyers' Committee has
secured consent from all of the parties to submit this brief.
A
SUMMARY OF THE ARGUMENT
The University's race-conscious admissions program survives strict scrutiny under the Fourteenth
Amendment. In ruling that the University's diversity rationale serves a compelling state interest, the district
court properly followed Justice Powell's pivotal opinion in Regents of the University of
California v. Bakke, 438 U.S. 265 (1978).
The University's decision to implement a race-conscious admissions
policy also is supported by remedial justifications. The record made by Intervenors before the trial court
contains substantial evidence justifying the University's consideration of race in its admissions policy, for the
purpose of remedying past discrimination.
Finally, the Fourteenth Amendment's Equal Protection Clause must be interpreted in light of its
historical antecedent, the Thirteenth Amendment. And the Thirteenth Amendment, as interpreted by the
United States Supreme Court in Jones v. A lfred H. Mayer Co., 392 U.S. 409 (1968), further justifies the
voluntary use of race as a factor in the University's admissions decisions. The University advances a
compelling interest when it is race-conscious in removing a badge or incident of educational inferiority. In
the context of higher education, limited, voluntary affirmative action admissions programs are constitutional.
2
ARGUMENT
I.
THE DISTRICT COURT CORRECTLY APPLIED SUPREME COURT PRECEDENT
ESTABLISHING DIVERSITY AS A COMPELLING STATE INTEREST.
For reasons more fully set forth in Brieffor Amicus Curiae, filed by this amicus in Grutter v.
Bollinger, Docket No. 01-1447 (May 31, 2001), the district court properly followed the precedent established
in Bakke, set forth in Justice Powell's pivotal opinion. Regents of the University of California v. Bakke, 438
U.S. 265 (1978). As Justice Powell's opinion made clear: "the State has a substantial interest that legitimately
may be served by a properly devised admissions program involving the competitive consideration of race and
ethnic origin." Id. at 320. The University's goal of attaining a diverse student body is a compelling interest.
I.
ALTERNATIVE GROUNDS ARE AVAILABLE THAT SUPPORT
AFFIRMANCE OF THE LOWER COURT'S DECISION.
A.
The Intervenors Presented Strong Evidence to Justify on Remedial Grounds the
University's Race-Conscious Admissions Program.
The fact that the University did not assert a remedial justification for its program does not bar
Intervenors or amici from asserting a remedial justification for the University's race-conscious admissions
program. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 291 (1986) (O'Connor, J., concurring) (noting
that
3
public employers might be "trapped between the competing hazards of liability to minorities if affirmative
action is not taken.., and liability to non-minorities if affirmative action is taken"). In their brief in these
consolidated appeals, Intervenors argue the following:
Finally, Intervenors' evidence on present and past discrimination by the University in Appeal No.
01-1438 does present an independent basis for affirming the denial of Plaintiffs' motion for summary
judgment. Even if this Court were to find that diversity is not a compelling interest, and thereby
reverse the granting of summary judgment to the University, it must remand the Plaintiffs' motion for
further consideration in light of the evidence that the University's policies are justified to remedy
discrimination.
Proof Brieffor Defendant-In tervenors/Appellees, Docket Nos. 01-1333, 01-1416,
01-1418,
at 9-10 (June 6, 2001). This amicus supports Intervenors' alternative argument.
As the Intervenors note, courts are not required simply to accept the justification offered by public
actors, but instead may look behind such articulated justifications to determine the actual purpose or
purposes motivating the action. See United States v. Virginia, 518 U.S. 515, 535 (1998) (stating that
public actors' "proffered" justification "will not be accepted automatically."); City of Richmond v. Croson,
488 U.S. 469, 493 (1989). Exposure to liability from underrepresented minority groups may serve to
dissuade the University from revealing all of its motives for adopting its admissions program. In reversing
the district court, and
4
thus granting permission to Intervenors to intervene, this Court held as follows:
"[Tihe University is unlikely to present evidence of past discrimination by the University itself or of the
disparate impact of some current admissions criteria and these may be important and relevant factors in
...
determining the legality of a race-conscious admissions policy." Grutter v. Bollinger, 188 F.3d 393, 401 (6th
Cir. 1999); see also Michigan State AFL-CIO v. Miller, 103 F.3d 1240,1247 (6th Cir. 1997). In defense of
the University's consideration of race as a plus factor in admissions, Intervenors assert the need to remedy the
lingering effects of the segregated system. The Court can consider these effects in reviewing the University's
policy.
As a matter of litigation strategy, asserting a remedial justification for race-conscious measures
presents a dilemma for the University of Michigan that, in the context of this litigation, underscores the
necessity of the Court to consider the remedial justification of Intervenors. Asserting a remedial justification
for raceconscious measures potentially subjects the University of Michigan to liability, a fact that this Court
recognized when it permitted intervention in this case. See Grutter v. Bollinger, 188 F. 3d at 401; see also
Michigan State AFL-CIO,
5
103 F.3d at 1247.1 It is not hard to imagine why the University would not advance an argument before 'the
lower court that the University still suffers the present effects of past discrimination. Certainly, the school
may not wish to open itself up to new discrimination actions or it may be afraid that it would then have to
adopt admissions policies, which more aggressively seek Black students. Regardless, Defendant's failure to
assert these defenses directly does not in any way bar others from raising it and the Court from considering
it.
B.
Remedying past Discrimination Is a Valid Justification for the University's Consideration
of Race in Admissions Under the Fourteenth Amendment.
The Court failed to properly consider the University's compelling
remedial interest in remedying the present effects of past discrimination.
The Supreme Court has held that a state actor may consider race where it has
a "strong basis in the evidence for its conclusion that remedial action was
necessary." Croson, 488 U.S. at 500 (quoting Wygant, 476 U.S. at 277 (plurality
opinion)). The Supreme Court has held that states have "a constitutional duty to dismantle the
dual school system[s] that [they] once mandated." United States v. Fordice, 505 U.S.
717, 727
'It is precisely this type of situation that Rule 24 of the Federal Rules of Civil
Procedure contemplates when it states that parties may intervene when "the subject of the matter is so
situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to
protect that interest.. Fed. R. Civ. P. 24.
6
(1992). It is not only constitutional for the University to voluntarily consider race as a plus factor in
admission to further a compelling government interest, but institutions actually have an affirmative duty2 to
adopt such measures to satisfy the compelling government interest of eliminating the lingering vestiges of
segregation.3
The Supreme Court has emphasized particularly this duty within the educational sphere. Most
notably, in Wygant, the Supreme Court stated: "Public schools.., are under a clear command
from this Court, starting with Brown to eliminate every vestige of racial segregation and discrimination in
...
the schools. Pursuant to that goal, race conscious remedial action may be necessary." Wygant, 476 U.S. at
277 (citing Brown v. Board of Educ., 347 U.S. 483 (1954); see also Fordice, 505 U.S. 717.
In short, the states have "a constitutional duty to
2 Governmental
bodies have a significant interest in adopting programs and policies designed to
eradicate the effects of past discrimination. See Miller v. Johnson, 515 U.S. 900, 920 (1995); Richmond v.
Croson, 488 U.S. 488, 500 (1989). Court should not act as a super-legislature, substituting its opinion for
how state-actors should remedy past segregation.
~ The Supreme Court has stated, "Public schools.., are under a clear command from this Court,
starting with Brown v. Bd. ofEd.,... to eliminate every vestige of racial segregation and discrimination in the
schools. Pursuant to that goal, race conscious remedial action may be necessary." Wygant, 476 U.S. at 277;
see also United States v. Fordice, 505 U.S. 717 (1992).
7
dismantle the dual school system[s] that [they] once mandated." Fordice, 505 U.S. at 727.
Moreover, the Court has upheld public school officials' voluntary use of race-conscious integration
measures, because desegregation "invariably" takes
account of race, McDaniel v. Barresi, 402 U.S. 39, 41(1971), and has been careful to protect efforts to
voluntarily eliminate the effects of racial discrimination. Thus, establishing a firm basis in evidence for
believing that the effects of the prior
discrimination persist today an evidentiary burden well short of that needed to establish liability would be
--
--
sufficient to support the voluntary consideration of race, such as that used by the University of Michigan.
See Croson, 488 U.S. at
500 (analogizing "strong basis in evidence" test to a "prima facie case of
constitutional or statutory violation");4 see also 34 C.F.R. Section 100.5(h).
The Intervenors proffer evidence that suggests that the University is not writing on a clean slate. See
P roof Brieffor Defendant-Intervenors/Appellants,
Docket No. 0 1-1438 at 53 (May 14, 2001) (citing Expert Witness Report of James
4 For example, Justice O'Connor recognized the dilemma that public actors would face if they were
required to prove that they had engaged in illegal discrimination before they could voluntarily engage in
affirmative action. This "would severely undermine public employers' incentive to meet voluntarily their
civil rights obligations." Wygant v. Jackson Board of Education, 476 U.S. 267, 290 (1986) (O'Connor, J.).
8
Anderson, R. 177 Anderson, at 15, 17-25, 70-74). Therefore, although not asserted as a justification by the
University, remedying past discrimination is a justification the Court should consider.
C.
The Thirteenth Amendment Girds the Conclusion That There Is a Compelling Interest
to Support the University's Admissions Program.
For the reasons advanced in Parts I and II(A)-(B) above, the University's
admissions program satisfies strict scrutiny analysis under the Fourteenth Amendment. This conclusion is
further supported by the Thirteenth Amendment5:
indeed, this "crowning act" of Reconstruction,6 was intended to establish and embed the proposition that the
Constitution cannot be employed to perpetuate the badges and incidents of slavery. This proposition should
not be startling: it took a Civil War fought largely over slavery to prompt passage of the Reconstruction
Amendments. It now would be a profound irony indeed, a constitutional perfidy
—
—
to use the Fourteenth Amendment's guarantee of "equal protection of the laws"
~ The Amendment provides:
Section 1: Neither slavery nor involuntary servitude, except as punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction. Section 2: Congress shall have power to enforce this article by appropriate legislation.
U.S. Const. amnd. XIII.
6 See Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United
States: Consummation to Abolition and Key to the Fourteenth Amendment, 39 Cal.
L. Rev. 171, 176 (1951) (quoting congressional debate).
9
as a sword against measures designed to remove the badges and
incidents of
slavery.
1.
Educational Deprivation and Intellectual Inferiority Are "Badges
and Incidents" of Slavery.
Educational deprivation and intellectual inferiority were significant badges and incidents
of American slavery. For example, under the 1755 slave code in Georgia, the penalty for
teaching a slave to read or write was fifteen pounds sterling. A. Leon Higginbotham, Jr., In the
Matter of Color: Race and the American Legal Process The Colonial Period 258
--
(1978). Many of the slave-holding states' laws against education covered both the enslaved
African-American and the free "person of colour." For example, an Alabama law ordered:
Any person who shall attempt to teach any free person of colour or
slave to spell, read or write, shall upon conviction, &c. be fined in a
sum not less than $250 nor more than $500.
George M. Stroud, A Sketch of the Laws Relating to Slavery in the Several States of the United
States ofAmerica 142 (2d ed. 1856).
Nor were these prohibitions on the education of African-Americans confined to the
South. The Supreme Court's decision in Dred Scott v. Sanford, 60 U.S. 393 (1857), referred to
many examples of state laws that reinforced "the same opinions and principles't of
African-American inferiority, including state criminal prosecutions for teaching
V
African-American children to read and write. See id. at 413-15, citing Crandall v.
I
' Connecticut, 10 Conn. 340 (1833) (upholding the
1
10
criminal conviction of Prudence Crandall under a Connecticut law that prohibited teaching nonresident
African-American children).
As one Reconstruction scholar has observed, to many Whites, educating African-Americans
"symbolized the breakdown of a social system that had formed the cornerstone of the southern 'way of life."'
Jacqueline Jones, Soldiers of Light and Love: Northern Teachers and Georgia Blacks, 1865-18 73, at 50
(1980).
Congressional supporters of the Thirteenth Amendment, the overwhelming
majority of whom also passed the Fourteenth Amendment, viewed educational
deprivation of African-Americans as a badge or incident of slavery. As
Congressman Morris of New York observed:
An entire race has been deprived of all social rank, barred our schools,
shut out from the gospel, and then held to be inferior for not rising
in spite of their henderances [sic]
....
Cong. Globe, 38th Cong., 1st Sess. 2615 (1864). And Senator Wilson of
Massachusetts stated, in arguing for passage of the amendment:
Then, sir, when this amendment to the Constitution shall be consummated the shackle
will fall from the limbs of the hapless bondman, and the lash drop from the
weary hand of the tas~aster... and the school-house will rise to enlighten the darkened intellect of a
race imbruted by long years of enforced ignorance.
Cong. Globe, 38th Cong., 1st Sess. 1324 (1864).
11
The Amendment's supporters understood there was an institutional foundation that supported slavery,
a system of laws that denied African-Americans the privileges and immunities of citizenship that "belonged
to every free citizen, high or low, rich or poor." Cong. Globe, 38th Cong. 1st Sess. 1319 (statement of Sen.
Wilson). Iowa Senator James Harlan defined "some of the necessary incidents of slavery which it was the
specific object of the amendment to abolish," as including "the perpetuity of the ignorance of its victims.~t Id.
at 1439.
2.
The Thirteenth Amendment Has Been Interpreted to Authorize Measures to
Eradicate the Badges and Incidents of Slavery.
The Civil Rights Act of 1866, enacted following passage of the Thirteenth Amendment, was
expressly race-conscious. Section One of the Act of 1866 establishes "white citizens" as the benchmark of
fair treatment. The statute provides that "[a]ll persons within the jurisdiction of the United States shall have
the same right.., to make and enforce con~acts... as is enjoyed by white citizens
."
42 U.S.C. § 1981(a) (1994) (emphasis added); see also 42 U.S.C. § 1982 (1994) (providing that
all citizens have the same right "as is enjoyed by white citizens" to purchase and sell property).
In the context of education, the Reconstruction Congress passed several race-conscious initiatives, for
example, the Freedmen's Bureau Acts of 1865 and 1866. These acts permitted the Bureau to focus almost
exclusively on educating
12
freedmen. See generally Eric Schnapper, Affirmative Action and the Legislative History of the
Fourteenth Amendment, 71 Va. L. Rev. 753, 760-75 (1985); see also id. at 754 (noting,
"From the closing days of the Civil War until the end of civilian Reconstruction
some five years later, Congress adopted a series of social welfare programs whose benefits were expressly
limited to blacks"); Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427,429-32(1997) (describing various
statutes passed in the same era which benefited solely African-Americans). Notably, Congress adopted such
race-conscious measures over the same sort of objections that opponents of affirmative action raise today,
namely, that such measures provided unfair "special treatment" for African-Americans. See Bakke, 438 U.S.
at 397-98; Schnapper, 71 Va. L. Rev, at 773-74. The first commissioner of the Freedmen's Bureau, General
Oliver 0. Howard, in fact observed, "Education is absolutely essential to the freedmen to fit them for their
new duties and responsibilities.. Yet I believe the majority of the white people to be utterly opposed to
.
educating negroes." Id. at 761 n.47 (citing H.R. Exec. Doc. No. 11, 39th Cong., 1st Sess. 33 (1865)).
In Jones v. Alfred H. Mayer Co., the Supreme Court held that the Thirteenth Amendment established
a constitutional interest in eradicating the badges and incidents of slavery. 392 U.S. at 409 (involving an
African-American plaintiffs claim that the defendants had refused to sell him property because of his race,
13
thereby violating 42 U.S.C.
§ 1982,
the modern codification of the Civil
Rights Act of 1866). The Civil Rights Act of 1866, the Court held, reached
private conduct, and it was constitutional under the Thirteenth Amendment.
"[T]he revolutionary implications of so literal a reading of
§ 1982" were exactly what
Congress had intended. Id. at 422. More significantly, the Court recognized the expansive power in
the Thirteenth Amendment to address the badges and incidents of slavery. Fully
exploring the congressional debates, the Court found that, "in the House, as in the Senate, much
was said about eliminating the infamous Black Codes. But, like the Senate, the House was moved by a larger
objective that of giving real content to the freedom guaranteed by the Thirteenth Amendment." Id. at 433
--
(citation omitted); see also Runyon v. McCrary, 427 U.S. 160 (1976) (upholding the constitutionality of §
1981 as applied to a case where African-American school children were denied admission to a private,
non-sectarian school because of their race); and Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th
Cir. 1977) (Goldberg, J., specially concurring) (arguing that the Thirteenth Amendment interests behind §
1981 overrode the First Amendment interests of defendant's sectarian school, which did not admit
African-American students).
Judge Wisdom of the Fifth Circuit, in a concurring opinion joined by five other judges and following
the lead of Jones, expressly concluded that the Thirteenth Amendment's compelling interest in eradicating
the badges and
14
incidents of slavery and establishing universal civil freedom justified "affirmative race-conscious relief."
Williams v. City of New Orleans, 729 F.2d 1554, 1580 (5th Cir. 1984) (Wisdom, J., concurring in part and
dissenting in part). After a thorough discussion of the history of the Thirteenth Amendment, Judge Wisdom
stated:
The first Justice Harlan, in his famous dissent [in The Civil Rights Cases,
109 U.S. 3 (1883)], rejected the restrictive interpretation adopted by the
majority. He reasoned that badges of slavery encompassed all practices that
continued to label blacks as inferior because of their race.
Id. at 1578. Judge Wisdom then proceeded to summarize the Supreme Court's ruling
in Jones as follows:
Under the Jones v. Mayer rationale, current forms of racial discrimination are badges of slavery that
may be proscribed under the thirteenth amendment ~f they are historically linked with slavery or
involuntary servitude.
Id. at 1579 (citation omitted) (emphasis added).
Indeed, it is not subject to serious challenge that states can advance the compelling interests of Civil
Rights, e.g., by acting to eradicate, or at least lessen the badges of inferiority. For example, in Adarand
Constructors, Inc. v. Pefla, the Court held, "[T]he Constitution imposes upon federal, state, and local
governmental actors the same obligation to respect the personal right to equal protection of the laws." 515
U.S. 200, 23 1-32 (1995). The line of cases supporting this proposition "stretch[ed] back over 50 years." Id.
at 231.
15
Voluntary affirmative action admissions programs designed to increase diversity in the
halls of higher education particularly the most exclusive ones clearly resonate in the history
--
--
underlying, and the policies embedded in, the Thirteenth Amendment. Furthermore, such
programs are in harmony with the Constitutional history of the Supreme Court: from Dred
Scott to Plessy v. Ferguson to Brown v. Board of Education to Green v. County School Board.
Not only is separate but equal no longer acceptable in education, but where the "badges and
incidents" persist, they can be eradicated.7
Under the Thirteenth Amendment, where qualified minority students are
disproportionately kept out of the schoolroom, a race-conscious response is constitutionally
allowed and, indeed, might be required.
3.
The University's Program Furthers the Core Concerns of the
Thirteenth Amendment.
The University of Michigan's admissions program furthers the core
concerns of the Thirteenth Amendment in two ways. First, the policy is
expressly tailored to benefit historically disadvantaged and
underrepresented minorities, i.e., Native
~ The need to open fully a university's classroom doors is compellingly different from
keeping open a public pool, see Palmer v. Thompson, 403 U.S. 217 (1971) (upholding the
closing of certain pools against a Thirteenth Amendment challenge), or a public street, see City
of Memphis v. Greene, 451 U.S. 100 (1981) (holding that the amendment was not violated where
a city granted an all white neighborhood permission to close off one end of a street, even though
it might
(Footnote continued)
16
I
4
Americans, Mexican Americans, and African-Americans.8 Moreover, the program does so in
the least intrusive way: the Plaintiffs conceded that all of the minority students
admitted under the University's policy were fully qualified. (R-204, Summary Judgment Tr., at 13).
Furthermore, evidence was adduced showing that without the race-conscious component, the
University's admissions program would disproportionately exclude certain
racial groups. (R- 161, SJ Appendix, Cantor Dep., at 59, 80; R-162, SJ Appendix,
Raudenbush Supp. Rep., 3/3/99 at 11; R-162, SJ Appendix, Raudenbush Supp. Rep.,
7/13/00 at 11-13).
Second, the University's admissions program recognizes the substantial, social
importance of diversity in higher education: both to the admittees and to their
classmates. In this context, an admissions decision is both a statement about the past
and a statement about the future. Consistent with the Thirteenth Amendment, when a school's admissions
program excludes a disproportionate amount of qualified minorities from historically underrepresented races,
that school should be allowed to revise its policy to permit a greater representation.
disproportionately impact vehicular traffic flowing through the adjacent, predominantly Black
neighborhood).
~ The racial minorities focused upon in this litigation often have been the focus of discrimination. In
Oregon v. Mitchell, Justice Douglas notes how literacy tests had been used "as a discriminatory weapon
against some minorities, not only Negroes but Americans of Mexican ancestry, and American Indians." 400
U.S. 112, 147 (1970) (Douglas, J., dissenting in part and concurring in part).
17
4.
The Supreme Court Has Articulated Thirteenth Amendment Justifications
in its Equal Protection Rulings.
The Supreme Court expressly has been race-conscious and history-conscious in applying equal
protection analysis. As Justice O'Connor wrote, "The unhappy persistence of both the practice
and the lingering effects of racial discrimination against minority groups
in this country is an unfortunate reality, and government is not disqualified from acting in
response to it." Adarand Constructors, Inc. v. Pefla, 515 U.S. 200, 237 (1995). Likewise,
Justice Blackmun's opinion in Bakke confirmed that eliminating racism was the target
of the Fourteenth Amendment, and thus, Equal Protection jurisprudence cannot
forget history or race in its aim. He wrote, "In order to get beyond racism,
we must first take account of race." Bakke, 438 U.S. at 407.
The Court's Equal Protection ruling in Brown v. Board of Education was expressly race conscious.
See 347 U.S. at 483. In striking down the doctrine of "separate but equal" as applied to education,
the Court recognized the history of racial discrimination and the present meaning of racial separation in
holding that separate educational facilities were inherently unequal. Brown, 347 U.S. at 4959 While the
Equal Protection Clause was the express tool, the analysis of the Court
~ The Kansas case, consolidated under Brown, involved lower court findings that the schools
there "were substantially equal with respect to buildings,
(Footnote continued)
18
echoes the Thirteenth Amendment: the Court found that separating the races generated "a
feeling of inferiority," only magnified when it was approved by the state. Id. at 494; Cf
Adarand, 515 U.S. at 241 (Thomas, J., concurring in part and concurring in judgment)
(applying Thirteenth Amendment analysis to an equal protection case, where he writes of
"badges of inferiority").'0
In the context of education, then, Equal Protection cases have affirmatively sought to
remove signs of educational inferiority. Cf Green v. County Sch. Bd., 391 U.S. 430 (1968). In
Green, argued the day after Jones v. A lfted H. Mayer Co., the Court held that a three-year-old
"freedom-of-choice" plan was insufficient affirmative action in remedying the existence of
"white" schools and "Negro~~ schools that had been the product of dejure segregation.'~
The Court was not concerned with good intentions but with results. Id. at 437-38. See also
Geier v. Alexander, 801 F.2d 799, 803 (6th Cir. 1986) (reaffirming the Sixth Circuit's own
earlier application of Green to higher education).
transportation, curricula, and educational qualifications of teachers." Brown, 347 U.S. at
486, n.1. Nevertheless, the school system's policy was unconstitutional.
'~ Justice
Thomas' opinion, however, is strikingly incongruous with Brown to the extent
that he apparently asserts that a state's actions bringing races together, as opposed to separating
them, violates the Constitution.
'~ Green was argued on April 3, 1968; Jones was argued on April 1 and 2, 1968. The
cases were decided on May 27, 1968, and June 17, 1968, respectively.
19
i
~1
Even the best intentions behind an ostensibly race-neutral admissions policy
12
can have injurious effects when placed in racial and historical context. Cf Green, 391 U.S. at 44 1-42. In this
context, the Thirteenth Amendment supports
the University's compelling interest in removing a badge of inferiority: the disproportionate exclusion of
qualified applicants from groups historically regarded as inferior.
5.
The Legislative History of the Fourteenth Amendment Further Supports
Race-Conscious Governmental Action.
The Congressional record establishes that the Thirteenth Amendment provided the foundation for
Section One of the Fourteenth Amendment, the section containing the Equal Protection Clause. See Douglas
L. Colbert, Challenging the
Challenge:
Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76
Cornell L. Rev. 1, 48 n.227 (1990). Soon after the Civil Rights Act of 1866 was passed, its proponents felt
the need to protect it with a new constitutional amendment. President Andrew Johnson had vetoed the bill at
first, only to have Congress override it. Id. at 47; Schnapper, 71 Va. L. Rev, at
12 Whether
or not intent is the touchstone of Thirteenth Amendment liability is not before the Court.
What is before the Court is the state's voluntary action eradicating a badge or incident of racial inferiority. Cf
Jones, 392 U.S. at 440 (granting Congress the power "rationally to determine what are the badges and the
incidents of slavery.")
20
771 Consequently, language for what became Section One of the Fourteenth Amendment was introduced on
~
April 30, 1866, only three weeks after the Congress had overridden President Johnson's veto. Id.; see also
Jones, 392 U.S. at 436 (stating, "It is quite true that some members of Congress supported the Fourteenth
Amendment 'in order to eliminate doubt as to the constitutional validity of theCivil Rights Act as applied to
the States."' (quoting Hurd v. Hodge, 334 U.S. 24, 32-33 (1948)); Schnapper, 71 Va. L. Rev, at 784
(stating that the "substantive provisions [of the 1866 Civil Rights Act] were the basis of section 1 of the
fourteenth amendment.").'4 And there was little debate in Congress about Section One of the Fourteenth
Amendment because legislators already had debated the issue in passing the 1866 Act (and overriding the
president's veto).
The Fourteenth Amendment should not be used to render ineffective the Thirteenth Amendment's
support of the University's actions. To turn a phrase
President Johnson also had vetoed the Freedmen's Bureau Bill of 1866, which veto also was
overridden by Congress. Schnapper, 71 Va. L. Rev, at 76275.
'~ Although the Fourteenth Amendment arguably has been interpreted to narrow the Fifth
Amendment, see Adarand, 515 U.S. at 213-218 (explaining how equal protection became a restriction on the
federal government through the Fifth Amendment's due process clause), it cannot likewise be argued that the
Fourteenth Amendment now narrows the Thirteenth. The Fourteenth Amendment was ratified more than a
half century after the Fifth Amendment, and was part of a literal and legal "Reconstruction" of our
Constitution. See Bruce Ackerman, We The People:
'~
Foundations (1991).
21
(ironically), this would be "running the [Equal Protection] argument into the ground"'5 excising it from its
—
historical origins. As Judge Wisdom stated, "The under-representation of [qualified] blacks.., is a badge of
slavery: it is a sign, readily visible in the community, that attaches a stigma upon the black race." Williams,
729 F.2d at 1580 (emphasis added).
CONCLUSION
The University of Michigan's race conscious admissions program is constitutionally sound. Insofar as
the district court approved of this program, its decision should be sustained.
'~
The Civil Rights Cases, 109 U.S. 3,24-25 (1883).
22
Respectfully submitted,
Leslie Gross
Lawyers' Committee for Civil Rights Under Law
1401 New York Avenue, N.W., Suite 400
Washington, D.C. 20005
(202) 662-8600
Of Counsel:
John S. Skilton
Marvin H. Lett
Jane E. Stelck
Mireya A.R. Llaurado
Heller Ehrman White & McAuliffe
1666 K Street, N.W., Suite 300
Washington, D.C. 20006
(202) 912-2000
Professor Douglas L. Colbert
University of Maryland School of Law
515 West Lombard Street
Baltimore, MD 21201
(410) 706-0683
Attorneys for Amicus Curiae
Lawyers' Committee for Civil Rights Under Law
23
CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(a)(7) and 6th Cir. 32(a), the undersigned certifies
that this brief complies with the type-volume limitations of
FRAP 32(a)(7)(C).
I. Exclusive of the portions of the brief exempted by 6th Cir.(a)(7)(B)(iii),
the brief contains 4,281 words.
2. The brief has been prepared in proportionally spaced typeface using Microsoft Word
Version 2000 in Times New Roman 14 point font.
3. If the Court so requests, the undersigned will provide an electronic version of the brief and br a copy of
the work or line printout.
4. The undersigned understands that a material misrepresentation in completing this certificate, or
circumvention of the type-volume limits in 6th Cir. 32(a)(7) may result in the Court's striking the brief
and imposing sanctions against the person signing the brief.
DATED: June 12, 2001
Respectfully submitted,
HELLER EHRMAN WHITE &
McAULIFFE LLP
By:
~4h~<.
,f>1j~9
Couns~I for Amkius Curiae
I~
HellerElirman
ATTORNEYe
June 8, 2001
John 5. Skihon
jski1~on@,hewIn.com
Via Facsimile
Main (608) ~63-7400
(202) 912-2000
Fax (202) 912-2020
John Payton, £sq.
Robin A. Lenhardt, Esq.
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Re:
Gratz et aL v. Bollinger, et aL, Nos. 01-1416, 01-1418,
01-1333 (6th Cir.)
Dear Mr. Payton and Ms. Lenhardt:
The Lawyers' Committee for Civil Rights Under Law seeks to file an amicus curiae brief
in the dockets referenced above. The brief will support the positions of the University of Michigan and
the intervenors.
Under Federal Rule of Appellate Procedure 29(a), we request your consent to participate in this
case as an amicus curiae. If you consent, please counter-sign and return the consent letter to us by fax
as soon as possible. The facsimile number is listed above.
SO AGREED:
WILMER, CUTLER & PICKERING
By?
Helter Etinnan Wiiit~ & McAuIiff@ LLP 1666 K Stiaat. NW, Suite 300 We~hington. D.C. 20006-1228 www.hewm,corr~
New York Washington D.C. Montgomery Co., MD Sen Francisco Silicon Valley Loa Angeles San Diego Seattle Portland Anchorage
Hong Kong Singapote
Affiliated Offices: Frankfurt Milan Paris Rome
Sincerel'
~I0O2
08/12/01 10:03 FAX 8128728397
MASLON LAW FIRM
I
HellerEhrman
AT7O~W~YS
June 8,2001
Via Facsimile
David P. Herr, Esq.
~Cfrk 0.. KoTho, Esq.
consent to
participate in
this case as an
amici~s
curiae. If you
consent, please
Maslon, Edelman, Borman & Brand
coi.mter-sign
300 Notwest Center
and return the
90 South Seventh Street
conSent letter
Minneapolis, MN 55402
to us by fa~c as
Iobi S. Skilmt, ~ho~i@bew~o~
as
(GOS) 663-7460 Mii~n (202) 912-2000 soon
Fa~ (202) 912-2020
possible. The
facsimile
9542.0001
Rer Grate etaL v. Jiollinger, et aL, Nos. number is listed
above.
01-1416, 01-1413,
01-1333 (6th Cir.)
Sincerely
,
Dear Messrs. Herr and Kolbo:
o Skilton
The Lawyers' Committee for
Civil Rights Under Law seeks to file an
SO AGREED:
amleus curiae brief in the dockets
referenced above. The brief will support
the positions of the University of
Micliigaxi and the intervenora.
.
Under Federal Rule of Appellate
?rocedure 29(a), we recp~est your
MASLON
By:
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CERTIFICATE OF SERVICE
I hereby certify that, on this 13th day of June, 2001, pursuant to FRAP
25 and 6 Cir. R. 31, I caused the foregoing Brief ofAmicus Curiae 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 and 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 document to be served by Federal Express, on:
David F. Herr, Esq.
Kirk 0. Kolbo, Esq.
Maslon, Edelman, Borman &
Brand
300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402
Theodore M. Shaw, Esq.
Olatunde C.A. Johnson, Esq.
Melissa Woods, Esq.
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street, 16th Floor
NewYork,NY 10013
Michael E. Rosman, Esq.
Hans F. Bader, Esq.
Michael P. McDonald, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 20036
John H. Pickering, Esq.
John Payton, Esq.
Brigida Benitez, Esq.
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180
Philip J. Kessler, Esq.
Leonard M. Niehoff, Esq.
Butzel Long
350 South Main Street, Suite 300
Ann Arbor, MI 48104
1~4-tV
-A
Mireya A.R.
Llaurado
Heller Ehrman White & McAuliffe
LLP
1666 K Street, N.W., Suite 300
Washington, DC 20006
(202) 912-2000