Race and College Admissions 8 page

No. 02-241

================================================================

In The

Supreme Court of the United States --------------------------------- ♦ ---------------------------------

BARBARA GRUTTER,

Petitioner, v.

LEE BOLLINGER, ET AL.,

Respondents.

--------------------------------- ♦ ---------------------------------

On Writ Of Certiorari Before Judgment To The United States Court Of Appeals

For The Sixth Circuit

--------------------------------- ♦ ---------------------------------

BRIEF OF THE AMERICAN SOCIOLOGICAL ASSOCIATION, ET AL., AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

--------------------------------- ♦ ---------------------------------

DEBORAH J. MERRITT John Deaver Drinko/ Baker & Hostetler Chair in Law Moritz College of Law THE OHIO STATE UNIVERSITY 400 Stillman Hall 1947 College Road Columbus, OH 43210 Telephone: (614) 247-7933

BILL LANN LEE Counsel of Record LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111 Telephone: (415) 956-1000

Attorneys for Amici Curiae ================================================================

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

Page

I. STATEMENT OF INTEREST ......................... 1

II. SUMMARY OF ARGUMENT .......................... 2

III. ARGUMENT.................................................... 5

A. Universities Have a Compelling Interest in Considering the Life Experience of Growing Up Black, Latino, or Native American in Making Admissions Deci- sions .......................................................... 5

1. Residential Segregation ...................... 5

2. School Segregation .............................. 7

3. Economic Disadvantage ...................... 11

4. Stigma.................................................. 11

5. The Relevance of Race-Based Life Ex- periences to University Admissions ........ 14

a. Potential to Benefit from the Educational Experience................. 14

b. Contributions to the Educational Experience ..................................... 20

c. Contributions to Society................ 22

B. Considering Race in University Admissions is Narrowly Tailored When Race is One of Many Life Experiences Considered in As- sessing Individual Applicants ...................... 25

IV. CONCLUSION ................................................ 30

ii

TABLE OF AUTHORITIES

Page

CASES

Brown v. Board of Education, 347 U.S. 483 (1954) ...... 2, 19

Gratz v. Bollinger, 122 F. Supp. 811 (E.D. Mich. 2000)................................................................................ 29

Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) ............ 29

Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001) ..................................................................... 16

Regents of the University of California v. Bakke, 438 U.S. 265 (1978) ................................................... 20, 25, 29

BOOKS & OTHER NONPERIODIC MATERIALS

WALTER ALLEN & DANIEL SOLORZANO, EXPERT REPORT (2000), at http://www.sscnet.ucla.edu/ issr/choices/reports_data.html (visited February 8, 2003)............................................................................ 19

MARIANNE BERTRAND & SENDHIL MULLAINATHAN, ARE EMILY AND BRENDAN MORE EMPLOYABLE THAN LAKISHA AND JAMAL? A FIELD EXPERIMENT ON LABOR MARKET DISCRIMINATION (2002) (un- published) ....................................................................... 12

JULIAN R. BETTS, KIM S. RUEBEN & ANNE DANEN-

BERG, PUBLIC POLICY INSTITUTE OF CALIFORNIA, EQUAL RESOURCES, EQUAL OUTCOMES? THE DIS-

TRIBUTION OF SCHOOL RESOURCES AND STUDENT OUTCOMES IN CALIFORNIA (2000)...................................... 9

Lawrence D. Bobo & Susan A. Suh, Surveying Racial Discrimination: An Analysis from a Mul- tiethnic Labor Market, in PRISMATIC METROPOLIS: INEQUALITY IN LOS ANGELES 523-560 (L. D. Bobo et al. eds., 2000).............................................................. 13

iii

TABLE OF AUTHORITIES – Continued

Page

WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER (1998)....................................................... 23, 24

JOE R. FEAGIN, RACIST AMERICA (2000) ............................. 12

JOE R. FEAGIN & MELVIN P. SIKES, LIVING WITH RACISM: THE BLACK MIDDLE CLASS EXPERIENCE (1994) .............................................................................. 12

DAVID L. FEATHERMAN & ROBERT M. HAUSER, OPPORTUNITY AND CHANGE (1978).................................. 14

ANN A. FERGUSON, BAD BOYS: PUBLIC SCHOOLS IN THE MAKING OF BLACK MASCULINITY (2000) .................. 10

Ronald F. Ferguson, Teachers’ Perceptions and Expectations and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP 318-74 (Christopher Jencks & Meredith Phillips eds., 1998)................................................................................ 10

CLAUDE FISCHER ET AL., INEQUALITY BY DESIGN: CRACKING THE BELL CURVE MYTH (1996) .... 13, 17, 18, 20

Michael Fix et al., An Overview of Auditing for Discrimination, in CLEAR AND CONVINCING EVI-

DENCE: MEASUREMENT OF DISCRIMINATION IN AMERICA 1, at 18-25 (Michael Fix & Raymond J. Struyk eds., 1993)........................................................... 12

LEO GREBLER ET AL., THE MEXICAN-AMERICAN PEOPLE, THE NATION’S SECOND LARGEST MINORITY (1970) ................................................................................ 6

JAY P. HEUBERT & ROBERT M. HAUSER, NATIONAL RESEARCH COUNCIL, HIGH STAKES: TESTING FOR TRACKING, PROMOTION, AND GRADUATION (1999)..... 10, 15

iv

TABLE OF AUTHORITIES – Continued

Page

CAMERON HOWELL & SARAH TURNER, LEGACIES IN BLACK AND WHITE: THE RACIAL COMPOSITION OF THE LEGACY POOL (2003) (Preliminary draft, Uni- versity of Virginia).......................................................... 28

JOHN ICELAND ET AL., U.S. BUREAU OF THE CENSUS, RACIAL AND ETHNIC RESIDENTIAL SEGREGATION IN THE UNITED STATES: 1980-2000, CENSUS 2000 SPECIAL REPORT 3 (2002).................................................. 6

COMMITTEE ON THE STATUS OF BLACK AMERICANS, COMMISSION ON BEHAVIORAL AND SOCIAL SCI-

ENCES AND EDUCATION, NATIONAL RESEARCH COUNCIL, A COMMON DESTINY: BLACKS AND AMERICAN SOCIETY (Gerald D. Jaynes & Robin M. Williams, Jr. eds., 1989) ................................................... 5

Christopher Jencks & Meredith Phillips, An Intro- duction, in THE BLACK-WHITE TEST SCORE GAP 1- 51 (Christopher Jencks & Meredith Phillips eds., 1998).................................................................................. 9

Christopher Jencks, Racial Bias in Testing, in THE BLACK-WHITE TEST SCORE GAP, 55-85 (Christo- pher Jencks & Meredith Phillips eds., 1998) .......... 15, 16

Thomas Kane, Racial and Ethnic Preferences in College Admissions, in THE BLACK-WHITE TEST SCORE GAP 431-56 (Christopher Jencks & Mere- dith Phillips eds., 1998) ................................................. 27

Jerome Karabel, No Alternative: The Effects of Color-Blind Admissions in California, in CHILL-

ING ADMISSIONS 33-50 (Gary Orfield & Edward Miller eds., 1998) ............................................................ 27

JONATHAN KOZOL, SAVAGE INEQUALITIES (1991) ............ 9, 16

v

TABLE OF AUTHORITIES – Continued

Page

HELEN F. LADD ET AL., EQUITY AND ADEQUACY IN EDUCATION FINANCE: ISSUES AND PERSPECTIVES (1999) ................................................................................ 8

HELEN F. LADD & JANET S. HANSEN, COMMITTEE ON EDUCATION FINANCE-NATIONAL RESEARCH COUN-

CIL, MAKING MONEY MATTER: FINANCING AMER-

ICA’S SCHOOLS (1999) ........................................................ 9

AMANDA LEWIS, RACE IN THE SCHOOL YARD (Forth- coming 2003)................................................................... 12

STANLEY LIEBERSON, A PIECE OF THE PIE: BLACKS AND WHITE IMMIGRANTS SINCE 1880 (1980)............. 17, 18

GLENN LOURY, THE ANATOMY OF RACIAL INEQUALITY (2002) .......................................................................... 5, 13

SAMUEL R. LUCAS, TRACKING INEQUALITY: STRATIFI- CATION AND MOBILITY IN AMERICAN HIGH SCHOOLS (1999) .............................................................................. 10

DOUGLAS S. MASSEY & NANCY A. DENTON, AMERI-

CAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993)............................................... 7

CHARLES C. MOSKOS & John Sibley BUTLER, ALL WE CAN BE (1996) ................................................................. 22

Michael T. Nettles et al., Race and Testing in College Admissions, in CHILLING ADMISSIONS (Gary Orfield & Edward Miller eds., 1998)..............11, 16

FRANK NEWPORT, GALLUP POLL SOCIAL AUDIT: BLACK-WHITE RELATIONS IN THE UNITED STATES, 2001 UPDATE (July 10, 2001 Poll Release) .................... 12

vi

TABLE OF AUTHORITIES – Continued

Page

JEANNIE OAKES ET AL., EDUCATIONAL MATCHMAKING: ACADEMIC AND VOCATIONAL TRAINING IN COMPRE-

HENSIVE HIGH SCHOOLS (1992), at http:// www.rand.org/publications/R/R4189.pdf/...................... 10

MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY (1995)...............................................11

GARY ORFIELD, SCHOOLS MORE SEPARATE: CONSE-

QUENCES OF A DECADE OF RESEGREGATION (2001) ....... 7, 8

ROBERT NASH PARKER, PRESLEY CENTER FOR CRIME AND JUSTICE STUDIES, TRAFFIC TICKETS, ETHNIC-

ITY, AND POLICE PATROL IN RIVERSIDE, 1998: EVI-

DENCE FOR RACIAL PROFILING IN PATTERNS OF TRAFFIC ENFORCEMENT (2003)........................................ 12

MARY PATTILLO-MCCOY, BLACK PICKET FENCES: PRIVILEGE AND PERIL AMONG THE BLACK MIDDLE CLASS (1999) ................................................................... 25

Thomas Pettigrew, Prejudice and Discrimination on the College Campus, in CONFRONTING RACISM: THE PROBLEM AND THE RESPONSE 263-79 (Jenni- fer L. Eberhardt & Susan T. Fiske eds., 1998) ............. 26

Thomas Pettigrew & Linda R. Tropp, Does Inter- group Contact Reduce Prejudice? Recent Meta- analytic Findings, in REDUCING PREJUDICE AND DISCRIMINATION, 93-114 (Stuart Oskamp ed., 2000)................................................................................ 22

LEONARD RUBINOWITZ & JAMES ROSENBAUM, CROSS-

ING THE CLASS AND COLOR LINES (2000) .......................... 8

PATRICK SHIELDS & CAMILLE ESCH, CENTER FOR THE FUTURE OF TEACHING AND LEARNING, WHO IS TEACHING CALIFORNIA’S CHILDREN (2002) ....................... 9

vii

TABLE OF AUTHORITIES – Continued

Page

JAMES L. SHULMAN & WILLIAM G. BOWEN, THE GAME OF LIFE (2001)................................................. 28, 29

Russell Skiba, When is Disproportionality Dis- crimination? The Overrepresentation of Black Students in School Suspension, in ZERO TOLER-

ANCE: RESISTING THE DRIVE FOR PUNISHMENT IN OUR SCHOOLS (William Ayres et al. eds., 2001)............. 12

Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test Performance of Academically Successful African Americans, in THE BLACK- WHITE TEST SCORE GAP 401-27 (Christopher Jencks & Meredith Phillips eds., 1998)............. 16, 17, 18

MITCHELL L. STEVENS, MANAGING PRIVILEGE IN COLLEGE ADMISSIONS (April 4, 2002) (paper pre- sented at the Department of Sociology North- western University, Evanston, Illinois)......................... 19

MARTA TIENDA ET AL., CLOSING THE GAP? ADMIS-

SIONS AND ENROLLMENTS AT THE TEXAS PUBLIC FLAGSHIPS BEFORE AND AFTER AFFIRMATIVE AC-

TION (January 21, 2003) (unpublished paper)............... 27

MARGERY AUSTIN TURNER ET AL., Discrimination in Metropolitan Housing Markets (2002), at http://www. huduser.org/publications/pdf/phase1_report.pdf (visited February 13, 2003).......................................... 3, 7

U.S. BUREAU OF THE CENSUS 2002 MEDIAN INCOME OF HOUSEHOLDS BY SELECTED CHARACTERISTICS, at http://www.census.gov/hhes/income/income01/ inctab1.html (visited February 8, 2003).........................11

DEBRA VAN AUSDALE & JOE R. FEAGIN, THE FIRST R: HOW CHILDREN LEARN RACE AND RACISM (2001) .....11, 12

MARY C. WATERS, BLACK IDENTITIES (1999) ........................ 9

viii

TABLE OF AUTHORITIES – Continued

Page

SUSAN WIERZBICKI & CHARLES HIRSCHMAN, THE END OF AFFIRMATIVE ACTION IN WASHINGTON STATE AND ITS IMPACT ON THE TRANSITION FROM HIGH SCHOOL TO COLLEGE (May 9, 2002) (revised version of paper presented at the annual meeting of the Population Association of America, At- lanta, Georgia)................................................................ 27

WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS: THE NEW WORLD OF THE URBAN POOR 112-37 (1996) .............................................................................. 13

JOHN YINGER, CLOSED DOORS, OPPORTUNITIES LOST: THE CONTINUING COSTS OF HOUSING SEGREGA-

TION (1995) .................................................................... 7, 8

PERIODICAL MATERIALS

Elijah Anderson, The Ideologically Driven Critique, 107 AMERICAN JOURNAL OF SOCIOLOGY 1533 (2002) .............................................................................. 13

Joshua Aronson et al., When White Men Can’t do Math: Necessary and Sufficient Factors in Stereo- type Threat, 35 JOURNAL OF EXPERIMENTAL PSYCHOLOGY 29 (1999).................................................... 17

William G. Bowen & Neil Rudenstine, Race- Sensitive Admissions: Back to Basics, CHRONICLE OF HIGHER EDUCATION 49 (Feb. 7, 2003), at http://chronicle.com/weekly/v49/i22/22b00701.htm ........25

Marilynn B. Brewer & Layton N. Lui, The Primacy of Age and Sex in the Structure of Person Catego- ries, 7 SOCIAL COGNITION 262 (1989) ............................... 5

ix

TABLE OF AUTHORITIES – Continued

Page

David Card & Alan B. Krueger, School Resources and Student Outcomes: An Overview of the Lit- erature and New Evidence from North and South Carolina, 10 JOURNAL OF ECONOMIC PERSPEC-

TIVES 31 (1996).................................................................. 8

David Card & Alan B. Krueger, School Resources and Student Outcomes, 559 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 39 (1998)............................................................. 8

Clifton A. Casteel, Teacher-Student Interactions and Race in Integrated Classrooms, 92 JOURNAL OF EDUCATIONAL RESEARCH 115 (1998).......................... 10

Camille Z. Charles, The Dynamics of Racial Resi- dential Segregation, ANNUAL REVIEW OF SOCIOL-

OGY (2003) (in press)......................................................... 6

Susan Chira, Teen-Agers, in a Poll, Report Worry and Distrust of Adults, NEW YORK TIMES, July 10, 1994, at 16 .................................................................. 9

A.J. Christopher, Segregation Levels in South African Cities, 1911-1985, 25 INTERNATIONAL JOURNAL OF AFRICAN HISTORICAL STUDIES 561 (1992) ................................................................................ 6

Robert Davidson & Ernest Lewis, Affirmative Action and Other Special Consideration in Ad- missions at the University of California, Davis, School of Medicine, 278 JOURNAL OF THE AMERI-

CAN MEDICAL ASSOCIATION 1153 (1997) ......................... 23

Nancy Denton & Douglas S. Massey, Racial Iden- tity among Caribbean Hispanics: The Effect of Double Minority Status on Residential Segrega- tion, 54 AMERICAN SOCIOLOGICAL REVIEW 790 (1989) ................................................................................ 6

x

TABLE OF AUTHORITIES – Continued

Page

Nancy DiTomaso, Why Anti-Discrimination Policies Are Not Enough: The Legacies and Consequences of Affirmative Inclusion – for Whites (August 16, 2000, Anaheim, CA) (Presented at The 95th An- nual Meeting of the American Sociological Asso- ciation) ............................................................................ 13

Jennifer L. Eberhardt & Susan T. Fiske, Affirma- tive Action in Theory and Practice: Issues of Power, Ambiguity, and Gender Versus Race, 15 BASIC AND APPLIED SOCIAL PSYCHOLOGY 201 (1994) .............................................................................. 12

Ronald G. Ehrenberg et al., Does Class Size Mat- ter?, 285 SCIENTIFIC AMERICAN 79 (2001) ........................ 9

Joe R. Feagin, The Continuing Significance of Race: Antiblack Discrimination in Public Places, 56 AMERICAN SOCIOLOGICAL REVIEW 101 (1991) ................ 12

Gallup Organization, Black/White Relations in the United States, 1997 (Special report) (June 10, 1997)................................................................................ 13

Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 PSYCHOLOGICAL REVIEW 1 (1995) .............................................................................. 13

Maureen T. Hallinan, Race Effects on Students’ Track Mobility in High School, 1 SOCIAL PSY-

CHOLOGY OF EDUCATION 1 (1996).............................. 10, 19

Maureen T. Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 OHIO STATE LAW JOURNAL 733 (1998) ................................. 8, 22

xi

TABLE OF AUTHORITIES – Continued

Page

Albert R. Hunt, Service Academies: Affirmative Action at Work, WALL STREET JOURNAL, January 23, 2003, at A14 .............................................................. 22

Rosabeth M. Kanter, Some Effects of Proportions on Group Life: Skewed Sex Ratios and Responses to Token Women, 82 AMERICAN JOURNAL OF SOCIOL-

OGY 965 (1977) ................................................................ 19

Ivy Kennelly, You’ve Got That Single Mother Ele- ment: Employers’ Images of African American Women, 13 GENDER & SOCIETY 168 (1999) .................... 13

G. Kenney & D. A. Wissoker, An Analysis of the Correlates of Discrimination Facing Young His- panic Job Seekers, 84 AMERICAN ECONOMIC RE-

VIEW 674 (1994)............................................................... 12

Alan Krueger & Diane Whitmore, The Effect of Attending a Small Class in the Early Grades on College-Test Taking and Middle School Test Re- sults: Evidence from Project STAR, NATIONAL BUREAU OF ECONOMIC RESEARCH WORKING PAPER 7656 (2000), at http://netec.mcc.ac.uk/WoPEc/ data/Papers/nbrnberwo7656.html (visited Febru- ary 9, 2003) ....................................................................... 9

Maria Krysan & Reynolds Farley, The Residential Preferences of Blacks: Do They Explain Persistent Segregation? 80 SOCIAL FORCES 937 (2002)..................... 6

Richard O. Lempert et al., Michigan’s Minority Graduates in Practice: The River Runs Through Law Schools, 25 LAW AND SOCIAL INQUIRY 468 (2000) .................................................................. 21, 23, 24

Michael J. Lovaglia et al., Status Processes and Mental Ability Test Scores, 104 AMERICAN JOUR-

NAL OF SOCIOLOGY 195 (1998) ........................................ 18

xii

TABLE OF AUTHORITIES – Continued

Page

Samuel R. Lucas, Hope, Anguish, and the Problem of Our Time: Comments on Publication of The Black-White Test Score Gap, 102 TEACHERS COL-

LEGE RECORD 461 (2001) ................................................ 16

Brenda Major et al., Attributional Ambiguity of Affirmative Action, 15 BASIC AND APPLIED SOCIAL PSYCHOLOGY 113 (1994) .................................................. 26

Douglas S. Massey & Nancy A. Denton, Suburbani- zation and Segregation in U.S. Metropolitan Ar- eas, 94 AMERICAN JOURNAL OF SOCIOLOGY 592 (1988) ................................................................................ 6

Douglas S. Massey & Nancy A. Denton, The Effect of Residential Segregation on Black Social and Economic Well-Being, 66 SOCIAL FORCES 29 (1987) ............................................................................ 4, 8

Douglas S. Massey & Mary J. Fischer, Does Rising Income Bring Integration? New Results for Blacks, Hispanics, and Asians in 1990, 28 SOCIAL SCIENCE RESEARCH 316 (1999) ......................................... 6

Rachel Moran, Diversity and Its Discontents: The End of Affirmative Action at Boalt Hall, 88 CALI-

FORNIA LAW REVIEW 2241 (2000).................................... 21

Phillip Moss & Chris Tilly, Soft Skills and Race: An Investigation of Black Men’s Employment Prob- lems, 23 WORK & OCCUPATIONS 252 (1996) ................... 13

Evelyn Nieves, Civil Rights Groups Suing Berkeley over Admissions Policy, NEW YORK TIMES, Section A, p. 9 (1999)............................................................. 10, 19

C. Matthew Snipp, Sociological Perspectives on American Indians, 18 ANNUAL REVIEW OF SOCI-

OLOGY 351 (1992) .............................................................. 6

xiii

TABLE OF AUTHORITIES – Continued

Page

Aage B. Sorenson & Maureen T. Hallinan, A Recon- ceptualization of School Effects, 50 SOCIOLOGY OF EDUCATION 273 (1977) .................................................... 15

S.J. Spencer et al., Stereotype Threat and Women’s Math Performance, 35 JOURNAL OF EXPERIMENTAL SOCIAL PSYCHOLOGY 4 (1999) ................................... 16, 17

Claude M. Steele, A Threat in the Air: How Stereo- types Shape Intellectual Identity and Test Per- formance, 52(6) AMERICAN PSYCHOLOGIST 613 (1997) .............................................................................. 16

Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 797 (1995).............................. 16

J. Stone et al., Stereotype Threat on Black and White Athletic Performance, 77 JOURNAL OF PER-

SONALITY AND SOCIAL PSYCHOLOGY 1214 (1999) ............ 17

Marylee C. Taylor, Impact of Affirmative Action on Beneficiary Groups: Evidence from the 1990 Gen- eral Social Survey, 15 BASIC AND APPLIED SOCIAL PSYCHOLOGY 143 (1994).................................................. 26

Marylee C. Taylor, White Backlash to Workplace Affirmative Action: Peril or Myth?, 73 SOCIAL FORCES 1385 (1995) ........................................................ 26

Beth E. Vanfossen et al., Curriculum Tracking and Status Maintenance, 60(2) SOCIOLOGY OF EDUCA-

TION 104 (1987) ............................................................... 10

Rachel Deyette Werkema, A Calculated Risk, 12 REGIONAL REVIEW 11 (2002) ........................................... 10

1

I. STATEMENT OF INTEREST1

Over the past fifty years, sociologists and other social scientists have produced an extensive body of scholarship demonstrating that race and ethnicity profoundly affect both the life experiences of individuals and the way individuals are treated within society. Amici offer their expertise to aid the Court in determining whether the admissions systems challenged in these cases are narrowly tailored to serve a compelling state interest.2

The American Sociological Association (ASA) is the major professional association of sociologists in the United States. ASA has more than 13,000 members, including most sociologists holding doctoral degrees from accredited universities.3

The Law and Society Association is a professional association of over 1,500 scholars in the social sciences,

1 Written consent to the filing of this brief has been obtained from the parties in accordance with Supreme Court Rule 37.3(a). Copies of the consent letters have been filed with the Clerk. Pursuant to Supreme Court Rule 37.6, the amici state that this brief was not authored in whole or part by counsel for any party and that no party or entity, other than the amici and their counsel, made any monetary contribution to its preparation or submission.

2 To avoid burdening the Court, amici have submitted this brief solely in Grutter v. Bollinger. The social science evidence discussed here, however, is equally relevant to the admissions systems challenged in Gratz v. Bollinger, No. 02-516.

3 Amici thank Barbara Reskin, S. Frank Miyamoto Professor of Sociology at the University of Washington and immediate past Presi- dent of the American Sociological Association, for serving as the principal compiler of the social science data presented in this brief and for her substantial assistance in authoring the brief.

2

humanities, and law who study the place of law in social, political, economic, and cultural life.

The Society for the Study of Social Problems is an interdisciplinary organization of about 1,500 scholars, practitioners, and students interested in the study of social problems.

The Association of Black Sociologists is a national, professional organization of sociologists and social scien- tists, founded by people of African descent.

Sociologists for Women in Society is an international organization of almost 1,000 social scientists and re- searchers who study the position of women within society.

II. SUMMARY OF ARGUMENT

In 1954, a unanimous Supreme Court recognized that racial segregation “affects the hearts and minds” of chil- dren “in a way unlikely ever to be undone.” Brown v. Board of Education, 347 U.S. 483, 494 (1954). Fifty years later, the promise of Brown remains unfulfilled: race still shapes the lives of our children, and our cities and schools continue to be segregated to an extraordinary degree. Blacks living in Detroit, New York, and Chicago today are almost as segregated from whites as were blacks living in South Africa under apartheid. More than seventy percent of black children in the United States attend schools that are majority nonwhite. For Latino children, segregation is also pronounced: seventy-six percent attend schools that are majority nonwhite. These segregated schools are generally inferior in staffing, resources, and programs to predominantly white schools in similar neighborhoods.

3

School segregation is firmly rooted in residential segregation emanating from racial prejudice. Despite four decades of civil rights legislation, studies by the Depart- ment of Housing and Urban Development show that black and Latino renters and buyers face race discrimination about half the time they visit real estate or rental offices to inquire about advertised housing (Turner et al. 2002:8- 1). In social surveys, employers openly acknowledge their reluctance to hire people of color and recount the tactics they use to discourage minority applicants. Well-designed experiments demonstrate that almost all Americans automatically respond negatively toward people of color.

Race shapes every experience of minority children, from where they live and the schools they attend to the attitudes they encounter in classrooms, on the streets, at work, and in stores. Their everyday experiences are affected not only by their economic circumstances and other concomitants of race, but by race itself. The life experience of growing up nonwhite in America renders other fundamental life experiences, such as living in poverty, qualitatively different for minorities and whites. Moreover, minority children learn that they are treated differently because of their race.

Because growing up black, Latino, or Native American in the United States is a defining life experience, universi- ties have a compelling interest in considering race when selecting students.4 Universities seek students who will

4 The University of Michigan considered only students from these three racial/ethnic groups in its affirmative action plan, so we focus on these groups as well. Other racial minorities, such as Asian Americans, do not currently suffer from the degree of segregation and social

(Continued on following page)

4

benefit most from the educational experience, who will add to that experience through their individual talents and diverse perspectives, and who will build upon their educa- tion to contribute significantly to society after graduation. Given the pervasive effects of growing up nonwhite, universities cannot accurately assess a candidate’s poten- tial to contribute to these goals without considering race. Research has established that considering race among many other factors produces graduates of all races who become leaders in law, medicine, science, and public life. Declaring students’ race out of bounds in admissions decisions would deny admissions officers crucial informa- tion to contextualize other life experiences and accurately measure academic performance.

When universities consider race in concert with other life experiences and weigh those experiences individually for each applicant, attention to race is narrowly tailored. Unlike approaches that would automatically admit stu- dents from impoverished backgrounds or from the top percentage of every high school class, an individualized examination of files considers race exactly where it mat- ters, as an individual’s life experience that transcends most other experiences.

disadvantage in education that blacks, Latinos, and Native Americans experience (Massey and Denton 1987). As we argue below, however, race must always be considered in the context of other life experiences. In some parts of the country, universities may find the experiences of some Asian American students, particularly recent immigrants, relevant to their admissions process. The approach we outline here, focusing on an individualized consideration of race within the context of an applicant’s other life experiences, would not preclude that considera- tion.

5

III. ARGUMENT

A. Universities Have a Compelling Interest in Considering the Life Experience of Growing Up Black, Latino, or Native American in Mak- ing Admissions Decisions

Social scientists agree that race and gender are overriding aspects of social identity because of the pro- found way in which they cut across every other identity, shaping our life experiences and how others view us (Brewer and Liu 1989; Committee on the Status of Black Americans 1989; Loury 2002). The long history of racial discrimination in the United States, amplified by contem- porary forms of discrimination, still molds the lives of nonwhite children. The life experience of growing up black, Latino, or Native American today alters the impact of all factors that universities consider in admissions. To evaluate applicants fully and fairly and achieve their institutional goals, universities have a compelling interest in taking this experience into account.

We summarize below careful, comprehensive research demonstrating the fundamental ways in which race shapes life experience. We then explain how this experi- ence is crucial to a university’s assessment of individual candidates for admission.

1. Residential Segregation

The landscape of America remains indisputably segregated by race. Social scientists use the “segregation index” to assess the degree of segregation, ranging from 0 for full integration to 100 for complete segregation. Values above 60 reflect high levels of segregation. In 2000, the

6

average black-white segregation index in U.S. metropoli- tan areas was 65; in the Northeast and Midwest it was 74 (Iceland et al. 2002:64). Detroit, the most segregated city in the United States, had a black-white segregation index of 85, followed by Milwaukee (82), New York (81), and Chicago (80). Id.5 These levels approach the degree of black-white segregation in South Africa under apartheid (Christopher 1992:573). No other group in U.S. history has experienced such persistently high levels of segregation.

Latinos also have a long history of segregation from whites (Grebler et al. 1970:271-90). Hispanics who identify themselves on the Census as black or racially mixed have segregation indices well above 60, while the index for Hispanics who identify as white is in the low to moderate range (Denton and Massey 1989:803). The same is true of Native Americans, although the 35 to 45 percent who live on or near reservations are extremely segregated from whites (Snipp 1992).

Racism is the driving force in residential segregation. Almost all blacks would prefer to live in integrated neighborhoods; those blacks who express a preference for all-black neighborhoods do so because they believe they would be unwelcome in integrated neighborhoods (Krysan and Farley 2002:953). In general, they are right. Although many whites would accept a few blacks in their neighbor- hood, all nonblack groups view blacks as the least desir- able potential neighbors (Charles 2003:18). Audit studies

5 Affluent blacks are as segregated from whites as poor blacks are (Massey and Denton 1988:613). Indeed, as racial segregation extends into the suburbs, affluent blacks typically are more segregated from whites than are the poorest Latinos (Massey and Fischer 1999:319).

7

demonstrate that blacks consistently encounter discrimi- nation in real estate rentals, sales, and mortgage approv- als (Turner et al. 2002:8-1 to 8-3). Levels of housing discrimination against Latinos increase with the darkness of their skin, underscoring the racial nature of this bias (Yinger 1995:179). Residential segregation has been further aggravated by deliberate acts of racial avoidance, occasional violence against minorities, local zoning deci- sions, and the isolation of public housing (Massey and Denton 1993:83-114).

In many parts of the country, residential segregation increased during the 1990s, concentrating blacks, Latinos, and Native Americans in dangerous neighborhoods with inferior schools, poor municipal services, and longer commutes to high paying jobs (Massey and Denton 1993:148-85). Whites’ avoidance of these neighborhoods lowers property values, reducing the ability of these groups to accumulate wealth in real property.

2. School Segregation

Racial segregation of minority school children is on the rise. In 1968, 77 percent of black students attended majority nonwhite schools. Judicially enforced desegrega- tion lowered that percentage to 62 percent by 1980. Dur- ing the last 20 years, rising residential segregation and the elimination of mechanisms designed to integrate schools have reversed these gains. By 1999, the percentage of black students in segregated schools had rebounded to 70 percent (Orfield 2001:32). The segregation of Latino children from white children has climbed even more precipitously. Fifty-five percent of Latino children at- tended predominantly nonwhite schools in 1969; by 1999,

8

the figure was 75 percent. Over one-third of Latino chil- dren attend schools that are more than 90 percent minor- ity (Orfield 2001:Table 9). In fact, Latino children in California are more likely to attend hyper-segregated schools than are black children in the Deep South (Orfield 2001:Tables 15, 19).

School segregation shortchanges minority children in myriad ways. According to carefully controlled longitudi- nal studies, majority white schools enhance the academic achievement of all students (Hallinan 1998:741-42). In one controlled study, black students who moved to predomi- nantly white neighborhoods were more likely to take college prep courses in high school, to attend college, and to select a four-year college than were comparable stu- dents who remained in majority black neighborhoods (Rubinowitz and Rosenbaum 2000).

Residential segregation assigns black, Latino, and Native American children to poorer quality schools than those schools attended by white children of similar economic backgrounds (Yinger 1995:143-45; Ladd et al. 1999:154; Orfield 2001:10, 15). Middle class status does not mitigate school segregation for these nonwhite chil- dren because the middle class neighborhoods that are open to them often are adjacent to poor neighborhoods and share the same schools (Massey et al. 1987:42).

The schools children attend affect what and how much they learn. Contrary to some early studies, contemporary research suggests that financial resources affect physical facilities, teaching materials and technology, teacher quality, class size, curriculum, and access to motivated fellow students, factors which in turn affect students’ learning and test performance (Card and Krueger 1996,

9

1998; Jencks and Phillips 1998:12; Krueger and Whitmore 2000; Ladd and Hansen 1999:140-47; Ehrenberg et al. 2001).

In inner-city predominantly minority high schools, the difficulty of attracting good teachers and the conditions of the surrounding neighborhood often restrict learning. As an ethnographic study of two all minority New York schools found, “the neighborhood problems of poverty, drug use, and violence did not stop at the school doors; in fact, these problems were more visible at the schools than in the surrounding neighborhoods” (Waters 1999:257-58). Almost every day students had to walk past drug dealers to enter their schools, and violence, often involving weap- ons, was common (Id. 261-64). According to a 1994 New York Times poll, black teenagers were more than twice as likely as white teenagers (70 percent versus 31 percent) to know someone who had been shot during the last five years (Chira 1994:16).

The least proficient teachers – those with the least experience, least education, and weakest credentials – are assigned to the least desirable schools, which are often in minority neighborhoods (Betts et al. 2000:19; Shields and Esch 2002). Some minority classrooms lack permanent teachers, and even substitutes can be in short supply. In May 1989, for example, almost 18,000 mostly minority Chicago elementary school children lacked teachers on Mondays and Fridays (Kozol 1991:53-54). These children would have been among the applicants to universities in the late 1990s when the petitioners challenged affirmative action.

Even in integrated schools, minority children suffer disadvantages. Careful research shows that teachers have lower expectations for black students than white students

10

of equal ability. They also tend to treat white students more positively (Casteel 1998:115; R. Ferguson 1998:313; A. Ferguson 2000:220-22). In an experiment in which teachers gave performance feedback to students they could not see, the teachers gave briefer feedback after mistakes to students they believed to be black, provided those students less positive feedback after correct responses, and offered less coaching than they did for students whom they believed to be white (R. Ferguson 1998:294).

In schools with different curriculum tracks, minority children are concentrated in low achievement tracks and underrepresented in programs for the gifted. Both the quantity and quality of instruction in lower academic tracks is decidedly inferior to that in higher tracks (Heu- bert and Hauser 1999:103-05; Lucas 1999:49; Oakes et al. 1992:81-83). Lacking challenging curriculum and high expectations, students in low tracks do worse than equally prepared students in nontracked systems (Vanfossen et al. 1987). Low track students also are less attractive to college admissions officers than equally capable upper track students (Hallinan 1996). Tracking thus depresses overall achievements and opportunities of minority stu- dents even when they attend integrated schools.

When they reach high school, minority students are less likely than white students to have access to advanced placement courses. Only 43 percent of high schools in poor and minority neighborhoods offer advanced placement courses, whereas such courses are virtually universal in suburban, predominantly white schools (Werkema 2002:17; Nieves 1999).

11

3. Economic Disadvantage

Black and Hispanic families have lower household incomes than white families,6 and the race difference in accumulated wealth is even greater (Oliver and Shapiro 1995). These differences reduce minority children’s access to tutoring, special classes, home computers, equipment for music and sports, enriching summer activities, and foreign travel. Black, Latino and Native American stu- dents often cannot afford the cultural experiences and enrichment activities that selective colleges increasingly demand. And test preparation classes, which boost stu- dents’ scores on standardized tests at a cost of several thousand dollars, are unavailable to many minority students (Nettles et al. 1998:106).

4. Stigma

Children learn early in their lives that being nonwhite is stigmatizing, a fact that social scientists have repeat- edly documented. Children of color experience more racially-based negative interactions with both teachers and peers than do white children. Qualitative research shows that very young children use racial terms to de- scribe themselves and others and to decide with whom to play (Van Ausdale and Feagin 2001). For example, when a preschool teacher asked a three-year-old student why she was moving her cot, the child pointed to a black child on a nearby cot and explained, “Niggers are stinky. I can’t sleep

6 The 2001 median household income was $44,417 for non-Hispanic white families, $33,565 for Hispanic families, and $29,470 for African American families (U.S. Bureau of the Census 2002).

12

next to one” (Van Ausdale and Feagin 2001:1). Another study described how a nine-year-old black child told her mother that her teacher said, “Black people were born of sin, let’s pray for the black people.” The little girl added: “I just wish I was white” (Feagin 2000: 28-29). Similarly, an affluent black television news manager recounted his young son’s experience with race: “Some of the [white] kids make fun of him because his nose is big . . . . He wanted to know how come we had to have a nose like that and why was this happening” (Feagin and Sikes 1994:88; Lewis 2003). Black students are also targeted for harsher disci- plinary control and punishment (Skiba 2001; Lewis 2003).

These experiences continue during the teen years, when black and Latino students are more likely than whites to be questioned by shopkeepers, taunted by their classmates, stopped by the police, and subjected to racial slurs (Lewis 2003:36; Newport 2001; Parker 2002). In public establishments and on the street, blacks of all social classes are targets of negative treatment, includ- ing taunts, threats, and poor service in restaurants or retail stores (Feagin 1991:106-114; Eberhardt and Fiske 1994:211-12).

The prevalence of race discrimination in other spheres reinforces this message. In audit studies involving more than 2,000 matched pairs of job applicants, employers favored whites over blacks or Latinos with comparable credentials in invitations to interview, job offers, compen- sation, job assignments, and information about unadver- tised opportunities (Fix et al. 1993; Kenney and Wissoker 1994). A carefully controlled study found that persons with white-sounding names who answered classified ads were 50 percent more likely to get calls from employers than persons with black-sounding names (Bertrand and

13

Mullainathan 2002). Audit studies have also documented that some employment agencies note race in the files of black applicants, steering them away from desirable and lucrative positions. In surveys, moreover, employers openly express an aversion to people of color and describe the tactics they use to prevent minorities from applying for jobs (Kennelly 1999:177; Wilson 1996:Chapter 5; Moss and Tilly 1996:265). Consistent with these studies, 60 percent of African Americans reported racial barriers in their workplace in the previous year (Bobo and Suh 2000:Table 14.1), and in a 1997 Gallup survey, one in five blacks reported workplace discrimination during the past month alone (Gallup News Service 1997).

Racial stigmatization is pervasive in our society. When minorities go to a restaurant, ask the police for help, or enter a public building – activities most whites take for granted – they risk being ignored or questioned (Anderson 2002:1541; Loury 2002). Even Americans who consciously reject racist attitudes display an automatic, unconscious tendency to connect blacks with negative attributes, as over one million individuals have learned through the simple stereotyping test at https://implicit.harvard.edu/ implicit/ (Greenwald and Banaji 1995).7

7 As Fischer et al. (1996:183) have pointed out, even if only one in eight whites express prejudice, that still leaves one hostile white for every black in America – a ratio that ensures that blacks will encounter racism regularly. Race is also a central experience for whites in America, but the benefits whiteness confers tend to be invisible to them (DiTomaso 2000).

14

5. The Relevance of Race-Based Life Experi- ences to University Admissions

Universities consider a wide range of life experiences, skills, and achievements when evaluating applicants. In addition to grades and test scores, colleges consider extracurricular activities, athletic ability, leadership positions, work experience, geographic background, and “legacy” status. Schools weigh these criteria because they are essential for evaluating each applicant’s potential to: (1) benefit from the educational experience on campus; (2) enrich others’ learning; and (3) contribute to the commu- nity after graduation. Education is not an end in itself. It is the principal path through which individuals can advance in our society (Featherman and Hauser 1978:Chapter 5). Equally important, institutions of higher education, especially public ones, are responsible for producing individuals to serve as leaders in business, science, law, medicine, the arts, politics, and every other field.

Universities have a compelling interest in considering the distinctive life experiences of minority applicants along with their other experiences, because race shapes the meaning of those other experiences.

a. Potential to Benefit from the Educa-

tional Experience.

Grades, courses, and standardized test scores are important components in universities’ assessment of each student’s potential to benefit from higher education. Because a student’s race influences these factors, it must be considered when assessing them.

15

School quality affects students’ performance on the standardized tests used in college admissions. The SAT II or “achievement” tests required by most colleges test students’ mastery of high school subjects. A recent Na- tional Academy of Sciences panel, chaired by the distin- guished sociologist Robert Hauser, stressed that achievement tests of this nature focus on acquired knowl- edge (Heubert and Hauser 1999). Scores on these tests reflect students’ exposure to the material – i.e., their opportunity to learn – as well as their success in master- ing the subject. (Sorensen and Hallinan 1977; Heubert and Hauser 1999:79). Predominantly white schools, with their more qualified teachers and better learning tools, teach students more academic content than predominantly minority schools, thus enhancing the performance of white students on achievement tests.

Even tests that the public views as “aptitude” tests, such as the SAT I or LSAT, measure developed skills rather than innate ability (Jencks 1998:58-66). Psycholo- gists have long recognized that they can “only measure people’s developed capacity for intelligent behavior, not their innate potential” (id. 61). Developed capacity, what- ever the measure, depends in part on the opportunities test-takers have been given to develop their skills. In predominantly minority schools and low achievement tracks at integrated schools, black, Latino, and Native American students lack white students’ expanded oppor- tunities to learn.8

8 Jencks (1998:65) notes that designers of the Scholastic Aptitude Test imagined that it measured aptitude rather than learned skills because “[t]he verbal test required skills that voracious readers could

(Continued on following page)

16

Stanford psychologist Claude Steele and his col- leagues, moreover, have demonstrated a particularly serious threat to the performance of black, Latino, and Native American students on standardized tests. Steele and other researchers have shown that individuals per- form poorly on standardized tests when they belong to a group that is negatively stereotyped on the tested apti- tude. This phenomenon, called “stereotype threat,” artifi- cially depresses standardized-test performance among highly motivated students (e.g., Steele and Aronson 1995; Steele 1997; Spencer et al. 1999).

In one series of telling experiments, researchers gave randomly selected Stanford undergraduates difficult items from the Graduate Record Examination. When research- ers asked the students to indicate their race on a ques- tionnaire – thereby making students conscious of their race in the testing situation – or described the test as a measure of ability, black students scored significantly lower than whites. But when the researchers omitted

acquire at home, even if their school never asked them to read anything more complex than Dick and Jane.” The children assigned only Dick and Jane at school, however, surely must be seriously disadvantaged in these tests. See also Kozol (1991:150) (quoting a teacher in an all- minority school, who stated, “when they take the SAT’s, they’re at that extra disadvantage. They’ve been given less but will be judged by the same tests.”).

Other factors depress the performance of minority children on standardized tests. Because of financial pressures or lack of counseling, minority students are far less likely than white students to take test preparation courses (Nettles et al. 1998). See Grutter v. Bollinger, 137 F. Supp. 2d 821, 860-61, 868 (E.D. Mich. 2001). For these reasons and others, biases in high stakes tests (including both standardized admissions tests and tests given by educational institutions) disadvan- tage minorities (Lucas 2001).

17

references to race and described the test as “psychological research,” the black and white students’ scores were statistically indistinguishable (Steele and Aronson 1998).

Stereotype threat impairs the performance of any group whose abilities are negatively stereotyped. When researchers told accomplished mathematics students that women usually do worse in math than men, female stu- dents performed poorly compared to men. But when researchers told students that the sexes did equally well, the sexes’ average scores did not differ (Spencer et al. 1999). Similarly, when white men were told that whites did worse than Asians, white men did more poorly (Aronson et al. 1999).9

Researchers have shown that in every part of the world, members of lower caste groups average lower scores on standardized tests than do members of the majority group (Fischer et al. 1996:192-94). Early in the twentieth century, the children of Polish Jewish immigrants did more poorly in school and scored lower on intelligence tests than other Americans, a difference that has long since vanished (Lieberson 1980:Table 8.12). While South Africa was governed by the English, Afrikaaner children did substantially worse on standardized tests, but after Afrikaaners came to power, the difference disappeared (Fischer et al. 1996:193). Test performance is thus linked,

9 The pervasiveness of stereotype threat is further illustrated by a study in which two groups of varsity athletes were tested on a minia- ture golf course. In the group that was told that miniature golf was a test of athletic ability, the black athletes got better scores; in the group that was told miniature golf was a test of athletic intelligence, the white athletes did better (Stone et al. 1999).

18

not just to individual ability or knowledge, but to the individual’s experience as a member of a low status group within a society.10 As societies find ways to integrate disfavored groups, these performance differences disap- pear, just as they did for American Jews, Italians, and other immigrant groups (Lieberson 1980:Table 7.1; Fischer et al. 1996:194).11

Black, Latino, and Native American students suffer further in university admissions because the lack of advanced courses at their schools directly lowers their grade point averages, the appeal of their transcripts, and the reputation of their schools. When calculating grade point averages, many schools award extra points for advanced placement courses. Minority students who attend schools without these courses lose that opportunity to enhance their GPA’s. In 1998, for example, the mean grade point average for students admitted to the Univer- sity of California at Berkeley was 4.27, an average achiev- able primarily through AP course grades. That year, Berkeley denied admission to 750 black, Latino, and Filipino students with “perfect” grade point averages of

10 Researchers have even demonstrated this phenomenon with artificially created status distinctions. In one study, researchers conditioned students to believe that left-handed individuals were inferior to right-handed ones. Even though the students were exposed to this conditioning for only 15 minutes, the left-handed participants scored significantly lower than their right-handed classmates on a standard test of mental ability (Lovaglia et al. 1998).

11 Stereotype threat also affects most of the high-stakes tests administered within universities. This helps to explain the moderate correlation, for both white and minority students, between standard- ized test scores and college and professional school grades (Steele and Aronson 1998:403).

19

4.00, an average many of those students could not have improved at their schools (Nieves 1999). Admissions officers also favor students who attend high resource schools. The number of AP courses offered by a school, and the proportion of its graduates who attend college, are common measures that disadvantage students from predominantly minority schools (Stevens 2002). The University of Michigan, for example, awarded under- graduate applicants up to 80 points for their high school grade point average and up to 10 points for school quality. On both of these measures, black, Latino, and Native American students suffered compared to whites.

These minority students incur race-based disadvan- tages even when they attend integrated schools. Stereo- type threat constrains many nonwhite students from participating in class or seeking help from their teachers and classmates. Black, Latino, and Native American students are also more likely to be relegated to lower academic tracks in integrated schools, reducing their appeal to colleges (Hallinan 1996). And at many high schools and colleges, minority students suffer from a negative racial climate that adversely affects their aca- demic performance by creating self doubt, alienation, and discouragement (Allen and Solorzano 2000:65).12 These experiences create a “sense of inferiority” rooted in race that “affects the motivation . . . to learn” in the same ways that state-mandated segregation once did. Brown v. Board

12 These negative pressures are exacerbated when the percentage of minority students is small. Considerable research demonstrates that numerical “tokens” are subject to stereotyping and performance pressure (Kanter 1977; Allen and Solorzano 2000).

20

of Education, 347 U.S. 483, 494 (1954) (quoting the lower court opinion).

Because their race can depress the “objective” creden- tials of black, Latino, and Native American students, universities must consider race together with other ex- periences in order to evaluate accurately the potential of each student.13 At the same time, the life experiences of many minority students predict a special aptitude to capitalize upon higher education. Minority students of all economic classes often live in two worlds, a predominantly white “outside” world in which they feel undervalued and out of place and a mostly minority world at home in which they are personally valued but isolated from the main- stream culture. Dealing with these two worlds, as well as with the challenges of both subtle and overt acts of racism, fosters intellectual sophistication, good coping skills, persistence, and an ability to interact with others that standardized tests and classroom grades do not measure (Fischer et al. 1996:187).

b. Contributions to the Educational Experi-

ence.

Higher education is more than lectures, lab exercises, and reading lists. The highest quality education is achieved through interaction among students and faculty.

13 As Justice Powell recognized in Regents of the University of California v. Bakke, “[t]o the extent that race and ethnic background [are] considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no ‘preference’ at all.” 438 U.S. 265, 306 (1978) (Powell, J., announcing the judgment of the Court).

21

Each student has the potential to enhance the educational experience for others, and universities have a compelling interest in identifying applicants who will contribute the most to that mix. It is precisely because of the centrality of race in Americans’ experience that universities can enrich everyone’s education through diversity.

Because our neighborhoods and secondary schools are so highly segregated, most American students, especially white ones, reach college without sustained contact with people of other races. This isolation is increasingly dan- gerous in a nation that is becoming more racially diverse and a world already composed primarily of people of color. Aware of these realities, many employers – including the United States military – stress the need for university graduates to understand people of other races, to interact comfortably with them, and to value their perspectives. This essential learning cannot occur on segregated cam- puses.

Almost all whites who graduated from Michigan’s law school between 1990 and 1995 reported that the school’s racial and ethnic diversity contributed positively to their educational experience (Lempert et al. 2000). It is difficult for law students to develop a sophisticated understanding of such legal issues as racial profiling, desegregation orders, immigration rules, and tribal sovereignty without hearing the perspectives of students from different racial and ethnic backgrounds (Moran 2000:2257-72). Similarly, undergraduates develop different perspectives on econom- ics, history, and literature when they interact with class- mates from different races and cultures. Just as our legal system depends upon the presentation of opposing view- points to resolve contested questions, our classrooms depend upon the presence of richly diverse backgrounds to

22

illuminate problems and advance the learning of all students.

Scholarly research confirms the value of this diversity. Based on a careful review of high quality research studies, Hallinan (1998:753) concluded that “racial and ethnic diversity on college campuses promotes learning” and that “students of all racial and ethnic groups tend to benefit” from that experience when the institution actively pro- motes diversity. Equally important, racially diverse campuses and classrooms reduce racism and prejudice, a vital contribution to every student’s education and to society as a whole. A recent meta-analysis of well executed studies confirmed that face-to-face interaction between members of distinguishable groups reduces each group’s biases toward the other. The beneficial effects of this contact also carry forward to other contexts (Pettigrew and Tropp 2000:109; Hallinan 1998:753).14

c. Contributions to Society.

In addition to selecting students who will benefit from their educational experience on campus and contribute to that experience, universities have a particularly compel- ling interest in choosing students who will contribute significantly to society after graduation. This mission is

14 For citizens who do not attend college, the military often provides a first experience with racial diversity. According to a recent survey of 3,000 soldiers in the U.S. Army, one quarter of the blacks and 38 percent of the whites agreed that they got along better with mem- bers of other races after joining the army (Moskos and Butler 1996:108). Military experts agree that the United States service academies have improved since becoming more diverse (Hunt 2003).

23

especially important for public universities, which use public resources to educate their students.

Grades and test scores are not the best predictors of the applicants who will contribute most to society after graduation. A comprehensive study of the University of Michigan’s law school graduates showed that college grades and LSAT scores bore no relationship to post- graduation earnings, career satisfaction, or service to the community (Lempert et al. 2000). Similarly, a study of more than 80,000 graduates of 28 highly selective under- graduate institutions found no relationship between SAT scores or class rank and civic participation (Bowen and Bok 1998:165). SAT scores and high school grades also had little power to predict later earnings, which were more closely linked to college selectivity, college major, and college grades (Bowen and Bok 1998:133-35, 395-98). Thus, whether “social contributions” are measured in terms of a graduate’s career achievements or civic partici- pation, pre-admission grades and test scores are poor predictors of success.

Aware of this difficulty, universities use other factors besides test scores to identify future leaders among their applicants. Experience now shows that race, when com- bined with other experiences, is an important factor in identifying graduates who will successfully contribute to society. Minority graduates of institutions that consider race in the admissions process match their white class- mates in income, career satisfaction, and other measures of job success, while outperforming them in community service, pro bono work, and public leadership (Bowen and Bok 1998; Lempert et al. 2000; Davidson and Lewis 1997). In their study of students admitted in 1976 to 28 selective colleges, all of which considered race as part of their

24

admissions process, Bowen and Bok (1998:168) found that “[o]ther things being equal, black . . . [graduates] were much more likely than their white classmates to have taken on leadership positions in virtually every type of civic endeavor.” Similarly, black graduates of these colleges were more likely than white graduates to participate in politics and assume leadership roles in that field (id. 173- 74).

Considering the racial context in which applicants are raised also helps universities identify students who will serve minority communities. Analyses by Lempert et al. (2000) demonstrate that every racial and ethnic group, including whites, disproportionately serves members of its own race. These relationships do not mean that every black lawyer will or should serve black clients or that every Latino doctor will or should treat Latino patients. The correlations demonstrate, however, that because of the pervasive influence race exerts on individuals’ lives, the race of professionals affects the provision of services to minority communities.

Perhaps most important, racially diverse graduates of colleges and graduate schools benefit society by carrying integration forward into businesses and professions, not simply because there will be more minorities working in these arenas, but because employees of all races will have had the experience of education in a diverse setting.

25

B. Considering Race in University Admissions is Narrowly Tailored When Race is One of Many Life Experiences Considered in Assessing In- dividual Applicants

In well-designed affirmative action plans, universities consider race as one of many life experiences that illumi- nate the potential of an individual applicant.15 Choosing students without considering their life experience of growing up black, Latino, or Native American, experiences that sociologists agree profoundly affect each individual’s life in the United States, would overlook essential infor- mation and distort evaluation of other elements in an applicants’ file. Considering race in an individualized manner focuses on race where it matters most, as an individual life experience.

No other factor can adequately capture this experi- ence (Bowen and Rudenstine 2003). Although nonwhite students are more likely than white students to be poor, race matters among the poor as well as the middle class and the well off (Pattillo-McCoy 1999). Poor black and Latino families are more likely than white ones to encoun- ter job and housing discrimination. A poor white child believes that she lives in substandard housing because of her family’s income, not because of her race. A white teenager may be expelled from a store because of disrup- tive behavior, but not because of his race. Minority chil- dren know that race is a defining feature of their lives.

15 Cf. Bakke, 438 U.S. at 317 (Powell, J., announcing the judgment of the Court) (“an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant”).

26

The inclusion of race among the life experiences that universities consider does not stigmatize students of color. Experimental research shows that affirmative action stigmatizes its beneficiaries only when people are selected entirely because of their race. When selection is based on a variety of factors including race, beneficiaries do not stigmatize themselves and are not stigmatized by others (Major et al. 1994). Instead, the psychological effects of affirmative action programs are predominantly positive (Taylor 1994:174). Nonwhite applicants are stigmatized in their childhood through exclusion from white neighbor- hoods, good schools, and playground cliques. Inclusion in university classes based partly on consideration of their race will not further stigmatize them.

Nor does affirmative action exacerbate racial divi- sions. Affirmative action brings people of different races together in ways that foster mutual understanding (Petti- grew 1998). A national sample of workers found that whites who worked for employers with affirmative action programs were more supportive of race-targeted interven- tions to create opportunities for blacks than were similar whites in firms without affirmative action programs (Taylor 1995:1406). It is segregation, not affirmative action, that perpetuates prejudice. With segregation of elementary and secondary schools on the rise, affirmative action programs at universities are the most narrowly tailored, moderate means of reversing our slide toward a society divided by race.

Some universities have experimented with other ways to take into account the impact of race on applicants’ life experiences. A few seek applicants from impoverished socioeconomic backgrounds. Although nonwhite students are more likely to be poor than whites, in a predominantly

27

white society low income whites far outnumber low income minorities. As a result, such preferences do not enhance racial diversity on university campuses (Kane 1998:448- 51). Other universities have adopted rules automatically admitting students who graduate in the top ten or twenty percent of their high school class. This approach ratifies, and may even perpetuate, the residential and educational segregation that divides America. At public colleges, the method has failed to achieve even the modest racial diversity universities attained when they could consider race among other life experiences, in part because adop- tion of these programs has discouraged some minority applicants from applying (Wierzbicki and Hirschman 2002; Tienda et al. 2003; Karabel 2003:35).16

Equally important, these approaches are blunt tools that aggregate all students with a particular characteris- tic. Under the first method, all students at a defined income level are treated alike, despite research that demonstrates that the experiences of blacks, Latinos, and Native Americans differ from that of whites at the same socioeconomic level. Under the second approach, the top graduates of high schools statewide are treated identically, even though those students will vary widely in the experi- ences and abilities they bring to college. Automatic admis- sion of a percentage of graduates from every high school results in the admission of many students, both white and nonwhite, who would not have been chosen through a more careful, individualized examination of application files.

16 In addition, this method cannot work at private colleges, public colleges that recruit nationally, or graduate and professional schools.

28

The most narrowly tailored means of achieving universities’ compelling interest in selecting the students with the greatest potential is an individualized reading of application files that takes into account the impact of growing up nonwhite in America on other life experiences. Excluding race from consideration or substituting other, less focused methods would impair the ability of educa- tional institutions to choose the best students and the most productive future leaders.

This individualized consideration of race fits naturally with the way in which universities incorporate other life experiences, characteristics, and skills into their admis- sions decisions. Among other factors, universities cur- rently give substantial preferences to the children of alumni and applicants who will play on intercollegiate sports teams. In 1999, athletes recruited by one selective college were 48 percent more likely to be admitted than non-athletes. Children of alumni enjoyed a 25 percent advantage, while minority applicants were just 18 percent more likely than white candidates to be admitted (Shul- man and Bowen 2001:40-41). In other words, athletic skills and legacy status may well have more impact on the weight selective colleges give test scores, high school grades, and other credentials than does the experience of growing up nonwhite, an experience that sociological research demonstrates transcends every other life experi- ence.17

17 Preferences for athletes and the children of alumni, moreover, benefit white applicants much more than minorities. At the University of Virginia in 2002, the 547 legacies offered admission included 497 whites and just 20 blacks (Howell and Turner 2003:Table 5). In 1989,

(Continued on following page)

29

Universities consider many life experiences in order to interpret applicants’ grades and test scores accurately, create diverse classes that promote learning, and predict which applicants have the greatest potential to contribute to society. Race is not simply a characteristic that can be separated out in evaluating an applicant. Incorporating the experience of growing up black, Latino, or Native American into the assessment of individual applicants, as the University of Michigan does, is the most narrowly tailored, and the most accurate, means of considering each applicant as a whole person.18

Consideration of race by universities in this manner has a natural end: universities will no longer need to consider race in admissions when race no longer affects individual lives in the extensive way it does in the United States today. That day has not yet come for black, Latino, or Native American applicants.

only 13 percent of male athletes admitted to selective colleges, and 6 percent of female athletes, were black (Shulman and Bowen 2001:315, 335).

18 The Court of Appeals for the Sixth Circuit found that Michigan’s Law School had a “policy of evaluating each applicant individually,” that “the Law School’s officials read each application,” and that the officials “factor all of the accompanying information [including race] into their decision.” Grutter v. Bollinger, 288 F.3d 732, 746 (6th Cir. 2002). This approach is consistent both with the standard identified by Justice Powell in Bakke and with the social science rationales for affirmative action we outline here. Similarly, the District Court found that the college’s current admissions system considers race in the context of other factors and reviews files individually. Gratz v. Bollinger, 122 F. Supp. 811, 827-31 (E.D. Mich. 2000).

30

IV. CONCLUSION

Higher education is our gateway to economic security, individual responsibility, professional achievement, and community leadership. But the roads to this gateway are not uniform. Some students travel from urban ghettos, while others arrive from gated communities. Some are the children of alumni; others are the first in their families to complete high school. Some have been accosted by shop- keepers and police because of their dark skin; others have been favored by teachers and employers because of their lighter color. Universities cannot ignore these differences when choosing students who will benefit from higher education, enrich that education for others, and contribute significantly to the community after graduation. The University of Michigan’s consideration of race in its admissions systems, as a profound life experience that contextualizes other life experiences, is narrowly tailored to serve a compelling state interest. The judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

DEBORAH J. MERRITT John Deaver Drinko/ Baker & Hostetler Chair in Law Moritz College of Law THE OHIO STATE UNIVERSITY 400 Stillman Hall 1947 College Road Columbus, OH 43210 Telephone: (614) 247-7933

BILL LANN LEE Counsel of Record LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111 Telephone: (415) 956-1000

Attorneys for Amici Curiae