§ 794], title IX of the Education Amendments of 1972 [20 U.S.C.A.

An examination of the separate opinions in Bakke, however, clearly illustrates that there were no clear grounds upon which a *818 majority of the Court agreed in reaching their respective decisions.
Gratz v. Bollinger, 539 U.S. 244 (2003), was a United States Supreme Court case regarding the University of Michigan undergraduate affirmative action admissions policy. (Id.).
(Jt. 4/9/99 Br. Therefore, both Plaintiffs and the University Defendants agree there is no need for a trial with respect to the issue of whether diversity constitutes a compelling interest under strict scrutiny, and whether the LSA's admissions programs were narrowly tailored to achieving that interest, and that, based upon the record before the Court, such issues may be resolved by summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Richard A. Wilhelm, Dickinson, Wright, Bloomfield Hills, MI, for College Entrance Examination Bd. Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir.1994). at 11-13; American Council on Education ("ACE")[12] Br. Croson, 488 U.S. at 493, 109 S. Ct. at 722. Sections 6 and 7 (sections 8836f, 8836g) empower the commission to require reports and compile information concerning corporations; to inquire concerning execution of decrees restraining violations of the anti-trust acts; to investigate alleged violations of such acts; to recommend readjustments of corporate business; to publish information and make reports to Congress; to classify corporations and make rules and regulations; to investigate trade conditions; to act, under orders of the court, as a master in chancery in certain designated circumstances, etc. Plaintiffs, however, contend that Justice Powell's decision in Bakke has never garnered a majority of support from the Justices and that subsequent Supreme Court cases have confirmed that "diversity" and "academic freedom" are not compelling governmental interests that can ever justify the use of race in the admissions process. (citing Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S. Ct. 1203, 1218, 1 L. Ed. In fact, none of the cases relied upon by the Fifth Circuit involved the issue of whether the educational benefits that flow from a racially and ethnically diverse student body can ever constitute a compelling governmental interest in the context of higher education, most likely because the Supreme Court has not been faced with this precise issue since Bakke. For example, Justice Brennan's silence regarding diversity could just as easily be interpreted as "implicit approval" that, in an appropriate case, diversity may constitute a compelling governmental interest. (Defs.' The words 'unfair method of competition' are not defined by the statute and their exact meaning is in dispute. As Justice Powell explained with reference to the Harvard plan, an admissions program that takes race into consideration must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." "); Eisenberg v. Montgomery County Pub. It is just as likely that the other Justices felt no need to address the issue of diversity based upon their finding that under intermediate scrutiny, the program at issue was justified as a means to remedy past discrimination. No. § 1681 et seq.

The over 360 institutions represented by the Association of American Law Schools assert that they have learned through their extensive experience in the educational realm that the quality of education for all students is greatly enhanced when student bodies include persons of diverse backgrounds, interests, and experiences, including racial and ethnic makeups. § 6101 et seq. (Def.-Intervenors' 8/11/00 Resp.

(Id. at 68-69). (Spencer Dep. Such a conclusion is evident from the fact that not once in his narrowly tailored analysis did Justice Powell ever discuss the fact that under the University of California's admissions program, majority students were subject to a 2.5 minimum GPA requirement, whereas there was no minimum GPA requirement for minority students. (Defs.' Id. Accordingly, the Board's motion for summary judgment with respect to Plaintiffs' Title VI claim shall be denied. at 6-10). Furthermore, applicants other than under-represented minority applicants may also be flagged. The first count of the complaint fails to show any unfair method of competition practiced by respondents and the order oased thereon was improvident. Second, under the LSA's current program, counselors may "flag" applicants that possess certain qualities or characteristics the LSA deems important to the composition of its freshman class, one of which is "under-represented race," thereby keeping an applicant who may not necessarily pass the LSA's initial admit threshold in the review pool for further consideration. at 20-21; see also ALS Br. Ct. 251, 64 L. Ed. ', Section 5 further provides that the commission may apply to the designated Circuit Court of Appeals to enforce an order—, 'and shall certify and file with its application a transcript of the entire record in the proceeding, including all the testimony taken and the report and order of the commission. Mr. Justice BRANDEIS dissenting, with whom Mr. Justice CLARKE concurs. Furthermore, "the `nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." As is illustrated by the foregoing discussion, the binding effect of Justice Powell's opinion in Bakke has been the subject of much debate in recent years.

It is clear that the University did not employ the same type of rigid quota renounced by Justice Powell in Bakke. However, Justice Powell found that the university's fourth goal, "the attainment of a diverse student body," was "clearly" a "constitutionally permissible goal for an institution of higher education." In his concurring opinion, Justice Stevens specifically disagreed with the premise that seemed to underlie Justice O'Connor's opinion, i.e., "that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong." 8/11/00 Br. (Id.).

Oscar M. Garibaldi, Keith A. Noreika, Covington, Burling, Washington, DC, Brice M. Clagett, Covington & Burling, Washington, DC, for National Ass'n of Scholars. Id. Justice Stevens also declined to address the issue on constitutional grounds, relying solely upon Title VI's prohibition instead, which Justice Stevens viewed as "crystal clear: Race cannot be the basis of excluding *819 anyone from participation in a federally funded program." United States District Court, E.D. at 27). [15] An applicant's GPA 2 was calculated by adjusting the applicant's high school GPA based upon several factors, including the quality of the applicant's high school, the strength of the applicant's high school curriculum, any unusual circumstances, the applicant's geographical residence, and the applicant's alumni relations, if any. 2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 191-92, 85 S. Ct. 283, 287-88, 13 L. Ed. 717 [Comp. First, admissions counselors may assign each under-represented minority applicant twenty points in calculating their selection index score on account of their race. The University received some 13,500 applications for admission to the LSA in 1997, from which it elected to enroll 3,958 freshmen. According to Bowen, the Texas approach would have the effect of "admit[ting] some students from weaker high schools while turning down better-prepared applicants who happen not to finish in the top tenth of their class in academically stronger schools."

This argument, however, does not go to the core issue of whether the educational benefits that flow from a diverse student body constitute a compelling governmental interest, but rather, whether the means employed to achieve that interest are narrowly tailored. at 317, 98 S. Ct. at 2762. [7] Defendant-Intervenors join in the University Defendants' assertion that racial diversity is a compelling governmental interest in the context of higher education. The University Defendants have never justified the LSA's race-conscious admissions policies on remedial grounds. Ct. 465, 63 L. Ed. Id.


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