The Critical Question Involves “Critical Mass”

Sep 30, 2013 | 

R. Lawrence Purdy

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The Critical Question Involves “Critical Mass”

Sep 30, 2013 | 

R. Lawrence Purdy



Putting aside the highly disputed holding in Grutter v. Bollinger[1] (adopted by default in Fisher v. University of Texas at Austin)—that obtaining the educational benefits of a diverse class is a compelling state interest for our flagship institutions of public higher education sufficient to justify their use of racially discriminatory admissions policies[2]—the practical problem with Grutter is not the “diversity” rationale.  Rather, it involves the Supreme Court’s failure to apply strict scrutiny to the University of Michigan’s race-conscious Law School admissions policy.

Ironically, the best exposition of this failure was written by Associate Justice Anthony Kennedy (the author of the majority opinion in Fisher).  His blistering dissent in Grutter condemned the Court for its refusal to apply any scrutiny, much less “meaningful strict scrutiny”[3] to the manner in which Michigan’s Law School masked its use of race to achieve, year in and year out, a target enrollment goal, i.e., a quota, of underrepresented minority students within its student body. Yet, writing for the majority in Fisher, Justice Kennedy left intact much of the process he excoriated in Grutter.[4]

At the same time, however, Kennedy found a method to overturn the Fifth Circuit Court of Appeals’ rather straightforward—if reluctant[5]—application of Grutter to the facts in Fisher.

Hopefully the Circuit Court, on remand, will interpret Justice Kennedy’s language in Fisher as a directive to apply meaningful, i.e., un-Grutter-like, “strict scrutiny” to UT’s Grutter-like program.  If it does, UT’s system must fail.  If it does not, Fisher ultimately will only exacerbate a continuing judicial mess, the origin of which can be summarized in two words: “critical mass.”

The practical problem presented by Grutter, and inherited by default in Fisher, is simple.  The Court in neither case has been willing to deal with the indisputable fact that the defendant universities employ a euphemism, “critical mass,” as “a sham to cover a scheme of racially proportionate admissions.”[6]

The judicial history of “critical mass”

In Grutter, the infamous (ever-ambiguous) phrase “critical mass” appeared in the written admissions policy adopted by the Law School’s faculty in April 1992:[7]

By enrolling a “critical mass” of minority students, we have ensured their ability to make unique contributions to the character of the Law School; the policies embodied in this document should ensure that those contributions continue in the future.[8]

As a consequence, one of the principal questions during the Grutter trial was: What did the Law School have in mind when it employed the term “critical mass”?  For example, why did the authors of the policy end up selecting a non-numerical goal (“critical mass”)—as opposed to retaining their initial reference to a clearly stated minimum numerical percentage (“11%”)—for the enrollment of underrepresented minority students?[9]  And even if not stated in terms of a minimum number or percentage, had the Law School and its admissions personnel nevertheless developed an understanding of what that minimum number or percentage must be?[10]  As it turned out, there was abundant evidence, historical and otherwise, submitted at trial on these very points.

For example, Alan Stillwagon, the Law School’s director of admissions from 1979 through 1990 (prior to the formal adoption of the policy in question), testified that under his tenure

[T]he law school had a “goal” or “target” whereby 10-12% of the students of each entering class should be Black, Chicano, Native American, and mainland Puerto Rican.  The law school faculty increased this percentage in the 1970s from 10% to 10-12% because they believed it necessary to increase the representation of minorities in the legal profession.  [The director of admissions] testified that he had no discretion to disregard this policy, and that the policy was considered flexible only to the extent that the number of minority admittees could deviate by three or four students on either side of the target.  [He] also testified that the 10-12% target could be achieved only through the special admissions program due to the “considerable differences” in academic credentials between the minority and non-minority applicants.[11]

The next director of admissions, Dennis Shields, who held the job from 1991 until 1998 (during the time when Barbara Grutter applied for admission), admitted that the applicant pool each year was broken down into seven racial categories: Native American, Black/African American, Caucasian/White, Mexican American, Other Hispanic, Asian American, and Puerto Rican American.[12]  As the admissions season progressed, Shields admitted he would consult the daily reports more frequently in order to keep track of the racial and ethnic composition of the class.  As Shields testified, “This was done in order to ensure that a ‘critical mass’ of minority students were enrolled so as to realize the educational benefits of a diverse student body.”[13]  Of course, during trial, he refused to “say what percentage was needed in order to achieve this goal.”  However, he testified as to his doubt that “five percent would be enough but thought 10% might suffice,” following which “he acknowledged that during his tenure at least 11% of each entering class consisted of African American, [Mexican American and Puerto Rican American] and Native American students.”[14]

Erica Munzel replaced Mr. Shields.  She held the director of admissions position at the time of trial in Grutter.  She testified she was bound by the Law School’s 1992 admissions policy, “including the provision that call[ed] for the enrollment of a ‘critical mass of minority students.’”[15]  Like Shields, Ms. Munzel professed an inability to provide even a “range of numbers or percentages” which constituted critical mass, other than to acknowledge that “critical mass” meant “meaningful numbers” or “meaningful representation.”[16]

Indeed, with two notable exceptions, no witness for the Law School, including its dean,[17] ever gave a number as to what might constitute “critical mass” sufficient to achieve the purported educational benefits of a diverse student body.  Which, of course, begs these questions:  If no one within the Law School knew what “critical mass” was, how could anyone know whether it was being achieved?  Moreover, how could the manner in which the Law School goes about achieving something it contends is largely unquantifiable be subjected to meaningful scrutiny by the courts?  (Each of these questions haunts Fisher as well.)[18]

One of the “notable exceptions,” i.e., a witness who did profess to know the range necessary for critical mass to be achieved, was law professor Richard Lempert.  Professor Lempert chaired the Law School faculty admissions committee that drafted the 1992 policy.

Admitted into evidence at trial and discussed during Lempert’s testimony were early drafts of the 1992 policy which contained several provisions omitted from the final version.  One such draft included the following language:

Our goal is to have substantial and meaningful racial and ethnic diversity, but we do not wish to exhaust the positions that are open to . . . diversity admittees in promoting racial and ethnic diversity. . . . [W]hile we set no floors or ceilings on the numbers or proportion of students who are to be admitted as minority diversity candidates, . . . it is important to note that in the past we seem to have achieved the kinds of benefits that we associate with racial and ethnic diversity from classes in which the proportion of [underrepresented minority] members have been between 11% and 17% of total enrollees.[19]

Why was this language eventually omitted when Professor Lempert testified that the “11% to 17%” figure was in the range he believed constituted critical mass?[20]  The reason was obvious.  Lempert, and no doubt others, believed that “percentages . . . could be misconstrued as a quota.”[21]

The other witness who eventually, if reluctantly, provided “numbers” in response to questions about the meaning of “critical mass” was former Law School professor Kent Syverud.

Syverud was part of the Law School faculty when the 1992 admissions policy was adopted.[22]  At the time of trial in Grutter, Syverud was serving as the Dean at Vanderbilt University’s Law School.[23]  During trial, he volunteered that “five percent African American enrollment to the extent it produced significant numbers of African American students in the relevant classroom settings, would produce a critical mass.”[24]  In addition, after suggesting, on the one hand, that “critical mass” could not be quantified and, on the other, that “critical mass,” as incorporated into the 1992 policy, meant “meaningful numbers,”[25] he surprised everyone in the courtroom when he testified that, depending upon the individual, it may be “enough to have one member of a particular minority in a classroom.”[26]

Interestingly, Dean Syverud agreed that the alleged problem of underrepresented minority students being unable to express themselves freely because of feeling isolation in the classroom would be solved “if [only] we respected one another as individuals and not as representatives of our race.”[27]  Students at colleges and law schools across the country would be far better served if, rather than placing students on racial registers and assigning privileges and/or benefits based on race, our flagship institutions demanded adherence to this latter principle.

Based on the Law School’s internal documents and the testimony and admissions of their own witnesses (including Professor Lempert), can there have been any question but that the term “critical mass” was selected as a euphemism for the sought-after minimum of 10-12% underrepresented minority enrollment, indeed, the very number that was, without exception, achieved every year?

After listening to the testimony, the District Court in Grutter had no difficulty reaching the following conclusion:

While “critical mass” has proved to be a concept that has eluded precise quantification, over the years it has meant in practice that the law school attempts to enroll an entering class 10% to 17% of which consists of underrepresented minority students.  The 10% figure, as a target, has historical roots going back to the late 1960s.  Beginning in the 1970s, law school documents begin referring to 10-12% as the desired percentage.  Professor Lempert testified that critical mass lies in the range of 11-17%.  Indeed, this percentage range appeared in a draft of the 1992 admission policy . . .

The actual admissions . . . statistics confirm the law school’s commitment to enroll [underrepresented minority] students in the 10-17% range.[28]

The District Court continued:

The current and former dean, as well as the current and former admissions directors, all testified that race is considered to the extent necessary to enroll a critical mass of underrepresented minority students [and] the written and unwritten policy at the law school charges the admissions office with assembling entering classes which consist of between 10% and 17% [underrepresented minority] students. . . .  The court also finds it significant that the dean and the admissions director monitor the law school’s “daily admissions reports,” which classify applicants by race. . . .  There would be no need for this information to be categorized by race unless it were being used to ensure that the target percentage is achieved.

In conclusion, the court finds that the law school explicitly considers the race of applicants in order to enroll a critical mass of underrepresented minority students—that is . . . each entering class [is] to consist of [at least 10% underrepresented minority] students.[29]

Later in its thoughtful opinion, the District Court unsurprisingly observed that:

“Critical mass” has proved to be an amorphous concept.  Apparently defendants know it when they see it, but it cannot be quantified.  Narrow tailoring is difficult, if not impossible, to achieve when the contours of the interest being served are so ill-defined.[30]

The District Court concluded that

y using race to ensure the enrollment of a certain minimum percentage of underrepresented minority students, the law school has made the current admissions policy practically indistinguishable from a quota system. . . . [and] there is no principled difference between a fixed number of seats and an essentially fixed minimum percentage figure. . . .  [T]he fact of the matter is that approximately 10% of each entering class is effectively reserved for members of particular races, and those seats are insulated from competition.  The practical effect of the law school’s policy is indistinguishable from a straight quota system, and such a system is not narrowly tailored under any interpretation of the Equal Protection Clause.[31]

As amply illustrated, above, the District Court’s conclusion was based on uncontested facts taken solely from the Law School’s own documents and the sworn testimony of its own witnesses. 

These facts were recognized by Justice Kennedy.[32]  Writing in dissent in Grutter, he noted:

The majority [in Grutter] fails to confront the reality of how the Law School’s admissions policy is implemented.  The dissenting opinion by THE CHIEF JUSTICE . . . demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to . . . achieve numerical goals indistinguishable from quotas. . . . [a practice which is] “patently unconstitutional.”[33]

Indeed, in Grutter, Justice Kennedy made the perfectly logical point that “the numerical concept of critical mass has the real potential to compromise individual review”[34]:

The Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass.  In fact, the evidence shows otherwise.[35]

The evidence relied on by the District Court in Grutter, only later to be ignored by both the Sixth Circuit and Supreme Court, included testimony from the Law School dean wherein he described how the process worked when “critical mass” may be lacking late in the admissions cycle.

If [late in the process] you have a file from a White applicant and you do not believe you have a critical mass of underrepresented minority students at that time, it cannot be a virtue of that applicant’s file that they [sic] would contribute to the achievement of a critical mass of underrepresented minority students.

And it could be a virtue of an underrepresented minority student’s file that they will contribute to the achievement of a critical mass of underrepresented minority students.[36]

Despite the dean’s valiant effort to avoid admitting it, nothing can be plainer from his testimony than this:  If “critical mass” is lacking and there are minimally qualified underrepresented minority students still within the applicant pool, only those minority students can be considered for the positions that must be filled in order to achieve the sought-after “critical mass.”  It is, by definition, the antithesis of the “individualized consideration” arguably demanded in Grutter.[37]  In practice, nonminority applicants under a Grutter-like program are precluded from competing “on the same footing”[38] for the spots necessary to create a “critical mass” of underrepresented minority students.  Indeed, solely because of their race, they cannot “compete” at all for those “critical mass” seats.  In Grutter, it was a process designed to achieve the well-camouflaged quota of not less than 10% underrepresented minority enrollment.[39]

Turning a willfully blind eye to the uncontested facts in the trial court record, the Sixth Circuit Court of Appeals (in a highly contested 5-4 en banc ruling) asserted (falsely) that all of the Law School’s witnesses, including Professor Lempert, simply adopted the same lawyer-concocted definitions of “critical mass,” to wit: “critical mass” means nothing more than a “meaningful number” of underrepresented minority students (Munzel) or “sufficient numbers to ensure underrepresented minority students do not feel isolated or like spokespersons for their race” (Lehman).[40]

In fact, however, the record was replete with the Law School’s historical admissions data as well as early drafts of what became the eventual policy, together with Professor Lempert’s sworn testimony that “11% to 17%” underrepresented minority enrollment was required in order to achieve critical mass.  And the record established beyond question that every year the Law School was successful in achieving its desired minimum percentage target enrollment, i.e., its sought-after critical mass of underrepresented minority students by maintaining, consulting and relying on admissions grids that were broken down specifically by race and ethnicity.

The Sixth Circuit majority willfully ignored these fully supported findings by the District Court[41]

and Justice Sandra Day O’Connor compounded the Circuit Court’s error by fixating on the terms “fixed” or “rigid” when deciding whether an unlawful quota was being pursued.[42]  In other words, in O’Connor’s world, there apparently is no such thing as a minimum target number or percentage, the achievement of which under a race-conscious program would ever be construed as an unlawful quota.  Indeed, she, like the Sixth Circuit before her, blithely dismissed the extensive and undisputed trial court record and, instead, simply wrote, “We [too] are satisfied that the Law School’s admissions program . . . does not operate as a quota,”[43] after which she cites to a case[44] that (the presence of the word “fixed” notwithstanding) all but refutes her statement:

Quotas impose a fixed [i.e., minimum] number or percentage which must be attained, or which cannot be exceeded.[45]

That, of course, is precisely what Professor Lempert and the Law School’s historical documents described, to wit: a minimum percentage “which must be attained” for critical mass to exist within the class.  Indeed, both the dean and the director of admissions at the time of trial were forced to admit that “critical mass” is a “number.”[46]  If the achievement of this number (in terms of target percentage of enrollment) by resorting to the data provided on admissions grids broken down by race does not “mutate into the equivalent of a quota,” there is no such thing as a quota.

These are the hard facts that the majority in Grutter, to the dismay of Justice Kennedy, ignored.

“Critical mass” as argued in Fisher

In Fisher, an identical argument to the one made by the Law School in Grutter was put forth by UT’s lawyers.[47]

For example, during oral arguments in Fisher, Chief Justice Roberts posed the following question to UT’s counsel:

What is the critical mass of African Americans and Hispanics at the university that you are working toward?[48]

To which UT’s counsel responded, “Your Honor, we don’t have one,”[49] prompting the Chief Justice to follow up with this:  “So how are we supposed to tell whether this plan is narrowly tailored to [the goal of enrolling a critical mass of underrepresented minority students]?”[50]

UT’s counsel responded by pointing “to the same criteria [stated by] this Court in Grutter,”[51] but, of course, the decision in Grutter provided no meaningful guidance as to when “critical mass” may be achieved.

The Chief Justice in Fisher returned to this question time and again, illustrated by following:

[Chief Justice Roberts]:  . . . [M]y job, under our precedents, [is] to determine if your use of race is narrowly tailored to a compelling interest.  The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell me what that critical mass is.  How am I supposed to do the job that our precedents say I should do?

. . . [W]hen will we know that you’ve reached critical mass?

. . . Grutter said there has to be a logical end point to your use of race.  What is the logical end point?  When will I know that you’ve reached critical mass?[52]

To which UT’s counsel offered this complete and utter non-response:

[UT’s counsel]:  Your Honor, this question, of course, implicates Grutter itself.  And, again, I understood my friend [Petitioner’s counsel] not to challenge that.  They haven’t challenged that diversity is a compelling interest at all.

. . . [A]nd we think the courts can review . . . feedback directly from students about racial isolation that they experience.  Do they feel like spokespersons for their race.[53]

The Chief Justice patiently continued:

At what level will [African American enrollment at UT] satisfy . . . critical mass?[54]

Needless to say, no number or percentage was ever given.

In the end, UT’s program, like the Law School policy in Grutter, can best be described by language taken from the late Chief Justice Rehnquist’s dissent in Grutter

Stripped of its “critical mass” veil, the . . . program is revealed as a naked effort to achieve racial balancing.[55]

Conclusion

Brown v. Board of Education famously—and unanimously—held that:

The opinions of [May 17, 1954] declar[ed] the fundamental principle that racial discrimination in public education is unconstitutional . . . .  All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle.[56]

In order to return our nation to this bedrock principle, Grutter-like programs should be shuttered; and that process begins and ends in Fisher with an honest recognition by the Fifth Circuit Court of Appeals of the dishonest role played by the euphemism “critical mass.”  If the Circuit Court refuses to acknowledge that UT’s use of “critical mass” is nothing more than a means of avoiding strict scrutiny of its racially discriminatory program, these policies will continue with no end in sight; and neither the purported beneficiaries[57] nor the victims of this state-sponsored racial discrimination will have been well served.

_________________________________________________________________________________

Mr. Purdy is an attorney in private practice in Minneapolis, Minnesota.  He served as one of the pro bono trial and appellate counsel for the plaintiff in Grutter v. Bollinger, 539 U.S. 306 (2003).  His detailed analysis of Fisher v. University of Texas at Austin, 570 U.S. ___ (decided June 24, 2013) will appear in the Winter Edition of the University of Missouri Law Review (Vol. 79, Issue 1).  A shorter commentary on Fisher will also appear in a forthcoming edition of The University of San Francisco Law Review.

 


[1] Grutter v. Bollinger, 539 U.S. 306 (2003).

[2] Fisher v. University of Texas at Austin, 570 U.S. ___ (decided June 24, 2013) (“Fisher Slip Op.”):  “In Grutter, the Court [adopted Justice Lewis F. Powell, Jr.’s dictum in Regents of the University of California v. Bakke, 438 U.S. 265, 311-12 (1978)] that obtaining the educational benefits of ‘student body diversity is a compelling state interest that can justify the use of race in university admission.’”  Fisher Slip Op. at 7.

[3] Grutter, supra note 1, at 393 (Kennedy, J., dissenting).

[4] Justice Kennedy’s stated reason for not revisiting—in Fisher—the rulings in Grutter was due to the tactical decision by Fisher’s counsel not to challenge GrutterFisher Slip Op., supra note 2, at 9, 12.

[5] See Circuit Judge Emilio M. Garza’s specially concurring opinion in Fisher v. University of Texas at Austin, 631 F.3d 213, 247 et seq. (5th Cir. 2011) (“Fisher II”).

[6] Grutter, supra note 1, at 347 (Scalia, J., concurring in part and dissenting in part). Justice Antonin Scalia’s statement applies with full force to UT’s “holistic” policy, precisely modeled after the Law School policy upheld in Grutter.

[7] Grutter v. Bollinger, 137 F.Supp.2d 821, 825 (E.D.Mich. 2001) (“Grutter I”).

[8] Id., at 828 (citing page 12 of Trial Exhibit 4).

[9] Trial testimony by one Law School witness confirmed that the actual target range of “11% to 17%,” which was the range this witness believed constituted “critical mass” for underrepresented minority enrollment, “was omitted from the final version of the admissions policy because percentages . . . could be misconstrued as a quota.”  Id., at 835 (emphasis added).

[10] “[T]he written and unwritten policy at the law school charges the admissions office with assembling entering classes which consist of [at least] 10% . . . [underrepresented minority] students.”  Id., at 842 (emphasis added).

[11] Id., at 831 (emphasis added).  In addition, the testimony spoke to the stark contrast between the test score and academic gap between those admitted through “regular admissions” versus the minority applicants who were admitted through the “special admissions” program, a “contrast” that remained unchanged after the adoption of the 1992 policy.  See, e.g., id., at 833 (footnote 11) and 834 (footnote 13).

[12] Id., at 832.  Only “Native American,” “Black/African American,” “Mexican American,” and “Puerto Rican American” were considered “underrepresented” and, thus, only those applicants were given a preference based on race.  Id., at 840.

[13] Id.

[14] Grutter I, supra note 7, at 832.

[15] Id.

[16] Id., at 831-32.

[17] Id., at 834.  The dean “doubted whether critical mass would be present if only five percent of a class consisted of minority students, and he acknowledged that minority students . . . constituted at least 11% of every entering class since 1992.”  Id.

[18] For example, during oral argument in Fisher, both UT’s counsel and the United States Solicitor General were asked several specific questions relating to “critical mass.”  The Chief Justice summed up his frustration by noting, “I’m hearing a lot about what [critical mass] is not.  I’d like to know what it is . . .” Official Transcript of Oral Argument in Fisher v. University of Texas at Austin, et al. (Oct. 10, 2012) (“Official Tr.”), at 70.  The SG’s response?  “I don’t think there is a number, and I don’t think it would be prudent for this Court to suggest there is a number . . .” Id., at 71.  Nothing better illustrates the fact that deferring to a university’s view of “critical mass” when the university itself cannot quantify it makes judicial review impossible.  It also makes prescient the conclusion reached over a decade earlier by the District Court in Grutter that, “Apparently defendants know [critical mass] when they see it, but it cannot be quantified.  Narrow tailoring is difficult, if not impossible, to achieve when the contours of the interest being served are so ill-defined.”  Grutter I, supra note 7, at 851.

[19] Id., at 835 (referring to Trial Exhibit 34) (emphasis added).

[20] Id.

[21] Id. (emphasis added).  This same draft also contained a provision that would have limited these underrepresented minority admissions, i.e., those admitted “for diversity purposes,” to no more than 20% of the class.  Interestingly, one of Professor Lempert’s faculty colleagues who also served on the committee responsible for drafting the new admissions policy argued for retaining the “numbers on the ‘target range’ . . . [f]or a variety of reasons, including candor.”  Id. (citing page 1 of Trial Exhibit 32) (emphasis added).

[22]After law school and before returning to academia, Kent Syverud served as a law clerk for Justice Sandra Day O’Connor (who authored the opinion for the Court in Grutter).

[23] See Grutter Trial Transcript, Vol. 5 (Jan. 22, 2001) (“Grutter Tr. 5”) at 9-11.

[24] Id., at 74 (emphasis added).

[25] Id., at 36.

[26] Id., at 39, 68.  This testimony, though cited by the District Court (Grutter I, supra note 7, at 850), was ignored by Justice O’Connor in Grutter.

[27] Grutter Tr. 5, supra note 23, at 62.

[28] Grutter I, supra note 7, at 840 (emphasis added).

[29] Id., at 842-43 (emphasis added).

[30] Id., at 851.

[31] Id. (emphasis added).

[32] Grutter, supra note 1, at 390 (Kennedy, J., dissenting):  Kennedy referred to “uncontested” facts upon which the District Court relied in deciding that the “Law School’s pursuit of critical mass mutated into the equivalent of a quota.”

[33] Id., at 389 (Kennedy, J., dissenting) (emphasis added).

[34] Id.

[35] Id. (emphasis added).

[36] Grutter Tr. 5, supra note 23, at 176.

[37] Grutter, supra note 1, at 334 (citing to Bakke, supra note 2, at 315-316).

[38] IdAlso see id., at 323, referring to Bakke:  “Justice Powell began by stating that ‘[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.  If both are not accorded the same protection, then it is not equal.’ Bakke, 438 U.S., at 289-290.”

[39] Like every witness for the Law School, Dean Lehman could not dispute that every year since the policy (containing the phrase “critical mass”) was adopted, underrepresented minority enrollment never dropped below 11%.  Grutter Tr. 5, supra note 23, at 170.

[40] See, e.g., Grutter v. Bollinger, 288 F.3d 732, 737 (6th Cir. 2002) (“Grutter II”).

[41] The Sixth Circuit nowhere acknowledged the abundant trial evidence which proved “beyond question” that the Law School established “numerical goals indistinguishable from quotas,” Grutter, supra note 1, at 389 (Kennedy, J., dissenting), and achieved its goals each year through the use of race.  Rather than acknowledge these largely uncontested facts, the Sixth Circuit simply asserted that anything other than a “fixed goal or target” was acceptable.  See, e.g., Grutter II, supra note 40, at 747-48 (emphasis added).

[42] See, e.g., Grutter, supra note 1, at 335-36.

[43] Id., at 335.

[44] Richmond v. J.A. Croson Co., 488 U.S. 469, 496 (1989).

[45] Grutter, supra note 1, at 335 (internal quotes omitted).  Cf., Justice Kennedy’s dissent in which he describes “the instruction to attain what [the Law School] calls critical mass.”  Id., at 389 (Kennedy, J., dissenting) (emphasis added).

[46] Grutter II, supra note 40, at 747: “Director Munzel testified that ‘critical mass’ is a number sufficient so that under-represented minority students can contribute to classroom dialogue and not feel isolated.”  (Emphasis added.)  However, more telling was Dean Lehman’s response to this question during cross-examination:

Q:  Well, I assume that if you’re saying that you want to enroll a critical mass of minority students, you have to have some number [in mind] below which you would feel you have failed in that effort, is that a fair statement?

A:  Yes.

Grutter Tr. 5, supra note 23, at 201 (emphasis added).  Thereafter, Lehman resisted every effort to elicit a specific number, in any context, in response to the question, “What is that number?”  Id., at 201 et seq.

[47] See, generally, Official Tr., supra note 18, at 39, et seq., containing UT’s counsel’s responses to questions from several justices concerning the meaning of “critical mass.”  In short, like the University of Michigan in Grutter, UT adamantly resisted assigning any number to the phrase “critical mass.”

[48] Id., at 39.

[49] Id.

[50] Id.

[51] Id., at 40.

[52] Official Tr., supra note 18, at 46-47.

[53] Id., at 47.  Of course, suggesting that courts, in analyzing race-conscious programs, should rely on anecdotal evidence provided by the purported beneficiaries of these policies is absurd.

[54] Id., at 48.

[55] See, Grutter, supra note 1, at 379 (Chief Justice Rehnquist, with whom Justice Scalia, Justice Kennedy, and Justice Thomas join, dissenting).

[56] Brown v. Board of Education, et al., 349 U.S. 294, 298 (1955) (“Brown II”) (emphasis added).

[57] See, e.g., Brief Amici Curiae of Richard Sander and Stuart Taylor, Jr., in Fisher; and Sander & Taylor, Mismatch: How Affirmative Action Hurts Students It’s Intended to Help and Why Universities Won’t Admit It, Basic Books (2012).

 
 

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